The Supreme Court of the United States takes on a second important case for agriculture next week when it hears arguments in National Pork Producers v Ross. The Court opened its new term yesterday with a well-known case about the Clean Water Act and EPA authority over wetlands, Sackett v EPA. In National Pork Producers, the Court will hear challenges to California’s Proposition 12, a livestock housing standards law.
Proposition 12. Voters in California approved the Proposition 12 ballot measure in 2018, but the law’s impact spreads beyond California’s borders. The law sets living space standards for sows, egg-layers, and veal calves—sows must have 24 square feet or more of space, egg-laying hens require at least 144 square inches, and veal calves must have at least 43 square feet. Commonly used gestation crates for sows and battery cages for hens would not meet California’s space standards. And Proposition 12 also prohibits the sale of products from any animal whose housing does not comply with the living space requirements. That prohibition doesn’t apply just to products of animals raised in California, but to products of animals raised anywhere and sold in California. Selling pork, eggs, or veal from animals not raised according to the standards is a crime that could result in fines, jail sentences, and civil actions.
Challenges to Proposition 12. The out-of-state application of Proposition 12 immediately raised concerns across the United States. Several lawsuits followed, with the primary argument being that Proposition 12 violates the Commerce Clause of the U.S. Constitution, which grants Congress the authority “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” The Supreme Court has long determined that implicit in the Commerce Clause is a restriction on the ability of states to pass legislation that discriminates against or excessively burdens interstate commerce, referred to as the “dormant Commerce Clause.” Opponents of Proposition 12 argue that California has burdened interstate commerce by prohibiting sales of products within the state from out-of-state livestock producers who do not comply with the California state law for animal housing.
Federal courts disagreed with the commerce clause argument in an earlier challenge to Proposition 12, North American Meat Institute v Becerra, for which the Supreme Court of the U.S. (SCOTUS) declined review. Another case, Iowa Pork Producers v Bonta, also alleged Commerce Clause violations along with several other constitutional challenges, and that case is now on appeal after being dismissed by a federal district court in California.
A federal district court also dismissed the current National Pork Producers case, presented again on a Commerce Clause claim. The Ninth Circuit Court of Appeals upheld that dismissal while agreeing that the law would “require pervasive changes to the pork production nationwide.” The court concluded, however, that National Pork Producers had not stated a constitutional claim by alleging that Proposition 12 discriminates against out-of-state interests. Absent a showing of discrimination, “a state law may require out-of-state producers to meet burdensome requirements in order to sell their products in the state without violating the dormant Commerce Clause.” As long as the only conduct regulated by the law is conduct within California, the court explained, significant upstream effects beyond California would not violate the Commerce Clause. Last April, the Supreme Court accepted the request to review the Ninth Circuit’s decision.
The SCOTUS review. National Pork Producers, joined by the American Farm Bureau Federation, raises two questions in the current case before SCOTUS. The first is whether the economic effects outside of California that require pervasive changes to an integrated nationwide industry state a violation of the dormant Commerce Clause. The second question is whether Proposition 12 states a Commerce Clause claim according to an earlier SCOTUS decision in Pike v. Bruce Church, which held that even when a law doesn’t discriminate on its face against interstate commerce, the law is not permissible if its burdens greatly exceed the benefits to local commerce.
The petitioners argue that Proposition 12 is “impermissibly extraterritorial” because 99.87% of all pork sold in California comes from producers outside of the state. They claim that the practical effect of Proposition 12 is to regulate out-of-state commerce and require significant and costly changes to sow housing across the country. Proposition 12 also fails the Pike v Bruce Church balancing test because its "false human health rationale and philosophical preferences about conduct outside of California are outweighed by the “wrenching effect” the law has on interstate commerce."
On the opposite side, California describes the law's impact as having only a “ripple effect” both within and outside of California rather than creating an impermissible extraterritorial effect. An upstream, practical effect, California argues, is not sufficient to render a state law invalid under the Commerce Clause. Claiming that the petitioners overstate the economic effects of the law, the State argues that it would not be impossible to segregate animals to meet California requirements while continuing housing requirements for other markets. California argues that “there is nothing illegitimate or insubstantial about the voters’ expressed purpose of addressing extreme methods of farm animal confinement and potential threats to the health and safety of California consumers.”
Implications: who should control farm animal welfare standards? National Pork Producers and California’s Proposition 12 raise a critical question about the future of farm animal welfare standards. Should such standards be determined on a state-by-state basis, or should there be a uniform federal standard? While the federal Animal Welfare Act does establish animal care standards, it does not apply to farm animal care. In the absence of a federal law for farm animals, eight states have joined California in addressing farm animal housing standards. Ohio is one of them. Ohio’s Livestock Care Standards for swine housing will prohibit the use of sow gestation crates after December 31, 2025, except in special circumstances. Unlike California, however, Ohio’s law does not prohibit retail sales from animals that aren’t housed according to the state standards. Only California and Massachusetts tie housing standards compliance to retail product sales and criminal penalties, raising the issue of controlling producers beyond the state’s borders. A federal law, on the other hand, would equally affect all producers across the country and could preempt restrictions on sales such as in Proposition 12, but would place control over farm animal care practices in the hands of the federal government. Perhaps we’ll more carefully analyze the federal-state question after SCOTUS issues its decision in National Pork Producers, expected early next year.
The Supreme Court will hear the oral arguments in National Pork Producers v Ross at 10:00 a.m. on Thursday, October 11. Live audio will be available at https://www.supremecourt.gov/oral_arguments/.
It's time for another roundup of legal questions we've been receiving in the Agricultural & Resource Law Program. Our sampling this month includes registering a business, starting a butchery, noxious weed liability in a farm lease situation, promoting local craft beer at a farmers market, herd share agreements, and agritourism's exemption from zoning. Read on to hear the answers to these questions from across the state.
I want to name my farm business but am not an LLC or corporation. Do I have to register the name I want to use for the business?
Yes, if your business name won’t be your personal name and even if the business is not a formally organized entity such as an LLC. You must register the business with the Ohio Secretary of State. First, make sure the name you want to use is not already registered by another business. Check the name availability using the Secretary of State’s business name search tool at https://businesssearch.ohiosos.gov/. If the name is available, register the name with the Secretary of State using the form at https://www.sos.state.oh.us/businesses/filing-forms--fee-schedule/#name. If there is already a business registered with the name you want to use, you might be able to register a similar name if your proposed name is “distinguishable” from the registered name. The Secretary of State reviews names to make sure they are not already registered and are distinguishable from similar names. See the Guide to Name Availability page for examples of when names are or are not distinguishable from one another.
I am interested in starting a small butchery. What resources and information are helpful for beginning this endeavor?
There are legal issues associated with beginning a meat processing operation, and there are also feasibility issues to first consider. A good resource for initial considerations to make for starting a meat processing business is this toolkit from OSU at https://meatsci.osu.edu/programs/meat-processing-business-toolkit. A similar resource that targets niche meat marketers is at https://www.nichemeatprocessing.org/get-started/. On the legal side, requirements vary depending on whether you will only process meat as a custom operator or fully inspected operator, and if you also want to sell the meat through your own meat market. The Ohio Department of Agriculture’s Division of Meat Inspection has licensing information for different types of processors here: https://agri.ohio.gov/divisions/meat-inspection/home. If you also want to have a retail meat market, you’ll need a retail food establishment (RFE) license from your local health department. To help you with that process, it’s likely that your health department will have a food facility plan review resource like this one from the Putnam County Health Department.
Is Ohio’s noxious weeds law enforceable against the tenant operator of my farm, or just against me as the landowner?
