The Register-Guard
by Christian Hill
December 6, 2019

Timber companies notified state regulators this year that aircraft will spray pesticides on least three dozen tracts of forestland in Lane County.

Aerial spraying of these chemicals has been controversial in Oregon, with environmental groups seeking reforms to the practice for years. Timber companies spray pesticides using aircraft to kill competing vegetation after a clear-cut that can curtail the growth of Douglas fir and other valuable trees grown for logging. Oregonians have raised concerns about how the broad application of pesticides and applying them from the air can pollute waterways and sicken people.

Oregon lawmakers moved in 2015 to protect homes and schools from the chemicals, but more recent legislative efforts to restrict aerial spraying and improve public notification have floundered.

In recent weeks at the county and state level, efforts to ask voters to curtail or outright ban the practice, which opponents say is only loosely regulated, have been stymied. For example, a judge threw out in September an aerial spray ban that Lincoln County voters passed in 2017.

But supporters of the statewide efforts received good news Thursday when Secretary of State Bev Clarno approved three proposed initiatives, two of which seek more restrictions on aerial spraying, to take another step toward signature gathering. Clarno rejected three earlier proposed initiatives after concluding they were unconstitutionally over broad.

“I appreciate that the chief petitioners of these initiatives amended their proposals to meet the constitutional requirements,” Clarno said in a statement. “Voters will now be able to read and decide for themselves on these issues.”

Regulating aerial spraying

State regulation of aerial spraying falls under the Oregon Forest Practices Act, the law that sets policy for commercial logging in Oregon’s forests, and is chiefly divided between the state departments of agriculture and forestry.

The agriculture department registers the pesticides and licenses the people who apply it. To qualify for an Oregon aerial applicator license, which allows a person to apply pesticides by aircraft, pilots must meet a list of requirements, including passing an aerial exam and least 50 hours of pesticide application flight time​. ​There are 1,012 active Aerial Pesticide Applicator licenses in the state.

Timber companies must notify the forestry department before applying pesticides, but there’s no state requirement to notify the public. Companies can voluntarily provide that public notice.

Thirty-eight tracts of Lane County forestland were sprayed with pesticides using aircraft in 2019, according to Beyond Toxics which provided The Register-Guard with data from an Oregon Department of Forestry-managed database. Pesticide reform is one of the main missions of Beyond Toxics, a Eugene-based nonprofit environmental organization.

From 2015 to 2019, 185 tracts of Lane County forestland were sprayed with pesticides by aircraft, according to the data.

The database doesn’t provide the exact acreage sprayed, the exact dates of the spraying or the exact chemicals and amounts used.

But the typical chemicals used in those sprays included imazapyr, a weedkiller, and clopyralid, an herbicide that kills broadleaf weeds, including clover. Both chemicals can damage or irritate eyes and skin.

The data shows that this year another 44 Lane County tracts of forestland were sprayed with either aircraft or on-the-ground applicators.

“We’re finding that more and more timber companies are switching from aerial spray to ground spray because of the public awareness,” said Lisa Arkin, Beyond Toxics executive director. “I think that’s a good thing.”

At the same time, she said, companies are applying pesticides more frequently as the growth cycle for trees grown for logging has narrowed from 60 years to about three decades.

Attempts to strengthen regulations

In 2015, state lawmakers passed a law establishing a 60-foot “no-spray buffer” when aerial spraying occurs next to homes and schools. The law also required state certification for applicators using aircraft to spray pesticides.

The law came amid growing public concern about the potential dangers of aerial spraying and Oregon’s weak regulations in comparison to neighboring states, which do more to protect people and the environment from drifting chemicals.

But efforts to further tighten regulations surrounding aerial spraying haven’t advanced in the Legislature since then.

A 2017 bill, supported by Beyond Toxics, would have provided residents timely public notification of aerial sprays and more detailed public information about the applications, but it died in committee.

Earlier this year, a second attempt to strengthen notification requirements failed, as did a bill that would ban aerial spraying on state-owned lands.

Recent county efforts stymied

Locally, county commissioners have made clear they will not refer to voters a ballot measure proposed by grassroots organizations to ban aerial spraying of herbicides, which kill undesirable plants and weeds, in Lane County.

The groups, including Community Rights Lane County and the Lane County Freedom From Aerial pesticides Alliance, gathered signatures to qualify the measure for the ballot but a judge invalidated the initiative in 2018 as overly broad.

While an appeal of that decision is pending, backers have pressed county commissioners to refer the measure to the ballot, citing the level of public support.

Elected county commissioners have balked, citing an opinion from their attorney, County Counsel Stephen Dingle, that they could be held personally and financially liable for spending public money to hold an election on a measure that doesn’t pass legal muster. The county took the rare step of waiving attorney-client privilege to make the opinion public because of the high interest in the issue.

Stan Long, a retired local attorney and timber industry supporter, has threatened to take the county to court if it refers the measure. He sued Lane County and that case ultimately led to the judge throwing out the groups’ measure.

State law preempts cities and counties from adopting policies and regulations related to the use of pesticides.

This preemption is the reason a Lincoln County judge invalidated that county’s voter-approved measure. The measure was similar to Lane County’s proposed initiative.

And the potential personal liability for Lane County commissioners if they referred the local measure to the ballot with that state preemption on the books gave the elected leaders pause.

“To me, wasting time, money and effort if it’s going to be preempted doesn’t make a great deal of sense,” Commissioner Pat Farr said at an Oct. 17 meeting when the legal issues surrounding a referral were debated.

The attorney representing the organizations putting forth the measure disputes Dingle’s finding, arguing there’s no case in which public officials have been held personally liable for placing a measure on the ballot.

“They (commissioners) lack the courage to stand with the people, and they’re hiding behind an unjust (state) law,” said Michelle Holman, founder of Community Rights Lane County, one of the measure’s backers.

Measures proposed to state

Meanwhile, efforts by a coalition of environmental groups to amend state law to scale back aerial spraying and restrict logging had hit roadblocks until Thursday.

In September, Clarno, the state’s top elections official, had tossed three prospective initiatives for being unconstitutionally overbroad. The coalition, which includes Oregon Wild and Beyond Toxics, filed another three prospective initiatives aimed at addressing Clarno’s concerns, leading to her approval.

A key aim of the initiatives is to amend the state law to expand the buffer where aerial spraying is prohibited to 500 feet from 60 feet in areas next to waterways.

Jason Gonzales, Oregon Wild’s forest and watershed campaign organizer, said the coalition is seeking to put on the November 2020 ballot a measure that amends current law in a way “that the science, common sense and the voters will support.”

“A 500-foot buffer from running water is something that we found widespread agreement about,” he said, “and something that I think accomplishes what we all want to see, which is protection from this practice without going so far as banning a whole class of behavior.”

Katie Fast, executive director of the agribusiness industry group Oregonians for Food and Shelter, raised concerns about the local and statewide efforts.

She questioned how county governments would enforce local bans and restrictions without the experts and resources offered by the state.

“Would the county still have the expertise to go in and do an investigation?” she asked.

On the proposed statewide restrictions, Fast noted the federal government registers the chemicals and sets the instructions for their use, including how far they can applied from water.

“What’s in the ballot measure are very large buffers that we would see as” an infringement of private property rights, she said, “because of not being able to control noxious weeds in that area by using the application method.”

Holman with Community Rights Lane County said the groups pushing the county measure aren’t allowing the recent setback as a result of the county commission decision to stop them.

“We believe we are fighting a principled fight,” she said.