Environmental

Giant Panda chewing on bamboo stalk.
By: Jeffrey K. Lewis, Friday, July 16th, 2021

Did you know that Giant Panda cubs can be as small as a stick of butter?  A panda mother is approximately 900 times bigger than her newborn cub, which can weigh less than 5 ounces.  This is like an 8-pound human baby having a mother that weighed 7,200 pounds – this size difference may explain why so many panda cubs die from accidentally being crushed by their mothers.  However, not everything is doom and gloom for the Giant Panda.  Chinese officials have officially downgraded pandas from “endangered” to “vulnerable.”  Although the International Union for Conservation of Nature re-labelled, the Panda as “vulnerable” in 2016, China wanted to make sure that the population of its national treasure continued to grow before downgrading the panda’s classification.  

Although it seems as though pandas are thriving thanks to conservation efforts in China, not all animal species in China are so lucky.  This week’s Ag Law Harvest takes a trip around the world to bring you domestic and international agricultural and resource issues.  We take a look at court decisions, Congress’ latest actions, China’s struggle with African Swine Fever, and President Biden’s latest executive order. 

Iowa Supreme Court Dismisses Raccoon River Lawsuit.  Environmental organizations (“Plaintiffs”) filed a lawsuit against the state of Iowa and its agencies (“Defendants”) asking the court to compel Defendants to adopt legislation that would require Iowa farmers to implement practices that would help reduce the levels of nitrogen and phosphorus in Raccoon River.  The Plaintiffs argued that Defendants violated their duty under the Public Trust Doctrine (“PTD”), which is a legal doctrine that requires states to hold certain natural resources in trust for the benefit of the state’s citizens.  Defendants argued that Plaintiffs lacked standing to bring the lawsuit.  The Iowa Supreme Court agreed with Defendants and found that a ruling in Plaintiffs’ favor would not necessarily remediate Plaintiffs’ alleged injuries, and therefore the Plaintiffs lacked standing to bring the lawsuit.  The Iowa Supreme Court also found that Plaintiffs’ issue was a nonjusticiable political question.  The political question doctrine is a principle that helps prevent upsetting the balance of power between the branches of government.  Under the doctrine, courts will not decide certain issues because they are better suited to be decided by another branch of government.  In this case, the court reasoned that Plaintiffs’ issue was better suited to be resolved through the legislative branch of government, not the judicial branch.  The Iowa Supreme Court decision is significant because, as it stands, agricultural producers in the Raccoon River Watershed will not be required to adopt any new practices but the decision leaves it up to Iowa’s legislature to determine whether farmers should be required to adopt new practices under the PTD to help reduce nitrogen and phosphorus in Raccoon River.  

U.S. House of Representatives’ spending bill increases focuses on climate action and environmental protection.  Before the July 4th break, the United States House Appropriations Committee approved the first of its Fiscal Year 2022 (“FY22”) funding bills.  Included in these bills is the agriculture funding bill, which will be sent to the House floor for full consideration.  The bill provides $26.55 billion in the discretionary funding of agencies and programs within the USDA, FDA, the Commodity Futures Trading Commission, and the Farm Credit Administration – an increase of $2.851 billion from 2021.  In total, the agriculture funding bill includes $196.7 billion for both mandatory and discretionary programs.  The bill focuses on: (1) rural development and infrastructure – including rural broadband; (2) food and nutrition programs to help combat hunger and food insecurity; (3) international food assistance to promote U.S. agricultural exports; (4) conservation programs to help farmers, ranchers, and other landowners protect their land; (5) ag lending; (6) climate-related work to help research and remedy the climate crisis; and (7) enforcement of environmental programs.  The agriculture spending bill will, however, have to be reconciled with any spending bill produced by the U.S. Senate.

U.S. House Agriculture Committee advances rural broadband bill.  The House Agriculture Committee (the “Committee”) unanimously voted to advance the Broadband Internet Connections for Rural America Act (the “Act”), which would authorize $4.5 billion in annual funding, starting in fiscal year 2022, for the Broadband ReConnect Program (the “Program”) through fiscal year 2029.  The existing Program is set to expire on June 30, 2022.  To demonstrate Congress’ commitment to expanding rural broadband, the Program was only given $742 million in 2021.  It is unclear whether the Act will be included in the infrastructure package that is currently being negotiated between Congress and the White House.  Under the Act, the USDA must give the highest priority to projects that seek to provide broadband service to unserved communities that do not have any residential broadband service with speeds of at least 10/1 Mbps.  The USDA will then prioritize communities with less than 10,000 permanent residents and areas with a high percentage of low-income families.

