The Oregon Court of Appeals will hear oral arguments regarding a struck down ordinance that prohibited corporations from aerial pesticide spraying in Lincoln County, which was adopted by voters as a ballot measure and later ruled invalid by a circuit judge.

During the May 2017 Special Election, Lincoln County voters passed Measure 21-177 by a narrow margin, 6,994 to 6,933, creating the “Freedom from Aerial Spraying” ordinance.

Days after its June 5, 2017 certification by Lincoln County Clerk Dana Jenkins, woodland property owner Rex Capri filed suit in Lincoln County Circuit Court against Jenkins and the county, with Wakefield Farms, of Eddyville, later joining as a plaintiff.

The suit alleged that the measure did not meet requirements to appear on the ballot in the first place and that the ordinance ran afoul of multiple state statutes and the Oregon Constitution. Judge Sheryl Bachart granted the request of Lincoln County Community Rights, the group that organized the ballot initiative, to join the suit as an intervening defendant.

In September 2019, Bachart ruled the measure was properly placed on the ballot but overturned the ordinance on the grounds that it was pre-empted by a state law that prohibits local municipalities from creating their own regulations for pesticide use, the Oregon Pesticide Control Act. Lincoln County Community Rights appealed the decision, and the state appellate court will hear oral arguments June 1.

The plaintiffs retained Davis Wright Tremaine, a Portland firm with a record of landmark corporate natural resource lobbying and litigation, including winning a $1.06 billion judgment against the state of Oregon in 2019 after a Linn County jury found the state violated its contracts with rural counties by not generating sufficient logging revenue.

Lindsey Schromen-Wawrin, a Port Angeles, Wash., attorney on the legal team appealing Bachart’s ruling, said the challenge targets two issues. “One is the interaction of state law that says local government cannot do certain kind of lawmaking around pesticides,” Schromen-Wawrin said. “The other issue is whether the Siletz River ecosystem, having recognized rights in the law of Lincoln County, can intervene in the court case to defend those rights.”

He said the state’s pesticide law used language developed and promoted by the American Legislative Exchange Council, a nonprofit with state legislator and private sector membership that drafts conservative or corporation-friendly model state legislation, such as “Stand Your Ground” laws, voter identification measures, reductions in environmental regulations and privatization of prisons.

The appellants argued that because the state law names specific kinds of regulations, it doesn’t ban regulation outright. “This is not a law that prohibits all pesticide regulation, because otherwise it wouldn’t name things like you can’t control the labeling of pesticide, for example,” Schromen-Wawrin said.

The specific language of the statute reads, “No city, town, county or other political subdivision of this state shall adopt or enforce any ordinance, rule or regulation regarding pesticide sale or use, including but not limited to,” naming 12 possible avenues of regulation.

At its core, he said, their argument questions the value of the current judicial principles of preemption — that federal laws supersede state laws and state laws automatically override local in the interest of reducing conflict.

“We’ve also said to the judge, if your analysis is simply is there a conflict between state law and local, and if so, state law always trumps local law, then you’re ignoring this trend that’s developed over the last several decades, initially led by the tobacco industry, to use pre-emption as a weapon for corporate interests to squash local democracy and prevent the people who are closest to corporate harms from protecting their health and safety,” Schromen-Wawrin said.

The question of the Siletz River ecosystem itself having rights was an element of the county ordinance. Bachart denied a motion to allow it to be a named intervenor in the 2017 lawsuit, finding Lincoln County Community Rights was already arguing in its interests and that there wasn’t sufficient legal precedent for the move.

The judge also acknowledged that granting standing to a natural resource was a concept that has begun to appear in law, and she held an extended hearing on the question to create a record that could be explored by another court.

The ecosystem is a named party in the appeal along with Lincoln County Community Rights, with lead attorney Daniel Meek representing both, arguing that it should have been allowed to intervene in the original suit.

The county is still a party to the lawsuit, and County Counsel Wayne Belmont’s answering brief to the appellate court concludes that the circuit court found correctly when it ruled the ordinance was expressly preempted by the Oregon Legislature.

Oral arguments will be held virtually and are scheduled for 9 a.m. June 1. The public can view a livestream on the court's website.

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