April 22, 2016
CapitalPress.com
3
Lawyers square off over Josephine County GMO ban
By MATEUSZ PERKOWSKI
Capital Press
GRANTS PASS, Ore. —
Farmers seeking to overturn
the ban against genetically
engineered crops in Oregon’s
Josephine County have come
under fire in court from pro-
ponents of the ordinance.
An April 14 court hearing
over the validity of the coun-
ty’s prohibition largely cen-
tered on whether the plaintiffs
even have the right to chal-
lenge it.
“If you look at the circum-
stances, the whole house of
cards of this manufactured
lawsuit comes tumbling
down,” said Stephanie Dolan,
an attorney representing ordi-
nance supporters, during oral
arguments.
The fundamental dispute
in the lawsuit is whether state
law overrules the county’s
prohibition against geneti-
cally modified organisms, or
GMOs.
Oregon
lawmakers
pre-empted most local GMO
regulations in 2013 but Jose-
phine County voters nonethe-
less approved a ballot initia-
tive banning such crops the
following year.
Landowners Robert and
Shelley Ann White filed a
lawsuit challenging the GMO
ordinance shortly before it
was set to become effective in
September 2015.
While the county govern-
ment decided not to defend the
ordinance, proponents of the
ballot initiative — Oregonians
for Safe Farms and Families
Capital Press file
The court dispute over whether Josephine County, Ore., can ban the cultivation of genetically modified
crops was heard April 14 in Grants Pass.
and Siskiyou Seeds — volun-
tarily intervened in the case as
defendants.
Those intervenors now
claim the lawsuit should be
thrown out because the Whites
are “hobby farmers” who were
“hand-picked” to serve as
plaintiffs by biotech lobbyists
intent on overturning the will of
Josephine County voters.
The Whites say they’ve
been prevented from growing
biotech sugar beets on leased
property.
They’ve asked Circuit Court
Judge Pat Wolke to declare that
the GMO ordinance is invalid
and to permanently enjoin its
enforcement.
Supporters of the GMO ban
have responded by attacking
the Whites’ legal standing to
file the lawsuit.
During the oral arguments,
the intervenors cast doubts on
harm suffered by the Whites
because of the ordinance.
“They need more than their
general disdain for this ordi-
nance to get into court,” said
Melissa Wischerath, attorney
for the intervenors.
In reality, the couple hasn’t
proved it holds a valid contract
with biotech developer Syn-
genta, which would be neces-
sary to grow GMO sugar beets,
according to the intervenors.
The Whites’ lease agree-
ment to 100 acres, where the
crop was supposedly going to
be planted, is also not valid, the
intervenors claim.
Since they have not demon-
strated an actual financial hard-
ship from the GMO ordinance,
they cannot challenge its legal-
ity in court, Wischerath said.
“The mere interest in the
subject matter — like the idea
they’d like to grow GE crops
— is not sufficient,” she said.
The couple’s financial loss
was “purely hypothetical” be-
cause they likely could have
earned as much money from
continuing to grow hay on the
property or by switching to or-
ganic sugar beets, intervenors
argue.
“Really all they have is
a hope to grow GE crops
someday in the future,” said
Wischerath.
John DiLorenzo, attorney
for the plaintiffs, countered
that these allegations are both
false and irrelevant.
“The Whites have shown
much more than is necessary to
show their standing,” he said.
Syngenta did contract with
the couple to grow biotech
sugar beets in previous years
but did not enter into a new
contract due to the GMO ordi-
nance, he said.
As for the lease agree-
ment, it remains valid even
if there’s no expiration date
and the landowner is willing
to renegotiate payment terms,
DiLorenzo said.
Regardless of whether they
can prove a financial hardship,
plaintiffs can still seek to in-
validate a regulation that af-
fects them under Oregon law,
he said.
“They’re affected by the or-
dinance as it’s applied. Noth-
ing further is required,” he
said. “It does not matter how
much they might have made
if they’d been allowed to grow
GMO crops.”
Apart from the question of
standing, the parties also de-
bated whether the 2013 stat-
ute that pre-empts local GMO
restrictions runs afoul of Ore-
gon’s constitution.
“We contend that law is un-
constitutionally vague,” said
Dolan.
Lawmakers
impermis-
sibly disallowed local rules
for GMOs without creating a
statewide scheme for govern-
ing such crops, she said.
“What we’re left with is a
regulatory void,” Dolan said.
The pre-emption statute
doesn’t contain any protec-
tions for organic and conven-
tional farmers, she said.
“The law instead creates a
novel vacuum,” she said.
The plaintiffs argued that
a statewide regulatory system
isn’t necessary to pre-empt lo-
cal restrictions on GMOs — it’s
sufficent that lawmakers didn’t
want Oregon’s 36 counties
to establish their own GMO
rules.
Oregon also pre-empts lo-
cal governments from enact-
ing rent controls or regulating
shooting ranges, among other
issues, DiLorenzo said.
“It is the legislature’s right
to trust in the market some-
times,” he said.
Intervenors drew a parallel
between Oregon’s pre-emp-
tion statute and a law that was
struck down in Ohio, which
prohibited local restrictions on
the foods that can be served at
restaurants.
