Members of Community Rights Lane County rally as they turn in signatures

Aerial Spray Ban Stuck in Courts

Lane County commissioners delay vote on initiative

Two activist groups did what they were told in order to get an aerial spray ban on the May 15 election ballot. After the Lane County clerk gave them the go-ahead to start collecting signatures, they came back with the required 11,506.

Rob Dickinson, a leader of one of the organizations, says they collected thousands more — around 15,000 altogether. And on Oct. 19, Dickinson spoke in front of a cheering 32-person crowd before they turned them in. A YouTube video of the event shows him thanking the elections board for helping them submit signatures in the “legal and proper way.”

But five months later, members of Freedom from Aerial Herbicides Alliance and Community Rights Lane County are locked in a legal battle against the very people to whom they expressed gratitude. This came after the county clerk decided the measure violated state law.

With their aerial spray ban held up in the courts, the two groups have appealed to Lane County commissioners to refer the measure onto the upcoming election ballot. But they met delays there, too.

The two groups oppose aerial herbicide spraying — a practice used by timber companies to kill unwanted plants, often after clearcutting. On its website, the Freedom from Aerial Herbicides Alliance says it is concerned with harmful chemicals drifting off to affect residents and their livestock and crops.

The group, along with Community Rights Lane County, is proposing the county vote on whether the aerial spray ban should be included into the Lane County charter. Such a charter amendment would only be able to be removed or altered after a vote from residents.

Their measure consists of a “Lane County Freedom from Aerial Spraying of Herbicides Bill of Rights,” which calls for the county to recognize the negative impacts of aerial herbicide spraying and a right for residents to be protected from it.

For Michelle Holman, a Community Rights Lane County leader, they want this measure to address a larger problem.

“It is not just an aerial spraying problem,” Holman says. “Why is it that big corporations have more rights to do harm in our communities than we have the protections to protect ourselves?”

Initially, the measure faced opposition, not from the county clerk but from a retired attorney and former Lane County counsel, Stanton Long. In response to the county’s giving the groups permission to gather signatures, Long sued Betschart, the county clerk, in 2016, and Stephen Dingle, the current Lane County counsel. He wrote in a court order that the initiative contained multiple changes, which would be decided in a single vote, and that the county failed to review whether it met the separate vote requirement.

Members of Freedom from Aerial Herbicides Alliance and Community Rights Lane County both intervened on the side of the county, arguing that the rule did not apply to their measure.

Lane County Circuit Court Judge Karsten Rasmussen dismissed the lawsuit, ruling that Betschart had to wait until the required signatures were collected. However, Rasmussen concluded that if that happened, the clerk had a duty to ensure the measure complied with the separate vote rule.

Things took a turn when the groups did show up with signatures.

Betschart, in an Oct. 26 email to Dickinson, the Community Rights Lane County member, verified that the gathered signatures were sufficient, but referred to Dingle for a review of whether the initiative complied with the separate vote rule.

Within the same day, Dingle emailed that he determined it did not. And five days later, Betschart declared they would not put the aerial spray ban measure on the May ballot.

And so the roles switched.

Now, members of Freedom from Aerial Herbicides Alliance and Community Rights Lane County are the ones with a lawsuit against the county, with Long intervening once again. On Feb. 2, Rasmussen presided over a court hearing where attorneys from both sides presented their arguments. The Lane Court circuit court judge is expected to release a decision this month.

The defendants and intervenor say they have an issue with how the aerial spray ban would recognize private conduct and create rights for citizens, something William Gary, Long’s attorney, says the county charter currently doesn’t do. Also, Gary says the aerial spray ban initiatives have “very different ways of changing the composition and meaning of the charter,” making it a violation to have them included in a single vote.

“You can well imagine that some people may be well in favor of creating the rights that the measure creates, but would be opposed to the idea that Lane County can regulate the conduct of the federal government,” Gary says.

Meanwhile, Ann Kneeland, a founding member of Community Rights Lane County and the attorney representing the petitioners, says her opposition’s concerns about the initiatives containing closely related issues are not relevant to the original 1954 case, Baum v. Newbry, in which the Oregon Supreme Court interpreted the separate vote requirement. In that case, she argues that the separate vote rule used to require amendments to address single subjects.

If two or more amendments are submitted simultaneously, Kneeland said, the court ruled to have them be addressed as single subjects and voted on separately.

As dealing with the courts proved to be troublesome for the activists, they turned to the Lane County Board of County Commissioners.

For the elected representatives to refer the aerial spray ban initiative to the ballot as ordinances would be the second best thing for the group. If passed, the law would be entirely in the hands of the county commissioners to repeal or change, instead of being changed by a vote from Lane County residents.

During a Jan. 9 meeting, Lane County Commissioner Jay Bozievich said there is a risk they would break state laws without support from the courts, citing the time the Lane County Board of County Commissioners were preempted in 2015 for refusing mandatory sick pay.

“After the election, we took an oath of office where we swore to uphold laws of this state,” Bozievich said. “Whether we’ve had 11,000 to 15,000 people sign petitions for something doesn’t relieve us from our responsibility to act within our oath of office.”

The county commissioners ended up delaying further discussion on the matter by setting a work session for May 23 — after the May 15 primary election.

During the following meeting on Jan. 23, Bozievich and Pat Farr gave their reasons for setting that date: Waiting until Rasmussen makes his decision and after any following appeals are resolved.

“We’ve been working on this for two years. We want to keep moving and we’ve been putting a lot of energy coming into the commissioner’s meetings,” Holman says.

But all in all, Holman says that the hardest part about putting up with further delays is that it takes away from the time they would have to rally support, if it does get included in the ballot.

“The further they put this off, the tighter the time constraints for us to run a really well-run campaign,” Holman says.

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