ODA: ‘Right to farm’ law protects hemp growers

Hemp grows in a field in Oregon. The U.S. Food and Drug Administration has refused to regulate a hemp extract as a dietary supplement, dealing a setback to the industry.

KLAMATH FALLS, Ore. — Oregon’s Douglas County attempted to restrict hemp production under rules for growing marijuana before being warned the policy violated the state’s “right to farm” law.

Hemp is considered a crop under Oregon’s land use law, which means it can be grown outright in farm zones.

Medical and recreational marijuana, meanwhile, can be subject to reasonable “time, place and manner” regulations by local governments.

Before planting hemp, farmers must first obtain a permit from the Oregon Department of Agriculture.

As part of its hemp policy, Douglas County requested that ODA not approve hemp licenses unless county officials issued a “land use compatibility statement” to the growers.

The ODA refused because such regulation of hemp would violate Oregon’s “right to farm” law, which prohibits local ordinances restricting common farming practices as nuisance or trespass activities.

Douglas County and ODA have now agreed that hemp production isn’t subject to restrictions, though county officials can still ask to inspect a grower’s state hemp license, said Jim Johnson, ODA’s land use specialist, during a Sept. 19 meeting of the Oregon Board of Agriculture in Klamath Falls.

However, Johnson said other counties — including Jackson, Josephine and Clackamas — may be considering similar regulatory approaches to hemp as had Douglas County.

“All these counties have vocal rural residential populations that don’t like cannabis,” he said.

While hemp doesn’t contain enough of a psychoactive substance to cause similar mind-altering effects as marijuana, some residents nonetheless worry about strong odors and potential “criminal elements,” he said.

“It’s all the same concerns being expressed,” said Johnson.

While ODA objected to regulation of hemp growing, it has acknowledged Douglas County can restrict processing of the crop, similarly to other farm products.

Exactly what constitutes “processing” — as opposed to crop “preparation,” which is allowed outright in farm zones — will likely vary on a case-by-case basis, Johnson said.

Another concern is if county governments begin charging fees to inspect hemp-growing licenses, he said.

“It’s something we’re going to keep an eye on,” Johnson said.

Other battles over land use in agriculture are also brewing, Johnson said.

Solar projects on high-value farmland are controversial, and two proposals approved by local officials in Jackson and Clackamas counties are being challenged before the Oregon Land Use Board of Appeals, he said.

“We’re going to start to get some case law on that,” he said.

Oregon’s Land Conservation and Development Commission may also soon decide to review rules for solar facilities on farmland, he said.

Such efforts are likely to be opposed as unnecessary by the solar industry, Johnson said. “I anticipate this will be a real fun one.”

Another likely source of controversy is the proposed rezoning of about 800 acres in Columbia County from farm use to industrial use, he said.

The expansion of “Port Westward” is located close to the Columbia river but it also contains prime farmland with irrigation infrastructure and “phenomenal” drainage facilities, Johnson said.

“It’s got all the things highly productive agriculture requires,” he said.

One case that’s attracted a lot of attention probably won’t have much of an impact on Oregon agriculture overall, Johnson said.

In August, the Oregon Court of Appeals upheld an order requiring a Jackson County couple to pay more than $200,000 in damages to neighbors and to have their dogs devocalized, or “debarked.”

On its face, the ruling would seem to raise “right to farm” issues, but the dog owners did not established they were engaged in a commercial farm activity, Johnson said.

For that reason, the ruling isn’t likely to set a legal precedent for other farmers who rely on guard dogs, he said.

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