Oregon's Right-to-Farm Summary

The Oregon legislators who passed and amended the state’s Right-to-Farm (RTF) law promoted it as a piece of legislation that protected agricultural lands from urban and suburban sprawl.1 Since Oregon’s law was enacted in 1981, the number of farm operations has grown by 2% while the amount of acreage in farmland has dropped by 13%.2 So what does this legislation do in practice?

Oregon’s RTF Law at a Glance

Oregon’s RTF law originally protected farming practices from nuisance suits that pertained to the enjoyment and use of property, similar to other RTF laws nationally.3 Generally, protected farming practices could occur in any facility or building, or on any land or watercourse, zoned for the commercial production of crops and nursery stock, or the production of livestock, poultry, vermiculture and their products.4 However, the Oregon Department of Agriculture and the Oregon Farm Bureau successfully lobbied in 1993 for dramatic changes to the state’s RTF law.5 Among other things, these changes extended RTF protections to forestry practices, including site preparation, timber harvest, slash disposal, road construction, thinning, as well as disease and insect control on any land that is zoned for the growing and harvesting of forest tree species.6

Most importantly, the amendments added trespass alongside nuisance, effectively shielding agricultural and forestry operations from lawsuits based on the invasion of neighboring property without permission.7 Further, the 1993 amendments and a later amendment in 1995 added the use of pesticides (including fungicides, herbicides, insecticides, and nematicides) to the definitions of protected farming and forestry practices.8 The inclusion of pesticides as a protected farming and forestry practice has prevented some landowners from recovering compensation for damage resulting from pesticide drift. In 2011, seven landowners, including organic farmers, sued the state, arguing that by allowing pesticide drift the RTF law was unconstitutional because it deprived them of their right to sue for compensation.9 A state judge dismissed the suit in 2011, to the praise of the Oregon Farm Bureau.

Advocates claimed that the sweeping changes in the 1993 amendments would safeguard farmers from “new arrivals who find that the country isn’t quite as pristine as they prefer.”10 The legislature expressly stated that “[p]ersons who locate on or near an area zoned for farm or forest use must accept the conditions commonly associated with living in that particular setting.”11 In reality, Oregon’s RTF law does not provide protections tailored to long-standing farms. Rather, the law broadly protects farming and forestry practices in areas zoned for farm or forestry uses against claims relating to vibration, odors, smoke dust, pesticide drift and irrigation.12 Such practices receive RTF protection regardless of the amount acreage, the farm size (e.g. small) or the type of organization (e.g. family). Further, farm operations are protected regardless of whether or not they predate other dwellers or rural residents.

RTF Conditions and Activities

To receive RTF protection in areas zoned for farming and forestry, practices must meet a series of criteria.13 Farming and forestry practices must: (1) be used on farms or forestland of a similar nature; (2) use generally accepted, reasonable, and prudent methods, including for making a profit; and (3) comply with applicable laws. The law also uniquely protects future changes, stating it protects methods that may become generally accepted, reasonable, and prudent ways to operate on a farm.14 Further, the RTF protects farming and forestry practices regardless of whether they change or are interrupted.15 This legal language can serve to protect the consolidation, expansion, and further intensification of agriculture.

When first enacted, Oregon’s RTF law did not protect farming practices that were negligent, meaning those which failed to take proper care.16 However, amendments in 1993 removed that stipulation and added other exceptions.17 Now, operations lose their RTF protection if someone dies or incurs serious physical injury.18 In addition, if a farming or forestry practice damages commercial agricultural products, the practice will not be protected by the RTF law.19 In 2015, an Oregon court interpreted this to mean that “the Right to Farm Act does not give free license to use any farming practices. While farming practices may not be limited by a suburbanite’s sensitivities, they may be limited if they cause damage to another farm’s crops.”20

Under some circumstances, Oregon’s RTF law protections can extend to farming and forestry practices that are not located in areas zoned for such uses. If a farming or forestry practice is what the law calls a “preexisting nonconforming use”—meaning a use that once complied with local zoning but no longer does due to a change in zoning laws—the practice can be protected from claims of nuisance or trespass.21 To receive these protections, the practice must not only meet the same requirements that exist for a protected practice in areas zoned for farming or forestry, but the practice must also have existed before any conflicting nonfarm uses.22 In addition, the practice cannot have significantly increased in size or intensity after the later of either November 4, 1993 or the date on which an urban growth boundary is changed to include the area where the farming practice occurs.23