Ohio’s noxious weed law states that the township trustees, upon receiving written information that noxious weeds are on land in their township, must notify the “owner, lessee, agent, or tenant having charge of the land.” This language means that the trustees are to notify a tenant operator if the operator is the one who is in charge of the land where the noxious weeds exist. The law then requires the notified party –which should be the tenant operator—to cut or destroy the noxious weeds within five days or show why there is no need to do so. The concern with a rental situation like yours is that if the tenant does not destroy the weeds in five days, the law requires the township to hire someone to do so and assess the costs of removal as a lien on the land. This puts you as the landowner at risk of financial responsibility for the lien and would require you to seek recourse against the tenant operator if you want to recover those costs. Another option is to take care of removing the noxious weeds yourself, but that could possibly expose you to a claim of crop damages from the tenant operator. A written farm lease can address this situation by clearing shifting the responsibility for noxious weeds in the crop to the tenant operator and stating how to deal with crop damages if the landowner must step in and destroy the noxious weeds.
Can we promote local craft beers at our farmers market?
Ohio established a new “F-11” permit in H.B. 674 last year. The F-11 is a temporary permit that allows a qualifying non-profit organization to organize and conduct an event that introduces, showcases, or promotes Ohio craft beers that are sold at the event. There are restrictions on how long the event can last, how much beer can be sold, who can participate in the event, and requirements that food must also be sold at the event. The permit is $60 per day for up to 3 days. Learn more about the permit on the Department of Commerce website at https://com.ohio.gov/divisions-and-programs/liquor-control/new-permit-info/guides-and-resources/permit-class-types.
Can a goat herdsman legally provide goat milk through a herd share agreement program?
Herd share agreements raise the raw milk controversy and whether it’s legal or safe to sell or consume raw milk. Ohio statutory law does clearly prohibit the sales of raw milk to an “ultimate consumer” in ORC 971.04, on the basis that raw milk poses a food safety risk to consumers. But the law does not prohibit animal owners from consuming raw milk from their own animals. A herd share agreement sells ownership in an animal, rather than selling the raw milk from the animal. Under the agreement, a person who pays the producer for a share of ownership in the animal may take their share of milk from the animal. The Ohio Department of Agriculture challenged the use of herd share agreements as illegal in the 2006 case of Schitmeyer v. ODA, but the court did not uphold the ODA’s attempt to revoke the license of the dairy that was using herd share agreements. As a result, it appears that the herd share agreement approach for raw milk sales is currently legally acceptable. But many still claim that raw milk consumption is risky because the lack of pasteurization can allow harmful bacteria to exist in the milk.
Can the township prohibit me from having a farm animal petting zoo on my hay farm?
It depends whether you qualify for the “agritourism exemption” granted in Ohio law. The agritourism exemption states that a county or township can’t use its zoning authority to prohibit “agritourism,” although it may have same zoning regulations that affect agritourism buildings, parking lots, and access to and from the property. “Agritourism” is an agriculturally related entertainment, recreational, cultural, educational or historical activity that takes place on a working farm where a certain amount of commercial agricultural production is also taking place. If you have more than ten acres in commercial production, like growing and selling your alfalfa, or you have less than ten acres but averaged more than $2,500 in gross sales from your alfalfa, you qualify under the agritourism exemption and the township zoning authorities cannot prohibit you from having your petting zoo. However, any zoning regulations the township has for ingress and egress on your property, buildings used primarily for your petting zoo, or necessary parking areas would apply to your petting zoo activity. If you don't qualify as "agritourism," the township zoning regulations could apply to the petting zoo activity, and you must determine whether a petting zoo is a permitted use according to your zoning district, which could depend upon whether or not you want to operate the petting zoo as a commercial business.
Did you know that the loudest land animal is the howler monkey? The howler monkey can produce sounds that reach 140 decibels. For reference, that is about as loud as a jet engine at take-off, which can rupture your eardrums.
Like the howler monkey, we are here to make some noise about recent agricultural and resource law updates from across the country. This edition of the Ag Law Harvest brings you court cases dealing with zoning ordinances, food labeling issues, and even the criminal prosecution of a dairy farm. We then look at a couple states proposing, or disposing, of legislation related to agriculture.
A zoning ordinance has Michigan landowners hogtied. The Michigan Supreme Court recently ruled that Michigan’s 6-year statute of limitations does not prevent a township from suing a landowner for alleged ongoing zoning violations, even if the start of landowner’s alleged wrongdoing occurred outside the statute of limitations period.
Harvey and Ruth Ann Haney (“Defendants”) own property in a Michigan township that is zoned for commercial use. Defendants began raising hogs on their property in 2006. Defendants started with one hog and allegedly grew their herd to about 20 hogs in 2016. In 2016, Fraser Township (“Plaintiff”) filed suit against Defendants seeking a permanent injunction to enforce its zoning ordinance and to prevent Defendants from raising hogs and other animals that would violate the zoning ordinance on their commercially zoned property. Defendants filed a motion to dismiss and argued that Plaintiff’s claims were barred because of Michigan’s 6-year statute of limitations. A statute of limitations is a law that prevents certain lawsuits from being filed against individuals after a certain amount of time has passed. In Ohio, for example, if someone were to be injured in a car accident, they would only have 2 years to bring a personal injury claim against the person who caused the accident. That’s because Ohio has passed a law that mandates most personal injury claims to be brought within 2 years of the date of injury.
In the Michigan case, Defendants argued that because their first alleged wrongdoing occurred in 2006, Plaintiff could not file their lawsuit against the Defendants in 2016. A trial court disagreed with Defendants and denied their motion to dismiss. Defendants took the motion up to the Michigan Court of Appeals, and the Court of Appeals found that Plaintiff’s claim was barred because of the 6-year statute of limitations. Plaintiff appealed to the Michigan Supreme Court, which overturned the Court of Appeals’ decision and held that Plaintiff’s claim was not barred. The Michigan Supreme Court reasoned that the presence of the hogs constitutes the alleged unlawful conduct of the Defendants, and that unlawful conduct occurred in 2006 and has occurred almost every day thereafter. The court concluded that because Defendants unlawful conduct was ongoing after 2006, Plaintiff’s claims were not barred by the statute of limitations. The case now goes back to the trial court to be tried on the merits of Plaintiff’s claims against Defendants.
Where there’s smoke, there’s fire. Family Dollar Stores, Inc. (“Family Dollar”) has found itself in a bit of nutty situation. Plaintiff, Heather Rudy, has filed a class action lawsuit against Family Dollar, alleging that Family Dollar has misled her and other consumers by marketing its Eatz brand Smoked Almonds as “smoked.” Plaintiff asserts that Family Dollar is being deceptive because its Smoked Almonds are not smoked over an open fire, but instead flavored with a natural smoke flavoring. Plaintiff’s claims against Family Dollar include violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”); breaches of express warranty and implied warranty of merchantability; violation of the Magnuson-Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.
Family Dollar filed an early motion to dismiss, arguing that Plaintiff has not stated a claim for which relief can be granted. A federal district court in Illinois dismissed some of Plaintiff’s claims but ruled that some claims against Family Dollar should be allowed to continue. Plaintiff’s claims for breaches of warranty, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, and fraud were all dismissed by the court. The court did decide that Plaintiff’s claims under ICFA unjust enrichment should stay. The court reasoned that Plaintiff’s interpretation that Family Dollar’s almonds would be smoked over an open fire are not unreasonable. Moreover, the court recognized that nothing on the front label of Family Dollar’s Smoked Almonds would suggest, to consumers, that the term “smoked” refers to a flavoring rather than the process by which the almonds are produced. The court even pointed out that competitors’ products contain the word “flavored” on the front of similar “smoked” products. Therefore, the court concluded that Plaintiff’s interpretation of Family Dollar’s Smoked Almonds was not irrational and her claims for violating the ICFA should continue into the discovery phase of litigation, and possibly to trial.
