Landowner challenges Oregon county’s aerial spray prohibition

A helicopter prepares to apply pesticides. A lawsuit is challenging a ban on aerial pesticide spraying on Oregon's Lincoln County.

A forestland owner is challenging a prohibition against aerial pesticide spraying in Oregon’s Lincoln County that was recently approved by voters.

Rex Capri has filed a complaint against the county seeking to overturn the ordinance because it’s pre-empted by state laws and violates the Oregon Constitution.

Lincoln County will respond to the lawsuit but it’s still reviewing whether to actively defend the ban, said Bill Hall, a county commissioner.

However, the county does agree with Capri that an injunction should be issued against a provision in the ordinance allowing “direct action” against aerial spraying, Hall said.

The ballot initiative, narrowly approved with 50.2 percent of the vote during a May 16 special election, allows citizens to enforce the law through “direct action” if the county government or court fail to uphold the ordinance.

The provision would free “direct action” enforcers from facing criminal or civil liability for their activities.

Due to the possibility that “direct action” may result in property damage or physical violence, the county believes the provision should be blocked, Hall said.

Proponents of the ordinance claim the concerns over “direct action” vigilantism are overblown.

The provision would only become effective once it becomes clear the county government and courts won’t enforce the ordinance, which would not take place immediately, said Kai Huschke, Northwest organizer for the Community Environmental Legal Defense Fund, which helped local supporters draft the measure.

It’s unlikely the extreme scenarios envisioned by the initiative’s opponents would ever transpire, he said. “You can create fear out of anything if you want.”

Lincoln County’s commissioners opposed the ballot initiative so it would be unsurprising if they decided against defending the ordinance, Huschke said.

The CELDF has proposed representing local ordinance supporters as intervenors in the case without charge, but proponents have yet to accept that offer, he said.

Although Oregon law pre-empts local restrictions on pesticide usage, Huschke said the policy undermines constitutional protections for citizens.

“The courts have gotten it wrong,” he said.

While it’s clear that ordinances such as Lincoln County’s are pre-empted, a court challenge is still necessary — particularly in light of the “direct action” provision that could lead to vandalism, said Scott Dahlman, policy director for the Oregonians for Food and Shelter agribusiness group.

“That’s very risky for an applicator,” Dahlman said.

Opponents of the ballot initiative argued that existing regulations disallow pesticide drift and impose other restrictions on aerial spraying, while the ordinance would effectively let people take the law into their own hands.

Dahlman characterized CELDF as a “fairly radical group” that believes all decisions should be made at the local level.

The group initially advocated against “fracking” — a method of oil extraction — but has more recently turned its attention to opposing pesticide use in the Northwest, he said.

“I can only assume it’s because they think it’s a fertile ground for their agenda,” Dahlman said. “I can’t say they’re the entire genesis, but they’re a very active part of it.”

Huschke said CELDF assists local organizers when they reach out for assistance.

“We don’t look at a map and decide we’re going to be somewhere,” he said.

Recommended for you