Whether Oregon’s “right to farm” law extends to the production of genetically modified crops is a central question in the legal battle over Jackson County’s prohibition against such crops.

During oral arguments on May 20, U.S. Magistrate Judge Mark Clarke questioned whether the statute was intended to protect such technology.

The legislative history seems to indicate that lawmakers passed the “right to farm” statute to prevent urban sprawl from undermining agriculture, he said

“It seems to me this situation doesn’t squarely fit into that now, does it?” Clarke asked.

The ban was approved by Jackson County voters last year, but two farms that produce biotech alfalfa filed a lawsuit challenging the ordinance’s validity.

The growers — Schulz Family Farms and James and Marilyn Frink — claim their ability to grow genetically engineered crops is protected by the “right to farm” statute, under which local governments are barred from restricting a common farming practice as a nuisance or trespass.

David Markowitz, the attorney for the farmers, said that the impetus of the law may have been urban sprawl, but “right to farm” protections are much broader.

The statute is intended to preserve the entire resource base of Oregon agriculture, which include biotech crops, he said.

Defendants also argue that Oregon lawmakers expressly authorized the GMO ban by excluding Jackson County from 2013 legislation, Senate Bill 863, that pre-empted local governments from regulating biotech seeds.

The judge asked why the legislature would pass SB 863 if biotech crops were already protected by “right to farm.”

“Doesn’t it indicate the legislature recognized the right to farm law isn’t going to preclude counties from banning GE products?” Clarke said.

“Isn’t that a pretty big pothole for your side?” he asked.

Markowitz responded that lawmakers did not intend to exempt Jackson County from any other state laws by passing SB 863, including the “right to farm” statute.

“It is a much broader and specific ban in relation to seed,” the attorney said.

The exemption created for Jackson County was simply to allow a vote on the ordinance, not to cast a judgment about whether the GMO ban would pass muster under other state laws, the farmers say.

They’re seeking an injunction that will prevent the prohibition against genetically modified organisms from becoming effective, or $4.2 million in damages if they’re forced to destroy existing alfalfa fields.

Under SB 863, Jackson County could have narrowly tailored a law that would reimburse organic farmers for actual damage from imprudent practices, Markowitz said.

However, Jackson County’s ordinance goes much further and thus violates the “right to farm” statute, he said.

“There isn’t even a suggestion that my clients have caused harm to anybody,” Markowitz said.

“It treats the prudent the same as the imprudent,” he said.

The ordinance was supposed to go into effect on June 6 but the county agreed not to enforce it until the lawsuit is resolved.

The ordinance was supposed to go into effect on June 6 but the county agreed not to enforce it until the lawsuit is resolved.

Farming genetically engineered crops is a “generally accepted, reasonable and prudent method” as required by the law, since such plants have become ubiquitous in U.S. agriculture, the plaintiffs argue.

While the Jackson County ordinance tries to avoid the “right to farm” issue by designating the production of GMOs as a “violation,” rather than a nuisance or trespass, the effect is the same, plaintiffs say.

A primary argument in favor of the ordinance was preventing the genetic contamination of conventional and organic crops with biotech traits, which amounts to the county treating GMOs as a nuisance or trespass, the lawsuit claims.

Jackson County and other parties that voluntarily intervened as defendants counter the ordinance isn’t affected by the “right to farm” statute.

Defendants argue a genetically engineered crop is not a “farming practice” that’s protected by the law — the ordinance only applies to plants with altered DNA, not the cultivation techniques necessary to grow them.

The rejection of GMO crops by 66 percent of Jackson County voters also shows that biotechnology is not “generally accepted” in the area, the county says.

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