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IN THE CIRCUIT COURT OF THE STATE OF OREGON

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FOR THE COUNTY OF LINCOLN

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REX CAPRI, WAKEFIELD FARMS, LLC,

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Plaintiffs,

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v.

AMENDED COMPLAINT

DANA W. JENKINS, LINCOLN COUNTY,

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For their Amended Complaint, Plaintiffs allege:
1.
Plaintiff Rex Capri (“Capri”) is an elector of Defendant Lincoln County (“County”).

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2.
Plaintiff Wakefield Farms, LLC, (“Wakefield”) is an Oregon limited liability company.

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(Appeal under ORS 246.910, Declaratory
Judgment)

Defendants.

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Case No. 17cv23360

3.
Plaintiffs are owners of woodlands in the County who have previously hired corporations

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to undertake the aerial spraying of pesticides on the woodlands. Plaintiffs want to retain the

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ability to hire corporations to undertake the aerial spraying of pesticides on the woodlands—

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activity prohibited or inhibited by Ballot Measure 21-177 (“Measure”).

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4.
Defendant Dana W. Jenkins (“Jenkins”) is the County Clerk for the County.

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5.
The County is a political subdivision of the state of Oregon established through ORS

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201.210 and derives its authority to make law from ORS 203.010, 203.015, and 203.030 to

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203.075.
Page 1 – AMENDED COMPLAINT
DAVIS WRIGHT TREMAINE LLP
4835-6446-4714v.1 0109519-000001

1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

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On or about June 5, 2017, Jenkins certified that the electors of the County approved the

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Measure, a true and accurate copy of which is attached as Exhibit 1.

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FIRST CLAIM FOR RELIEF

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(Appeal under ORS 246.910)
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Capri realleges paragraphs 1 and 3–6.
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As an elector of the County, Capri is adversely affected and aggrieved by certification of
approval of the Measure because the Measure was not validly adopted.
9.

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This Court has jurisdiction under ORS 246.910(1) to review the decision of Jenkins to
certify the Measure as approved by the electors of the County.
10.

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The Measure was not validly adopted and is void in its entirety because the Measure:

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a.

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Includes matters not of County concern in violation of ORS 203.035 and section

10, Article VI of the Oregon Constitution;
b.

Fails to include the full text of the law in violation of section 1(2)(d), Article IV

of the Oregon Constitution; and
c.

Contains more than one subject in violation of section 1(2)(d), Article IV of the

Oregon Constitution.

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SECOND CLAIM FOR RELIEF

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(Declaratory Judgment)

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11.

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Plaintiffs reallege paragraphs 1–6 and 8.

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Page 2 – AMENDED COMPLAINT
DAVIS WRIGHT TREMAINE LLP
4835-6446-4714v.1 0109519-000001

1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

 12.

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Plaintiffs are persons whose rights, status, or other legal relations are adversely affected

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by the Measure and, as such, entitled to a determination of the validity of the Measure under

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ORS 28.020. The prohibition and inhibition of aerial spraying by the Measure adversely affects

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the value of Plaintiffs’ woodlands. Wakefield is a corporation within the meaning of the

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Measure and, therefore, subject to the prohibitions and restrictions the Measure imposes on

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corporations but not on natural persons.
13.

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This Court has jurisdiction under ORS 28.010 and ORS 28.020 to determine the validity
of the Measure.
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Plaintiffs contend that the following provisions of the Measure are invalid and
unenforceable for the following reasons:

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a.

Sections 3(a)–(c), 4, 5, and 6 because preempted by ORS 634.057;

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b.

Sections 3(a)–(c), 4, 5, and 6, to the extent applicable to forest practices, because

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preempted by ORS 527.722;
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Sections 3(a)–(c), 4, 5, and because, in ORS 527.630(3) and ORS 527.710, the

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Legislative Assembly has vested exclusive lawmaking authority concerning forest environments

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with the State Board of Forestry;

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d.

Sections 3(a)–(c), 4, 5, and 6, to the extent applicable to farm or forest practices,

because preempted by ORS 30.934, ORS 30.935, ORS 30.936, or ORS 30.937;
e.

