GRANTS PASS, Ore. — An organic seed company and an organization opposed to genetic engineering will be allowed to defend a prohibition against biotech crops in Oregon’s Josephine County.
Circuit Court Judge Michael Newman ruled Nov. 4 that Siskiyou Seeds and Oregonians for Safe Farms and Families can intervene in a lawsuit that seeks to overturn the county’s ban on genetically modified organisms.
The seed company should not have to wait to defend the ordinance until its crops are at risk of cross-pollination from GMO varieties, Newman said at a hearing in Grants Pass, Ore.
The judge also allowed OSFF, a group that campaigned for the ordinance, to serve as Siskiyou Seeds’ co-defendant.
The company and OSFF argued that Josephine County’s government won’t defend the ban against genetically engineered crops, so they should be allowed to resist an attempt to overturn it.
The intervenors claimed that it would be prejudicial to exclude them from the lawsuit because the county doesn’t appear willing to challenge a state law that pre-empts most local governments from regulating GMOs.
“This litigation won’t be fully and fairly litigated by the existing parties,” said Stephanie Dolan, an attorney for the intervenors.
The group cited court documents filed by Josephine County, which raised no “affirmative defenses” of the ban on genetically modified organisms and did not question the legal standing of farmers who filed a case to invalidate the ordinance.
Robert and Shelley Ann White, who grew transgenic sugar beets, filed a complaint earlier this year seeking a declaration that the ordinance was pre-empted by a state statute passed in 2013.
In its answer to the complaint, Josephine County said it “takes no position” on whether the plaintiffs are entitled to a declaration that the GMO ban is unenforceable.
Instead, the county joined the plaintiffs in a request that a judge decide whether the prohibition is valid, noting that the ordinance was passed by voters and not the county.
“We have to follow the law. What we want to know is what law: the county law or the state law,” said Wally Hicks, attorney for Josephine County.
John DiLorenzo, attorney for the farmers who filed the case, said Siskiyou Seeds and OSFF weren’t entitled to act as defendants.
“It has to be more than an interested person who wants the laws enforced,” DiLorenzo said.
The U.S. Supreme Court rejected a similar bid by an anti-gay marriage group that wanted to defend a California initiative defining marriage as between a man and a woman, he said.
In that case, lawyers representing California decided the statute was legally indefensible, DiLorenzo said.
“I don’t know why the county is not actively defending the (GMO) ordinance. It may be because it has come to the same conclusion as California’s attorney general did,” he said.
Don Tipping, owner of Siskiyou Seeds, hasn’t shown “one scintilla of evidence” that his company was harmed by biotech crops, DiLorenzo said.
The GMO ban would not have prevented Tipping from buying corn seed that contained GMO traits, as occurred in the past, he said.
Tipping’s decision to tear out a field of Swiss chard due to the proximity of a biotech sugar beet crop did not amount to harm either, he said.
“He dug it up himself without any evidence of harm,” DiLorenzo said. “His interest is not real or probable. Rather, it is hypothetical or speculative.”
Dolan countered that Tipping suffered a real injury, based on the economic damage he would have sustained from growing and harvesting a contaminated seed crop that was unsalable.
“Given our narrow valleys and the light pollen that can travel for miles, they’re effectively prohibiting non-GE farmers from growing other crops such as Swiss chard,” she said.
Litigation over the county ordinance should not be rushed, but instead the issue of whether state pre-emption is valid should be fully vetted, she said.
“At this stage, the challenge to the state seed law can begin,” Dolan said. “The current parties are not going to fully litigate the constitutionality of state law.”