GMO alfalfa growers challenge Oregon county’s ban

Oregon alfalfa farmers have challenged a county ban on genetically modified organisms based on the state’s right to farm law.

Oregon alfalfa growers challenging the legality of a county prohibition on genetically modified organisms have hinged their case on the state’s “right to farm” law.

The plaintiffs — Schulz Family Farms and James and Marilyn Frink — claim the GMO ban passed by Jackson County voters in May is precluded by the statute, which disallows local governments from deeming a common farming practice as a nuisance or trespass.

The complaint asks the Jackson County Circuit Court to stop the GMO ban from being enforced, or in the alternative, for $4.2 million in damages that the farmers would allegedly suffer if they must destroy their biotech alfalfa crops by June 2015.

Schulz Family Farms grows 105 acres of “Roundup Ready” alfalfa that has been genetically engineered to withstand glyphosate herbicides, while the Frinks cultivate 200 acres of the biotech crop.

Alfalfa is a perennial crop with a 10-year lifespan, so the plaintiffs will lose out on several years of harvests if they’re forced to tear out the plants, the complaint said. Furthermore, they would have to replant the fields with other crops for about four years to ensure that any biotech alfalfa volunteers aren’t allowed to survive.

The plaintiffs say they sell alfalfa for roughly $200 to $300 per ton and would lose a major portion of their income if they had to switch to less profitable crops for several years — in the case of the Frinks, the disruption would likely drive them out of farming.

The county ordinance tries to circumvent Oregon’s right to farm law by designating the cultivation of biotech crops as a “violation” rather than a “nuisance,” the complaint said.

However, the ordinance is substantively a nuisance rule because it attempts to protect non-GMO farmers from being affected by pollen from biotech crops, the plaintiffs claim.

For this reason, the ordinance is prohibited under the right to farm statute despite its “semantic maneuvering,” the complaint said.

Jackson County, which is named as a defendant in the lawsuit, does not comment on pending litigation, said Joel Benton, counsel for the county.

The Center for Food Safety, a non-profit group that supported the GMO ban, believes it’s well crafted to comply with Oregon law, said George Kimbrell, attorney for the group.

“This lawsuit is without any merit or basis,” he said.

The complaint’s sole reliance on Oregon’s right to farm law to defeat the ordinance is notable. Typically, lawsuits offer multiple legal theories because they generally can’t be refiled to include new arguments.

Similar county ordinances in Hawaii that seek to regulate GMOs are being challenged under several theories, including pre-emption by federal laws.

The alfalfa plaintiffs could not likely raise such objections to the ordinance if they lose the right to farm case.

However, there is a possibility that other growers in the county could file lawsuits that take a different legal approach.

When asked about the reliance on the right to farm statute, an attorney for the alfalfa growers said it wouldn’t be appropriate to discuss the legal strategies of similar cases in other jurisdictions.


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