Undercover investigation leads to criminal prosecution of Pennsylvania dairy farm. A Pennsylvania Court of Appeals (“Court of Appeals”) recently decided on Animal Outlook’s (“AO”) appeal from a Pennsylvania trial court’s order dismissing AO’s petition to review the decision of the Franklin County District Attorney’s Office (“DA”) to not prosecute a Pennsylvania dairy farm (the “Dairy Farm”) for animal cruelty and neglect. An undercover agent for AO held employment at the Dairy Farm and captured video of the condition and treatment of animals on the farm, which AO claims constitutes criminal activity under Pennsylvania’s animal cruelty laws.
AO compiled a report containing evidence and expert reports documenting the Dairy Farm’s alleged animal cruelty and neglect. AO submitted its report to the Pennsylvania State Police (“PSP”) in 2019. The PSP conducted its own investigation which lasted for over a year, and in March 2020, issued a press release indicating that the DA would not prosecute the Dairy Farm.
In response, AO drafted private criminal complaints against the Dairy Farm and submitted those to the local Magisterial District Judge. The local Magisterial Judge disapproved all of AO’s complaints and concluded that the complaints “lacked merit.” AO then filed a petition in a Pennsylvania trial court to review the Magisterial Judge’s decision. The trial court dismissed AO’s petition and concluded that the DA correctly determined “that there was not enough evidence, based upon the law, to initiate prosecution against any of the Defendants alleged in the private criminal complaints.” AO appealed the trial court’s decision to the Court of Appeals which ended up reversing the trial court’s decision.
The Court of Appeals concluded that the trial court failed to view the presented evidence through a lens that is favorable to moving forward with prosecution and the trial court failed to consider all reasonable inferences that could be made on the evidence. The Court of Appeals observed that the trial court made credibility determinations of the evidence by favoring the evidence gathered by PSP over the evidence presented by AO. The Court of Appeals noted that a trial court’s duty is to determine “whether there was evidence proffered to satisfy each element of an offense, not to make credibility determinations and conduct fact-finding.” Additionally, the Court of Appeals found that the trial court did not do a complete review of all the evidence and favored the evidenced obtained by PSP over the evidence presented by AO. The Court of Appeals determined that had the trial court reviewed all the evidence, it would have found that AO provided sufficient evidence to establish prima facie cases of neglect and animal cruelty, which would have provided the legal basis for the DA’s office to prosecute the claims.
Lastly, the DA argued that no legal basis for prosecution exists because the Dairy Farm is protected by the normal agricultural operations exemption to Pennsylvania’s animal cruelty laws. However, the Court of Appeals found that the conduct of the Dairy Farm, as alleged, would fall outside the normal agricultural operations exemption because AO’s report demonstrates that the Dairy Farm’s practices were not the dairy industry norm.
Ultimately the Court of Appeals found that AO’s private criminal complaints did have merit and that the DA had enough evidence and a legal basis to prosecute AO's claims. The Court of Appeals remanded the trial court’s decision and ordered that the DA to go ahead and prosecute the Dairy Farm on its alleged animal cruelty violations.
Wyoming fails to pass legislation limiting what can be considered agricultural land. The Wyoming House of Representatives struck down a recent piece of legislation looking to increase the threshold requirement to allow landowners the ability to classify their land as agricultural, have their land appraised at an agricultural value, and receive the lower tax rate for agricultural land. Current Wyoming law classifies land as agricultural if: (1) the land is currently being used for an agricultural purpose; (2) the land is not part of a patted subdivision; and (3) the owner of the land derived annual gross revenue of $500 or more from the marketing of agricultural products, or if the land is leased, the lessee derived annual gross revenues of $1,000 or more from the marketing of agricultural products.
Wyoming House Bill 23 sought to increase the threshold amount of gross revenues derived from the marketing of agricultural products to $5,000 for all producers. The Wyoming Farm Bureau Federation and Wyoming Stock Growers associations supported the bill. Proponents of the bill argued that the intent of agricultural land appraisals is to support commercial agriculture, not wealthy landowners taking advantage of Wyoming’s tax laws. Opponents of the bill argued that House Bill 23 hurt small agricultural landowners and that the benefits of the bill did not outweigh the harms. House Bill 23 died with a vote of 34-25, failing to reach the 2/3 approval for bills to advance.
Oregon introduces legislation relating to overtime for agricultural workers. Oregon House Bill 4002 proposes to require agricultural employers to pay all agricultural employees an overtime wage for time worked over 40-hours in a workweek. House Bill 4002 does propose a gradual phase-in of the overtime pay requirements for agricultural employees. For the years 2023 and 2024, agricultural employees would be entitled to overtime pay for any time worked over 55 hours in a workweek. For 2025 and 2026, the overtime pay requirement kicks in after 48 hours. Then in 2027, and beyond, agricultural employers would be required to pay an overtime pay rate to employees that work more than 40 hours in a workweek.
Did you know that ants are the only creatures besides humans that will farm other creatures? It’s true. Just like we raise cows, sheep, pigs, and chickens in order to obtain a food source, ants will do the same with other insects. This is particularly true with aphids. Ants will protect aphids from natural predators and shelter them during heavy rain showers in order to gain a constant supply of honeydew.
Like an ant, we have done some heavy lifting to bring you the latest agricultural and resource law updates. We start with some federal cases that deal with the definition of navigable waters under the Clean Water Act, mislabeling honey products, and indigenous hunting rights. We then finish with some state law developments from across the country that include Georgia’s right to farm law and California’s Proposition 12.
Supreme Court to review navigable waters definition under the Clean Water Act. The Supreme Court announced that it would hear the case of an Idaho couple who have been battling the federal government over plans to build their home. Chantell and Mike Sackett (“Plaintiffs”) began construction on their new home near Priest Lake, Idaho but were halted by the Environmental Protection Agency (“EPA”). The EPA issued an administrative compliance order alleging that Plaintiffs’ construction violates the Clean Water Act. The EPA claims that the lot, on which the Plaintiffs are constructing their new home, contains wetlands that qualify as federally regulated “navigable waters.” Plaintiffs are asking the Court to revisit its 2006 opinion in Rapanos v. United States and help clarify how to determine when a wetland should be classified as “navigable waters.” In Rapanos, the Court found that the Clean Water Act regulates only certain wetlands, those that are determined to be “navigable waters.” However, two different tests were laid out in the Court’s opinions. The Court issued a plurality opinion which stated that the government can only regulate wetlands that have a continuous surface water connection to other regulated waters. A concurring opinion, authored by Justice Kennedy, put forth a more relaxed test that allows for regulation of wetlands that bear a “significant nexus” with traditional navigable waters. Justice Kennedy’s test did not take into consideration whether there was any surface water connection between the wetland and the traditional navigable waters. In the lower appellate court, the Ninth Circuit Court of Appeals used Justice Kennedy’s “significant nexus” test to uphold the EPA’s authority to halt Plaintiffs’ construction. Now, Plaintiffs hope the Supreme Court will adopt a clear rule that brings “fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”
SueBee sued for “bee”ing deceptive. Sioux Honey Association Cooperative (“Defendant”) finds itself in a sticky situation after Jason Scholder (“Plaintiff”) brought a class action lawsuit against the honey maker for violating New York’s consumer protection laws by misrepresenting the company’s honey products marketed under the SueBee brand. Plaintiff claims that the words “Pure” or “100% Pure” on the Defendant’s honey products are misleading and deceptive because the honey contains glyphosate. Defendant filed a motion to dismiss the class action lawsuit and a federal district court in New York granted Defendant’s motion in part and denied it in part. Defendant asked the court to find that its labels could not be misleading as a matter of law because any trace amounts of glyphosate in the honey is a result of the natural behavior of bees interacting with agriculture and not a result of Defendant’s production process. However, the court declined to dismiss Plaintiff’s mislabeling claims. The court concluded that a reasonable consumer might not actually understand that the terms “Pure” or “100% Pure” means that trace amounts of glyphosate could end up in honey from the bees’ foraging process. The court also declined the Defendant’s request to dismiss Plaintiff’s unjust enrichment claim because of the alleged misrepresentations of the honey. However, the court did dismiss Plaintiff’s breach of express warranty claim and request for injunctive relief. The court dismissed Plaintiff’s breach of express warranty claim because Plaintiff failed to notify Defendant of its alleged breach of warranty, as required by New York law. Plaintiff’s request for injunctive relief was also dismissed because the court could not find any imminent threat of continued injury to Plaintiff since he has now learned that the honey contains trace amounts of glyphosate. The court ordered the parties to proceed with discovery on Plaintiff’s remaining claims, keeping the case abuzz.
