Measure 21-177

Court Renders Decision and Opinion Letter (Also, in Supporting Documents Below)

(9.30.19 - Lincoln County, OR)

Lincoln County Circuit Court Judge Sheryl Bachart has ruled on motions and cross motions for summary judgement on challenges to the county voter enacted Measure 21-177, "The Freedom from Aerially Sprayed Pesticides Ordinance" passed by voters in May of 2017. The motions and cross motions were filed by Plaintiff Rex Capri, et. al., Defendant Lincoln County, and Intervenor Lincoln County Community Rights. In short, the Court overturned the entire Ordinance on the grounds of state preemption of pesticide regulation. 

Judge Bachart made four rulings in the opinion letter:

Granted Defendant County's cross motion for summary judgment that the election was "properly placed on the ballot and legally enacted by the voters of Lincoln County" and that the subject matter of the election, aerial spraying, was a proper matter of county concern for the voters to consider. Plaintiffs' several election validity challenges (both prior to and after the election) were denied.

Determined that state law, and specifically Oregon's Pesticide Control Act, ORS Chapter 634, preempts the County from the adoption or enforcement of "any ordinance, rule or regulation regarding pesticide sale or use." Therefore, the Court granted Plaintiffs' Motion for Summary Judgment on the question of preemption and declared the Measure (Ordinance) void and unenforceable.

In connection with the preemption question, the Court denied the County's cross motion that the Ordinance was applicable at least to County actions on County owned land. The Court distinguished between an ordinance regulating pesticide use on County owned land (which is not allowed) and the adoption of a policy regarding the use of pesticides on property owned by the County (which is allowed).

Finally, the Court denied Intervenor Lincoln County Community Rights' (LCCR) cross motion for summary judgment. LCCR argued that there are inherent and inalienable rights of local community self-government under the U.S. and Oregon Constitutions that allow the local enactment to supersede contrary state law. The Court found no Oregon case supports Intervenor's assertions and noted that Intervenor conceded that no Oregon Court has "recognized an actionable right of local community self-government." Where local enactments are found incompatible with state law in an area of substantive policy and explicit preemption, state law will displace the local law.

Judge Bachart went to great lengths to explain her decision. She concluded by expressing that the decision was based on questions of law and not of policy. "In granting Plaintiff's Motion for Summary Judgment and declaring the Ordinance to be preempted in its entirety by the Oregon Pesticide Control Act, the Court makes no choice among values or competing interests of the parties. Such choices are political, not a judicial decision. There is no determination within this decision of weighing or balancing community decision-making authority over that of the state or vice versa."

The nine-page decision letter is provided below in the supporting documents section.

Audio / Video

Supporting Documents

  1. Amended Complaint - June 14 2017 (PDF)
  2. Case Number 17 cv23360 Judge Bachart Decision And Opinion Letter
  3. Complaint - Rex Capri V. Dana Jenkins - June 6, 2017 (PDF)
  4. Countys Answer And Counterclaim To Amended Complaint 8.2.17 (PDF)
  5. Countys Cross Motion For Summary Judgment August 17 2017 (PDF)
  6. Countys Memo Of Law Supporting Cross-Msj August 17 2017 (PDF)
  7. Countys Reply To Intervenors Aff. Def. And Counterclaim 8.2.17 (PDF)
  8. Countys Response To Intervenors Cross-Msj September 18 2017 (PDF)
  9. Countys Response To Plaintiffs Msj September 18 2017 (PDF)
  10. Declaration Ann B. Kneeland - Siletz River July 21 2017 (PDF)
  11. Declaration Ann B. Kneeland June 26 2017 (PDF)
  12. Declaration Barbara Davis June 26 2017 (PDF)
  13. Declaration Carol Van Strum - Siletz River July 21 2017 (PDF)
  14. Declaration Maria Sause June 26 2017 (PDF)
  15. Declaration Of Nancy Hiatt In Support Of Msj August 11 2017 (PDF)
  16. Declaration Of Rex Capri In Support Of Msj August 11 2017 (PDF)
  17. Declaration Of Wayne Belmont In Support Cross-Msj August 17 2017 (PDF)
  18. Intervenors Answer And Counterclaim July 11 2017 (PDF)
  19. Intervenors Cross-Motion For Summary Judgment August 11 2017 (PDF)
  20. Intervenors Reply To Countys Counterclaim August 11 2017 (PDF)
  21. Intervenors Response To Plaintiffs Msj And Countys Cross-Msj September 18 2017 (PDF)
  22. Media Release - County To Respond To Lawsuit - 6.7.17 (PDF)
  23. Media Release - Court Renders Decision And Opinion Letter In Aerial Spraying Ordinance Challenge (PDF)
  24. Media Release - Preliminary Injunction 21-177 - June 20 2017 (PDF)
  25. Motion To Intervene Lccr June 26 2017 (PDF)
  26. Motion To Intervene Siletz River July 21 2017 (PDF)
  27. Order Allowing Intervention June 29 2017 (PDF)
  28. Plaintiffs Amended Complaint June 15 2017 (PDF)
  29. Plaintiffs Complaint Original 6.6.17 (PDF)
  30. Plaintiffs Memo Of Law Opposing Countys And Intervenors Cross -Msj September 18 2017 (PDF)
  31. Plaintiffs Reply To Countys Counterclaim August 11 2017 (PDF)
  32. Plaintiffs Reply To Invervenors Counterclaim August 11 2017 (PDF)
  33. Plantiffs Motion For Summary Judgment August 11 2017 (PDF)
  34. Stipulated Preliminary Injunction - June 14 2017 (PDF)