Litigation over the genetically engineered crop ban in Oregon’s Jackson County is now expected to focus on whether the government took farmers’ property without just compensation.

A federal judge on May 29 rejected the argument by two alfalfa farms that Oregon’s “right to farm” law rendered the prohibition invalid.

U.S. Magistrate Judge Mark Clarke said the “right to farm” statue prohibits ordinances and lawsuits that treat a common farming practice as a trespass or nuisance, but it does not protect activities that harm commercial agriculture.

Oregon’s legislature passed the law to shield farmers from urban encroachment and complaints about smells, noises and other irritations, he said.

“While farming practices may not be limited by a suburbanite’s sensitivities, they may be limited if they cause damage to another farm’s crops,” Clarke said.

Growers are able to file lawsuits over such grievances under the “right to farm” statute, and Jackson County’s ordinance simply “serves to prevent such damage before it happens” — even if it hasn’t yet occurred, he said.

While Clarke has dismissed the farmers’ arguments regarding “right to farm,” their claim seeking $4.2 million in compensation from Jackson County remains alive in the case.

The growers, Schulz Family Farms and James and Marilyn Frink, argue that forcing them to remove about 300 acres of herbicide-resistant “Roundup Ready” alfalfa amounts to the county condemning their property for public use, which requires just compensation.

“Their right to make a living, support their families and contribute to the local economy will be seriously damaged by the ban — costing them millions of dollars,” said Shannon Armstrong, attorney for the farmers, in an email.

The lawsuit argues that Jackson County’s ordinance is a form of “inverse condemnation,” in which the government takes private property without using its power of eminent domain.

It would be easier for the farmers to prevail if they convince the judge that the ban on genetically modified organisms is a “physical taking” of their property, said Paul Sundermier, an Oregon attorney specializing in takings and condemnation cases.

They can also claim that the GMO ban is a “regulatory taking,” but this is a tougher legal route because the plaintiffs would have show the ordinance eliminated all the economically viable use of their property, Sundermier said.

“Regulatory takings are very difficult to prove,” he said.

The question would then be whether removing the alfalfa completely wipes out its value, since the farmers may still be able to sell the hay even if they ultimately kill the perennial plant.

Even as the case shifts to government takings, it’s possible that the “right to farm” argument may be resurrected on appeal.

The plaintiffs could wait until the entire case is finished before challenging Clarke’s findings or obtain a partial judgment that they could appeal earlier, among other options.

Capital Press was unable to reach Jackson County for comment. The ordinance was set to take effect on June 5 but the county previously agreed not to enforce the prohibition until there’s a judgment in the case.

The Center for Food Safety, a nonprofit critical of biotech crops, considers the ruling a “big win” but expects the plaintiffs will challenge it before the 9th U.S. Circuit Court of Appeals, said George Kimbrell, senior attorney for the group.

The judge has recognized that genetically engineered crops pose a significant commercial threat to non-biotech growers, which was a key issue in the litigation, Kimbrell said. “This case is a resounding affirmation of the right of farmers to protect themselves from GE contamination.”

Most Oregon counties are pre-empted from regulating GMOs under Senate Bill 863, passed by lawmakers in 2013. The legislature excluded Jackson County from the legislation because its GMO prohibition initiative was already on the ballot when SB 863 was enacted.

Roughly two-thirds of Jackson County voters approved the measure in a 2014 election. The county includes the cities of Ashland and Medford.

The alfalfa farmers argued that SB 863 did not affect the “right to farm” law, which they interpreted as protecting their genetically engineered alfalfa crops from being destroyed regardless of the GMO ban.

The judge disagreed, pointing to testimony from lawmakers representing the county who claimed the ordinance was necessary to avoid unwanted cross-pollination between biotech crops and those that are conventional or organic.

Former Gov. John Kitzhaber also stated that Jackson County was specifically exempt from Senate Bill 863, the state pre-emption law, when he pushed lawmakers to approve it, said Clarke.

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