Small hog farmers in China no longer required to seek environmental approval.  China is the world’s largest pork producer and over the past few years, its hog herds have been decimated.  A deadly African Swine Fever (“ASF”) has wiped out about half of China’s hog herds, especially affecting small farmers.  According to Reuters, China relies heavily on small farmers for its pork output, but because of ASF, small farmers have been left with little to no product and mass amounts of debts.  Further, Chinese farmers are hesitant to rebuild their herds because ASF is an ongoing risk and farmers stand to lose everything if they continue to raise diseased hogs.  Addressing these concerns, China’s agriculture ministry will no longer require small hog farmers to get environmental approval from the government before breeding their hogs.  China hopes to reduce the costs and red tape for small farmers as China tries to incentivize small farmers to rebuild their hog herds.  African Swine Fever is a highly contagious and deadly viral disease affecting both domestic and feral swine.  The ASF poses no threat to human health but can decimate domestic hog populations.  Germany has recently reported its first two cases of ASF in domestic hogs.  Currently, ASF has not been found within the United States, and the USDA hopes to keep it that way.  To learn more about ASF, visit the USDA’s Animal and Plant Health Inspection Service website

President Biden signs executive order to reduce consolidation in agriculture.  President Biden’s recent Executive Order on Promoting Competition in the American Economy seeks to address inadequate competition within the U.S. economy that the administration believes holds back economic growth and innovation.  The Order includes more than 70 initiatives by more than a dozen federal agencies to promote competition.  With respect to agriculture, the Order seeks to break up agricultural markets “that have become more concentrated and less competitive.”  The Biden Administration believes that the markets for seeds, equipment, feed, and fertilizer are dominated by a few large companies which negatively impacts family farmers and ranchers.  The Biden Administration believes that the lack of competition increases the costs of inputs for family farmers all while decreasing the revenue a family farmer receives.  The Order directs the USDA to consider issuing new rules: (1) making it easier for farmers to bring and win lawsuits under the Packers and Stockyards Act; (2) prohibiting chicken processors from exploiting and underpaying chicken farmers; (3) adopting anti-retaliation protections for farmers who speak out about a company’s bad practices; and (4) defining when meat producers can promote and label their products as a “Product of the USA.”  The Order also requires the USDA to develop a plan to increase opportunities for small farmers to access markets and receive a fair return and encourages the Federal Trade Commission to limit when equipment companies can restrict farmers from repairing their own farm machinery.  Follow this link to learn more about President Biden’s recent Executive Order.

Farm Office Team on Zoom Webinar
By: Jeffrey K. Lewis, Wednesday, July 14th, 2021

"Farm Office Live" returns this summer as an opportunity for you to get the latest outlook and updates on ag law, farm management, ag economics, farm business analysis, and other related issues.  Targeted to farmers and agri-business stakeholders, our specialists digest the latest news and issues and present it in an easy-to-understand format.

The live broadcast is presented monthly.  In months where two shows are scheduled, one will be held in the morning and one in the evening.  Each session is recorded and posted on the OSU Extension Farm Office YouTube channel for later viewing.

Current Schedule:

July 23, 2021 10:00 - 11:30 am  December 17, 2021 10:00 - 11:30 am 
August 27, 2021 10:00 - 11:30 am  January 19, 2022 7:00 - 8:30 pm 
September 23, 2021 10:00 - 11:30 am  January 21, 2022 10:00 - 11:30 am 
October 13, 2021 7:00 - 8:30 pm  Februrary 16, 2022 7:00 - 8:30 pm 
October 15, 2021 10:00 - 11:30 am  February 18, 2022 10:00 - 11:30 am 
November 17, 2021 7:00 - 8:30 pm  March 16, 2022 7:00 - 8:30 pm 
November 19, 2021 10:00 - 11:30 am  March 18, 2022  10:00 - 11:30 am 
December 15, 2021 7:00 - 8:30 pm  April 20, 2022 7:00 - 8:30 pm 

Topics we will discuss in upcoming webinars include:

  • Coronavirus Food Assitance Program (CFAP) 
  • Legislative Proposals and Accompanying Tax Provisions
  • Outlook on Crop Input Costs and Profit Margins 
  • Outlook on Cropland Values and Cash Rents 
  • Tax Issues That May Impact Farm Businesses 
  • Legal Trends
  • Legislative Updates
  • Farm Business Management and Analysis
  • Farm Succession & Estate Planning
 

To register or to view a previous "Farm Office Live," please visit https://go.osu.edu/farmofficelive. You will receive a reminder with your personal link to join each month. 

