'Reasonable and prudent' sparks debate on all sides

By MITCH LIES

Capital Press

The Oregon Board of Agriculture is gauging the support among agricultural organizations for clarifying Oregon's right-to-farm law.

At a meeting in December, the board asked Oregon Department of Agriculture land use specialist Jim Johnson to ask different agricultural organizations if they would like to see language in the law more clearly defined.

"The concern is if we don't do something, will there be a political solution that will not be good for agriculture?" Johnson asked.

"The interpretive sections of right to farm have to be interpreted," he said. "The question is, do we want somebody else to do it, or do we want to do it?"

Oregon's right-to-farm law protects farmers from nuisance complaints when farmers are conducting "generally acceptable" and "reasonable and prudent" farm practices.

Johnson said he hasn't testified in a right-to-farm case in nearly 10 years, though the department fields between 10 and 20 complaints a year. In that case, Johnson testified the farm practice under scrutiny was "reasonable and prudent," but the Hood River Circuit Court judge ruled against the farmer anyway.

The Oregon Court of Appeals in 2004 overturned the circuit court decision, but not before the defendant, Francis Mazzara, had spent thousands of dollars defending his use of dogs to protect goats.

Oregon's right to farm law was tested again last year in Lane County Circuit Court. A judge threw out the case on procedural grounds.

Johnson said several phrases in Oregon's right-to-farm law are subject to interpretation, including "generally acceptable" and "reasonable and prudent," arguably the law's two most critical phrases.

"I could interpret that to mean one thing," Johnson said. "You could interpret that to mean another."

New farm practices, for example, might not be covered under the law, he said.

Employing propane canons to scare birds from grapes could be considered "reasonable and prudent," Johnson said. "But under what circumstances?"

Is firing canons once a minute more acceptable than, say, six times a minute?

Tim Bernasek, an agricultural lawyer for the Portland firm Dunn Carney, said he is wary of trying to define what is and isn't an acceptable practice.

"If you put something in statute that says one practice is acceptable, if it is not covered, then (a lawyer) is going to argue it is not an acceptable practice," he said.

"There may be ways to do it," Bernasek said. "We just want to be really careful."

Johnson acknowledges that trying to define in law what is and isn't an acceptable practice will be difficult, especially considering the differences in agricultural practices in Oregon's diverse farming environment.

Still, he said, ambiguity in the law may be more disconcerting.

"Flexibility is a double-edged sword," Johnson said.