Indigenous Hunting Rights. Recently, two members of the Northwestern Band of the Shoshone Nation (“Northwestern Band”) were cited for hunting on Idaho lands without tags issued by the state. The Northwestern Band filed suit against the state of Idaho declaring that its members possessed hunting rights pursuant to the Fort Bridger Treaty of 1868 (the “1868 Treaty”). The 1868 Treaty provided that the Shoshone Nation agreed to permanently settle on either Fort Hall Reservation, located in Southeastern Idaho, or Wind River Reservation, located in Western Wyoming. By agreeing to settle on one of the two reservations, the Shoshone Nation was granted hunting rights on unoccupied lands of the United states. However, the Northwestern Band ended up settling in Northern Utah and not on one of the two named reservations. After considering the 1868 Treaty, the Federal District Court of Idaho dismissed Northwestern Band’s lawsuit. The court held that the hunting rights contained in the 1868 Treaty were tied to the promise to live on one of the reservations, and that a tribe cannot receive those hunting rights without living on one of the appropriate reservations. Thus, the court found that because the Northwestern Band settled in Northern Utah and not on one of the reservations, the hunting rights of the 1868 Treaty did not extend to the Northwestern Band of the Shoshone Nation.
Tensions rise over Georgia’s Freedom to Farm Act. A few days ago, Georgia lawmakers introduced legislation that seeks to further protect Georgia farmers from nusiance lawsuits. House Bill 1150 (“HB 1150”) proposes to change current Georgia law to protect farmers and other agricultural operations from being sued for emitting smells, noises, and other activities that may be found offensive by neighboring landowners. Georgia’s current law, which became effective in 1980, does provide some protection for Georgia farmers, but only from neighboring landowners that have moved near the farm or agricultural operation after the current law went into effect. All neighboring landowners that lived near the farming operation prior to the current law going into effect have retained their right to sue. HB 1150, on the other hand, will prevent these nuisance lawsuits by all neighboring landowners, as long as the farm or agricultural operation have been operating for a year or more. Passing a right to farm law has proven to be difficult in Georgia. In 2020, House Bill 545, also known as the “Right to Farm bill” failed to pass before the final day of the 2019-2020 legislative session. Private landowners, farmers, and their supporters, are divided on the issue and seek to protect their respective property rights. It doesn't look like HB 1150 will have the easiest of times in the Georgia legislature.
Confining California's Proposition 12. Meat processors and businesses that sell whole pork meat in California (collectively the “Petitioners”) have delayed the enforcement of California’s Proposition 12 (“Prop 12”), for now. Prop 12 is California’s animal confinement law that has sent shockwaves across the nation as it pertains to raising and selling pork, eggs, and veal. Last week, the Superior Court for Sacramento County granted Petitioners’ writ of mandate to delay the enforcement of Prop 12 on sales of whole pork meat. Petitioners argue that Prop 12 cannot be enforced until California has implemented its final regulations on Prop 12. To date, California has yet to implement those final regulations. California, on the other hand, suggests that final regulations are not a precondition to enforcement of Prop 12 and the civil and criminal penalties that can be brought against any farmer or business that violates Prop 12. The court disagreed. The court found that the language of Prop 12, as voted on by California residents, explicitly states that California voters wanted regulations in place before the square-footage requirements of Prop 12 took effect. Therefore, the court granted Petitioners’ writ of mandate to prevent the enforcement of Prop 12 until final regulations have been implemented. The court’s writ will remain in effect until 180 days after final regulations go into effect. This will allow producers and businesses to prepare themselves to comply with the final regulations. Opponents of Prop 12 believe this is another reason why the Supreme Court of the United States should review California’s Proposition 12 for its constitutionality.
We’ve quickly reached the end of January, and several of the legal issues I’ve talked about in OSU’s “Agricultural Outlook” meetings have surfaced this month. If the current pace keeps up, 2022 promises to be a busy year for agricultural law. Here’s a review of three legal issues I predict we’ll see that have already begun to emerge in 2022.
Water, water. From defining WOTUS to addressing Lake Erie water quality, water law will continue to be everywhere this year. The U.S. Supreme Court just announced on January 24 that it will hear the well-known case of Sackett v EPA to review whether the Ninth Circuit Court of Appeals used the proper test to determine whether wetlands are “waters of the United States” (WOTUS). The case is one example of the ongoing push-pull in the WOTUS definition, which establishes waters that are subject to the federal Clean Water Act. The Biden administration proposed a new WOTUS rule last December that would replace the Trump-era rule, and comments remain open on that definition until February 7. Ohio has wrangled with its own water issues, particularly with agricultural nutrient impacts on water quality. We’ll see this year if the state will continue to rely on H2Ohio and similar incentive-based programs and whether the Ohio EPA will face additional litigation over its development of a Total Maximum Daily Load for Lake Erie.
Pesticide challenges. The EPA announced a new policy on January 11 to more closely evaluate potential effects of pesticide active ingredients on endangered species and critical habitats. That was the same day the agency re-registered Enlist One and Enlist Duo pesticides, but with new label restrictions and prohibited use in hundreds of counties across the U.S., including a dozen Ohio counties. An EPA report documenting dicamba damage in 2021 could form the basis for yet another lawsuit this year demanding that EPA vacate dicamba’s registration. Meanwhile, we await a decision by the U.S. Supreme Court on whether it will review Hardeman v. Monsanto, one of dozens of cases awarding damages against Monsanto (now Bayer) for personal injury harms caused by glyphosate.
Opposition to livestock production practices. Ohio pork producers watching California’s Proposition 12 will be happy with a recent California court decision prohibiting enforcement of one part of the law that went into effect on January 1. The provision requires any pork and eggs sold in the state to be from breeding pigs and laying hens that are not raised in a “cruel manner,” meaning that the animals have a certain amount of usable pen space. The California court agreed with grocers and other retailers that the law could not be enforced on sales of pork meat because the state hasn’t yet finalized its regulations. The law could be subject to further scrutiny from a higher court. Several agricultural organizations have unsuccessfully challenged the law as a violation of the Constitution’s Commerce Clause, but one of those cases currently awaits a decision from the U.S. Supreme Court on whether it will review the case. Other livestock production issues we’ll see this year include continued battles over Right to Farm laws that limit nuisance lawsuits against farms, and challenges to “ag gag” laws that aim to prevent or punish undercover investigations on farms.
There’s more to come. Watch for more of our predictions on what 2022 may bring to the agricultural law arena in upcoming posts. Or drop into one of our Agricultural Outlook and Policy meetings to hear my Ag Law Outlook. As quickly as the year is moving, we’ll soon know how many of those predictions are correct.
