Farmers seek legal fees from GMO ban supporters
GRANTS PASS, Ore. — A judge here is considering whether parties that unsuccessfully defended a legal challenge to Josephine County’s GMO ban should pay the plaintiff farmers’ attorney fees.
In May, farmers Robert and Shelley Ann White convinced a judge the county’s GMO ban, approved by voters in 2014, was pre-empted by a state law passed the prior year.
Supporters of the ban — Oregonians for Safe Farms and Families, a non-profit, and Siskiyou Seeds, an organic company — intervened in the lawsuit to defend the county ordinance.
Now, the plaintiff farmers are seeking to recover $29,205 in attorney fees from the intervenors for unnecessarily complicating the litigation.
“All we want is compensation for time that we had to waste,” John DiLorenzo, attorney for the growers, said Wednesday during a hearing on the matter.
The intervenors unsuccessfully argued that Oregon’s seed pre-emption law was unconstitutional because lawmakers created a “regulatory void” by not imposing rules on GMO production.
DiLorenzo said this wasn’t an objectively reasonable argument because the intervenors could point to no legal precedent in Oregon, but instead relied on a ruling from Ohio.
“It had absolutely no bearing on Oregon law,” he said.
Legal questions over state pre-emption of local ordinances have long been settled by previous court rulings, he said.
“Ignoring them would upset years of decisions and throw state pre-emption law into complete disarray,” DiLorenzo said.
OSFF and Siskiyou Seeds countered that the plaintiffs are not allowed to recover attorney fees and are simply trying to send a “chilling message” to prevent similar defenses of local ordinances elsewhere.
The intervenors’ arguments were plausible even if they ultimately didn’t persuade the judge, and attorney fee sanctions can only be awarded when claims are entirely without legal merit, according to their attorneys.
The authority of local governments to set their own rules should be revisited by higher courts in Oregon, which the intervenors are pursuing through an appeal, said Stephanie Dolan, their attorney.
“There are instances where the law is shaken up and changed,” Dolan said.
Because Josephine County’s GMO ban presented a novel legal question, the intervenors were allowed to cite case law from Ohio to argue Oregon’s pre-emption statute was unconstitutional, the intervenors claim.
Sanctions of attorney fees can only be awarded when a party acts in bad faith, but that wasn’t the case here, said Melissa Wischerath, attorney for the intervenors.
“Just losing an argument doesn’t rise to that level,” she said.
The plaintiffs, whose lawsuit is supported by biotech interests, should not be allowed to instill fear about making arguments that challenge the status quo, she said.
“We want to be able to ensure that safe space remains open in our court system,” Wischerath said, paraphrasing a court ruling.
The fee request is also excessive because their lawyers are claiming to have worked unreasonably long hours at higher-than-normal rates, she said.
“Those rates are literally off the chart for this area,” Wischerath said.
Both OSFF and Siskiyou Seeds would be financially devastated by the proposed award, which would discourage similar public policy litigation in other counties, they claim.
“This battle may be uphill but these claims are in no way frivolous and sanctions should not be applied,” said Dolan.
Josephine County Circuit Court Judge Pat Wolke asked DiLorenzo, the plaintiffs’ attorney, whether it would be wise to postpone the sanctions question until the lawsuit is resolved on appeal.
DiLorenzo said any ruling on attorney fees would likely be consolidated with the overall appeal.
Wolke has taken the matter under consideration and said he will issue a written ruling.