Oregon’s Jackson County has agreed not to enforce a ban on genetically modified crops until a lawsuit over the prohibition is decided.
Alfalfa farmers — Schulz Family Farms and James and Marilyn Frink — filed a lawsuit last month challenging the legality of a county ordinance banning GMOs, which was passed by voters earlier this year.
Attorneys for the county and farmers have now jointly filed a proposed order that would enjoin enforcement of the ordinance “to allow for adequate time for the parties to brief and argue, and for the court to rule on, the validity of the ordinance as a matter of law.”
Farmers would otherwise be required to destroy all genetically engineered crops in the county by June 6, 2015, a year after the ordinance was enacted.
While Jackson County has agreed to postpone the GMO ban’s enforcement, it has filed an answer to the farmer’s complaint that indicates it plans to defend the ordinance’s legality.
The farmers claim the GMO ban violates Oregon’s “right to farm law,” which disallows local governments from passing nuisance or trespass rules against common farming practices.
Although Jackson County’s ordinance deems the cultivation of GMOs a “violation,” it is effectively a nuisance or trespass regulation because its stated purpose is to protect organic farmers’ crops from cross-pollination with biotech varieties, the complaint said.
In its response, the county refutes the farmers’ legal arguments that the “right to farm law” precludes the GMO ban.
Oregon lawmakers “expressly permitted” the ordinance when they passed a bill last year that pre-empted regulation of GMOs by local governments other than Jackson County, the response document said.
At the time, an initiative seeking to ban GMOs was already approved for the ballot in Jackson County, so the legislature excluded it from the pre-emption bill.
Attorneys for the county argue that the legislature’s permission for Jackson County’s GMO ban is proof it does not conflict with Oregon’s “right to farm” law.
The plaintiffs have also failed to prove they have a right to grow genetically engineered alfalfa and “assumed the risk of a GMO ban” when they planted their crops, the county said.
The county has also transferred the case to federal court. The complaint was initially filed in Jackson County Circuit Court.
Plaintiffs can challenge the transfer of a case if they claim there’s no federal jurisdiction over the lawsuit, said David Hanselman, an antitrust and class action attorney who has written about the issue.
According to Jackson County, the lawsuit belongs before a federal judge because it involves the constitutional principle of government taking property without just compensation.
Defendants often prefer to litigate in federal court because jury verdicts must be unanimous in civil cases, which sets a higher bar for the plaintiffs, said Don Rushing, a trial attorney who recently wrote a report about such transfers.
In Oregon state court, it’s enough for three-fourths of a jury to render a verdict in civil cases.
A defendant may also think that federal judges are more familiar with complex legal questions that require in-depth hearings, said Hanselman.
“It may feel a federal court has more experience with the substantive issue,” he said.