Marion County is the undisputed powerhouse of Oregon agriculture. Generating hundreds of millions of dollars in annual economic activity, the county’s farming landscape ranges from nurseries and grass seeds to row crops and orchards.

As far as counties go, Marion County has historically been a place where multi-generational farm families thrive. This is primarily because the County government has supported their local farmers; allowing them to adapt, modernize, and innovate.

But a massive storm is brewing in Marion County. One that could fundamentally redefine what actually counts as “farm use” in Oregon and put agricultural innovation on the chopping block.

The sad part is, most farmers don’t even know about it. We doubt the County Commissioners even understand the gravity of what is happening. That’s because the local media has focused almost exclusively on giving bad press to a local business owner, instead of investigating what’s really at stake for farmers.  

The Background: Farmer Enters Agreement to Accept “Fill” Dirt

On a 129-acre commercial orchard in Marion County, Denise Burnham was looking for a way to improve her hazelnut orchard. Like many orchards, this one has low-lying spots that are prone to pooling and unusable for planting. To maintain their orchard and keep the land in production, they needed clean “fill” dirt.

Now, normally when a farmer needs fill, they buy it or they find someone to give it to them. It usually sits in a big pile on their property until its ready to be filled in. The owner here did the same thing; except the fill they accepted is a little unique.

In 2023, Denise entered into arrangement with a local excavating company to accept fill. But instead of traditional dump trucks hauling in dry dirt, the excavator utilized a modern technology that is rapidly becoming the industry standard: hydro-excavating “vac trucks.”

Hydro-excavation is widely considered the future of safe digging. Instead of a massive steel excavator bucket tearing through the earth (and risking contact with underground gas, water, or fiber-optic lines) vac trucks use high-pressure water hoses to safely liquefy the soil, simultaneously vacuuming up the water-and-dirt mixture into a tank.

In this case, to deposit the vacuumed-up dirt, the excavator dug a temporary pit on the property to hold the incoming water-dirt mixture.

They built a parking area so the trucks could park and offload the material safely. Over time, the water naturally evaporates, leaving behind topsoil. The dried, clean soil is then removed from the pit and systematically spread across the orchard to level out the low spots.

Not a single handful of this soil leaves the property. It is 100% recycled and repurposed on-site for the sole purpose of improving the hazelnut orchard.

The Issue: Is This Protected “Farm Use” or a “Commercial Landfill”?

Around late 2023 or early 2024, a neighbor teamed up with a local activist group to launch complaints against the farm. Initially, these complaints focused on environmental concerns. They pointed to a nearby creek running between the properties and alleged that the farm’s temporary settling pit was discharging pollutants and acting as an illegal dam.

These complaints triggered formal investigations by two heavy-hitting state regulators: the Oregon Department of Environmental Quality (DEQ) and the Oregon Water Resources Department (OWRD). Ultimately, those investigations were withdrawn by the agencies.

With the environmental complaints dismissed, the entire case now boils down to a single, critical land-use question:

Does the soil-settling pit constitute allowed agricultural maintenance or is this property now an illegal commercial landfill?

The Opposing Argument: Marion County Planning Staff, along with 1000 Friends of Oregon and the neighbor, argue that the settling pit is an unpermitted “solid waste disposal site” (a landfill). The opposition takes issue with the property owner accepting a fee for the use of their property for the fill and the fact that the property owner paved an area near the pit for the vac trucks to park. They also take issue with the vac truck fill not being a “customary” farm practice.

The Landowners’ Argument: The property owners argue that they are not operating a commercial waste dump. Under Oregon law (ORS 215.203), “farm use” is defined broadly and explicitly includes the “on-site maintenance of agricultural facilities” – in this case, filling in low spots to maintain their orchard. Furthermore, they argue that the parking and receiving a fee for the fill is completely immaterial. Whether they pay for dirt or get paid for receiving someone else’s dirt shouldn’t matter. The acceptance, storage, and reapplication of fill material is for the sole purpose of improving and maintaining their onsite working hazelnut orchard. Those activities are allowed in the farm zone. 

Current Status: The local Hearings Officer sided with the county staff and the land preservation activists. That decision is now actively being appealed before the Marion County Board of Commissioners, with the court system looming as the next likely battleground.

OPOA’s Take: Hearings Officer Decision Sets Bad Precedent for Farmers

There’s a lot of issues with the Hearings Officers decision, but we want to focus on the scariest one: the attack on agricultural innovation.