Sections 4(d), 5(d), and 6(c) because beyond the scope of the lawmaking powers

granted to the County in ORS 203.010, 203.015, and 203.030 to 203.075;
f.

Sections 4(a) – (c) and 5(a) because violating rights to equal privileges and

immunities under Article I, section 20, of the Oregon Constitution; and
g.

Sections 6(a) and (b) because violating rights to a remedy by due course of law

Page 3 – AMENDED COMPLAINT
DAVIS WRIGHT TREMAINE LLP
4835-6446-4714v.1 0109519-000001

1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

 1

under Article I, section 10, of the Oregon Constitution, the taking of property without

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compensation under Article I, section 18, of the Oregon Constitution, and to equal privileges and

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immunities under Article I, section 20, of the Oregon Constitution.

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The County denies Plaintiffs’ contentions.

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Plaintiffs have no plain, speedy, or adequate remedy at law.
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The Measure poses irreparable harm to Plaintiffs by authorizing individuals to injure

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Plaintiffs’ person or property and immunizing individuals from civil liability and criminal

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prosecution for causing injury to Plaintiffs’ person or property.

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WHEREFORE, Plaintiffs pray for judgment as follows:

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1.

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Reversing Jenkins’ certification of the Measure as approved by the electors of the

County and declaring that the Measure is void in its entirety because not validly adopted;
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Declaring that sections 3(a)–(c), 4, 5, and 6 of the Measure are invalid and

unenforceable;
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Enjoining the enforcement and applicability of the Measure, or in the alternative,

enjoining the enforcement and applicability of sections 3(a)–(c), 4, 5, and 6 of the Measure;

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4.

Awarding Plaintiffs their reasonable costs and disbursements incurred herein; and

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5.

Awarding any other relief the Court considers just and equitable.

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Dated this 14th day of June, 2017.

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DAVIS WRIGHT TREMAINE LLP

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By s/ GREGORY A. CHAIMOV
Gregory A. Chaimov, OSB #822180
Telephone: 503-778-5328
Facsimile: 503-778-5299
E-mail: gregorychaimov@dwt.com
Attorneys for Plaintiffs

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Page 4 – AMENDED COMPLAINT

DAVIS WRIGHT TREMAINE LLP
4835-6446-4714v.1 0109519-000001

1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

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FREEDOM OF LINCOLN COUNTY FROM AERJALLY SPRAYED PESTICIDES
Section 1 - Purpose

At a time when the rights of corporations are being protected at the expense of the people:-s rights, we must
reafiim1 what the Oregon Constitution guarantees: ''that aH (people}) when they forn1 a social compact are equaJ
in right: th~t all power'i~ in11ere11t in the people, and all free goverrurients are founded on their authority, and
i11stituted for their peace, safety~ and happiness; and they have at all times a right to alter, refo1m, or abolish the
govemrnent in such manner as they may think proper."
We assert that our right of local community self-govemment to claim and protect our constitutionallyguaranteed right to safety is inherent, fundamental, and inalienable.. a11d that - as the United States Declaration
of Independence proclaimed - governments derive their just powers from the consent of the governed.
The practice of aerial·spraying of pesticides on Uncoln County's forests is causing serious chemical ·
contamination of our county's air, people,, wildlife, ecosystems, and watersheds, as well as terminal degradation
of our soil. A large number of pesticides being used; among them 2A-D,' glyphosate (Roundup), and atrazine,
have been proven harmful to both humans and the environment.
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It is important to note that orily a small fraction of the approximately 12~000 pesticides registered for use in
Oregon~ including·those being used in aerial spraying~ have ever been tested for safety. None have been tested
for the effects of repeated expos me over time, or for the effects of their routine application in combination with

other pesticides and chemicals.
Lincoln County's most populated communities are located at the base of our life-giving watersheds. However,
clear-cut 1ogging operations and the aerial spraying of pesticides before and after replanting are taking place
upstream in those watersheds~ exposing people, ecosystems, and natural ·communities to chemical