Did you know that Hippopotamuses cannot swim? It’s true. When hippos submerge themselves underwater, they don’t swim back up to the surface, instead they walk along the bottom until they reach shallow water. That is unless the hippo decides to chase you out of its territory, then it will gladly run, jump, and charge right at you.
Like the hippo, this week’s Ag Law Harvest is a little territorial. We bring you recent Ohio court decisions, a federal order allowing Colombian hippos to take the testimony of Ohio residents, and the Ohio Department of Agriculture’s directives as it ramps up its fight against Ohio’s newest pest.
Well, well, well. A recent Ohio case demonstrated the complex issues a landowner can run into when dealing with an oil and gas lease. The Plaintiff in this case owns land in Hebron, Ohio and brought suit against his neighbors and the Ohio Department of Taxation claiming that he was not the owner of a gas well located on his property or that he was responsible for paying taxes and maintaining the well under Ohio law. The Hebron, Ohio property at issue in this case passed through many hands before becoming the property of the Plaintiff. One of the prior owners was a man named William Taggart (“Taggart”). As mentioned earlier, the property also has a gas well which was subject to an oil and gas lease. The oil and gas lease passed to multiple parties and ended up with Taggart while he owned the Hebron property. After having both the property and the oil and gas lease, Taggart deeded the property to Plaintiff’s parents which eventually passed onto Plaintiff. Plaintiff argued that he is not the rightful owner of the well because the last person that was assigned the oil and gas lease was Taggart, making him the owner of the well. The Fifth District Court of Appeals disagreed. The court found that Plaintiff’s parents registered as owners of the well under Ohio Revised Code § 1509.31 which requires a person to register a well before they can operate it. Further, the court determined that when the oil and gas lease was assigned to Taggart the rights of the landowner and the lessee merged, essentially making Taggart the only individual with any property interest in the well. Relying on § 1509.31, the court found that when the entire interest of an oil and gas lease is assigned to the landowner, the landowner then becomes responsible for compliance with Chapter 1509 of the Ohio Revised Code. Therefore, when the property passed to Plaintiff’s parents, they became the owners of the well and were responsible for making sure the well was in compliance with Chapter 1509. Because this responsibility passed onto Plaintiff, the court found Plaintiff to be liable for the taxes and ensuring that the well is compliant with Ohio law. The court also denied Plaintiff’s attempt to argue that Taggart was the responsible party because the oil and gas lease was still in effect due to the fact that Plaintiff’s neighbors use the gas well for domestic purposes. The court found that the oil and gas lease had expired by its own terms, pursuant to the habendum clause contained within the lease. A habendum clause essentially defines the property interests and rights that a lessee has. The specific habendum clause in this case stated that the lease would terminate either within three years or when the well no longer produced oil and gas for commercial purposes. The lease at issue was well beyond the three-year term and, as the court found, the lease expired under Taggart because the well no longer produced oil or gas for commercial purposes. The use of the well for domestic purposes did not matter. The Fifth District ultimately held that because Plaintiff could not produce any evidence to show that another party had an interest in the well, Plaintiff is ultimately responsible for the well.
Amending a contract doesn’t always erase the past. Two companies (“Plaintiffs”) recently filed suit against a former managing member (“Defendant”) for allegedly using business funds and assets for personal use during his time as managing member. The primary issue in this case was whether or not an arbitration clause in the original operating agreement is enforceable after the operating agreement was amended to remove the arbitration clause. Defendant’s alleged misconduct occurred while the original operating agreement was in effect. The original operating agreement would require the parties to settle any disputes through the arbitration process and not through the court system. However, shortly before filing suit, the original operating agreement was amended to remove the arbitration provision. Plaintiffs filed suit against the Defendant arguing that the arbitration provision no longer applied because the operating agreement had been amended. Defendant, however, argued that his alleged misconduct occurred while the original operating agreement was in effect and that the amended operating agreement could not apply retroactively forcing him to settle the dispute in a court rather than through arbitration. The trial court, however, sided with the Plaintiffs and allowed the case to move forward. Defendant appealed the trial court’s decision and the Ninth District Court of Appeals agreed with him. The District Court found that the amended operating agreement did not expressly state any intention for the terms and conditions of the amended operating agreement to apply retroactively. Further, the court held that Ohio law favors enforcing arbitration provisions within contracts and any doubts as to whether an arbitration clause applies should be resolved in favor of enforcing the arbitration clause. The Ninth District reversed the trial court and found that the dispute of Defendant’s alleged misconduct should be resolved through arbitration.
Animal advocates claim victory in pursuit of recognizing animals as legal persons. A recent order issued by a federal district court in Ohio allows an attorney for Colombian Hippopotamuses to take the testimony of two expert witnesses residing in Ohio. According to U.S. law, a witness may be compelled to give testimony in a foreign lawsuit if an “interested person” applies to a U.S. court asking that the testimony be taken. The Animal Legal Defense Fund (“ALDF”) applied to the federal court on behalf of the plaintiffs, roughly 100 hippopotamuses, from a lawsuit currently pending in Colombia. According to the ALDF, the lawsuit seeks to prevent the Colombian government from killing the hippos. The interesting thing about this case is that hippos are not native to Colombia and were illegally imported into the country by drug kingpin Pablo Escobar. After Escobar’s death the hippos escaped his property and relocated to Colombia’s Magdalena River and have reproduced at a rate that some say is unsustainable. In Colombia, animals are able to sue to protect their rights and because the plaintiffs in the Colombian lawsuit are the hippos themselves, the ALDF argued that the hippos qualify as an “interested person” under U.S. law. After applying for the authorization, the federal court signed off on ALDF’s application and issued an order authorizing the attorney for the hippos to issue subpoenas for the testimony of the Ohio experts. After the federal court’s order, the ALDF issued a press release titled “Animals Recognized as Legal Persons for the First Time in U.S. Court.” The ALDF claims the federal court ruling is a “critical milestone in the broader animal status fight to recognize that animals have enforceable rights.” However, critics of ALDF’s assertions point out that ALDF’s claims are a bit embellished. According to critics, the order is a result of an ex parte application to the court, meaning only one side petitioned the court for the subpoenas and the other side was not present to argue against the subpoenas. Further, critics claim that all the federal court did was sign an order allowing the attorney for the hippos to take expert testimony, the court did not hold that hippos are “legal persons” under the law.
Ohio Department of Agriculture announces quarantine to combat the spread of the Spotted Lanternfly. According to the Ohio Department of Agriculture (“ODA”) the Spotted Lanternfly (“SLF”) has taken hold in Jefferson and Cuyahoga counties. The ODA announced that the SLF is now designated as a destructive plant pest under Ohio law and that the ODA was issuing quarantine procedures and restricting the movement of certain items from infested counties into non-infested areas of Ohio. The ODA warns that the SLF can travel across county lines in items like tree branches, nursery stock, firewood, logs, and other outdoor items. The ODA has created a checklist of things to look for before traveling within or out of infested counties. Nurseries, arborists, loggers, and other businesses within those infested counties should contact the ODA to see what their obligations and rights are under the ODA's new quarantine instructions. Under Ohio law, those individuals or businesses that fail to follow the ODA’s quarantine instructions could be found guilty of a misdemeanor of the third degree on their first offense and a misdemeanor of the second degree for each subsequent offense. For more information visit the ODA’s website about the SLF.
