Oregon county’s aerial spray ban gets day in court

Lincoln County Community Rights, which supports the ban, argues that Oregon law that pre-empt local governments from regulating pesticides is unconstitutional.
Mateusz Perkowski

Capital Press

Published on October 9, 2017 1:29PM

Last changed on October 9, 2017 2:36PM

A helicopter prepares to apply pesticides. Oral arguments in a case challenging a ban in Lincoln County, Ore., on aerial spraying.

Associated Press File

A helicopter prepares to apply pesticides. Oral arguments in a case challenging a ban in Lincoln County, Ore., on aerial spraying.

Mateusz Perkowski/Capital Press   Oral arguments on the ordinance banning aerial pesticide spraying were held today at the Lincoln County Courthouse in Newport, Oregon.

Mateusz Perkowski/Capital Press Oral arguments on the ordinance banning aerial pesticide spraying were held today at the Lincoln County Courthouse in Newport, Oregon.

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NEWPORT, Ore. — Supporters of a prohibition against aerial pesticide spraying in Oregon’s Lincoln County are urging a judge to uphold the ordinance even though it’s pre-empted by state law.

Lincoln County Community Rights, which supports the ban, argues that Oregon law that pre-empt local governments from regulating pesticides is unconstitutional.

The ordinance was approved by voters earlier this year but is being challenged in a lawsuit filed by landowners Rex Capri and Wakefield Farms, who rely on aerial spraying.

During oral arguments on Oct. 9, the plaintiffs asked Lincoln County Circuit Court Judge Sheryl Bachart to declare the ordinance invalid because a local government can’t overrule Oregon law.

Not only does the county lack the general authority to enact such an ordinance, but the prohibition is specifically barred by Oregon statutes governing pesticides, forest practices and the “right to farm,” according to plaintiffs.

“There is no opportunity for local government to adopt laws that are different than state laws” regarding pesticides, said Gregory Chaimov, the plaintiff’s attorney.

Supporters of the aerial spray ban countered that the county has an inherent “natural right” to local community self-government that should be affirmed by the judge.

Under the Oregon Constitution, all power is inherent in the people, who may reform or abolish the government, said Ann Kneeland, attorney for Lincoln County Community Rights, which intervened as a defendant in the case.

“These concepts may seem radical or revolutionary to us now but these are concepts in our Constitution,” she said.

Voters had a right to approve a ballot initiative that protects the environment and public from the “toxic trespass” of aerially sprayed pesticides, according to ordinance proponents.

Oregon lawmakers don’t have the ability to create an upper limit or “ceiling” that precludes stronger protective local standards for health and safety, they claim.

“They do so at the behest of well-funded corporate interests,” Kneeland said. “We find ourselves in a legal system where corporations consistently have greater rights than the people.”

The county’s power to self-govern derives directly from the Oregon Constitution, therefore it supersedes state laws that limit the authority of local governments, proponents claim.

The government of Lincoln County recognizes there are valid arguments that it’s pre-empted from regulating pesticides to the extent envisioned in the ordinance.

Wayne Belmont, attorney for the county, said the ordinance supporters’ theory of local community self-government is “an interesting legal and philosophical argument but it has no basis in law and order.”

However, the county government argued the ordinance shouldn’t be entirely pre-empted — for example, it may legally prohibit aerial spraying on the county’s own property, Belmont said.

Municipalities within the county, such as the city of Newport, may also be able to restrict aerial spraying on their land, he said.

“It’s actually a bit broader than just the county,” Belmont said.

Lincoln County also disagrees with the plaintiffs argument that the ballot initiative was approved contrary to Oregon law due to the way it was written, he said.

“We do feel the election was valid,” Belmont said.

At the conclusion of the hearing, Judge Bachart said she planned to issue a written ruling as soon as possible, but could not provide an exact timeline.



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