The Farm Office is a one-stop shop for navigating the legal and economic challenges of agricultural production. For more information visit https://farmoffice.osu.edu or contact Julie Strawser at strawser.35@osu.edu or call 614.292.2433

Florida Panther
By: Jeffrey K. Lewis, Friday, July 02nd, 2021

Did you know that the Florida Panther is the last subspecies of Mountain Lion found east of the Mississippi River?  The Florida Panther is an endangered species with an estimated population of under 100 panthers.  As bleak as it may seem, things may be looking up for the Florida Panther to make a roaring comeback (which is ironic because Florida Panthers can’t roar). 

Like the Florida Panther, we have prowled agricultural and resource issues from across the country.  Topics include a historic move by Florida to protect its wildlife and natural resources, agritourism getting a boost in Pennsylvania, Colorado’s livestock industry receiving a lifeline, and USDA efforts to expand broadband and water quality initiatives.   

Florida makes conservation history.  Florida has recently enacted a new law known as the Florida Wildlife Corridor Act (the “Act”).  The Act creates a wildlife corridor that will connect Florida’s large national and state parks and create an unbroken area of preserved land that stretches from the Alabama state line all the way down to the Florida Keys.  Specifically, the Act looks to protect about 18 million acres of habitat for Florida’s wildlife.  The Act seeks to prevent wildlife, like the Florida Panther, from being cut off from other members of its species, which is a main driver of extinction.  The Act also aims to protect Florida’s major watersheds and rivers, provide wildlife crossings over and/or under major highways and roads, and establish sustainable practices to help working ranches, farms and, forests that will be vital to ensuring the success and sustainability of the wildlife corridor.  The Act goes into effect July 1 and provides $400 million in initial funding to help purchase land to create the corridor.    

Pennsylvania provides protection for agritourism operators.  Pennsylvania Governor, Tom Wolf, signed House Bill 101 into law.  Like Ohio’s law, House Bill 101 shields agritourism operators from certain lawsuits that could arise from circumstances beyond their control.  House Bill 101 prevents participants in an agritourism activity from suing the agritourism operator if the operator warns participants of the inherent risks of being on a farm and engaging in an agritourism activity.  An agritourism operator must: (1) have a 3’ x 2’ warning sign posted and notifying participants that an agritourism operator is not liable, except under limited circumstances, for any injury or death of a participant resulting from an agritourism activity; and (2) have a signed written agreement with an agritourism participant acknowledging an agritourism operator’s limited liability or have specific language printed on an admission ticket to an agritourism activity that notifies and warns a participant of an agritourism operator’s limited liability.  House Bill 101, however, does not completely shelter agritourism operators.  An agritourism operator can still be liable for injuries, death, or damages arising from overnight accommodations, weddings, concerts, and food and beverage services.  The enactment of House Bill 101 will help to protect farmers from costly and unnecessary lawsuits and provide additional sustainability to Pennsylvania’s agritourism industry.     

Colorado Supreme Court strikes proposed ballot initiative seeking to hold farmers liable for animal cruelty.  The Colorado Supreme Court issued an opinion removing Initiative 16, also known as the Protect Animals from Unnecessary Suffering and Exploitation Initiative (“PAUSE”), from voter consideration.  Initiative 16 sought to amend Colorado law and remove certain agriculture exemptions from Colorado’s animal cruelty laws.  Initiative 16 intended to set limitations on the slaughter of livestock and to broadly expand the definition of “sexual act with an animal” to include any intrusion or penetration of an animal’s sexual organs, which opponents of the initiative have argued would prohibit artificial insemination and spaying/neutering procedures.  The Colorado Supreme Court found that the initiative violated Colorado’s single-subject requirement for ballot initiatives and therefore, was an illegal ballot initiative.  The court argued that the central theme of the initiative was to incorporate livestock into Colorado’s animal cruelty laws.  However, because the initiative redefined “sexual act with an animal” to include animals other than livestock, the court concluded that the ballot initiative covered two subjects, not one.  The court reasoned that because the initiative addresses two unrelated subjects, voters could be surprised by the consequences of the initiative if it passed, which is why Colorado has single-subject requirement for ballot initiatives. 

USDA announces dates for Conservation Reserve Program (“CRP”) signups.  The USDA set a July 23 deadline for agricultural producers and landowners to apply for the CRP General and will also be accepting applications for CRP Grasslands from July 12 through August 20.  Through the CRP General, producers and landowners establish long-term conservation practices aimed at conserving certain plant species, controlling soil erosion, improving water quality, and enhancing wildlife habitat on cropland.  CRP Grasslands helps landowners and producers protect grasslands including rangeland, pastureland, and certain other lands, while maintaining grazing lands.  To enroll in the CRP, producers and landowners should contact their local USDA Service Center

