By DANA TIMS/YachatsNews.com
A voter-passed ban on aerial spraying of pesticides in Lincoln County was back in court Tuesday, nearly two years after a judge overturned the initiative because it conflicts with Oregon law.
A three-judge panel of the Oregon Court of Appeals heard computer-streamed arguments from both sides in a case that comes down to whether local and county jurisdictions have the authority to preempt state laws.
The case stems from May 2017, when Lincoln County voters narrowly approved Ordinance 21-177. The ordinance banned aerial spraying of pesticides by businesses on forestland they owned in the county.
It marked the first time in the country that a county had passed such a measure.
Newport resident Rex Capri and Wakefield Farms of Eddyville immediately filed a lawsuit to stop implementation of the ban.
That was followed two years later by Lincoln County Circuit Judge Sheryl Bachart’s ruling that the county ordinance was pre-empted by an Oregon law that both allows aerial spraying of pesticides on forests and prevents local governments from enforcing any ordinance or regulation governing pesticide sale or use.
Attorney Dan Meek, representing ordinance-supporter and lawsuit intervener Lincoln County Community Rights, argued Tuesday that the measure doesn’t run afoul of state preemption laws because it is an outright ban on aerial pesticide spraying. Banning pesticide use, he added, is not the same as regulating it.
Meek’s microphone cut out numerous times during his presentation, causing the judges to ask if he could fix it. In the end, the communication problems continued and much of Meek’s presentation to the court was unheard.
Even so, the judges have hundreds of pages of legal filings from him, guaranteeing that his arguments will still be evaluated.
Attorney Evan Christopher, representing Capri and Wakefield Farms, disagreed with Meek’s primary argument regarding preemption, saying, “By any reasonable term, to prohibit use of pesticides is to regulate the use of pesticides.”
Lincoln County found itself in the unusual position as the primary defendant in the case. Wayne Belmont, county counsel, used what he called a nautical analogy to argue that the original measure lacked precision in its crafting.
“That vessel leaks, badly,” he told the judges. “It may not make it out of the harbor before it sinks.”
Belmont said the county cares about the health and safety of its citizens just as much as the anti-spray group that drafted and backed the original measure.
“We just differ on how to approach these issues,” he added. “In this case, we have an ineffective law standing in the way of better remedies.”
No timeframe for a decision was announced, although attorneys involved in the case say it could take up to six months or more for a final decision.
My question to County Counsel Belmont is “Where is the evidence” of the county caring as much as Lincoln County Community Rights and the citizen voters who voted the ban in place for protecting the people of this county from aerial sprayed toxins?