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UPDATE: One Year after Jackson County Bans GE Crops, Center for Food Safety Successfully Defends Family Farmers’ Right to Protect Against GE Contamination.

By Amy van Saun, Legal Fellow, Center for Food Safety

June 01, 2015
Center for Food Safety

UPDATE (May 30, 2015): Victory!

On May 29, 2015, the Oregon District Court upheld Jackson County’s law prohibiting the cultivation of genetically engineered crops.  Judge Mark D. Clarke rejected the Plaintiff GE growers’ challenge based on the Oregon Right to Farm Act, finding that Jackson’s ordinance was intended to protect traditional and organic farmers from damage to their commercial agricultural products via transgenic contamination. The court reasoned that the Right to Farm Act was enacted to protect farmers from suburban encroachment and any resulting challenges to activities commonly associated with farming, but “does not give free license to use any farming practices.”  Rather, farming that “cause[s] damage to another farm’s crops” may lawfully be limited, by private enforcement or local government regulation. In short, the Right to Farm Act allows local governments to regulate agriculture to prevent damage to other local farmers before it happens. Because the Right to Farm Act exempts local laws that prevent damage to commercial agricultural products, the court held that Jackson’s ordinance fell squarely into this exception and upheld it as valid.  

This ruling is not only a victory for the hundreds of family farmers and local agricultural businesses in Jackson that supported the ordinance; it is also a decisive confirmation of the right of farmers to protect themselves from the threat of transgenic contamination.  As the first decision to address the validity of a GE-free zone under a state Right to Farm Act (which exist in some form in all 50 states), it serves as a precedent for local regulation of GE crops to protect farmers and the future of our food supply.  Due a lack of federal oversight of agricultural biotechnology or any regulation to prevent harm from GE crops to traditional and organic farmers, farming communities are increasingly looking to local regulation to protect their livelihoods. Consequently, GE-free zones have already been created in numerous other counties and cities around the United States.   

Original post (May 26, 2015):

Right now, Center for Food Safety (CFS) is fighting to protect democracy and local control of agriculture.  On May 20, 2015, CFS and its co-counsel at the Earthrise Law Center argued before a federal court in defense of a Jackson County, Oregon Ordinance prohibiting GE crops, enacted exactly one year ago.  On May 20, 2014, the voters of Jackson County overwhelmingly voted to protect local farmers from transgenic contamination by making the county a GE crop-free zone.  This landmark victory for traditional farmers was particularly impressive given the amount of out-of-state money (nearly $1 million) poured into the County by chemical corporations to defeat the measure.  150 family farmers and local Granges endorsed the Measure, and it passed by a landslide. In enacting Ordinance 635, Jackson joined numerous other counties in various states, including California, Hawai’i, and Washington, which have created GE-free zones by regulating GE organisms in some manner. 

In November 2014, two farmers growing GE Roundup Ready alfalfa, backed by agricultural biotechnology and chemical companies, challenged Ordinance 635 in court. They claim that the Ordinance is preempted by the Oregon Right to Farm Act, or they are owed millions of dollars by the County for being forced to destroy their property when the year-long grace period for GE crops ends on June 6, 2015.  Supporters of the Ordinance intervened to help the County defend the Ordinance, including Center for Food Safety and Our Family Farms Coalition, and two individual Jackson farmers, Chris Hardy and Oshala Farm. 

This Wednesday, the parties convened at the federal courthouse in Medford, OR for oral arguments on the GE alfalfa farmers’ first claim regarding the Right to Farm Act.  The hearing was well attended by supporters of the Ordinance, who filled the small courtroom and spilled out into the lobby.  The challengers of Ordinance 635 argued that it is preempted by the Right to Farm Act, which restricts the kinds of legal claims people can bring against farmers for certain activities associated with farming, such as dust, noise, smells, and pesticides. The law was enacted in the 1980s, as Judge Clarke recognized, to prevent litigious suburbanites from moving into Oregon’s rural areas and suing farmers (and foresters) for farming practices commonly associated with agriculture. While the challengers were forced to acknowledge this broad purpose, they nevertheless argued that the GE-free Ordinance is invalid under the Right to Farm Act.  In order to be entitled to protection under the Right to Farm Act, the challengers must prove that GE farming is both generally accepted and reasonable and prudent. They must also prove that the Ordinance does not fit within an exception to the Right to Farm Act for damage to commercial agricultural products. 

However, as proponents of Ordinance 635 argued, the GE-free zone was created for the exact purpose of preventing harm from transgenic contamination to other farmers in Jackson, where GE crops are neither generally accepted, nor reasonable and prudent due to the risk of GE contamination.  Indeed, the number one reason given in favor of the Ordinance was the damage from GE contamination to family farmers in Jackson, which undermines farmers’ ability to sell crops into both global (Asia and Europe) and local markets.  GE seeds and pollen can drift onto other farmers’ fields, rendering traditional or organic crops unsellable (in particular, seed crops, common in Jackson County).  The likelihood of this type of contamination is particularly high in Jackson, given its narrow geography, windy conditions, and high percentage of small and organic farms (half of all Jackson farms report using organic practices).  Even the threat of GE contamination harms farmers though increased burdens such as contamination prevention efforts, lost market opportunities, and loss of customer trust. Given Jackson County’s high percentage of organic farms and local markets for organic and non-GE food, as well as Jackson’s position as a premier vegetable seed producer, it is no wonder that Jackson voters and its farming community voted to create a GE-free zone.

Outrageously, the parties challenging the Ordinance deny that transgenic contamination is a problem, despite an undeniable history of GE contamination in crops throughout the country and world (corn, rice, alfalfa, wheat, canola, flax, sugar beets, and grasses), including several that took place in the Northwest (alfalfa, wheat) and are indicative of the constant threat of GE contamination that heavily burdens conventional and organic farmers everywhere. Moreover, as supporters pointed out to the Judge on Wednesday, GE crops have already caused harm to Jackson farmers in the form of field trials of Roundup Ready sugar beets. Prior to the Ordinance, several farmers with beet and chard seed crops suddenly, without prior notice, found Syngenta field trials of GE sugar beets planted within pollination distance of their farms.  Given the high risk of contamination, these farmers were forced to tear out their seed crops. It is this harm that the people and farming community of Jackson County sought to avoid in creating the GE-free zone, and proponents of Ordinance 635 argue that Jackson County has the right to do under Oregon law.  

This is the first time that a court will rule on the question of whether local regulation of GE crops is preempted by any state’s Right to Farm Act. A ruling on the parties’ motions will likely come soon, possibly by the end of May.

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