Judge: No “blanket immunity” for aspiring marijuana growers facing lawsuit

Marijuana plants grow in a high tunnel at a farm near McMinnville, Ore. A judge has refued to dismiss a lawsuit filed by neighbors against a planned marijuana operation in Oregon's Yamhill County.

Oregon’s “right to farm” law doesn’t provide aspiring marijuana growers with “blanket immunity” from a lawsuit filed by grape-producing neighbors in Yamhill County, a judge has ruled.

Yamhill County Circuit Court Judge John Collins has denied a motion to dismiss a complaint against the marijuana operation planned by Steven and Mary Wagner, and their son Richard.

A nearby vineyard owner, Momtazi Family LLC, claimed the marijuana odors would damage wine grapes with “foul-smelling particles” and sought an injunction against cultivation of the psychoactive crop.

The lawsuit was joined by Harihari and Parvathy Mahesh, neighbors who haven’t yet planted a vineyard but plan to do so.

Last month, the Wagners asked the judge to throw out the lawsuit because there was no evidence that marijuana odors would cross property lines and because the planned marijuana operation wasn’t yet definite.

“You don’t get to file a lawsuit with no facts, sheer conjecture, pure speculation about what will happen,” said Allison Bizzano, their attorney, during oral arguments on Oct. 11 in McMinnville, Ore.

Richard Brown, attorney for the plaintiffs, countered that it’s common to enjoin activities that haven’t yet occurred but that would cause damage.

“If the court allows them to develop the property first, it’s the equivalent of letting them pull the trigger,” Brown said.

Judge Collins sided with the plaintiffs on this issue, ruling that an injunctions can be a preventative remedy meant to “stay the lawless hand before it strikes the blow,” based on a legal precedent from 1914.

“While this language from an old case might be seen as somewhat arcane today, the principle remains: A party may seek injunctive relief not just to halt an ongoing harm, but also to head off that harm if the harm can reasonably be predicted to occur in the reasonably near future,” he said.

The judge also disagreed with the defendants that the case is barred by the “right to farm” law, which prohibits nuisance and trespass lawsuits against common farming practices.

A provision from that law clarifies that it doesn’t protect against lawsuits alleging “damage to commercial agricultural products.”

“Plaintiffs’ vineyard and, more specifically, grapes, certainly fall within this term and plaintiff adequately alleges damage or potential damage to that product,” Collins said.

While the “right to farm” law does not provide blanket immunity against the lawsuit, it can still be raised as an “affirmative defense to be addressed at a later stage in the case,” he said.

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