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.”

Case Law Update: PA Supreme Court Rules in Favor of Biosolid Land Application

Written by M. Sean High – Staff Attorney

On December 21, 2015, the Supreme Court of Pennsylvania held that: 1) the Pennsylvania Right to Farm Act (RTFA) contains a one-year statute of repose barring nuisance suits, and application of the one-year statute of repose is a question of law for courts to decide; and 2) the land application of biosolids as fertilizer meets RTFA’s definition of a “normal agricultural operation.” (Gilbert v. Synagro Central, LLC, No. 121 MAP 2014).

According to the Court, RTFA’s one-year bar regarding nuisance suits operates as a statute of repose (which is a time limit on when an action may be brought that is not related to when an injury actually happened, as opposed to a statute of limitation which is a time limit on when an action may be brought based on when an injury actually happened or was discovered), and “that, generally, statutes of repose are jurisdictional and their scope is a question of law for courts to determine.” As a result, the Court proclaimed that “[h]aving courts [as opposed to juries] apply RTFA’s definitions achieves the meaningful degree of legal certainty, uniformity, and consistency that the RTFA was intended to provide to farms.”

In deciding that the land application of biosolids meets RTFA’s definition of “normal agricultural operation,” the Court stated that the legislative policy of RTFA is to protect Pennsylvania agriculture and that this purpose is best achieved by broadly interpreting a “normal agricultural operation” so as to take “into account new developments in the farming industry,” which includes the land application of biosolids as fertilizer.  The Court further reasoned that “[t]he statistics and facts relating to the history of biosolids land-use also support the conclusion the use of biosolids as fertilizer is a 'normal agricultural operation.’”

Finally, the Court asserted that when deciding what qualifies as a RTFA “normal agricultural operation,” the focus should be placed on the “practice in general, not on whether the defendant in [a] particular instance conducted the practice with accepted industry standards and regulations.” Chief Justice Saylor disagreed with this assertion, and as a result, filed a concurring opinion stating that while he agreed with the majority in the present case, “if the manner in which a farming practice is carried out deviates substantially from the norm and has unusual adverse effects upon neighboring properties, at some point that particular method of implementing the practice should be viewed as a distinct practice whose agricultural normalcy should be independently evaluated.” 

Raw Milk Update: Texas Jury Rules Raw Milk Sale Illegal

Written by M. Sean High – Staff Attorney

On December 16, 2015, the Farm-to-Consumer Legal Defense Fund (FTCLDF) reported that its client, Texas dairy farmer Eldon Hooley, had lost his jury trial regarding the sale of raw milk. 

According to FTCLDF, raw milk produced on Hooley’s dairy farm (located within the city of Grandview, Texas), transported by a van owned by Hooley, was seized by law enforcement officials at an off-farm customer drop-site located within the Fort Worth, Texas city limits.  At the time of the seizure, Hooley’s state license to sell raw milk was under suspension after his raw milk had previously tested positive for the bacteria Yersinia.  

Though Hooley’s dairy farm was not located within the Fort Worth city limits, prosecutors argued that under the Fort Worth city code regulating food establishments: 1) Hooley’s van met the classification of food establishment; and 2) because Hooley’s raw milk license was under suspension, the raw milk sales were illegal.  According to FTCLDF, the jury agreed with the city prosecutors and determined that Hooley should pay $1,500 in fines plus $67 for court costs.  

Similarly, in Pennsylvania, state law makes it illegal to sell raw milk for human consumption without a permit issued by the Pennsylvania Department of Agriculture (PDA).  Accordingly, raw milk sales must remain “in compliance with the testing and documentation requirements of the Milk Sanitation Law, and any other applicable statute or regulation.” Furthermore, any raw milk used in the manufacturing of aged cheese can only be sold if PDA specifically issues a permit for the sale of aged cheese produced from raw milk.  Importantly, PDA is empowered to file summary criminal prosecutions for any raw milk permitting violation.

In Pennsylvania, if a dairy farmer continues to sell raw milk after their raw milk permit has been revoked or suspended, PDA may “[a]pprise the Department of Health and any local health department having jurisdiction of the situation, and recommend these entities take lawful action to ensure that sales of raw milk cease.”  Additionally, PDA may ask the Pennsylvania Office of Attorney General to: 1) seek an injunction to prevent raw milk sales; and 2) seek fines and/or imprisonment if an injunction is violated.  Relevant to Hooley’s transportation of raw milk via his van, Pennsylvania state law defines raw milk sales broadly to include “the selling, exchanging, delivering or having in possession, care, control or custody with intent to sell, exchange, or deliver or to offer or to expose for sale.” 

On a related side-note, under Pennsylvania’s raw milk law, “[w]henever, in the opinion of the [PDA] Secretary, a given supply of raw milk or raw milk products is considered unsafe or a menace to public health, the Secretary may seize, condemn, denature or destroy the milk or milk products, without compensation to the owner of the milk or milk products.”