Aerial spraying

A helicopter prepares to apply pesticides. A judge has invalidated an ordinance banning aerial spraying in Oregon’s Lincoln County.

An Oregon judge has invalidated Lincoln County’s prohibition against aerial pesticide spraying because the ordinance is pre-empted by state law.

Voters narrowly approved the aerial spray ban in 2017 but two landowners filed a lawsuit challenging the ordinance for overstepping the county’s authority.

Lincoln County Circuit Court Judge Sheryl Bachart has now ruled that Oregon’s Pesticide Control Act disallows local government regulation of pesticides, including aerial spraying.

“Since the ordinance seeks by its very terms to regulate pesticide use, the county is completely pre-empted under state law from adopting any ordinance regarding pesticide use,” the judge said.

The judge rejected arguments by supporters of the ban who argued the ordinance’s legality was supported by the Declaration of Independence, U.S. Constitution and Oregon Constitution, calling these claims “misplaced and without legal precedent.”

“There is simply no authority for the proposition that the people of Lincoln County are granted an inalienable right of local self-government which pre-empts any authority of the state,” Baccarat said.

The plaintiffs in the case, Rex Capri and Wakefield Farms, rely on aerially applied herbicides to control weeds on their land and asked that the prohibition be declared void.

The ordinance amounts to an “attack on the rule of law” because it claims the “right of local community self-government” overrides Oregon’s overall system of government, according to the plaintiffs.

It’s beyond the county’s power to adopt an ordinance that supersedes state and federal laws, and local restrictions on spraying are pre-empted by the state’s Pesticide Control Act, Forest Practices Act and “right to farm and forest” law, the plaintiffs said.

Supporters of the ordinance argued that all power is inherent in the people under Oregon’s Constitution, which trumps the state’s pre-emption of local regulations.

Setting a “ceiling” on the protections from toxic chemicals violates the Oregon Constitution’s “fundamental right” to local community self-government, according to Lincoln County Community Rights, a group of supporters who intervened in the case.

The authority for the local ordinance is derived from the Oregon Constitution, rather than state statutes, and thus can’t be voided by the pre-emption laws, the intervenors claimed.

Lincoln County’s ordinance is immune from state pre-emption laws, which were enacted at the behest of “corporate interests” to overrule the will of the people, according to the intervenors.

Lincoln County Community Rights has vowed to appeal the ruling and said the judge “did not substantively consider” its argument that local self-government “must prevail against state pre-emption when exercised to protect health, safety and welfare.”

I've been working at Capital Press since 2006 and I primarily cover legislative, regulatory and legal issues.

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