Case Law Update: Court Approves Settlement of Lawsuit Challenging Oregon County’s GMO Ban

Written by M. Sean High – Staff Attorney

On December 22, 2015, Capital Press announced that U.S. Magistrate Judge Mark Clarke had approved a legal settlement reached between Oregon’s Jackson County and the owners of two alfalfa farms located in within the county.  The lawsuit in question involved the farmers’ challenge to Jackson County’s ban on genetically engineered (GMO) crops. 

In 2013, the Oregon legislature approved S.B. 863 which prohibited counties from banning GMO crops.  Included in S.B. 863 was a provision that exempted counties where proposed initiative petitions banning GMO crops had already qualified for placement on the 2014 ballot.  Jackson County’s measure 15-119 met this exemption, and in May 2014, county residents passed into law a ban on GMO crops.

Accordingly, Jackson County alfalfa farmers Bruce Schulz, and James and Marilyn Frink filed suit, alleging that the GMO ban was: 1) a violation of Oregon’s right to farm law; 2) would cause their operations financial hardship; and 3) the removal of existing GMO plants would in result in $4.2 million in damages.  While Judge Clarke dismissed the first two arguments involving Oregon right to farm law and financial hardship, at the time of settlement, the claim involving the $4.2 million in damages was still up for consideration.

As per the approved settlement, the alfalfa farmers agreed not to appeal a previous court ruling upholding the ban; to stop seeking the $4.2 million in damages; to not plant any more GMO alfalfa; to harvest all GMO alfalfa before it reaches 10% bloom (so as to reduce the chance of cross- pollination); and to remove all GMO alfalfa within eight years.  Additionally, the alfalfa farmers agreed to submit “field data to attorneys representing biotech critics” under an “attorneys eyes only” protective order.

In exchange, Jackson County agreed to allow the alfalfa farmers up to eight years (the normal lifespan of the perennial alfalfa) to harvest those GMO crops that have already been planted.  Significantly, other Jackson County GMO alfalfa growers “can ‘opt in’ to the settlement by submitting sworn documents identifying where their crops are grown, either with satellite data or geographic information, within 30 days of the deal’s approval.”