USDA expands CLEAR30 initiative nationwide.  The USDA announced that landowners and agricultural producers currently enrolled in CRP now have an opportunity to sign a 30-year contract through the Clean Lakes, Estuaries, and Rivers Initiative (“CLEAR30”).  CLEAR30 was created by the 2018 Farm Bill to address water quality concerns and was originally only available in the Great Lakes and Chesapeake Bay watersheds.  Now, producers and landowners across the country can sign up for CLEAR30.  Eligible producers must have certain water quality improvement practices under a continuous CRP or under the Conservation Reserve Enhancement Program (“CREP”) and contracts that are set to expire on September 30, 2021.  The USDA hopes that by expanding the initiative, it will enable more producers to take conservation efforts up a level and create lasting impacts.  CLEAR30’s longer contracts help to ensure that conservation benefits will remain in place longer to help in reducing sediment and nutrient runoff and reducing algal blooms.  To sign up, producers and landowners should contact their local USDA Service Center by August 6, 2021.

Three federal agencies enter into agreement to coordinate broadband funding deployment.  The Federal Communications Commission (“FCC”), the USDA, and the National Telecommunications and Information Administration (“NTIA”) entered into an agreement to coordinate the distribution of federal funds for broadband development in rural and underserved areas.  In an announcement released by the USDA, Secretary Vilsack stressed the importance of broadband in rural and underserved communities.  Lessons learned from the COVID-19 Pandemic have made access to broadband a central issue for local, state, federal and Tribal governments.  The goal is to get 100% of Americans connected to high-speed internet.  As part of the signed agreement, the agencies will share information about existing or planned projects and identify areas that need broadband service in order to reach the 100% connectivity goal.  Visit the USDA’s Rural Development Telecom Programs webpage to learn more about the USDA’s efforts to provide broadband service in rural areas.    

Biorefining facility in Ohio
By: Peggy Kirk Hall, Tuesday, June 29th, 2021

The meaning of the word “extension” was at the heart of a dispute that made its way to the U.S. Supreme Court over small refinery exemptions under the nation’s Renewable Fuel Program (RFP).  The decision by the Supreme Court came as a bit of a surprise, as questions raised by the Justices during oral arguments on the case last Spring suggested that the Court would interpret “extension” differently than it did in its June 27 decision.

Congress established the RFP in 2005 to require domestic refineries to incorporate specified percentages of renewable fuels like ethanol into the fuels they produce.  Recognizing that meeting RFP obligations could be more difficult and costly for small-scale refineries, Congress included an automatic two-year exemption from RFP obligations in the statute for small refineries producing less than 75,000 barrels per day. 

The law also allowed the Secretary of Energy to extend an exemption for a small refinery an additional two years if blending of renewables would impose a “disproportionate economic hardship” and authorized a small refinery to petition the EPA for an “extension” of an exemption for the same economic hardship reason.  This leads us to the significance of the meaning of the word “extension”:  a small refinery that receives an extension of an exemption need not meet the RFP blending mandate for the period of the extension.

We likely all have opinions on what the word “extension” means, but what matters is what it means in the context of the statute that uses the word.  But the RFP statute doesn’t define the word.  The three small refineries that appealed the case to the Supreme Court argued that an extension is simply an increase in time.  The extension, they claimed, need not be directly connected to and occur just after an exemption.  The refineries had received the initial exemption from RFP blending, had a lapse of the exemption for a period, then later asked for and received an extension of the exemption from the EPA.   

A group of renewable fuel producers led by the Renewable Fuels Association disagreed with the refineries and defined “extension” to mean an increase in time that also requires unbroken continuity with the exemption.  They argued that the EPA could not grant a small refinery an extension if an exemption had already lapsed.  Theirs was the definition adopted by the Tenth Circuit Court of Appeals, which held that the refineries could not receive an extension because their exemptions had lapsed and made them permanently ineligible for an extension.

In its decision, the majority on the Supreme Court held in favor of the definition advanced by the small refineries.  Explaining that the courts must give a term its “ordinary or natural meaning” when Congress doesn’t provide a definition, the majority concluded that “it is entirely natural—and consistent with ordinary usage—to seek an “extension” of time even after some lapse.”  Examples the Court drew upon included a student seeking an extension for a paper after its deadline, a tenant asking for an extension after overstaying a lease, and the negotiation of an extension to a contract after it expires.  Additionally, federal laws such as recent COVID and unemployment legislation allow an extension of benefits following an expiration of those benefits, the Court explained.  The Court also pointed to dictionary meanings of the word and contextual clues within the RFP statute, such as language in the statute stating that a small refinery may “at any time” petition for an extension.

Justice Gorsuch, who wrote the majority opinion, was careful to refute the arguments offered in the dissenting opinion written by Justice Coney-Barrett, joined by Justices Sotomayor and Kagan.  Justice Coney-Barrett argued that a natural and ordinary reading of the RFP’s text and structure clearly indicate that an extension could not occur for an exemption that no longer exists.  Referring to the Tenth Circuit’s earlier holding, the dissent agreed that the “ordinary definitions of ‘extension,’ along with common sense, dictate that the subject of an extension must be in existence before it can be extended.”

