Judge dismisses lawsuit taking issue with ag protections

By MATEUSZ PERKOWSKI

Capital Press

A lawsuit that challenged the constitutionality of Oregon's "right-to-farm" law has been dismissed by a state judge.

Lane County Circuit Court Judge Karsten Rasmussen agreed with the State of Oregon that the case should be thrown out, though the three-sentence ruling issued earlier this month doesn't explain the rationale for the decision.

The state's Right to Farm and Forest Act provides farmers and foresters with immunity against nuisance and trespass claims as long as their practices are "reasonable and prudent" and comply with the law.

The dismissal of the lawsuit comes as a relief for members of the Oregon Farm Bureau, said Barry Bushue, its president and a farmer near Boring, Ore.

"It threatened agriculture and forestry in the state," he said, noting that the law helps protect farms from conflicts with urban neighbors. "They don't understand the dust, the noise, the need for ag protection products."

Capital Press was unable to reach an attorney who represented the seven landowners who filed the lawsuit in July.

In the complaint, plaintiffs claimed to have been damaged by their neighbors' farming and forestry activities but were unable to seek a remedy in court due to Oregon's right-to-farm law.

Gary Hale, Jan Wroncy and their son Forest Hale of Blachly, Ore., contended that their organic crops, water and other property were damaged by herbicides, fertilizers and smoke from nearby operations.

They had previously sued their neighbors over the alleged damages but then dropped the lawsuit and were ordered to pay the defendants' attorney fees, according to court documents.

Carolyn Ashlock and Warren Trotter of Sublimity, Ore., and David Eisler and Sarah Sheffield of Walton, Ore., made similar accusations regarding chemical drift from neighboring properties.

The plaintiffs filed suit against the State of Oregon, asking the judge to declare that its right-to-farm statute was unconstitutional because it deprived them of the right to sue for compensation.

The State of Oregon countered that the plaintiffs had filed their complaint against the wrong defendant, since the state isn't in charge of enforcing the law.

Rather, the statute can be brought up as a legal defense by a farmer or forester facing litigation, the state's attorneys said in court documents.

The court lacks jurisdiction to settle the dispute and even if it did, a ruling wouldn't resolve the controversy since the dispute is between the plaintiffs and their neighbors, the state said.

The court has apparently agreed, though the ruling may not be the end of the story.

Plaintiffs can still appeal the dismissal, and if they win, the fundamental questions of the case could be remanded to the judge, said Tim Bernasek, an attorney specializing in agriculture who has followed the litigation.

"This was a pure legal procedural issue," he said.

The issue could also be resurrected if a lawsuit is filed against a farmer or forester who uses the right-to-farm law as a defense, Bernasek said.

Bushue of the Oregon Farm Bureau said he wouldn't be surprised if a similar challenge were to come forward.

Some people want to use litigation to conform agricultural practices to their liking -- a disconcerting concept, he said. "Farming is too diverse to have one method of production."