GMO-Free Zone in Southern Oregon Upheld

By Jane Ayers, Reader Supported News

02 June 15

Federal Judge rules in favor of organic, non-GMO farmers/seed growers in lawsuit brought by Monsanto GMO alfalfa growers

edford, Oregon | On Friday, May 30, U.S. Magistrate Judge Mark Clarke ruled in favor of upholding Jackson County’s Ordinance 635, essentially creating a GMO-free zone in the Rogue Valley of Southern Oregon. The ban on GMOs was to take effect June 6, prompting a lawsuit six months ago by two GMO farms in the area. The two farms, Schulz Farms and the James and Marilyn Frink Trust, which raise Monsanto “Roundup Ready” alfalfa, sued Jackson County on grounds that the ban violated Oregon’s Right to Farm Act. In addition, the ban mandated the destruction of their crops, without compensation for what they planned to sell.

There’s a phrase commonly used by country folks: “It’s six of one, half dozen of the other.” Years ago, non-GMO farmers had to destroy their crops because of GMO contamination (which led to the passage of Ordinance 635 to ban GMOs), and now, because of the validity of the GMO ban, farmers of Monsanto’s alfalfa will have their crops destroyed too.

However, unlike the non-GMO farmers, these alfalfa growers have the right to bring legal proceedings against Jackson County seeking $2 million in compensation for their unsold crops.

Farmer Chris Hardy’s ordeal with GMO contamination

One year ago, 66% of the citizens of Jackson County voted in favor of a citizen’s initiative to ban all genetically engineered crops, bringing protection to the Rogue Valley’s well-established organic farming and seed-growing community. A coalition of 150 farms successfully rallied for the ban on GMOs after vegetable/seed farmer Chris Hardy (Village Farms) had to destroy all of his crops of Swiss chard and seed after discovering contamination from pollen drift by GMO sugar beets grown by Syngenta near his land. In addition, he lost a major international contract for his non-GMO seed in 2013 because of this contamination, because the international buyers had zero-tolerance for GMO seed contamination. As Hardy declared recently (as an Intervener in the above court case), “There is no way to undo transgenic contamination once it happens.”

Despite having to deal with Monsanto and other chemical companies pouring over $1 million in advertising money into the county against the ban, the citizen’s initiative was victorious, largely because of the efforts of Hardy (Village Farm), Our Family Farm Coalition (headed by farmer Elyse Higley of Oshala Farm), and the Center for Food Safety.

Judge Clarke’s ruling

In Judge Clarke’s ruling on the case, the Oregon Right to Farm Act, written in the 1980s before the concern over genetically-engineered seeds was a national/international issue, did not hold as much weight as Oregon’s Senate Bill 863, the “Seed Law,” written in 2013, which addresses concerns over genetically engineered seeds and has a special provision for the Jackson County ban.

In the 11-page ruling, Clarke wrote that “the issue of genetically engineered plants in general involves a number of competing interests” such as “What are the long-term effects of consuming genetically engineered food products?” or “What are the long-term impacts of global food scarcity if GE crops are banned?” Judge Clarke decided to not address any of “these complex and difficult questions,” and instead focused on the legality of the ban, thus granting victory to Jackson County’s non-GMO farmers. In addition, Judge Clarke wrote that the Right to Farm Act “does not give free license to use any farming practices ... if they cause damage to another farm’s crops.”

Clarke pointed out that the primary purpose of the GMO ban was “to protect local farmers from significant economic harm to organic farmers and to other farmers who choose to grow non-genetically engineered crops” that can be caused by ‘genetic drift’ from GE crops.”

The real victory in this case was Clarke’s validation that the ordinance “serves to prevent such damage before it happens.”

Clarke further wrote that the Seed Bill prevents local governments from enacting laws banning the use of GE seeds “so that the GMO issue could be addressed on a state-wide, uniform basis.” He reiterated that the legislature meant “to carve out a specific exception” for Jackson County’s ban on GMOs.

The Oregon Legislature voted in favor of the Oregon Senate Bill 863, making it now illegal for counties to rule on local agricultural issues (such as seed), instead bringing them under state-level authority and oversight. Former governor John Kitzhaber had stated that Oregon would have “GMO-free zones” and yet also allow GMO farming. At Senator Bates’ and Rep. Buckley’s insistence, a specific exemption for Jackson County’s ban was inserted into the law, and the Oregon Legislature allowed Jackson County’s GMO ban to be upheld.

Issues Argued in This Case

In oral arguments one week before the decision, Attorney Tom Buchele of Earthrise Law Center (representing the non-GMO farmers) emphasized, “The USDA doesn’t regulate economic harm of genetically engineered alfalfa. But the Ninth Circuit Court recently ruled that Western Oregon counties [that include the Rogue River Valley and the Willamette Valley] are at risk and threatened, and they said some organic farmers will be displaced or harmed. They said these farmers have to also pay expenses and bear all risks of genetically-engineered contamination.” Focusing on this risk, Attorney Buchele argued, “The County did not have to wait for full contamination” to act, and did not “have to accept that risk.” In addition, he pointed to expert testimony from Dr. Ray Seidler, former EPA Senior Research Scientist, that GMO agriculture is “not generally accepted, that co-existence does not work” and “the ban is for the use of genetically-engineered seed.” He noted that “Jackson County voters did not have to sit back and accept or allow GE farmers to displace traditional farmers.”

In this same hearing, Attorney Markovitz, representing his GMO clients, focused on the “generally accepted practices” of growing GMO alfalfa, pointing out that it is “deregulated and 40-50% of the seed sold is genetically engineered.” He added curtly that the population “just has to live with genetically engineered crops.”

Judge Clarke said that the non-GMO seed farmers “won’t be able to sell their crops and will have to rip them up [if contaminated].”

Jackson County attorney Devon Huseby brought attention to the core issue of the case, emphasizing that the ban on GMOs “bans the GMO seed, and it bans the GMO seed the second you put it in the ground. We will have no living crops from genetically-engineered seed that have added DNA in it.”

GMO Farmers Will Seek Compensation for Banned Crops

Further legal proceedings against Jackson County will be brought by the two GMO farms, who will seek $2 million in compensation for the alfalfa crops to be destroyed in enforcement of the ban. It is not known whether Monsanto will also provide crop insurance monies to the farmers for the loss, or whether that is an area included in any contracts signed by farmers who plant the patented genetically-modified seed.

Jane Ayers is a regular contributor to Reader Supported News. She is also a Stringer with USA Today and Los Angeles Times. She can be reached by email:  This e-mail address is being protected from spambots. You need JavaScript enabled to view it