Infrastructure legislation and the Build Back Better reconciliation bill have consumed Washington lately, but the House Agriculture Committee set those issues aside long enough last week to tend to several other pieces of legislation. The committee passed five bills on to the House in its committee hearing on October 21. Here’s a summary of each:
H.R. 5609, the Cattle Contract Library Act of 2021, likely made the biggest splash in the agriculture community. Sponsored by Rep. Dusty Johnson (R-SD) and 23 co-sponsors on both sides of the aisle, the legislation would address beef supply and pricing transparency issues by requiring:
- A mandatory reporting program for packers, who must file information with USDA for:
- The type of each contract offered to producers of fed cattle, classified by the mechanism used to determine the base price for the fed cattle committed to the packer, including formula purchases, negotiated grid purchases, and forward contracts;
- A contract’s duration;
- All contract summary information;
- Contract provisions that may affect the price of cattle, including base price, schedules of premiums or discounts, and transportation;
- Total number of cattle covered by a contract that is solely committed to the packer each week within the 6 and 12-month periods following the date of the contract;
- For contracts where a specific number of cattle aren’t committed solely to the packer, an indication that the contract is an open commitment and any weekly, monthly, annual, or other limitations on the number of cattle that may be delivered to the packer under the contract;
- A description of contract terms that provide for expansion in the committed numbers of fed cattle to be delivered under the contract for the 6 and 12-month periods after its date.
- USDA must maintain the information submitted by packers in a publicly available library in a “user-friendly format,” including real-time notice, if practicable, of the types of contracts that are being offered by packers that are open to acceptance by producers.
- USDA must establish a competitive program to award Producer Education Grants for producer outreach and education on the best uses of cattle market information, including the Cattle Contract Library.
- USDA must also provide weekly or monthly reports based on the information collected from packers of:
- The total number of fed cattle committed under contracts for delivery to packers within the 6-month and 12-month periods following the date of the report, organized by reporting region and type of contract;
- The number of contracts with an open commitment along with any weekly, monthly, annual or other limitations on the number of cattle that may be delivered under such contracts; and
- The total maximum number of fed cattle that may be delivered within the 6-month and 12-month periods following the date of the report, organized by reporting region and type of contract.
H.R. 4252 proposes additional scholarship funding for students at the nation’s 1890 land grant institutions, which includes Central State University here in Ohio.
Committee Chairman David Scott (D-GA) is the sponsor of the bill, which would allocate $100 million for scholarships and make the scholarship program permanent.
H.R. 5608 proposes the Chronic Wasting Disease Research and Management Act, a bi-partisan bill sponsored by Rep. Ron Kind (D-WI) and House Agriculture Committee Ranking Member Glenn Thompson (R-PA). The act proposes a research program, support for state management efforts, and public education to tackle chronic wasting disease, a fatal neurological disease in deer, elk, and moose. Those initiatives would receive $70 million each year from 2022 to 2028.
H.R. 4489, the National Forest Restoration and Remediation Act, is also a bi-partisan bill and is sponsored by Rep. Kim Schrier, (D-WA), Matt Rosendale (R-MT), Joe Neguse (D-CO) and Dough LaMalfa (R-CA). The bill would allow the U.S. Forest Service to use interest earned on settlement funds for clean-up and restoration of damaged forest lands.
H.R. 5589, the Pyrolysis Innovation Grants Act, is dubbed as a “green technology bill” by sponsors Rep. Josh Harder (D-CA), Rep. Jimmy Panetta(D-CA) and Rep. Jim Costa (D-CA). The proposal would invest $5 million per year through 2027 for USDA pilot projects in pyrolysis, a process that reduces greenhouse gas emissions from burning nut shells by converting the shells into fuels, nutrients, and other commodities.
Did you know that the Nile Crocodile has the strongest bite of any animal in the world? The deadly jaws can apply 5,000 pounds of pressure per square inch, which is about 10 times more powerful than the crunch of the Great White Shark. Humans? Well, they can apply about 100 pounds of pressure per square inch.
This edition of the Ag Law Harvest takes a bite out of some federal lawsuits, Department of Labor developments, and USDA announcements affecting agriculture and the environment.
Animal advocates lack standing to sue poultry producer. In 2020, animal advocacy groups In Defense of Animals (“IDA”) and Friends of the Earth (“FoE”) (collectively the “Plaintiffs”) filed a lawsuit against Sanderson Farms (“Sanderson”), a Mississippi poultry producer, alleging that Sanderson engaged in false advertising as it relates to its chicken products. According to Plaintiffs, Sanderson advertises that its chickens are “100% natural” with no “hidden ingredients.” However, Plaintiffs allege that Sanderson has been misleading the public after many of Sanderson’s products tested positive for antibiotics and other unnatural substances. This however is not the first court battle between FoE and Sanderson. In 2017, FoE sued Sanderson for the same false advertising. However, the 2017 case was dismissed because the court held that FoE did not have standing to bring the lawsuit. The 2017 case was appealed to the Ninth Circuit Court of Appeals where the decision to dismiss the lawsuit was upheld. Fast forward to 2020, FoE joined forces with a new plaintiff, IDA, hoping to file a lawsuit that would finally stick. Recently however, a federal district court in California dismissed the most recent lawsuit because FoE was precluded, or prohibited, from suing Sanderson again on the same claims and because IDA lacked the standing to bring the lawsuit. The California district court found that FoE could not bring its claims against Sanderson because those same claims were litigated in the 2017 lawsuit. This legal theory, known as issue preclusion, prevents the same plaintiff from a previous lawsuit from bringing the same claims against the same defendant in a new lawsuit, when those claims were resolved or disposed of in a prior lawsuit. Issue preclusion did not affect IDA, however, because it was a new plaintiff. But the California district court still found that IDA lacked standing to bring this lawsuit against Sanderson. IDA argued that because it expended resources to launch a campaign against Sanderson to combat the allegedly false advertising, it had organizational standing to bring the lawsuit. Standing requires a plaintiff to show they suffered an “injury-in-fact” before they can maintain a lawsuit. Organizational standing is the theory that allows an organization like IDA to establish an “injury-in-fact” if it can demonstrate that: (1) defendant frustrated its organizational mission; and (2) it diverted resources to combat the defendant’s conduct. IDA argued that because it diverted resources including writing letters to Sanderson and the Federal Trade Commission, filing a complaint with the Better Business Bureau, publishing articles and social media posts, and diverting staff time from other campaigns to focus on countering Sanderson’s advertising, it had the organizational standing to bring the lawsuit. The Court disagreed. The Court reasoned that the diverting of resources by IDA was totally voluntary and not a result of Sanderson’s advertising. The Court determined that in order to obtain organizational standing, IDA must have been forced to take the actions it did as a result of Sanderson’s advertising, the diverting of resources cannot be self-inflicted. The Court held that Sanderson’s advertising did not ultimately frustrate IDA’s organizational mission and that any diverting of resources to counter Sanderson’s advertising was the normal course of action taken by a group like IDA.
Joshua trees, a threatened species? WildEarth Guardians (“Plaintiff”), a conservation organization, brought suit against the U.S. Secretary of the Interior and the U.S. Fish and Wildlife Service (“Defendants”) for failing to list the Joshua tree as a threatened species under the Endangered Species Act (“ESA”). Plaintiff argued that the Defendants’ decision not to list the Joshua tree as threatened was arbitrary, capricious, contrary to the best scientific and commercial data available, and otherwise not in line with the standards set forth by the ESA. In 2015 Plaintiff filed a petition to have the Joshua tree listed as a threatened species after Plaintiff provided scientific studies showing that climate change posed a serious threat to the continued existence of the Joshua tree. The U.S. Fish and Wildlife Service (“FWS”) issued a 90-day finding that Plaintiff’s petition presented credible information indicating that listing the Joshua tree as threatened may be warranted. However, the FWS’s 12-month finding determined that listing the Joshua tree as threatened or endangered under the ESA was not necessary due to the Joshua tree’s long lifespan, wide range, and ability to occupy multiple various ecological settings. That’s when Plaintiff decided to bring this lawsuit asking the federal district court in California to set aside the 12-month finding and order the Defendants to prepare a new finding, and the Court agreed. The Court held that Defendants’ decision was arbitrary, capricious, and contrary to the ESA and ordered the Defendants to reconsider Plaintiff’s petition. The Court reasoned that the FWS’s climate change conclusions were arbitrary and capricious because it failed to consider Plaintiff’s scientific data and failed to explain why in its 12-month finding. Further, the Court noted that the FWS’s findings regarding threats to the Joshua tree posed by climate change and wildfire were unsupported, speculative, or irrational. And finally, the Court determined that the FWS’s conclusion that Joshua trees are not threatened in a significant portion of their range was arbitrary and capricious. The FWS must now prepare a new finding that addresses all the above deficiencies.
