Court upholds stay of temporary rule; planting stopped
By MITCH LIES
Dean Freeborn had prepared a field for planting canola and was one day removed from buying seed when he learned a temporary rule allowing him to grow the oilseed crop had been put on hold.
The Rickreall, Ore., grower now isn't sure what he'll plant in the field.
"We don't want to, but we might have to plant it back to grass seed," he said. "We were hoping to rotate out of it."
Freeborn learned Aug. 31 that the Oregon Court of Appeals had upheld a court-ordered stay of a temporary rule that would have allowed canola production on nearly 1.7 million acres in the Willamette Valley.
The ruling eliminates any chance Freeborn and others had of planting canola this fall.
Canola production has been off-limits in the valley since 2009 when the Oregon Department of Agriculture adopted restrictions on its production.
"Canola is something we could grow and make some money off of, and not being allowed to do it is very frustrating," Freeborn said.
The Aug. 31 decision by Rick T. Haselton, chief judge of the Oregon Court of Appeals, puts on hold any plans to grow canola in the valley until next spring at the earliest.
By then, the ODA could have in place a permanent rule allowing some canola production in the valley.
The proposed permanent rule will be the subject of a public hearing Sept. 28 at the Oregon State Fairgrounds, beginning at 9 a.m.
The permanent rule, like the temporary rule, would allow canola production on nearly 1.7 million acres in the valley, while prohibiting its production on 2 million acres in the heart of the valley, where more than 80 percent of specialty seed in Oregon is produced.
The ODA put in place restrictions on canola production in the valley to protect a specialty seed industry from increased disease and pest pressure that vegetable seed and fresh vegetable growers say is inevitable if canola is produced here.
The specialty seed growers also claim canola will cross pollinate with fellow brassica crops, such as broccoli, radish, cabbage and turnips, rendering their seed crops unmarketable.
Prospective canola producers and members of the oilseed industry said the temporary rule was a reasonable compromise that allows some canola production, yet protects the specialty seed industry.
In the court's Aug. 31 decision to keep in place the stay, the court wrote the state's argument that it would prevail in a case on the merits of the rule was not convincing. In part, the court wrote, the state failed to show that a temporary rule was justified, because the state could not show that not adopting the rule would harm growers.
Under Oregon law, a state agency adopting a temporary rule must show that not adopting the rule will cause some harm.
ODA spokesman Bruce Pokarney said judicial actions to date have not affected department plans to move forward on rule making for its proposed permanent rule, which mirrors the temporary rule.
"We haven't changed the proposed permanent rule, and we don't have any plans to change it until we go through the public process," he said.
"Based on the comments we receive, we still could possibly modify it," Pokarney said.
Jeff Manning, spokesman for the Oregon Department of Justice, said the lawyer that argued the case before the Court of Appeals does not believe the ruling on the temporary rule addressed the merits of canola production in the valley.
"It was more narrow than that," Manning said.
In the ruling, Haselton wrote: "To be sure, petitioners have not demonstrated a certainty of irreparable harm." But, he wrote, the petitioners have "demonstrated a sufficient likelihood of severe and irremediable harm as to warrant the requested stay."
Interested parties can comment on ODA's proposed permanent rule by emailing: email@example.com , or by mailing comments to: Canola Hearings Officer; ODA; 635 Capitol St. N.E.; Salem, OR 97301.