A legally unenforceable ban on commercial pesticide use proposed in Oregon’s Josephine County is nonetheless troublesome to farmers and other pesticide users who worry it will spur vandalism.
Under Measure 17-63, a county ballot initiative in the November election, licensed corporate and government applicators would be prohibited from using pesticides on land in Josephine County. The ban would not apply to residential properties.
If local governments and courts refuse to enforce the ban, the ordinance would allow people to take “direct action” and use “any activities or actions carried out to directly enforce the rights and prohibitions contained within this ordinance.”
While the Oregon Legislature pre-empted local governments from regulating pesticides roughly 20 years ago, the ordinance could make people feel justified in vandalizing spray rigs or other equipment, said Scott Dahlman, executive director of Oregonians for Food and Shelter, which supports pesticide use.
“This measure is absolutely extreme,” Dahlman said. “It goes beyond a simple regulation.”
The prospect of vandalism against commercial pesticide users is not far-fetched considering two incidents in neighboring Jackson County last year, in which 6,500 genetically engineered sugar beet plants were destroyed, he said.
Aside from potential problems arising from “direct action,” the ordinance could prove costly for Josephine County if anti-pesticide activists try to compel the county government to enforce the ban through litigation, Dahlman said.
The ordinance is also misguided, as it would prevent licensed applicators from using pesticides that would still be available to homeowners with less training and experience, he said.
Supporters of the pesticide ban claim it’s necessary due to inaction by federal and state authorities.
“There is no guardian at the gate,” said Audrey Moore, director of the Freedom from Pesticides Alliance, which supports the measure.
When asked about the state law that precludes counties from restricting pesticide use, Moore said her group’s attorneys think the ordinance passes muster under the Oregon Constitution.
“The purpose of it is to override the pre-emption,” she said. “That’s the chemical cartel having their claws in our legislative body.”
Moore said she believes there is a “cancer cluster” in her area caused by helicopter spraying of pesticides, but residents haven’t been able to convince the state government to investigate.
The possibility of “direct action” is seen as a “last resort if the system fails us,” she said. “There’s some teeth to this initiative.”
Potential vandalism is a “scare tactic” by the ordinance’s opponents, said Moore, adding that she envisions “direct action” as standing in front of a truck to stop chemical delivery, rather than destroying property.
However, opponents of the measure are uneasy about the vague definition of “direct action” — “any activities or actions” to enforce the ban — which they believe could include assault and trespass.
In an explanatory statement, Josephine County’s legal counsel, Steven Rich, said “the measure would prohibit any civil or criminal action against the enforcers.”
Realistically, though, such a provision “would not have any force of law,” said James Foster, a political science professor at Oregon State University.
A county cannot “cherry pick” circumstances under which state or federal criminal laws will go unenforced, he said. “That is fantasyland.”
As for the ordinance superseding the state’s pre-emption of pesticide regulation, it’s also a legal impossibility, Foster said. That could not happen unless Oregon voters changed the state constitution to allow for such control by local governments, Foster said.
“Cities and counties are legal creatures of the state government,” he said. “The state legislature has the ultimate authority. The state legislature has the final word.”