Does the future of ethanol markets hang on the meaning of one word?  How will the decision affect the renewable fuels sector?  Many claim that Congress included the exemptions to help small refineries adjust to and adopt the renewable blending mandates, but not to indefinitely avoid those mandates.  Renewable fuel interests state that the exemptions have created a detrimental effect on the renewable fuels market.  On the other hand, small refineries claim that Congress did not intend to drive them out of business by forcing them to comply with renewable blending requirements but instead designed the exemption and extension to protect them from disproportionate economic hardship.   

How long the protection from RFP compliance remains in place for small refineries is a question many in agriculture are asking.  Based on the Court’s recent decision, it could be indefinitely.  Perhaps Congress should step in and clarify the meaning of that one simple word.

Read the Supreme Court decision in HollyFrontier Cheyenne Refining, LLC v Renewable Fuels Assn. here

Poison hemlock in field
By: Peggy Kirk Hall, Thursday, June 24th, 2021

Poison hemlock and Canada thistle are making unwelcome appearances across Ohio, and that raises the need to talk about Ohio’s noxious weeds law.  The law provides mechanisms for dealing with noxious weeds—those weeds that can cause harm to humans, animals, and ecosystems.  Location matters when we talk about noxious weeds.  That’s because Ohio law provides different procedures for dealing with noxious weeds depending upon where we find the weeds.  The law addresses the weeds on Ohio's noxious weeds list in these four locations:

  1. Along roadways and railroads
  2. Along partition fence rows
  3. On private land beyond the fence row
  4. On park lands

Along roadways and railroads.  The first window just closed for mandatory mowing of noxious weeds along county and township roads.  Ohio law requires counties, townships, and municipalities to destroy all noxious weeds, brush, briers, burrs, and vines growing along roads and streets.  There are two mandated time windows for doing so:  between June 1 and 20 and between August 1 and 20.  If necessary, a cutting must also occur between September 1 and 20, or at any other time when necessary to prevent or eliminate a safety hazard.  Railroad and toll road operators have the same legal duty, and if they fail to do so, a township may cause the removal and bring a civil action to recover for removal costs.

Along partition fence rows.  Landowners in unincorporated areas of the state have a duty to cut or destroy noxious weeds and brush within four feet of a partition fence, and the law allows a neighbor to request a clearing of the fence row if a landowner hasn’t done so.  If a landowner doesn’t clear the fence row within ten days of receiving a request to clear from the neighbor, the neighbor may present a complaint to the township trustees.  The trustees must visit the property and determine whether there is a need to remove noxious weeds and if so, may order the removal and charge removal costs against the landowner’s property tax bill.  

On private land beyond the fence row.  A written notice to the township trustees that noxious weeds are growing on private land beyond the fence row will trigger another township trustee process.  The trustees must notify the landowner to destroy the weeds or show why there is no reason to do so.  If the landowner doesn’t comply within five days of receiving the notice, the trustees may arrange for destruction of the weeds.  The township may assess the costs against the landowner’s property tax bill.

On park lands.  If the township receives notice that noxious weeds are growing on park land or land owned by the Ohio Department of Natural Resources, the trustees must notify the OSU Extension Educator in the county.  Within five days, the Educator must meet with a representative of the ODNR or park land, consider ways to deal with the noxious weed issue, and share findings and recommendations with the trustees.

Even with noxious laws in place, we recommend talking before taking legal action.   If you’re worried about a noxious weed problem in your area, have a talk with the responsible party first.  Maybe the party isn’t aware of the noxious weeds, will take steps to address the problem, or has already done so.  But if talking doesn’t work, Ohio law offers a way to ensure removal of the noxious weeds before they become a bigger problem.

We explain the noxious weed laws in more detail in our law bulletin, Ohio’s Noxious Weed Laws.  We’ve also recently illustrated the procedures in a new law bulletin, Legal Procedures for Dealing with Noxious Weeds in Ohio’s Rural Areas.  Also see the OSU Agronomy Team’s recent article about poison hemlock in the latest edition of C.O.R.N, available through this link.

Cicada on a fingertip by Joe Boggs
By: Jeffrey K. Lewis, Friday, June 18th, 2021

Did you know that a housefly buzzes in the key of F?  Neither did I, but I think the musical stylings of the Cicada have stolen the show this summer. 

Aside from Mother Nature’s orchestra, federal agencies have also been abuzz as they continue to review the prior administration’s agencies’ rules and regulations.  This week’s Ag Law Harvest is heavily focused on federal agency announcements that may lead to rule changes that affect you, your farm or business, or your family.

