GMO ban could spark legal challenge

Published online: May 27, 2014
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Opponents of a ban on genetically engineered crops passed by Jackson County voters say the prohibition is ripe for a court challenge under Oregon’s right-to-farm law, which restricts private lawsuits and local ordinances against common farming practices.

“We believe there is a conflict there,” said Scott Dahlman, executive director of Oregonians for Food and Shelter, which opposed the Jackson County ballot initiative.

While there haven’t been any decisions made yet, there’s likely to be some legal action over the ban on genetically modified organisms, he said.

“We’re going to do everything we can to defend our farmers down there,” Dahlman said.

The right-to-farm law is broadly worded to protect reasonable farm practices, he said.

Farmers in the county who grow GMO crops, like biotech alfalfa, would have to plow them under within a year, Dahlman said.

They are clearly affected by the prohibition and therefore would have standing to challenge it in court, he said.

“They’ve got crops in the ground right now,” he said.

Even so, any lawsuit against the Jackson County GMO ban would face an “uphill climb,” said Tim Bernasek, an agricultural attorney who has worked for the Oregon Farm Bureau.

The question is whether growing GMO crops would be considered a protected “generally accepted” farm practice now that Jackson County voters have declared such crops illegal, he said.

The text of the ballot initiative states that “planting genetically engineered crops is not a reasonable and prudent farm practice” due to the potential for cross-pollination with organic and conventional crops.

Litigation against the GMO ban would not be surprising, said George Kimbrell, attorney for the Center for Food Safety, a non-profit that supported the ballot initiative.

However, the prohibition is “well crafted” to be congruent with the right-to-farm law and Oregon’s constitution, he said.

The right-to-farm law is meant to deal with suburban encroachment onto farmland and so the Jackson County GMO ban could withstand industry lawsuits based on that statute, Kimbrell said.

The main focus of the statute is nuisance and trespass claims against common farm practices, which doesn’t apply to the prohibition, said Ivan Maluski, executive director of Friends of Family Farmers, which supported the measure.

“That’s not what’s in play here,” Maluski said.

Last year, Oregon’s legislature passed a law preempting local governments from regulating genetically engineered crops.

Jackson County’s GMO measure, which was already approved for the ballot at that point, was exempted from that bill.

The fact that legislators carved out an exception for the Jackson County initiative indicates that they didn’t think it was precluded by the right-to-farm law, Maluski said.

Usually, attorneys for the legislature “put the brakes” on bills that would create such conflicts, he said.

Source: www.capitalpress.com