During the proceedings before the Hearings Officer, 1000 Friends of Oregon argued that because the farmer’s method of acquiring soil wasn’t a customary or “accepted” farming practice, it should not be considered a protected “farm use” under Oregon law (ORS 215.203). To support their argument, they misrepresent a different part of the statute (one that talks about land under buildings being used for “accepted farm practices” like processing facilities) and mention Oregon’s “Right to Farm” Law. You can read their comments here: AR25-026 Public Comment.

Unfortunately, the Hearings Officer incorporated much of this argument into its decision against the farmer: 

Even if the primary purpose of the operation can be considered the construction and maintenance of equipment and facilities for raising, harvesting, and selling crops, the Applicant must also establish that the receipt of hydraulic vacuum extraction is a reasonable and accepted farm practice such that it is considered a farm use. […] Jim Johnson, Working Lands Policy Director for 1000 Friends of Oregon testified that the Vactor truck dump is not a farm use. Mr. Johnson testified that an activity that is not a customary farm practice cannot constitute a farm use as defined in ORS 215.203(2)(a). […] There is no evidence in the record demonstrating that receipt of hydraulic vacuum extraction slurry is a customary agricultural practice.

This is a dangerous, short-sighted standard. Consider the implications:

• It outlaws progress: Every single innovative and sustainable farming practice we see today – from GPS-guided tractors, automated drip irrigation, the use of biochar for fill – was once considered “un-customary.” By forcing property owners to prove their modern efficiencies are “customary,” this ruling forces farmers in Oregon to stay behind the times and not adopt new technologies or utilize more efficient practices.

• It blows up the only benefit of EFU zoning: Who exactly is the “customary” farm practice police? Is it county planning staff? Outside special interest groups? A local code enforcement officer? The entire foundational purpose of Oregon’s landmark land-use legislation (Senate Bills 100 and 101) was to carve out zones where agriculture is protected, granting farmers distinct property rights explicitly designed to prevent unnecessary bureaucratic interference. By allowing unelected officials to arbitrate what is or isn’t “customary,” this ruling blows one of the few true benefits of the EFU zoning completely sky-high.

It also isn’t the law.

Under ORS 215.203, the test for whether someone is conducting “farm use” on Exclusive Farm Use zoned land is clear and objective: is the landowner engaging in one of the listed agricultural activities? If so, are they doing it primary purpose of obtaining a profit (instead of for personal use)? If so, they are farming.

There is no requirement under Oregon land use law to then prove that those activities are “customary”. The only time in ORS 215.203 “accepted farm practices” are relevant are when you are talking about land under buildings supporting “accepted farm practices” (packing houses, barns, etc.). There is certainly no requirement that you then prove the activity is an “accepted farming practice” under Oregon’s “Right To Farm law” as suggested by 1000 Friends in its letter to the Hearings Officer. Oregon’s Right to Farm law is a completely separate piece of tort law designed as an affirmative defense to private nuisance lawsuits.

ORS 215.203 is unambiguous: if you are doing one of the activities listed and you’re doing it primarily to earn a living, you’re a farmer. If you’re farming on EFU zoned land, you don’t need to go get land use approval from the county to use your property for farming.

One of the listed activities in ORS 215.203 is the “maintenance of equipment and facilities” used for the other farming activities described in the law (raising, harvesting and selling crops, etc.). The facility in question here is the orchard, which is used for the raising, harvesting, and selling of hazelnuts. The property owners are only accepting the fill for the purpose of maintaining their commercial hazelnut orchard. The fact that they accept a fee (instead of paying a fee) for the fill, just pads the margins of their hazelnut crop.

It doesn’t turn them into a commercial landfill.

Conclusion: Marion County’s Pending Decision Is Critical

The Marion County Board of Commissioners will soon have the opportunity to review this case on appeal. This is no longer just about one farm or one piece of acreage; it is a defining moment for the future of Oregon agriculture.

If the County agrees with Hearings Officer, the case will likely go to the Land Use Board of Appeals (LUBA). Depending on what LUBA decides, land use law statewide could be changed for the worse.

Our farmers are facing rising input costs, unpredictable weather, and intense market pressures. The last thing they need is regulatory overreach – and the “customary” farming police – outlawing modern efficiency.

The opinions expressed in this post are those of the author and do not represent the opinions or positions of any party represented by the OPOA Legal Center on any particular matter.