Department of Labor announces expanded measures to protect workers from extreme heat. The U.S. Department of Labor (“DOL”) announced that the Occupational Safety and Health Administration (“OSHA”) is working on ways to protect workers in hot environments and reduce the dangers associated with exposure to high heat. According to the DOL, OSHA will be implementing an enforcement initiative on heat-related hazards, developing a National Emphasis Program on heat inspections, and launching a rulemaking process to develop a workplace heat standard. Current and future extreme heat initiatives and rules apply to indoor and outdoor worksites in general industry, construction, agriculture and maritime where potential heat-related hazards exist.
Deadline to apply for pandemic assistance to livestock producers extended. The USDA announced that it is providing additional time for livestock and poultry producers to apply for the Pandemic Livestock Indemnity Program (“PLIP”). Producers who suffered losses during the Covid-19 pandemic due to insufficient access to processing may now apply for relief for those losses through October 12, 2021. Payments are based on 80% of the fair market value of the livestock and poultry and for the cost of depopulation and disposal of the animals. Eligible livestock include swine, chickens, and turkeys. For more information on PLIP, and how to apply, visit farmers.gov/plip.
Did you know there is a sea creature capable of producing bubbles that are louder than a gun and hotter than lava? Pistol shrimp, also known as snapping shrimp, are the super-powered creatures under the sea that no one talks about. These bite-sized crustaceans have a special claw that allows them to form the deadly bubble to shoot at unsuspecting victims or enemies. The sound of the pop of the bubble has been measured at 218 decibels, which is louder than a speeding bullet, and the heat generated by the bubble has been measured to reach almost 8,000 degrees Fahrenheit, making the bubble four-times hotter than lava. Like the pistol shrimp, we have brought you the heat in this edition of the Ag Law Harvest.
This Ag Law Harvest brings you agricultural and resource issues from across the country that have created their own noise, including animal liability laws, the reversal of relaxed environmental regulations, and requiring federal agencies to consider the impact of future agency activities on the environment.
Farmers and ranchers begin to enjoy new protections under Texas animal liability laws. Texas House Bill 365, which expands protections under Texas’ Farm Animal Liability Act (“FALA”), went into effect on September 1, 2021. House Bill 365 was passed in response to a 2020 Texas Supreme Court ruling which found that farmers and ranchers were not protected under FALA and could be liable for injuries that occur on working farms and ranches. The new law prevents an injured individual from holding a farmer or rancher liable for their injuries, so long as the injuries are a result of the inherent risks of being involved in routine/customary activities on a farm or ranch.
Federal Court revokes Trump Navigable Waters Protection Rule. The U.S. District Court in Arizona recently ruled that the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) must be vacated because the rule contains serious errors and the Trump Administration’s rule could do more harm than good to the nation’s waters if left alone. Opponents of the NWPR argued that rule disregards established science and the advice of the EPA’s own experts in order to redefine the phrase “waters of the United States.” Specifically, opponents to the Trump Administration’s rule voiced their concern that the NWPR failed to take into consideration the effect ephemeral waters would have on traditional navigable waters. And the Court agreed. The Court found that the NWPR must be vacated because the rule “could result in possible environmental harm.” The Court also reasoned that because the EPA is likely to alter the definition of “waters of the United States” under the Biden Administration, the NWPR should not remain in place. Proponents of the NWPR claim that the Court’s ruling creates uncertainty for farmers and ranchers across the country.
EPA revokes Minnesota attempts to relax feedlot regulations. Earlier this year, Minnesota passed a law that relaxed the requirements to obtain a “Feedlot General Permit.” The Feedlot General Permit is usually only for Minnesota’s largest feedlots, some 1,200 farms. The permits are required under federal clean water laws but enforced by the state. Prior to the law being passed, the Minnesota Pollution Control Agency required those farmers that applied manure during the first two weeks of October to implement one of four approved nitrogen management practices. However, Minnesota lawmakers wanted to relax those regulations by prohibiting regulatory authorities from requiring farmers to take new steps to limit nitrogen runoff during October. But, the EPA “vetoed” Minnesota’s relaxed regulations, which it can do when a state’s law conflicts with a federal law or regulation. The EPA sent a letter notifying Minnesota that the relaxed regulations would be inconsistent with the Clean Water Act (“CWA”) and would result in an improper modification to the Minnesota Pollution Control Agency’s authority to administer the National Pollutant Discharge Elimination System (“NPDES”), which administers the feedlot permits. Proponents of the new Minnesota law claimed that the existing permits were not flexible enough and that regulatory authorities focused on an arbitrary calendar date rather than focusing on natural conditions when limiting a farmer’s ability to spread manure. Opponents to Minnesota’s law argue that the EPA did the right thing by using “common sense improvements to prevent manure runoff.”
Department of Homeland Security found to have violated environmental regulations for its border-enforcement activity. The Center for Biological Diversity and U.S. Congressman Raul Grijalva (the “Plaintiffs”) filed suit in federal court claiming that the Department of Homeland Security and its agency, Customs and Border Protection, (the “Defendants”) violated the National Environmental Policy Act (“NEPA”) and the Endangered Species Act (“ESA”). Plaintiffs alleged that Defendants failed to update their programmatic environmental analysis for border-enforcement activity since 2001, as required by NEPA, and that Defendants failed to consult with the U.S. Fish and Wildlife Service (“FWS”) about the impacts of border-enforcement activity on threatened or endangered species, as required by the ESA. In its opinion, the U.S. District Court of Arizona ruled that the Defendants did violate NEPA but not the ESA. The Court found that NEPA has two primary goals: (1) require every federal agency to consider the environmental impact of the agency’s actions; and (2) require the federal agency to inform the public that it has considered the environmental impact. NEPA also requires a federal agency to supplement its environmental impact statement if there is ongoing action being taken by the federal agency. The Defendants claimed they did not violate NEPA because they conducted and provided site-specific or project-specific environmental assessments. However, the Court ruled that although the Defendants did conduct project-specific analysis, they are required to supplement their environmental impact statement for the activity/program, as a whole, unless they legally opt out of the supplementation, which Defendants did not do until 2019. Therefore, the Court found the Defendants did violate NEPA prior to 2019. The Court also ruled that the ESA does not require federal agencies to consult with the FWS on a broad and continuing basis. The Court felt that the Defendants had met any requirements under the ESA by meeting with the FWS for any site-specific or project-specific analysis. Although the Court found that Defendants had violated NEPA, the Court concluded that Plaintiffs had waited too long to bring the lawsuit and that no remedy was available to Plaintiffs for the previous procedural violations of NEPA.
USDA announces changes to CFAP 2. The USDA’s Farm Service Agency announced changes to the Coronavirus Food Assistance Program 2 (“CFAP 2”). As a result of the changes, contract poultry, egg, and livestock producers, and producers of “sales-based commodities” – mostly specialty crops – can modify existing or file new applications by October 12, 2021, using either 2018 or 2019 to measure lost revenue in 2020. The changes were published on August 27, 2021, and can be found here.
