Questions about the constitutionality of Oregon's "right to farm" law, which shields growers from some lawsuits, have been resurrected in a pesticide dispute in Curry County.
Nuisance and trespass complaints against Oregon's farmers and foresters are barred under the law, which has been challenged in court several times.
A previous case that opposed the "right to farm" statute was dismissed in 2013 on jurisdictional grounds without resolving the constitutional question.
In the current lawsuit, the outcome may depend on conclusions reached by a jury.
Some residents in Cedar Valley claim they were harmed by off-target herbicide sprays in 2013 conducted by Pacific Air Research, an aerial applicator, on forestland owned by Joseph Kaufman.
The 15 plaintiffs are seeking $4.2 million in damages from the company and the landowner in a Curry County jury trial that's set to end Friday. The county is in far southwestern Oregon.
However, the defendants recently asked a judge to dismiss the case because they're immune from liability under the "right to farm" statute.
In response to that motion, the plaintiffs argue that Oregon's constitution should preclude "right to farm" protections because people must be allowed to seek a legal remedy for a harm they've suffered.
"The right to protect private property from invasions by other parties is one of the most fundamental rights recognized by the common law of Oregon," the plaintiffs said in a court brief.
Judge Cynthia Beaman on Monday denied the defendant's motion to dismiss the case, without opining on the constitutionality of the "right to farm" law, said Heath Curtiss, director of government affairs for the Oregon Forest & Industries Council.
Curtiss said it's possible the judge could still reach a conclusion on that issue, but he doesn't think it's likely.
Before making any decision on the "right to farm" law, the judge seemed inclined to answer the factual question of whether the plaintiffs were harmed, he said.
"If the plaintiffs were actually harmed, then it seems unlikely that the application complied with applicable laws and was 'reasonable and prudent' as required by the statute," Curtiss said in an email. "Alternatively, if the plaintiffs were not harmed, then the immunity would not be needed as the verdict would return in defense's favor."
It's possible the defendants would seek "right to farm" protection if a jury finds them liable, but this would be an "awkward" use of the statute, said Tim Bernasek, an attorney who heads the natural resources team at the Dunn Carney law firm.
Improper pesticide usage isn't shielded from liability under the law, which only protects "generally accepted" farming practices, Bernasek said.
"If you have an off-label application, that's not generally accepted, so there's no coverage," he said.
Ralph Bloemers, an environmental attorney with the Crag Law Center, said the "right to farm" law hinders access to justice because people fear being defeated in court and having to pay the prevailing party's attorney fees, as the statute requires.
Proving that pesticide trespass caused an injury is difficult enough, so the attorney fee provision has a chilling effect on neighboring property owners who feel they've been harmed, he said.
"I could lose my house and everything I've ever saved if I lose this case," Bloemers said.
The plaintiffs in the Curry County case have previously challenged the "right to farm" statute without success.
Their lawsuit originally asked a judge to declare from the outset that the law violated the state's constitution.
However, that request was denied because their challenge of the "right to farm" statute was premature, since Pacific Air Research and Kaufman hadn't yet raised it as a defense — a situation that has since changed.
In the 2013 challenge to the "right to farm" statute, the Oregon Court of Appeals said it had no jurisdiction to decide the case because the conflict was merely speculative.