USDA issues administrative complaint against Ohio company.  The USDA’s Agricultural Marketing Service (“AMS”) issued an administrative complaint on May 4, 2021,  against Barnesville Livestock LLC (“Barnesville”) and an Ohio resident for allegedly violating the Packers and Stockyards Act (“P&S Act”).  An investigation conducted by the AMS revealed that the Ohio auction company failed to properly maintain its custodial account resulting in shortages of $49,059 on July 31, 2019, $123,571 on November 29, 2019, and $54,519 on December 31, 2019.  Companies like Barnesville are required to keep a custodial account under the P&S Act.  A custodial account is a trust account that is designed to keep shippers’ proceeds from the sale of livestock in a secure and centralized location until those proceeds can be distributed to the seller.  According to the AMS, Barnesville failed to deposit funds equal to the proceeds received from livestock sales into the custodial account. Additionally, Barnesville reported a $15,711 insolvency in its Annual Report submission to AMS.  Operating with custodial account shortages and while insolvent are both violations of the P&S Act.  The AMS alleges that Barnesville’s violations place livestock sellers at risk of not being paid fully or completely.  If Barnesville is proven to have violated the P&S Act in an oral hearing, it may be ordered to cease and desist from violating the P&S Act and assessed a civil penalty of up to $28,061 per violation.  

USDA to invest $1 billion as first investment of new “Build Back Better” initiative.  The USDA announced that it will be investing up to $1 billion to support and expand the emergency food network so food banks and local organizations can serve their communities.  Building on the lessons learned from the COVID-19 pandemic, the USDA looks to enter into cooperative agreements with state, Tribal, and local entities to more efficiently purchase food from local producers and invest in infrastructure that enables organizations to more effectively reach underserved communities.  The USDA hopes to ensure that producers receive a fair share of the food dollar while also providing healthy food for food insecure Americans.  This investment is the first part of the USDA’s Build Back Better initiative which is focused on building a better food system.  Build Back Better initiative efforts will focus on improving access to nutritious foods, address racial injustice and inequity, climate change, and provide ongoing support for producers and workers.

Colorado passes law changing agricultural employment within the state.  On June 8, 2021, Colorado’s legislature passed Senate Bill 87, also known as the Farmworker Bill of Rights, which will change how agricultural employees are to be treated under Colorado law.  The bill removes the state’s exemption for agricultural labor from state and local minimum wage laws, requiring agricultural employers to pay the state’s $12.32/hour minimum wage to all employees.  Under the new law, agricultural employees are allowed to organize and join labor unions and must also be paid overtime wages for any time worked over 12 hours in a day or 40 hours in a week.  The bill also mandates certain working conditions including: (1) requiring Colorado’s department of labor to implement rules to prevent agricultural workers from heat-related stress, illness, and injury when the outside temperature reaches 80 degrees or higher; (2) limiting the use of a short-handled hoe for weeding and thinning in a stooped, kneeling, or squatting position; (3) requiring an agricultural employer give periodic bathroom, meal, and rest breaks; and (4) limiting requirements for hand weeding or thinning of vegetation.  Reportedly, Colorado’s Governor, Jared Polis, is eager to sign the bill into law. 

Wildlife agencies release plan to improve Endangered Species Act.  The U.S. Fish and Wildlife Service (“FWS”) and the National Marine Fisheries Service (“NMFS”) have released a plan to reverse Trump administration changes to the Endangered Species Act (“ESA”).  The agencies reviewed the ESA following President Biden’s Executive Order 13990, which directed all federal agencies to review any agency actions during the Trump administration that conflict with the Biden-Harris administration objectives.  The agencies look to reverse five ESA regulations finalized by the Trump administration which include the FWS’ process for considering exclusions from critical habitat designations, redefining the term “habitat,” reinstating prior regulations for listing species and designating critical habitats, and reinstating protections under the ESA to species listed as threatened.  Critics of the agencies’ plan claim that the current administration’s proposals would remove incentives for landowners to cooperate in helping wildlife.  