Did you know that elephants can’t jump? In fact, it’s impossible for elephants to jump because, unlike most mammals, the bones in an elephant’s leg are all pointed downwards, which eliminates the “spring” required to push off the ground.
Unlike elephants, we have jumped all over the place to bring you this week’s Ag Law Harvest. Below you will find agricultural and resource law issues that include, among other things, conspiracy, preemption, succession planning support, ag spending and disaster relief, and Ohio’s broadband and salmon expansion.
Poultry price fixing conspiracy. According to a press release from the Department of Justice (“DOJ”) a federal grand jury has decided to indict Koch Foods and four former executives of Pilgrim’s Pride for allegedly engaging in a nationwide conspiracy to fix prices and rig bids for broiler chicken products. These indictments combine to make a total of 14 individuals charged in the conspiracy that allegedly started in 2012 and lasted until 2019. The indictments allege that the defendants and co-conspirators conspired to suppress and eliminate competition for sales of broiler chicken products sold to grocers and restaurants. The DOJ reiterated its commitment to prosecuting price fixing and antitrust violations. These indictments come on the heels of President Biden’s Executive Order seeking to promote competition within the American Economy, which focused heavily on the agriculture industry. In addition to Koch Foods, additional companies have been indicted in the conspiracy. So far, Claxton Poultry and Pilgrim’s Pride have both been indicted in the conspiracy with Pilgrim’s Pride agreeing to pay a $107 million fine. Koch Foods denies any involvement in the price fixing scheme.
FIFRA giving Monsanto a little relief. About a week before the trial of another lawsuit against the Monsanto Company (“Monsanto”) and its Roundup products, a California judge dismissed some of the claims filed by the plaintiff. According to the judge, some of the claims asserted by the plaintiff were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and therefore could not be pursued. The plaintiff claimed that Monsanto had a state-law duty to warn that Roundup causes cancer. The judge noted that under FIFRA, a state cannot impose or continue to impose any requirement that is “in addition to or different from” those required by FIFRA. At the time, federal regulations did not require Monsanto to place a cancer warning on its Roundup products. The judge reasoned that since federal law is supreme (i.e. preempts state law) California cannot impose a state-law duty on Monsanto to warn that Roundup causes cancer. The judge, therefore, found that the plaintiff cannot pursue her claims against Monsanto for failure to warn under California law. This ruling is in contrast to a recent 9th Circuit Court of Appeals decision which concluded that the failure to warn claims brought by the plaintiff in that suit were not preempted by FIFRA. Plaintiff has time to appeal the judge’s decision, even beyond the start of the trial and could rely on the 9th Circuit’s opinion to help her argue that her claims should not have been dismissed.
Competitive loans now available for land ownership issues and succession planning. The USDA announced that it will be providing $67 million in competitive loans through the new Heirs’ Property Relending Program (“HPRP”). The HPRP seeks to help agricultural producers and landowners resolve land ownership and succession issues. Lenders can apply for loans up to $5 million at 1% interest through the Farm Service Agency (“FSA”) once the two-month signup window opens in late August. Once the lenders are selected, heirs can apply to those lenders for assistance. Heirs may use the loans to resolve title issues by financing the purchase or consolidation of property interests and for costs associated with a succession plan. These costs can include buying out fractional interests of other heirs, closing costs, appraisals, title searches, surveys, preparing documents, other legal services. Lenders will only make loans to heirs who: (1) look to resolve ownership and succession of a farm owned by multiple owners; (2) are a family member or heir-at-law related by blood or marriage to the previous owner; and (3) agree to complete a succession plan. The USDA has stated that more information on how heirs can borrow from lenders under the HPRP will be available in the coming months. For more information on HPRP visit https://www.farmers.gov/heirs/relending.
House Ag Committee approves disaster relief bill. The House Agriculture Committee approved an $8.5 billion disaster relief bill to extend the Wildfire and Hurricane Indemnity Program (“WHIP”). The bill, known as the 2020 WHIP+ Reauthorization Act, provides relief for producers for 2020 and 2021 related to losses from the ongoing drought in the western half of the United States, the polar vortex that hit Texas earlier this year, wildfires that tainted California wine grapes with smoke, and power outages, like the one seen during the polar vortex in Texas, which caused dairy farmers to dump milk. The bill makes it easier for farmers to recover for losses related to drought, now only requiring a D2 (severe) designation for eight consecutive weeks as well as allowing disaster relief payments for losses related to power outages that result from a qualified disaster event. With the Committee’s approval the bill makes its way to the house floor for a debate/vote. Whether it’s a standalone bill or a bill that is incorporated into an appropriations bill or a year-end spending measure remains to be seen.
Senate Appropriations Committee approves ag spending bill. The Senate Appropriations Committee voted in favor of a fiscal year 2022 spending bill for the USDA and FDA that includes about $7 billion in disaster relief and $700 million for rural broadband expansion. The Committee approved $25.9 billion for the FY2022 ag spending bill, which is an increase of $2.46 billion from the current year. In addition to disaster relief funds and rural broadband, the bill increases research funding to the USDA, increass funding for conservation and climate smart agricultural practices, and increases funding for rural development including infrastructure such as water and sewer systems and an increase in funding to transition rural America to renewable energy. The ag spending bill is now set for debate and vote by the full Senate.
Ohio to be the second site for AquaBounty’s genetically engineered salmon. Land-based aquaculture company AquaBounty has selected Pioneer, Ohio as the location for its large-scale farm for AquaBounty’s genetically engineered salmon. The new farm will be AquaBounty’s first large-scale commercial facility and expects to bring over 100 jobs to northwestern Ohio. According to AquaBounty’s press release, the plan for the new farm is still contingent on approval of state and local economic incentives. Ohio is still finalizing a package of economic incentives for the new location and AquaBounty hopes to begin construction on the new facility by the end of the year. AquaBounty has modified a single part of the salmon’s DNA that causes them to grow faster in early development. It raises its fish in what it calls “Recirculating Aquaculture Systems,” which are indoor facilities that are designed to prevent disease and protect wild fish populations. According to AquaBounty, its production methods offer a reduced carbon footprint and no risk of pollution of marine ecosystems as compared to traditional salmon farming. AquaBounty anticipates commercial production to begin in 2023.
DeWine orders adoption of emergency rules to speed up the deployment of broadband in Ohio. Governor Mike DeWine signed an executive order which will help speed up the launch of the Ohio Residential Broadband Expansion Grant Program (the “Program”) which was recently signed into law by Governor DeWine. The Program is Ohio’s first-ever residential broadband expansion program which grants the Broadband Program Expansion Authority the power to review and award Program grant money for eligible projects. The Program requires a weighted scoring system to evaluate and select applications for Program grants. Applications must be prioritized for unserved areas and areas located within distressed areas as defined under the Urban and Rural Initiative Grant Program. The Program hopes to provide high-speed internet to Ohio residences that do not currently have access to such services. With DeWine’s executive order, the Program can start immediately rather than waiting until the lengthy administrative rule making process is complete. Normally, rules by a state agency must go through a long, drawn out process to ensure the public has had its input on any proposed rules and those affected the most can challenge or argue to amend the rules. However, the Governor does have the ability to suspend the normal rule making process when an emergency exists requiring the immediate adoption of rules. According to Governor DeWine’s executive order, the COVID-19 pandemic, the increase in telework, remote learning, and telehealth services have created an emergency that allows DeWine to suspend the normal rule making process to allow the Program to be enacted without delay. Although emergency rules are in place, they are only valid for 120 days. New, permanent rules must be enacted through the normal rule making procedure.