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Spring 2001

In This Issue

Governor Kitzhaber Talks Agriculture

Director's Corner

ODA Names New Assistant Director

Industry Development Manager

Agriculture Plays Big Role in Oregon's 36 Counties

Commodity Commission Spotlight

Big Agricultural Operators Step Up to the SB 1010 Plate

Keeping Ag Viable Project

ODA & Governor Look to South of the Border

Then & Now:
The Egg Industry

"Right-to-farm" law in Oregon

Thirsty Oregon Agriculture Braces for Dry Year

Invasive Species Catch ODA's Attention

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"Right-to-farm" law in Oregon

by Brent Searle

Population growth in both urban and rural residential areas throughout the U.S., and the siting of non-farm uses in farming areas over the past four or five decades has raised contention in urban-rural interface. Non-farm neighbors—unaccustomed to normal farming activities—have found agricultural noise, odors, dust, and other activities objectionable.

Non-farmers began using local or state nuisance laws to obtain injunctions to stop agricultural activities. Since the late 1960s, state legislatures have enacted anti-nuisance laws to give agricultural activities sufficient protection from nuisance lawsuits so that farmers can carry on their usual farming operations. Such laws, known as "right-to-farm" laws, are now in place in all 50 states, although they differ in scope and function.

Oregon's "right-to-farm" law was recently updated in 1993 and 1995 and is found at ORS 30.930. The Legislative policy set out in statute finds that "farming and forest practices are critical to the economic welfare of this state," and that it is "in the interest of the continued welfare of the state for farming and forest practices to be protected from legal actions that may be intended to limit [such practices]."

Right-to-farm laws seek to protect the investment farmers have made in their agricultural operations. The law limits the ability of individuals, local governments, and special districts to bring court actions or administratively declare certain farm and forest practices to be nuisances or trespasses.

The Oregon right-to-farm law includes specific protection from legal actions because of noise, vibration, odors, smoke, dust, mist from irrigation, use of pesticides and crop production substances, and transporting or movement of farm equipment or vehicles and livestock on public roads.

The protection for these farm practices is applicable on all lands zoned exclusively for farm use (EFU) or forest use outside an urban growth boundary in Oregon. If an urban growth boundary is changed to include a farm inside its limits, the protection applies until it is changed to nonfarm use.

However, being in an EFU zone or operating a farm does not imply blanket application of right-to-farm protection. In order to maintain the protection under the law, an operation must:

  • Be a commercial operation with the intent to make a profit;
  • Be in compliance with all applicable laws;
  • Employ practices that are generally accepted, reasonable, and prudent for the operation to make money (generally accepted means "recognized by experts and widely utilized or able to be utilized if circumstances apply;" reasonable means "with sound judgment and not extreme or excessive;" and prudent means "judicious and practical in application to obtain a desired result;"
  • Use practices that are commonly used on farms of a like nature.

The first two criteria have nothing to do with the practice employed; these criteria ensure that the operation is a bona-fide commercial farm enterprise that is operating legally. The second two criteria ask whether the practice is generally accepted and commonly found on other farms of a like nature, and is reasonable and prudent to effect a desired outcome. (Similar protection applies to commercial forest operations.)

Because the integrity of the right-to-farm law is so important to the well-being of the industry statewide, the Oregon Department of Agriculture is authorized to make decisions, based on complaints, regarding whether a practice meets the criteria in the law. The department is not required to investigate complaints if the agency has reason to believe that the practice meets the requirements under the law. On the other hand, if an operation is employing practices that the department believes may not meet these criteria and causing unreasonable impacts on other parties, the department may investigate.

Right-to-farm is distinct but closely interconnected with land use zoning in Oregon. While right-to-farm protects a grower from nuisance suits, it does not address land use conflicts with nonfarm uses and their impacts on farmers. Vandalism, increased traffic, land value influences that affect the ability of farmers to finance their operations, trespass, litter, dogs chasing livestock, non-authorized recreational use of agricultural land, and even spray drift from rural residential properties are examples of conflicts generated by nonfarm uses located nearby and amongst farms and ranches. Right-to-farm's limitation is that it cannot protect farms and ranches from the conflicts that are generated by nonfarm uses—which demonstrates the importance of zoning and how the two laws work together. The zoning laws create areas that are reserved for production agriculture; anyone moving into that area must accept the conditions and practices associated with commercial farming operations.

Even though the right-to-farm law is fairly clear, there will be situations when neighboring interests create disagreements. One option available to the parties is ODA's Farm Mediation Program. This program provides a neutral, professional mediator to meet with the parties and help them examine options, clarify communications, and draft agreements. Mediators are neutral—they do not render decisions or provide legal advice. The cost of this service is $30 per hour from each party in the dispute. Growers are not obligated under the law to participate in mediation, but many operators find mediation can be a good tool to demonstrate they are making every effort to be a good neighbor.

To find out more about mediation, contact Brent Searle, program coordinator, at 1-800-347-7028.

Questions about zoning or right-to-farm law can be directed to Jim Johnson, 503-986-4706.

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