contamination.
CuJTent laws and regulations permit and protect the practice of aerial spraying of pesticides, threaten our public
health, violate our constitutionally-guaranteed right to safety, and interfere with our 1ight oflocal communify
self-government. The risks from toxic trespass from aerial spraying of pesticides, due to the failure of our
federal, state. and local governments to pr0tect us:- are therefore no longer acceptab~e.
Our fundamental right to clean rur\ water, and soil not contaminated by aerial spraying of pesticides cannot be
achieved when that right is routinely overridden by corpmate minorities claiming legal powers to engage in that
contamination..Nor can sustainability ofa.ny kind be achieved withl~ a system of preemption which enables .
·. corporate dedsion-makers to wield state governmental power to override Joca1 self-government, and when the

state itself restricts the county's lawmaking powers in ways that prevent the people of the county from
of people and n.atural connnunitiesfrom such harms as ae#al spraying

protec~ing the health; safety and welfare

of pesticides.

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The people of Lincoln County believe that aerial spraying of pesticides is not necessary, because the task of
eliminating weeds and conipeting vegetation after tree planting can also be accomplished by manuai' action;
without the use of any pesticid~s~ however applied, without contaminating the environment, and Witf1out
endangering the safety of all life in it, while at the same time creating many direly needed jobs for our

community. lncreasingly mechanized logging, including the practice of aerial spraying of pesticides, utilized by
co.rporations extraneous to our cornmunities, no longer makes any sizable contribution to our local economy,
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Exhibit 1
Page 1of6

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but nevertheless is now carried out by tl).ese corporations that wield tremendous power over decision-making
in our col.mty.

Now, tlter.efore, the people of Lincoln County hereby adopt this Ordinance, which shall be known and may be
cited as the "Freedom from Aerially Sprayed Pesticides Ordinance of Lincoln County"

Section 2-Definitions
(a) "Corporations,'~ for purposes of this Ordinance, includes any corporation; limited -partnership, limited
liability partnership, business trust, public benefit corporation, business entity, or limited liability company _
organized under the laws of any state of the United States or under the laws of any country. The term includes
all public corporations~ municipal corporations, state and federal agencies, and any state and federal entity.
(b) "Ecosystemsn means wetlands, streams, rivers, aquifers, and other water systems, as well as. all naturally
occurring habitats that sustain wildlife, people~ flora and fauna, soil-dwelling or aquatic organisms.
. (c) "Engage· in aerial spraying of pesticides,' means the phy.sical deposition of pesticides into the land, water, or
air by any aerial method, including, but not limited to, all actions taken to prepare for that physical deposition. ·
(d) "N8;tural Communities" means communities of wildlife> flora, fauna, soil-dwelling, aerial, and aquatic
organisms, as well as humans and human communities that have established ~stainable interdependencies
within a proliferating and divf{rse matrix of organisms, within a natural ecosystem.

( e) "~esticides,, means any synthetic chemicals:> or synthetic chemical mixtures, that can be classified as
algaecides, avicides, bactericides, fungicides, herbicides, ip.secticides, miticides, acaricides, mollU:scicides,
nematicides, rodenticides, or virucides, and shall include, but not be limited to, restricted and non-restricted
pesticides used to destroy plant, fungal, and/or animal 'pests,.
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Section 3 - Statements· of Law - Freedom from Aerially Spray~d Pesticides Bill of Rights
(a) Righi to be Free -from Toxic Trespass. All people of Lincoln County, along with natural communities and
ecosystems within the County, possess the right to be free of a,erially sprayed pesticides.

Right to Clean Air. Water. and Soil. All people of Lincoln County possess the right to clean air, water, and
sqil free of aerially sprayed pesticides; and that right shall include the right to be free from potential
contamination of the air, water, and soil within the County_from aerially sprayed pesticides.
(b)

(c) Right to RuratPreservation. All people of Lincoln County possess a right to an unspoi~ed rural quality of·
life free of aerially sprayed pesticides. The right to ap WlSpoiled rural qualify of life free of aerially spray~d
_pesticides includes, but is not fanited to, oqtdoor recreational activities such as hunting, fishing, and foraging.
(e) Governmental Legitimacy. To the extent necessary to secure-this Ordinance, all governments in the United
·States owe their existence to the people of the community that those govenunents serve, and governments exist
to secure and protect the rights of the people and those communities; and further, any system of government
· that becomes destructive of those ends is not legitimate, lawful, or constitutional.
{f) Right of Local Community Self-. Government. For· the limited purpose of securing Lincoln County to be free

of aerially sprayed pesticides, the people of Lincoln Cmmty possess both a collective and individual right of
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Exhibit 1
Page 2.of 6

