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.”

Seaweed Tasting Like Bacon is Patented

Written by Katharine Richter

A newly created strain of red marine algae known as dulse has been patented by Oregon State University researchers.  According to a news report from Oregon State University, researcher Chris Langdon and collegues who created the strain say it is an “excellent source of minerals, vitamins and antioxidants – and it contains up to 16 percent protein in dry weight.”

This new super food has potential to be economically viable because of its high nutritional value, the growth rate of the seaweed is rapid, and the seaweed is versatile because it can be used as a raw ingredient or cooked.  According to the news report researcher Langdon stated, “When you fry it…it tastes like bacon, not seaweed.  And it’s a pretty strong bacon flavor.” 

Patents for plants are available under Title 35 United States Code, § 161, which states, “Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propagated plant or a plant found in an uncultivated state, may obtain a patent therefor…”  The protection for the plant will last 20 years from the application date.

The marketing and implementation of widespread distribution and mass production of the seaweed is currently under works and is expected to occur within a year according to the news report.

The Oregon State Legislature Passes a Bill that Prohibits Counties from Regulating Genetically Engineered Crops

S.B. 863 declares that “regulation of agricultural seed, flower seed, nursery seed and vegetable seed and products of agricultural seed, flower seed, nursery seed and vegetable seed be reserved to the state,” preventing local governments from adopting any of their own GE policies. 

Senate Bill 863 has been passed by the senate and the house but is still waiting to be signed into law by Oregon’s Governor. Governor John Kitzhaber has stated that before he signs the bill into law he wants state officials to map locations of GE crops.  In addition, he wants to implement buffer zones between GE crops and organic crops in the state by 2015. 

To view Senate Bill 863 and additional general information about the bill click here.

To track the continuing activity of the bill click here. 

Written by Joseph Negaard - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 8, 2013

USDA Says Genetically Engineered Wheat Found in Oregon Was an Isolated Incident

In a statement issued on June 14, 2013, the USDA indicated the genetically engineered wheat found in Oregon last month has not spread. Following the discovery the USDA launched an investigation into the source of the wheat.  The USDA interviewed several individuals including the farmer who harvested the wheat and the producer of the wheat seed. In addition, the USDA obtained samples of the seed and other wheat grown by the farmer.  Using a test developed by Monsanto, the USDA confirmed the seed and the wheat did not contain GE material. The USDA indicated the investigation is continuing and 200 area growers are expected to be interviewed in the near future.

For a copy of the statement, please see visit the USDA’s website.

Written By Clara E. Conklin – Research Assistant

The Agricultural Law Resource and Reference Center

June 19, 2013