A 1995 amendment made it clear that Oregon’s agencies could chose, but were not required, to investigate complaints pertaining to forestry and agriculture.24 Oregon’s RTF law now expressly provides that the Oregon Departments of Environmental Quality, Agriculture, State Lands or Forestry do not need to investigate any complaint if they “believe that the complaint is based on practices protected” by the state’s RTF law.25

Local Government

Oregon’s RTF law tailors its protection to areas zoned for farming or forestry at the county level or where a farming or forestry practice is a preexisting noncomforming use.26 The RTF law renders invalid any local ordinance or regulation—presently in effect or subsequently adopted—that makes a farm or forestry practice a nuisance or trespass, or that attempts to stop such a practice because it is a nuisance or trespass.27 This rule only applies to a farm or forestry practice that is otherwise protected under the RTF law.

In a 2004 case, the Oregon Court of Appeals considered as much when a farmer with a herd of 60 goats and guard dogs was cited for violating a county ordinance that prohibited dogs from becoming public nuisances through prolonged noise, in this case barking.28 The court reversed the violation, concluding that the state’s RTF law prohibited the county from enforcing its ordinance against the farmer because using guard dogs was a protected farming practice. The Court also noted that the RTF law “promotes a policy of maintaining exclusive use farm land for farming, even at the expense of the neighbors’ enjoyment of their property.”

Conversely, a farm which used Roundup Ready Alfalfa grown from genetically engineered seeds brought an action against their county, arguing that a proposed county ordinance banning the use of genetically engineered seeds conflicted with the state’s RTF law and should not be enforced.29 The court, however, concluded in 2015 that the ordinance sought to protect farmers growing non-genetically engineered crops from significant economic harm caused by genetic drift. Accordingly, the court held that because the ordinance was protecting against a farming practice (the use of genetically engineered seeds) that caused damage to other commercial agricultural products, the ordinance fell within an exception to the RTF law and was therefore valid.30

Other Oregon laws also seek to protect farm and forestry practices from non-agricultural and non-forestry uses. Under one such law, in order for a non-agricultural or non-forestry use to be allowed in an area zoned for exclusive farm use, the use must pass a farm impact test confirming that it will not force a significant change to, or significantly increase the costs of, accepted farm or forest practices on neighboring lands.31

The meaning of ‘significant’ came into focus in a series of court cases involving a landfill company that sought to expand its solid waste landfill into an exclusive farm use zone because it was running out of capacity.32 The county had approved the landfill’s expansion, but a coalition of citizens and farmers, including a winery association, sued to stop the expansion. The court considered whether the landfill expansion would violate Oregon’s law, which prohibits uses that create a significant change in accepted farm practices or significantly increase the cost of those practices on surrounding agricultural lands. Ultimately, the Supreme Court of Oregon concluded that “a ‘significant’ change or increase in cost is one that will have an important influence or effect on [a particular accepted farm practice].”33 The court therefore remanded the case back down to the county’s land use board of appeals to determine whether the landfill company could prove that the expansion would neither (1) force a significant change in the neighboring accepted farm practices, nor (2) significantly increase the cost of those practices. One legal commentator opined that the court’s decision made it “very difficult” moving forward for counties to approve non-farm and non-forestry uses in exclusive farm use zones “if the adjacent farm operator is able to marshal evidence of significant cost increases or changes in accepted farm practices.”34

Attorneys’ Fees and Damages

Oregon’s RTF law stipulates that courts must award reasonable attorneys’ fees and costs to the prevailing party in any action in which a farming or forestry practice is alleged to cause a nuisance or trespass.35 Importantly, the Oregon Supreme Court ruled that a party does not have to prove that farming or forestry practice exists within the scope of the state’s RTF law.36 Instead, a prevailing party can be awarded attorneys’ fees and costs even if they simply allege a farming or forestry practice is a nuisance or trespass. These costs and fees must be awarded both at the trial level, as well as if the case goes on to an appeal.