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self-government in their local community, a right to a system of govenunent that embodies that right, and the
right to a system of government that protects and secures their hu~, civil, and collective rights. ·
(g) Right to Assert the Right ofSelf:Government. The people of Lincoln County possess the.right to use their
local government to enact this Ordinance that secures Lincoln County to be free of aerially sprayed pesticid~s,
and the making and enforcement of this Ordinance by the people through a municipal corporation or any other
institution shall not eliminate,. limit, or reduce their sovereign right of local community self-gove~ent as
stated in subsection 3(f).
(h) Rights as Self-Executing. All. rights delineated and secured by this Ordinance are inherent, fundamental, and
unalienable, and shall be self-executing and enforceable against both private and public actors.
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Section 4 - Statements of Law - Prohibitions Necessary to Secure the Bill of Rights
(a) It shall be unlawful for any corporation to violate any right secured by this Ordinance.
(b) It shall be unlawfuf for any corporation to engage in aerial spraying of pesticides within Lincoln County.
(c) Corporations engaged in aerial spraying of pesticide~ in any municipalify or designated jurisdiction adjacent
to Lincoln County shall be strictly liable for damages caused by those pesticides to the residents and ecosystems
within Lincoln County.
(d) No permit, license, privilege, charter, or other authority issued by any State or federal entity that would
violate the rights of this Ordinance, shall be deemed valid within Lincoln County.

Section S - Enforcement
(a) Any corporation that violates any provision of this Ordinance shall be guilty of an offense and, upon
conviction thereof, shall be sentenced to pay the maximum fine allowable under State law for that violation:
Each day or p_ortion thereof, and violation of each section of this Ordinance, shall count as a separate violation. ·
(b) Lincoln County or any resident of Lincoln County, may enforce the rights and prohibitions of this.Ordinance
. through an action brought in any court possessing.jurisdiction over activities occurring within Lincoln County:
In such an action, Lincoln County .6r the resident shall be entitled to recover all costs of litigation, including,
without limitation, expert and ~ttomey's ·fees.
(c) Any action brought by either a resident of Lincoln County or by Lincoln County to.enfo~ce or defend the
rights of ecosystems or na~ communities secured by this Ordinance shall bring that action i~ the name of the
.ecosystem or natural community a court possessingjurisdiction over activities occurring within Lincoln
County. Damages shall be measured by the cost of restoring the ecosystem or natural community to its state
before the injury, and shall be paid to Lincoln County to be used exclusively for the ful.J and complete
restoration of the ecosystem or natural commun.ity.
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· (d) If the County Government fails to enforce or defend this law, or a court fails to uphold this law's limitations
on corporate power, this law shall not be affected by the failure to enforce or defend, or by the failure to uphold
~e limitations on corporate power, and any person may then enforce the rights and prol:tlbitions of this law
through direct action. If enforcement through direct action js commenced, this law shall prohibit any private or
p~blic actor from filing a civil or criminal action against those participating in direct action. If filed in violation .

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Exhibit 1
Pag.e 3of6

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of this provision, the applicable court must dismiss the action promptly, without further filings being required of
direct action participants. "Direct action" as used by this provision shall mean any activities or actions earned
out to directly enforce the rights and prohibitions contained within this law.,,

Section 6 - Enforcement - Coro orate Powers
(a) Corporations that .violate this Ordinance, or seek to violate this Ordinance, shall not be deemed to be
~'persons" to the extent that such treatment would i~terfere with the rights or prohibitions enumerated by this
Ordinance, nor shall corporations· possess any other legal rights, privileges, powers, or protections that would ·
interfere with the rights or prohibitions enumerated by this Ordinance. "Rights, privileges, powers, or
protections,, shall include the power to assert state or federal preemptiv~ laws in an attempt to overturn this
Ordinance, and the power to assert that the people of this municipality lack the authority to adopt tills
Ordinance.
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(b) Corporate claims to "future.lost profits" shall not be. considered property interests under this Ordinance, and
thus, shall not be recoverable by corporations seeking those damages.
( c) All laws adopted by the legislature of the State of Oregon, rules adopted by any State agency, laws adopted
by the United States Congress, and rules adopted by any federal or international agency, shall be the law of
Lincoln County only to the extent that they do not violate the rights or prohibitions of this Ordinance.

