A federal judge also found that lawmakers intended to permit the GMO ban when they excluded Jackson County from a 2013 bill that pre-empted other local governments from regulating biotech crops.

A federal judge has rejected a request by two Oregon alfalfa farms to block Jackson County’s ban on genetically engineered crops from going into effect.

U.S. Magistrate Judge Mark Clarke has found the GMO ban is not pre-empted by the state’s “right to farm” law, thereby allowing the ordinance to become effective on June 5.

The “right to farm” statue prohibits ordinances and lawsuits that treat a common farming practice as a trespass or nuisance, but it does not protect activities that harm commercial agriculture, the judge said.

Oregon’s legislature passed the law to shield farmers from urban encroachment and complaints about smells, noises and other irritations, he said.

“While farming practices may not be limited by a suburbanite’s sensitivities, they may be limited if they cause damage to another farm’s crops,” Clarke said.

Growers are able to file lawsuits over such grievances under the “right to farm” statute, and Jackson County’s ordinance simply “serves to prevent such damage before it happens” — even if it hasn’t yet occurred, he said.

Clarke also found that lawmakers intended to permit the GMO ban when they excluded Jackson County from a 2013 bill that pre-empted other local governments from regulating biotech crops.

He pointed to testimony from lawmakers representing the county who claimed the ordinance was necessary to avoid unwanted cross-pollination between biotech crops and those that are conventional or organic.

Former Gov. John Kitzhaber also stated that Jackson County was specifically exempt from Senate Bill 863, the state pre-emption law, when he pushed lawmakers to approve it, said Clarke.

Plaintiffs in the case — Schulz Family Farms and James and Marilyn Frink — claimed that SB 863 did not affect the “right to farm” law, which they interpreted as protecting their genetically engineered alfalfa crops from being destroyed.

While Clarke has dismissed the farmers’ arguments regarding “right to farm,” their claim seeking $4.2 million in compensation from Jackson County remains alive in the case.

The growers argue that forcing them to remove about 300 acres of herbicide-resistant “Roundup Ready” alfalfa amounts to the county condemning their property for public use, which requires just compensation.

Capital Press was unable to reach the plaintiffs or Jackson County for comment.

The Center for Food Safety, a nonprofit critical of biotech crops, considers the ruling a “big win” but expects the plaintiffs will challenge it before the 9th U.S. Circuit Court of Appeals, said George Kimbrell, senior attorney for the group.

The judge has recognized that genetically engineered crops pose a significant commercial threat to non-biotech growers, which was a key issue in the litigation, Kimbrell said. “This case is a resounding affirmation of the right of farmers to protect themselves from GE contamination.”

Written by Mateusz Perkowski for Capital Press, May 29, 2015. Submitted to Kettle Moraine Publications by Cliff Beneventi.

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