  • 1. The Oregonian. 1993. “A Right-to-Farm.” The Oregonian. April 22, pp. E08; Kadera, Jim. 1993. “Oregon Agricultural Interests Expand Right-to-Farm Concept.” The Oregonian. February 24, pp. B02. See also 1993 Or. Laws 792 (H.B. 3661) (adding what is now Or. Rev. Stat. § 30.933).
  • 2. United States Department of Agriculture. 1981. USDA Quick Stats Tool: June 1981 Survey, Oregon. Retrieved January 6, 2021. (https://quickstats.nass.usda.gov/results/DBC85231-9E97-30A4-BB0E-37029E2AE5CB); Department of Agriculture. 2019. USDA/NASS 2019 State Agriculture Overview Oregon. Retrieved January 6, 2021. (https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=OREGON).
  • 3. Or. Rev. Stat. Ann. §§ 30.930, 30.935 (1981).
  • 4. Or. Rev. Stat. Ann. §§ 30.930, 30.933, 30.936 (2020).
  • 5. See generally 1993 Ore. Laws 792 (H.B. 3661); Kadera, Jim. 1993. “Oregon Agricultural Interests Expand Right-to-Farm Concept.” The Oregonian. February 24, pp. B02.
  • 6. 1993 Ore. Laws 792 (H.B. 3661) (amending, in relevant part, what is now Or. Rev. Stat. Ann. §§ 30.936, 30.937, and amending Or. Rev. Stat. Ann. § 30.930).
  • 7. 1993 Ore. Laws 792 (H.B. 3661) (adding, in relevant part, what is now Or. Rev. Stat. Ann. §§ 30.934, 30.936, 30.937, and amending Or. Rev. Stat. Ann. § 30.935).
  • 8. 1993 Ore. Laws 792 (H.B. 3661) (adding, in relevant part, what is now Or. Rev. Stat. Ann. §§ 30.932, 30.939); 1995 Ore. Laws 703 (S.B. 766) (amending Or. Rev. Stat. Ann. § 30.930, 30.932). For the relevant definition of “pesticide,” see Or. Rev. Stat. Ann. § 634.006 (2020).
  • 9. Perkowski, Mateusz. 2011. “Right to farm law challenge fails, may resurface again. Judge dismisses lawsuit taking issue with ag protections.” Capital Press. September 29.
  • 10. 1993. “A Right to Farm.” The Oregonian. April 22, pp. E08.
  • 11. 1993 Ore. Laws 792 (H.B. 3661) (amending, in relevant part, what is now Or. Rev. Stat. Ann. § 30.933).
  • 12. Or. Rev. Stat. Ann. §§ 30.930, 30.932, 30.936 (2020).
  • 13. Or. Rev. Stat. Ann. §§ 30.930, 30.936 (2020).
  • 14. Or. Rev. Stat. Ann. § 30.930 (2020).
  • 15. Or. Rev. Stat. Ann. § 30.936 (2020).
  • 16. Or. Rev. Stat. Ann. § 30.935 (1981).
  • 17. See 1993 Ore. Laws 792 (H.B. 3661) (amending in relevant part, Or. Rev. Stat. Ann. § 30.935).
  • 18. Or. Rev. Stat. Ann. § 30.936 (2020).
  • 19. Or. Rev. Stat. Ann. § 30.936 (2020).
  • 20. Schultz Family Farms LLC v. Jackson Cty., 2015 WL 3448069.
  • 21. Or. Rev. Stat. Ann. § 30.937 (2020).
  • 22. Or. Rev. Stat. Ann. § 30.937 (2020).
  • 23. Or. Rev. Stat. Ann. § 30.937 (2020).
  • 24. 1995 Ore. Laws 703 (S.B. 766) (creating, in relevant part, what is now Or. Rev. Stat. Ann. § 30.943).
  • 25. Or. Rev. Stat. Ann. § 30.943 (2020).
  • 26. Or. Rev. Stat. Ann. §§ 30.936, 30.937 (2020). The RTF law’s protections apply even when nonfarm or nonforestry uses are allowed in an area zoned for agriculture. See Or. Rev. Stat. Ann. § 30.947 (2020).
  • 27. Or. Rev. Stat. Ann. §§ 30.934, 30.935 (2020).
  • 28. Hood River Cty. v. Mazzara, 89 P.3d 1195 (2004).
  • 29. Schultz Family Farms LLC v. Jackson Cty., 2015 WL 3448069.
  • 30. The exception the court was referring to is found at Or. Rev. Stat. Ann. §§ 30.936, 30.937 (2020).
  • 31. Or. Rev. Stat § 215.296 (2020).
  • 32. Stop the Dump Coal. v. Yamhill Cty., 435 P.3d 698 (2019).
  • 33. Stop the Dump Coal. v. Yamhill Cty., 435 P.3d 698 (2019).
  • 34. Edward Sullivan and Carrie Richter, Edward Sullivan. 2019. “OP-ED: Oregon gets serious about preserving farmland for farming.” Daily Journal of Commerce. April 9.
  • 35. Or. Rev. Stat. Ann. § 30.938 (2020).
  • 36. Hale v. Klemp, 184 P.3d 1185 (2008).