After more than two years studying the issue, a Lincoln County circuit judge has tossed out a voter-approved initiative that would have banned aerial spraying of pesticides in the county because it conflicts with Oregon law.
The judge released her findings to attorneys Sept. 23; word slowly spread last week and attorneys and groups involved released statements and reactions Monday.
By 61 votes out of almost 14,000 votes cast, Lincoln County voters approved an initiative in May 2017 that would have banned aerial spraying of pesticides by businesses on forest land they owned in the county. It was the first county in the country to pass such a measure.
The issue was one of the most hotly debated in the county in years. Lincoln County officials, including the sheriff, opposed it but it had widespread support among environmentalists and others concerned about forest and water health.
After forest property owners sued to invalidate its passage, the county was put in the unusual situation of defending the lawsuit. The anti-spraying group, Lincoln County Community Rights, joined the lawsuit as an intervenor.
Judge Sheryl Bachart ruled that the newly-passed county ordinance was pre-empted by an Oregon law that allows, with state-approved restrictions, aerial spraying of pesticides on forests and prohibits local governments from making any ordinance, rule or regulation governing pesticide sale or use.
“Where local enactments are found incompatible with state law in an area of substantive policy and explicit preemption, state law will displace the local
law,” she wrote.
Bachart ended her ruling by saying her decision was based on questions of law and not of policy.
“In granting plaintiff’s motion for summary judgment and declaring the
ordinance to be pre-empted in its entirety by the Oregon Pesticide Control Act, the Court makes no choice among values or competing interests of the parties. Such choices are political, not a judicial decision. There is no determination within this decision of weighing or balancing community decision-making authority over that of the state or vice versa.”
The judge made three other rulings in her decision, including:
- Agreeing with the county that the election was “properly placed on the ballot and legally enacted by the voters of Lincoln County” and that aerial spraying was a proper matter for voters to consider;
- Denying the county’s contention that the ordinance was applicable to county spraying on county-owned land;
- Denying Lincoln County Community Rights’ argument that there are inherent and inalienable rights of local community self-government under the U.S. and Oregon constitutions that allow the local enactment to supersede contrary state law. “Where local enactments are found incompatible with state law in an area of substantive policy and explicit preemption, state law will displace the local law,” Bachart wrote.
In her letter to attorneys, Bachart also apologized “for the lateness of this decision” following a hearing on it in October 2017.
“Unfortunately, after this case was submitted my docket was significantly impacted by the long-term medical leave of one of our judges,” she wrote. That judge, Paulette Sanders, has since retired.
Lincoln County Counsel Wayne Belmont said his office is reviewing the decision, but for the most part agreed as to the application of the law. But, Belmont said, the county will continue its long-time practice of not aerial spraying pesticides on county-owned property.
The group that intervened in the court case blasted the judge’s ruling.
“The fight for our legal, constitutional, and fundamental right of local self-government marches on, and it is going to take the political will of the people to make it a reality if we ever want to stop living under the thumb of corporate government,” Rio Davidson, president of Lincoln County Community Rights, said in a statement.
The group that battled the initiative, Coalition to Defeat Measure 21-177 called the judge’s decision “good news.”
“The law is clear on the issue; Ordinance 21-177 is unconstitutional and undermines our system of government,” coalition director Alan Fujishin said in a statement. “The proper authorities to evaluate, regulate, and enforce pesticide rules, with our local input, are at the state and federal levels where adequate resources can be deployed to ensure the safety of pesticide practices for all Oregonians.
Fujishin said the coalition is also “committed to accountability by being the first in line to call out bad actors in our industries” and encouraged people to call the state of Oregon’s 211 hotline if they are concerned about a pesticide application.