Section 7-Severability
The provisions of this Ordinance are severable. If any court decides that any section, clause) sentence:t part, or
provision of this Ordinance is· illegal, invalid, or unconstitutional) such decision shall not affect, impair) or
invalidate any of the remaining sections, clauses, sentences, parts, or provisions of the Ordinance. ·

Section 8 - Repealer
All inconsistent provisions of prior Ordinances_ adopted by Lincoln County are hereby repealed, but only to the
extent .necessary to remedy the. inconsistency.

Section 9 - Effect
This Ordinance shall take effect thirty (30) days after adoption~

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Exhibir1
Page 4. of 6

 Dana W. Jenkins

Counry ofLincoln

LINCOLN COUNTY CLERK
225 W. Olive Street-Room 201
Newport, Oreqon 97365

"Customer Service is #1"
www.co.lincoln.or.us/clerk/
(541) 265-4131

July 14, 2015
Barbara B. Davis
PO Box 2170
Waldport, OR 97394
Maria Sause
15 NW Brook Street
Newport 0 R 97365
Re:

Initiative Petition/Determination of Compliance with Requirements

Dear Ms. Davis and Ms. Sause,
I have reviewed your proposed initiative petition for compliance with the following
requirements for a local initiative petition:
1. Does the proposed focal initiative measure comply with the Single
Subject Rule?
2. Is the proposed local initiative a "legislative" measure that can properly be
submitted to the voters under the people's initiative power?
My determinations are as follows:
1. The proposed measure complies with the Single Subject Rule.
2. The proposed measure is a "legislative" measure that can properly be
submitted to the voters.
Since i have determined that your proposed initiative does comply with questions
1 and 2 above, it can go forward and I will send it to the District Attorney for
preparation of a ballot title.

Sincerely>

Dana W. Jenkins
Lincoln County Clerk

Exhibit 1

Page 5of6

 Dana W. Jenkins
LINCOLN COUNlY CLERK
225 W. Olive Street-Room 201

Newoort, Ore1:1on 97365

County ofLincoln
"Customer Service is #1"

www.co.lincoln.or.us/clerk/
(541) 265-4131

INVOICE
TO:

Oregonians for Food and Shelter

FOR:
AMOUNT:

$1.50

Copies

TOTAL:

Please return this invoice with remittance to:
Dana W. Jenkins
LlNCOLN COUNTY CLERK

225 W. Olive Street - Room 201
Newport, Oregon 97365

IMPORTANT: Do not hesitate to contact Dana Jenkins at (541)265-4131 if you have questions.
Thank you.

Original Notice

July 15, 2015

FORMS.invoice

Exhibit 1
Page 6of6

 CERTIFICATE OF SERVICE
I hereby certify that, on June 14, 2017, I served a copy of the foregoing
AMENDED COMPLAINT on:
Wayne Belmont, OSB #841662
Email: wbelmont@co.lincoln.or.us
Lincoln County Counsel
110 Lincoln County Courthouse
225 W. Olive Street
Newport, OR 97365
Tel: 541.265.4108
Rob Bovett, OSB #910267
Email: rbovett@oregoncounties.org
Association of Oregon Counties
1201 Court Street, NE, Suite 300
Salem, OR 97301
Tel: 503.585.8351
Of Attorneys for Defendants
by emailing a copy thereof addressed to said attorneys’ email addresses shown above.
DAVIS WRIGHT TREMAINE LLP
By s/ GREGORY A. CHAIMOV
Gregory A. Chaimov, OSB #822180
Email: gregorychaimov@dwt.com
Tel: 503.778.5328
Attorneys for Plaintiff

Page 1 - CERTIFICATE OF SERVICE
DAVIS WRIGHT TREMAINE LLP
4827-8650-3242v.1 0109519-000001

1300 S.W. Fifth Avenue, Suite 2400
Portland, Oregon 97201-5610
(503) 241-2300 main  (503) 778-5299 fax

4827-8650-3242v.1 0109519-000001