Rural residents in Oregon’s Curry County have revived a lawsuit over pesticide spraying without directly challenging the state’s “right to farm” law.
Their case originally sought to overturn Oregon’s “right to farm” statute — which shields growers from nuisance and trespass lawsuits over common farm practices — for allegedly infringing on the constitutional right to seek legal remedies for an injury.
The initial complaint was dismissed by Curry County Circuit Court Judge Jesse Margolis, who ruled that the 17 plaintiffs must first claim actual damages before seeking to invalidate the “right to farm” law.
In 2013 the Curry County residents told state regulators that Pacific Air Research sprayed their properties with pesticides, causing serious medical problems.
An investigation by the Oregon Department of Agriculture determined the aerial applicator used 2,4-D and triclopyr on off-target sites and falsified information.
Last year, the residents filed a complaint trying to get the “right to farm” law pre-emptively declared unconstitutional without formally accusing Pacific Air Research of committing nuisance or trespass violations.
The plaintiffs attempted to void the “right to farm” statute before making such claims because they didn’t want to be held liable for the defendants’ legal fees, as permitted by the law.
Margolis threw out their original complaint, finding it was merely hypothetical that Pacific Air Research would use the “right to farm” law as a defense and thus he lacked jurisdiction to deem it unconstitutional.
Even so, Margolis allowed the plaintiffs to amend their complaint.
The revised lawsuit includes charges of nuisance, trespass and negligence against Pacific Air Research as well as other logging, forestry and timberland companies allegedly involved in the pesticide operation.
However, the latest version removes any mention of the “right to farm” law, which presumably means the defendants would have to raise that statute as a defense to throw its constitutionality into question.
The plaintiffs are ready to “tackle” that debate if it comes up, though it’s unclear whether the subject will be raised, said William Sherlock, their attorney.
Such a defense could be risky, since an unlawful and improper pesticide application would not be protected under the law and invoking the statute would open the defendants to liability for their opponents’ litigation expenses.
Bradley Piscadlo, attorney for the defendants, said he has not decided whether to employ the statute.
Regardless of what happens in the case, questions about the law’s constitutionality are unlikely to end, experts say.
The farm industry would face such a challenge if a plaintiff crossed the appropriate procedural hurdles, said Tim Bernasek, an agricultural attorney.
“It is an issue for the ag and forestry community to prepare for,” he said.
Two previous challenges to the “right to farm” law were dismissed on procedural grounds in 2008 and 2013 by the Oregon Court of Appeals, which left the underlying constitutional question unanswered.
In 1993, the Oregon Court of Appeals upheld the statute’s constitutionality without explaining its legal rationale but the Curry County plaintiffs claim this ruling was superseded by a 2001 Oregon Supreme Court opinion.
An attack on the “right to farm” statute based on the remedy clause of Oregon’s constitution “sounds like at least a good theoretical argument,” said Paul Diller, a law professor at Willamette University.
The Oregon Supreme Court has been “vigilant” in protecting tort rights that existed when Oregon attained statehood in 1859, he said.
The argument that the “right to farm” law unconstitutionally violates these rights would be a “colorable claim” — meaning the challenge would be allowed to proceed under the right circumstances without being immediately thrown out of court — even if it’s not ultimately found valid, Diller said.
Defenders of the “right to farm” statute could claim that the ability to sue over common agricultural practices was not recognized under the original Oregon constitution, he said.
They could also argue the state’s land use planning law has already created a system to reduce nuisance and trespass conflicts, Diller said.
“It’s designed to minimize them,” Diller said. “I think that’s a relevant component.”