GMO Watch | Jackson County, Oregon GMO Ban Upheld

Cartoon by Jack Weins.

Courtesy of Health
Impact News

Federal court upholds local ban on GMO crops

IS THIS BEGINNING OF END FOR UNRESTRAINED PROLIFERATION
OF BIOTECH CROPS?

Devon G. Peña | Las Colonias de San Pablo, CO | June
3, 2015

The struggle
against genetically modified organisms (GMOs) has reached an especially
significant milestone: Yesterday (June 2), a Federal Magistrate Judge, Mark D.
Clarke, partially dismissed a lawsuit that was brought by commercial alfalfa
growers seeking to overturn a 2014 Jackson County, Oregon ordinance that bans
the planting of GMO crops. Jackson County is one of the major West Coast
locations for commercial plantings of GMO seed crops for alfalfa, various turf
grasses, and beets.

The ban is based on an innovative local ordinance
that was approved by Jackson County voters in the 2014 November general election.
Almost on the same day opponents, backed by Monsanto and other biotechnology corporations, deployed legal teams to assist a select group of Jackson County GMO alfalfa growers in
challenging the legality of the ordinance. The basis of their challenge is an argument based on the
Oregon Right to Farm law, which is designed to protect growers and farmers from
unreasonable interference with established agricultural activities.

Among the organizations leading the defense of the
ordinance is the Center for Food Safety, which quickly stepped in to defend the
ban and support local farmers, who share widespread concerns that contamination
from GMO crops could destroy their livelihoods by threatening the genomic
integrity of their heirloom and organic crop varieties. According to CFS this
marks the first time a federal court has recognized farmers’ right to protect
their crops from contamination by transgenic (GMO, or genetically-engineered,
GE) crops.

CFS notes that this is not just a victory for
farmers and consumers: “We’re fighting for democracy itself because we believe
that voters have the right to make these decisions without being bullied or
overruled by corporate interests – and the results are stacking up.”

This is a very profound decision because it has
implications well beyond the locality of Jackson County and could reshape the
debate with the federal authorities in the U.S. Department of Agriculture
(USDA) and other entities. My readers and followers may recall that we have
discussed the ban at length as part of our work against the Obama
Administration’s so-called “co-existence” policy (see the blog of March
4, 2014).

Explaining this significance, George Kimbrell of the
Center for Food Safety notes that:

…this decision is important for
protecting Jackson farmers and communities but also very important beyond
Jackson County, as a precedent nationally, as it presented questions of first
impression about counties' ability to enact ordinances prohibiting GE crops.
 Part of our competing vision to combat industrial agriculture is creating
GE-free zones, since we are getting no protection from contamination from USDA.
 Together we have started a revolution at the state and local level and it
is growing.  Jackson and Vermont are huge parts of this.  At the end
of the day, Monsanto and its friends don’t actually believe “coexistence”
between GE crops and traditional crops works, they just think we should all
“get over it” about contamination....Like other CFS cases over the past decade, this is another brick in
the wall of judicial precedent establishing that they are wrong fundamentally:
GE contamination DOES matter, is legally cognizable injury and harm to farmers,
and that communities and farmers can protect themselves from that harm.

Photo by Yuxing Zheng | The
Oregonian

Many of us are working on similar bans in our
localities, especially those of us who farm in what are veritable “Center of
Origin” communities that continue to develop native land race varieties of
maize, bean, squash, chili, and other crops through indigenous (non-GMO) plant
breeding and seed saving practices. This decision will surely boost our ability
to persuade local government officials and voters to follow suit and implement
similar bans for regions that are part of the centers of origin for native
crops like maize. Many county commissioners I have spoken with support such
bans but fear the legal consequences and expense of defending local ordinances.
Jackson County just proved this can indeed be accomplished with great success.

A particularly important part of Judge Clarke’s
decision is that he notes farmers seeking to protect their crops should not
have to wait for GMO introgression (genetic contamination) events to occur.

The National
Lawyers Guild (NLG), reporting on the decision, makes this interesting
observation:

According to the Judge, while the state’s “right
to farm” law prohibits ordinances and lawsuits that treat a common farming
practice as a trespass or nuisance, it does not protect activities that harm
commercial agriculture.  The harm here, as argued by defendants, was the
potential tainting of organic crops resulting from cross-pollination from
nearby commercial GMO-crop farms.  “While farming practices may
not be limited by a suburbanite’s sensitivities, they may be limited if they
cause damage to another farm’s crops,” Judge Clark[e] said.  “Farmers have
always been able to bring claims against other farmers [under the Right to Farm
Act] for practices that cause actionable damage to their commercial
agriculture products,” and the Jackson County ordinance simply “serves to
prevent such damage before it happens,” he said.

The NLG report further notes that the judge found “that
state lawmakers intended to permit the Jackson County GMO ban because they
expressly excluded the ordinance from a 2013 statewide bill that preempted
other local governments from regulating GMO crops and reserved such regulatory
power for the state.” It will be interesting to see if other farmers and
activists can now challenge the GMO preemption bill – passed during a special
session of the Oregon Legislature in September 2013 – based on the principle of
equal protection and due process; why should only one county government be
allowed to adopt such an ordinance while others are preemptively denied that
opportunity while the State legislators decide on a state-wide statute?

There is a downside to this decision: According to
the National Lawyers Guild, Clarke’s ruling does grant “partial summary
judgment” as to plaintiffs’ “right to farm” law claims, involving $4.2 million
in damages and demand for compensation from Jackson County, which they claim
resulted from the a forced removal of about 300 acres of GMO-seed alfalfa crops.
We will be awaiting the resolution of that claim and discuss the financial
implications of anti-GMO public policy.

Of course, the legal battle is not over and we are
certain that the GMO alfalfa growers and their corporate sponsors will appeal the
decision before the 9^th Circuit Court of Appeals in San Francisco.  This is considered a “liberal” court  bench and so the prospects for an appellate
ruling that upholds the ban are good.

Judge Clarke makes a very profound statement on p. 7
of his 11-page ruling that I wish to highlight for my readers as food for
thought:  Explaining his ruling that the
ban is constitutional he writes: “The exception demonstrates that the Right to
Farm Act does not give free license to use any farming practices.”

This has very serious legal implications because it affirms
a quality that judges and lawyers often decide to overlook about our
Constitution, which is the fact that it posits the core principle that the
right of ownership over private property is not carte blanche an endorsement to do as owners please to do with their
“possessions”. Property is also a
relationship that comes with established and evolving norms related to the
fulfillment of exact social and welfare obligations individual owners have
toward neighbors, communities, and the environments affected by the disposition of the so-called bundle of property rights.

Affirming exactly what I believe is this neglected
core principle of our law, the judge continued with this statement: “While
farming practices may not be limited by a suburbanite's sensitivities, they may
be limited if they cause damage to another farm’s crops.”

This is the core of my argument against the Obama
Administration’s “co-existence” policy and it sure is good to see a judge finally
establish as legal fact the idea that the threat posed by GMO contamination of
our nation’s organic and heirloom varieties developed and protected by organic farmers,
plant breeders, and seed savers is not only serious and verifiable, but
unconscionable and illegal. This could be the start of a challenge to the so-called
“Republic of Property” so eloquently decried by Hardt and Negri in their book, Commonwealth.