Aerial spray ban overturned in court

Ballot Measure 21-177, approved by voters in May 2017, would have prohibited the aerial spraying of pesticides in Lincoln County. However, the ordinance implementing the measure was recently ruled as invalid by a Lincoln County judge. (News-Times file photo)

LINCOLN COUNTY — After two years of review, Lincoln County Circuit Court Judge Sheryl Bachart ruled a county ordinance, Measure 21-177, or The Freedom from Aerially Sprayed Pesticides Ordinance, is invalid on the basis that state law regulates pesticide use, not local governments. 

The decision came after the measure, passed by Lincoln County voters in 2017, was challenged in court by commercial fisherman and timberland owner Rex Capri. Bachart wrote in her decision that the measure is subject to the Oregon Pesticide Act. This statewide regulation bars local governments from regulating pesticide sale or use on a local level. 

A statement from the local group Lincoln County Community Rights, which supported the aerial spray ban, said, “What the judge did not substantively consider was the issue of the right to local self-government and how it must prevail against state preemption when exercised to protect health, safety and welfare. Exercising this fundamental right, the people may recognize and secure expanded local rights and prohibitions that surpass current state protections.”

Members of Lincoln County Community Rights went on to say the state law, which sets a ceiling on the maximum protection allowed rather than a floor, or minimum protection allowed, violates both the U.S. and Oregon state constitutions. 

“As such, current state preemptive laws — like those cited by the plaintiffs — violate the right of local community self-government, and thus cannot operate to overturn the ordinance at issue.”

However, those who opposed the ordinance said regulating pesticide use should still lie with state and federal government agencies, not the county. 

“The proper authorities to evaluate, regulate and enforce pesticide rules, with our local input, ensure the safety of pesticide practices for all Oregonians,” said Alan Fujishin, a local farmer and director of the group Coalition to Defeat Measure 21-177. “Pesticide use by Lincoln County’s farmers, foresters, fishermen, vegetation managers and pest control professionals is already carefully regulated by the Oregon Department of Agriculture and supporting agencies.”

Measure 21-177 was approved in May 2017 with 6,994 voting in favor and 6,933 opposed, a difference of only 61 votes. Almost as soon as the results of that election were certified, those against the ordinance challenged its validity by filing an action in the Lincoln County Circuit Court. Bachart soon issued a preliminary injunction, which prevented enforcement attempts from private citizens until she could determine the validity of a section of the ordinance that allowed individuals to take direct action if they didn’t think the ordinance was being properly enforced by law enforcement. 

That provision also stipulated individuals who take such action can’t be held liable for any direct action. 

The Lincoln County Board of Commissioners threw their weight behind the injunction, deciding in June of 2017 to not enforce any part of the ordinance while it was being reviewed in court. 

In Bachart’s opinion letter, she wrote that she found no Oregon case law supporting the argument that local communities have a right to local community self-government. 

“Where local enactments are found incompatible with state law in an area of substantive policy and explicit preemption, state law will replace local law,” Bachart wrote.

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