EPA announces intent to revise the definition of “waters of the United States.”  On June 9, 2021, the EPA and the Department of the Army (the “Agencies”) announced that they intend to change the definition of “waters of the United States” (“WOTUS”), in order to protect the nation’s water resources.  The Agencies’ also filed a motion in a Massachusetts federal court requesting that the court send the Trump administration’s Navigable Water Protection Rule (“NWPR”) back to the Agencies so they can initiate a new rulemaking process to change the definition of WOTUS.  In the motion, the Agencies explained that pursuant to President Biden’s Executive Order 13990, they have reviewed the necessary data and determined that the Trump administration’s rule has led to significant environmental harm.  The Agencies hope to restore the protections that were in place prior to the 2015 WOTUS rule.  According to the EPA, the Agencies’ new regulatory process will be guided by: (1) protecting water resources and communities consistent with the Clean Water Act; (2) the latest science and the effects of climate change on the nation’s waters; (3) practical implementation; and (4) the experience and input of the agricultural community, landowners, states, Tribes, local governments, environmental groups, and disadvantaged communities with environmental justice concerns.  The EPA is expected to release further details of the Agencies’ plans, including opportunity for public participation, in a forthcoming action.  To learn more about WOTUS, visit https://www.epa.gov/wotus.

Close up of beef cow.
By: Jeffrey K. Lewis, Friday, June 04th, 2021

As planting season draws to a close, new agricultural issues are sprouting up across the country.  This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry. 

Pork processing plants told to hold their horses.  The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds.  On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits.  The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers.  The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected.  Proponents of the new rule claim that the rule was well researched and was years in the making.  Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions.  The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling.  All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021. 

Beef under (cyber)attack.  Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market.  JBS plants in Australia and Canada were also affected.  The reason for the shut down?  Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware.  The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation.  The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next.  As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible.  The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks. 

Texas has a new tool to help combat feral hogs.  Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state.  HogStop, a new hog contraceptive bait enters the market this week.  HogStop is being released in hopes of curbing the growth of the feral hog population.  According to recent reports, the feral hog population in Texas has grown to over 2.6 million.  It is estimated that the feral hogs in Texas have been responsible for $52 million in damage.  HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce.  HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product.  Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers.  More information about HogStop can be found at their website at www.hogstop.com

USDA announces premium benefit for cover crops.  Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring.  The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit.  However, farmers cannot receive more than the amount of their insurance premium owed.  Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578).  All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit.  To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021.  To file the form, farmers must contact and make an appointment with their local USDA Service Center.  More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.

Federal court vacates prior administration’s small refinery exemptions.  The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA.  The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review.  The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.  

Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations.  A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA.  According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act.  The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping.  The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures.  The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.  

Crop sprayer on farm field
By: Peggy Kirk Hall, Wednesday, June 02nd, 2021

It’s been a busy spring for legal developments in pesticides and insecticides.  Our last article summarized recent activity surrounding dicamba products.  In today’s post we cover legal activity on glyphosate and chlorpyrifos.   

Roundup award.  The Ninth Circuit Court of Appeals dealt another loss to Monsanto (now Bayer) on May 14, 2021, when the court upheld a $25.3 million award against the company in Hardeman v. Monsanto.   The lower court’s decision awarded damages for personal injuries to plaintiff Edward Hardeman due to Monsanto’s knowledge and failure to warn him of the risk of non-Hodgkin lymphoma from Roundup exposure.  Monsanto argued unsuccessfully that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted the plaintiff’s claim that California’s Proposition 65 law required Monsanto to include a warning about Roundup’s carcinogenic risks on its label.  That requirement, according to Monsanto, conflicted with FIFRA because the EPA had determined via a letter that a cancer warning would be considered “false and misleading” under FIFRA. The Ninth Circuit disagreed that the EPA letter preempted the California requirements.

The Court of Appeals also held that the trial court did not abuse its discretion in allowing the plaintiff’s expert testimony.  Monsanto had challenged testimony from a pathologist whom it alleged was not qualified to speak as an expert.  But the court agreed that the witness testimony met the standard that expert opinions be “reliably based” on epidemiological evidence.

Monsanto also challenged the damages themselves.  The award in Hardeman included $20 million in punitive damages that the district court reduced from $75 million originally awarded by the jury.  While $75 million seemed “grossly excessive,” the appellate court reasoned, $20 million did not, especially considering Monsanto’s reprehensibility, because evidence of the carcinogenic risk of glyphosate was knowable by Monsanto. 

Roundup settlement.  In a second Roundup case, a California district court last week rejected a motion to approve a $2 billion settlement by Monsanto (now Bayer) to a proposed class of users exposed to Roundup or diagnosed with non-Hodgkin lymphoma who have not yet filed lawsuits.  The offer by Bayer in Ramirez, et al. v. Monsanto Co. included legal services, compensation, research and assistance with non-Hodgkin lymphoma diagnosis and treatment, and changes on the Roundup label advising users of a link to non-Hodgkin lymphoma, but would require class members to waive their right to sue for punitive damages if they contract non-Hodgkin lymphoma and stipulate to the opinion of a seven-member science panel about whether Roundup causes non-Hodgkin lymphoma. 

