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Is Oregon’s Right to Farm and Forest Act Constitutional?

September 21, 2011

This summer, a group of Oregon landowners living on and around property zoned Exclusive Farm Use and Exclusive Forest Use filed suit against the State of Oregon alleging that the State’s Right to Farm and Right to Forest Act (“Act”) is unconstitutional because it violates the remedy clause of the Oregon Constitution Article 1 §10. The remedy clause guarantees that “every man shall have remedy by due course of law for injury done him in his person, property or reputation.” Plaintiffs claim that the Act unconstitutionally denies them a remedy for injury to their property in violation of that clause.

The Act was adopted because the Oregon Legislature recognized the important role agriculture and forestry play in Oregon’s economy. As the State becomes more urbanized, suburban lifestyles encroach more and more on farm and forest land which highlights the inherent conflict between farm and forest practices and residential life. The Legislature acknowledged that farm and forest land must be protected from lawsuits that seek to limit farm and forestry practices on land zoned for that use. This forces people who move into areas with active farm and forest land to “accept the conditions commonly associated with living in that setting.” To do that, the Act protects farm and forest land by prohibiting suits for nuisance or trespass for certain farm or forest practices on land zoned for farming or forestry. However, this is not carte blanche permission for farmers and foresters to do what they please regardless of the effect it has on neighbors. Only practices that are “done in a reasonable and prudent manner,” do not violate any laws, and are generally accepted farming or forestry practices are protected under the Act. Furthermore, liability protection does not extend if the practice results in “damage to commercial agricultural products” or “death or serious injury.”

Plaintiffs in Hale v. State are claiming that the Act violates the remedy clause of Article 1 §10 because the Act eliminates an injured party’s ability to seek relief for property damage that would otherwise be remedied through a nuisance or trespass suit. Plaintiffs sued the State in an effort to stop Oregon Courts from allowing defendants to raise the Act as a defense in appropriate nuisance or trespass cases. In response, the State filed a motion to dismiss on the grounds that plaintiffs are seeking an advisory opinion. Furthermore, the State claims it is an inappropriate defendant for this case because the plaintiffs’ injuries will not be remedied by a judgment against the State. Judge Rasmussen heard oral arguments on the State’s motion to dismiss on September 6, 2011 in Lane County and later granted the State’s motion to dismiss. While plaintiffs may choose to appeal Judge Rasmussen’s ruling, the more substantive question of whether the Right to Farm and Right to Forest Act is constitutional will wait for another day.

Thanks to Laysan Unger for her assistance in writing this post. If you have any questions about this post, please contact me at tbernasek@dunncarney.com

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