Law Pre-Empts Counties From Banning Aerial Spraying

Law Pre-Empts Counties From Banning Aerial Spraying

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

(Capital Press) – An Oregon circuit judge is considering a case that argues local voters have a “natural right” to ban aerial spraying in Lincoln County, despite state statutes to the contrary.

Lincoln County voters approved an ordinance earlier this year banning aerial spraying. It is being challenged in a lawsuit filed by landowners Rex Capri and Wakefield Farms, who rely on aerial spraying.

The plaintiffs say the local ban is prohibited by Oregon’s “right to farm” law, state laws regulating pesticides and the forest practice laws.

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

They claim an inherent “natural right” to self-government. The Oregon Constitution, they say, gives the people the right to reform or abolish the government — or, in this case, override the state’s pre-emption.

The group’s attorney argued last week that voters had a right to approve a ballot initiative that protects the environment and that the Legislature can’t stop local governments, or local voters, from enacting more stringent regulations, even outright bans, on certain activities.

An interesting argument, but Oregon courts have previously upheld the state’s authority to pre-empt local control.

For example, in 2013 the Legislature passed a law that pre-empted local governments from banning genetically modified crops.

In 2014, opponents of GMOs in Josephine County put a local ban on the ballot that was passed by voters.

Citing the state’s pre-emption, the circuit court struck down the county ban. That ruling was upheld by the Oregon Court of Appeals.

It’s interesting to note that Lincoln County’s elected officials generally recognize the state’s supremacy in the matter.

The attorney for the county argues that the county retains a right to ban aerial spraying on land it owns. But all landowners generally can prohibit spraying of their own property and it’s unclear the county has a greater right than private landowners.

Landowners whose properties adjoin farms and forests where pesticides are sprayed have legitimate concerns that they will be subjected to drift, or accidental bombardment. But existing law provides remedies for these cases.

Some could argue that Oregon’s pesticide application laws need to be tougher. If so, like-minded citizens from across the state have the right to petition the Legislature for redress.

Such regulation that is required should come from the state, and only from the state.

Farmers and foresters need one set of rules. We are against 36 separate regulatory schemes, particularly those that impose outright bans.

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