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Pray That State Question 777 Crashes on Election Day

Steve Russell
3/27/16

The Cherokee Phoenix published news of a lawsuit to protect the Illinois River, crown jewel of summer recreation in the Cherokee Nation and a source of running water for ceremonial purposes. Since the Cherokee Reservation was allotted to create Oklahoma, the Cherokee Nation has not owned enough riverfront land to protect the water by tribal ordinance.

Keeping the water clean becomes primarily a responsibility of state government, but according to the lawsuit filed by Save the Illinois River, Oklahoma State Question 777 will render state regulation difficult if not impossible.

We can presume State Question 777 was numbered by luck of the draw but it has nothing to do with Boeing and there is plenty of reason to hope it crashes at the ballot box. Authored by Rep. Scott Biggs (R-Chickasha), 777 would create a “right to farm” in the Oklahoma constitution.

Don’t Oklahomans have a right to farm now?

Of course they do, but like all other businesses, farms are subject to pesky regulations to protect air and water, farm workers and animals. The selling point, if it has one, is that 777 would be a shield against charges of animal abuse that have come out of hidden camera operations in some states. Should 777 become law, the damage a video of misery caused on a factory farm could inflict would likely be limited to public relations.

Laws to retaliate against those who expose factory farm cruelty would become “civil rights laws.” No regulation of farming methods could stand unless it were narrowly tailored to accomplish a compelling state interest—the toughest standard known to law.

As is often the case, protection of corporate bad actors comes cloaked in a claim that the purpose is to benefit family farmers. Perhaps somewhere there is a family farm that is putting fertilizer runoff or animal excrement in a river and would like that protected. Most regulations are aimed at big corporate operations because they do the most damage.

Had 777 been the law in the Dust Bowl, Oklahoma would be nationally known for dune buggy racing rather than beef, wheat, cotton, soybeans, and pecans. The federal government interfered with farming methods in massive ways, using carrots and sticks to make farmers adopt crop rotation, contour plowing, strip farming, terracing. The government planted over 200 million trees to anchor the soil, many of them on private land. Oklahoma, of all states, should have a blood memory of how government regulations attacked the Dust Bowl.

Farmers and ranchers have the same right to do business as any other business, but that right does not now include the right to silence critics of inhumane or environmentally unsound practices. Should 777 pass, farming and ranching by contemporary methods would be “forever guaranteed” against state regulation.

Many opponents point out that such an outcome would invite federal regulation. Control from Washington would be the only possibility, because the numerous Indian nations in Oklahoma lack large enough land bases to be effective.

According to the Tulsa World, Rep. Jason Dunnington (D-Oklahoma City) has joined with a landowner within the Illinois River watershed in a legal attempt to prevent 777 from being placed on the November ballot. Save the Illinois River is a named plaintiff in the lawsuit.

The legal argument is that 777 takes away the ability of the legislature to respond to changing circumstances and that a “right to farm” violates due process for vagueness.

Former Attorney General Drew Edmondson (D) stated the problem in Red Dirt News:

The world of industrial agriculture is changing with chemical additives to feed, growth hormones and genetic modifications. I can understand why they want to be free from scrutiny and regulation, but I cannot understand why we should let them.

The lawsuit to keep 777 off the ballot is highly unlikely to prevail. It carries a whiff of violating separation of powers, not to mention the right of the people to drive themselves into a ditch if they choose. It does, however, open up 777 to more public debate than it would otherwise get.

The greatest threat to family farmers in the U.S. has been the invasion of big corporations with methods that are cheaper because it’s cheaper to disregard the environment, farm workers and animal welfare. These short cuts are advantages in addition to the deep pockets that allow corporations to roll over family farmers in court.

Drew Edmondson put it best:

This question should have been named right to harm and been numbered 666.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

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turbojesus's picture
Well yeah presumably. Universities and family farmers also dump pesticides, fertilizers, et cetera into everybody's backyard and drinking water. You can find sewer drains from them where it looks like the sewer crapped out a forest. But I don't really see how that law supersedes federal laws. Plus it's not like the government in oklahoma has any oversight on farms. Any oversight would be done by the health department - the only state institution that does anything in oklahoma. That proposition wouldn't proscribe the health department from doing their job so your argument doesn't have much force.
turbojesus
swrussel's picture
I suggest, turbo, that it changes everything if anybody could sue to enjoin a health department order for violation of a state constitutional "right to farm." That's my point. It changes the legal landscape to favor those doing harm. If here are family farmers doing this sort of harm, I defer to your superior knowledge of the facts on the ground and in the water. That has not been my experience, but your mileage may vary and I really don't care who is doing it--the point is that it's not family farmers agitating to be in the constitution. It's big agribusiness that routinely uses methods that it may be in the public interest to regulate. You are correct that state law does not supercede federal law but I said as much when I said to pass 777 is to invite federal regulation. You may reply (and you would be correct) that both of the leading Republican candidates for POTUS promise to abolish the Environmental Protection Agency right after they abolish the Department of Education. I'm not sure that the determination of both state and federal Republicans to keep pollution free of restraint is a valid argument that pollution is good public policy. And, yes, I'm aware that Richard Nixon created the Environmental Protection Agency. Abe Lincoln began civil rights laws. Theodore Roosevelt began anti-trust laws. The Republican Party was not crazy until very recently.
swrussel