An appellate court in Ohio
overturned that law because the
state didn’t establish its own
regulations over food content
in restaurants. Supporters of the
GMO ordinance say that the
current test of Josephine Coun-
ty’s “home rule” authority is a
unique case of “first impres-
sion” in Oregon, so the Ohio
case should guide the judge’s
thinking.
“It’s persuasive and strik-
ingly similar,” Dolan said.
DiLorenzo said the Ohio
decision has no bearing on the
situation because Oregon has
different legal standards for
when the state can pre-empt lo-
cal regulations.
In Ohio, lawmakers must
cross several additional hur-
dles in passing a statute that
can pre-empt local ordinance,
he said. “Oregon’s home rule
authority is not as extensive.”
Oregon onion growers receive permission to apply herbicide through drip systems
By SEAN ELLIS
Capital Press
ONTARIO, Ore. — Onion
growers in Malheur County in
Eastern Oregon have joined
their Idaho counterparts in re-
ceiving special permission to
apply an important herbicide
through drip irrigation sys-
tems.
Idaho growers who pro-
duce Spanish bulb onions
received permission from
the Idaho State Department
of Agriculture this month to
apply the Outlook herbicide
through drip systems, and the
Oregon Department of Agri-
culture granted onion growers
in Malheur County the same
permission April 12.
Outlook, produced by
BASF, was already approved
for surface application in Ida-
ho and Oregon bulb onion
fields but it wasn’t previously
approved for use in drip sys-
tems in onion fields.
Onion growers in Idaho
and Oregon say Outlook is
one of their best tools for con-
trolling the yellow nutsedge
weed, which is their top weed
challenge and can reduce
yields by as much as 60 per-
cent.
Two years of field trials by
Oregon State University re-
searchers in Malheur County
showed Outlook is a lot more
effective in controlling the
yellow nutsedge weed when
applied through a drip system.
About 60 percent of the
20,000 acres of Spanish bulb
onions grown in this region are
irrigated through drip systems.
Onions are sorted at
a packing-shipping fa-
cility in Southwestern
Idaho last year. More
onion shippers in this
region are conducting
their own market-
ing and promotion
efforts after the onion
assessment was cut
in half last year.
Sean Ellis/Capital Press
House ag chairman wants EPA
records about What’s Upstream
Capital Press
The chairman of the U.S.
House Agriculture Committee
is pressing the Environmental
Protection Agency to explain
its role in What’s Upstream,
making the most detailed re-
quest yet for records related
to an advertising and social
media campaign to influ-
ence Washington state pollu-
tion-control laws.
U.S. Rep. Mike Conaway,
R-Texas, sent a letter Tuesday
to EPA Administrator Gina
McCarthy requesting by April
29 documents about the agen-
cy’s communications with the
Northwest Indian Fisheries
Commission and Swinomish
Indian tribe.
The northwestern Wash-
ington tribe used EPA grants
obtained through the fisheries
commission to hire a public re-
lations firm to develop a cam-
paign advocating stricter state
limits on farming near water-
ways.
EPA monitored the cam-
paign’s development and im-
plementation for more than
four years, but withdrew its
support April 5, the same day
two U.S. senators called for an
investigation. Although EPA
said it would take corrective
actions, the campaign has con-
tinued.
An ad April 14 on an on-
line news site promoted the
What’s Upstream website. The
ad states: “Unregulated agricul-
ture is putting our waterways at
risk.” It does not disclose EPA’s
financial support, an apparent
violation of the terms of the
grant received by the fisheries
commission.
Conaway
called
the
EPA-funded advocacy cam-
paign troubling, but added that
he was more concerned about
whether there was a “broader
pattern of mismanagement of
federal funds at EPA.”
He referred to previous gov-
ernment findings that EPA has
engaged in covert propaganda
nationally and has been lax
in overseeing how grants are
spent in Washington state.
The EPA did not have a re-
sponse to Conaway’s letter. Ef-
forts to obtain comments from
the fisheries commission and
tribe were unsuccessful.
Chris Wilke, director of
Puget Soundkeeper, one of
several environmental groups
connected to What’s Upstream,
staunchly defended the cam-
paign, including its website.
“I would say the overall
point of the website is to pro-
vide a resource for fact-based
solutions,” he said. “Nobody
is doing this as an attack on
farmers. We want them to suc-
ceed.
“I have zero regrets about
participating in this project,”
Wilke said. “I have a regret the
agriculture industry hasn’t re-
sponded more constructively.
… We have a powerful indus-
try playing the victim.”
Farm groups and some law-
makers say they see What’s
Upstream as an underhanded
and thinly disguised lobbying
campaign.
The campaign’s imagery got
more attention when Todd My-
ers, a policy analyst for the con-
servative-leaning Washington
Policy Center, noted in a blog
post that the photo on What’s
Upstream billboards was from
a stock photo service and was
labeled, “Amish Country Cows
in Stream.”
Another stock photo of
cows in a stream on the cam-
paign’s website was taken by
a British nature photographer.
The location is not identified.
Efforts to contact the photogra-
pher were unsuccessful.
Other What’s Upstream im-
ages include photos of brown
water and dead fish, without
information about where the
photos were taken or the cir-
cumstances.
ROP-32-52-2/#17
By DON JENKINS
17-4/#4