Judge strikes down GMO ban in Oregon’s Josephine County

The prohibition against genetically engineered crops in Oregon’s Josephine County has been struck down by a judge who ruled the ordinance is pre-empted by state law.

Voters in the county approved the ban on genetically modified organisms, or GMOs, in 2014 even though state lawmakers disallowed local governments from regulating the crops the prior year.

Proponents of the GMO ban claimed that the state pre-emption was unconstitutional, but Josephine County Circuit Court Judge Pat Wolke has rejected that argument and held the county ordinance to be invalid.

“The state law says that the localities may not legislate in this area; and the voters of Josephine County have attempted to legislate in the exact same area. It is impossible to read the two enactments in harmony; so that the local ordinance must give way,” Wolke said in the May 16 ruling.

Farmers Robert and Shelley Ann White challenged the legality of the GMO ordinance last year, arguing it had prevented them from planting biotech sugar beets on 100 acres of leased property.

During oral arguments in April, much of the debate focused on whether the Whites had legal standing to file the case.

Supporters of the GMO ban called them “hobby farmers” who filed a “manufactured lawsuit” on behalf of agribusiness lobbyists and didn’t have a valid lease to the 100 acres or a contract to grow biotech sugar beets.

Oregonians for Safe Farms and Families, a nonprofit, and Siskiyou Seeds, an organic seed producer, had intervened to defend the ordinance after the county government took a neutral position in the litigation.

The intervenors claimed the Whites had a “purely hypothetical” interest in growing GMOs, which isn’t enough to establish standing.

“They need more than their general disdain for this ordinance to get into court,” said attorney Melissa Wischerath, who represented the intervenors.

The judge disagreed with that characterization, ruling that “the plaintiffs have demonstrated that their conflict with the ordinance is not academic or speculative and that the determination in this case will have a practical effect on them.”

Proponents of the GMO ban also claimed the ordinance should not be pre-empted by state law because Oregon has a “regulatory void” in regard to biotech crops.

Because lawmakers had barred local restrictions on GMOs without establishing a statewide system to protect organic and conventional farmers from cross-pollination, the pre-emption statute is unconstitutional, the invervenors argued.

Wolke found that Oregon law doesn’t require a “replacement regulatory scheme” for a statute to pre-empt local rules.

He also rejected the argument that the pre-emption statute only applies to packaged seeds and not plants, calling this an “absurd interpretation” of the law.

Oregon’s Jackson County was allowed to prohibit GMO crops in 2014 because the initiative in that county was already on the ballot when lawmakers passed the pre-emption statute.

Supporters of Josephine County’s ordinance claimed the limit was arbitrary, but Wolke said it was a “legislative prerogative” to set the cut-off date.

Wolke likewise refused to disregard an Oregon Supreme Court precedent dealing with conflicts between state laws and county ordinances, saying he lacked the authority to do so.

Oregonians for Food and Shelter sees the ruling as a victory for farmers across the state, said Scott Dahlman, the agribusiness group’s policy director.

“It’s a great affirmation that the seed pre-emption law is legal,” he said.

While the ruling confirms the statute is constitutional, it’s possible that a similar court battle would have to be fought if another Oregon county passes and tries to enforce a similar GMO ban, Dahlman said.

Currently, supporters of a GMO ban in Lane County are gathering signatures for a prospective ballot initiative, he said.