The judge determined that the settlement would accomplish a lot for Bayer by reducing its litigation and settlement exposure, but it would greatly diminish the future settlement value of claims and “would accomplish far less for the Roundup users who have not been diagnosed with NHL (non-Hodgkin lymphoma)—and not nearly as much as the attorneys pushing this deal contend.”   The court also determined that the benefits of the medical assistance and compensation components of the settlement, to last for four years, were greatly exaggerated and vastly overstated.  The proposed stipulation to a science panel also received the court’s criticism. “The reason Monsanto wants a science panel so badly is that the company has lost the “battle of the experts” in three trials,” the court stated.  Concluding that “mere tweaks cannot salvage the agreement,” the court denied the motion for preliminary approval and advised that a new motion would be required if the parties could reach a settlement that reasonably protects the interest of Roundup users not yet diagnosed with non-Hodgkin lymphoma.

Bayer responded to the court’s rejection immediately with a “five-point plan to effectively address potential future Roundup claims.”  The plan includes a new website with scientific studies relevant to Roundup safety; engaging partners to discuss the future of glyphosate-based producers in the U.S. lawn and garden market; alternative solutions for addressing Roundup claims including the possible use of an independent scientific advisory panel; reassessment of ongoing efforts to settle existing claims; and continuing current cases on appeal.

Chlorpyrifos.  The insecticide chlorpyrifos also had its share of legal attention this spring. Chlorpyrifos was first registered back in 1965 by Dow Chemical but its use has dropped somewhat since then. Its largest producer now is Corteva, who announced in 2020 that it would end production of its Lorsban chlorpyrifos product in 2021.  That’s good timing according to the strongly worded decision from the Ninth Circuit Court of Appeals, which ruled in late April that the EPA must either revoke or modify all food residue tolerances for chlorpyrifos within sixty days. 

The plaintiffs in the case of League of United Latin American Citizens v. Regan originally requested a review of the tolerances in 2007 based on the Federal Food, Drug and Cosmetic Act (FFDCA), which addresses pesticide residues in or on a food.  FFDCA requires EPA to establish or continue a tolerance level for food pesticide residues only if the tolerance is safe and must modify or rescind a tolerance level that is not safe.  Plaintiffs claimed the tolerances for chlorpyrifos are not safe based upon evidence of neurotoxic effects of the pesticide on children.  They asked the EPA to modify or rescind the tolerances.  The EPA denied the request, although that decision came ten years later in 2017 after the agency repeatedly refused to make a decision on the safety of the product.  The Obama Administration had announced that it would ban chlorpyrifos, but the Trump Administration reversed that decision in 2017.

Plaintiffs objected to the EPA’s decision not to change or revoke chlorpyrifos tolerance, arguing that the agency should have first made a scientific finding on the safety of the product.  The EPA again rejected the argument, which led to the Ninth Circuit’s recent review.  The Ninth Circuit concluded that the EPA had wrongfully denied the petition, as it contained sufficient evidence indicating that a review of the chlorpyrifos tolerance levels was necessary.  The EPA’s denial of the petition for review was “arbitrary and capricious,” according to the court.  “The EPA has sought to evade, through one delaying tactic after another, its plain statutory duties,” the court stated. 

More to come.  While the spring held many legal developments in pesticide law, the rest of the year will see more decisions.  The Roundup litigation is far from over, and the same can be said for dicamba.  How will the EPA under the new administration handle pesticide review and registration, and the court's order to address chlorpyrifos tolerances?  Watch here for these and other legal issues with pesticides that will outlive the spring.

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Equipment spraying pesticides or herbicides on farm field
By: Peggy Kirk Hall, Tuesday, June 01st, 2021

Spring is a common time for farmers to deal with pesticides and insecticides, but this spring the legal system has also been busy with pesticides and insecticides.  Important legal developments with dicamba, glyphosate, and chlorpyrifos raise questions about the future of the products, with proponents on both sides pushing for and against their continued use.  In today’s post, we summarize legal activity concerning dicamba.  Part 2 to this series will cover recent developments with Roundup.

Dicamba registration lawsuits.  In April, the federal courts resumed two cases filed late last year that challenge the registration and label of dicamba products made by Bayer, BSF and Syngenta.   The cases had been on hold since February due to the change to the Biden Administration and its EPA leadership.   Center for Biological Diversity v. EPA, in federal district court in Arizona, claims that the 2020 registration of the products should not have been granted because the registration fails to meet the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) standard that a pesticide may not cause “unreasonable adverse effects” to the environment. Relief requested by the plaintiffs includes overturning the registration approvals and also ordering EPA to officially reverse via rulemaking its long-standing policy to allow states to impose local restrictions on pesticide registrations under FIFRA’s Section 24(C).   

In the D.C. district court, American Soybean Association v EPA takes the opposite approach and argues that the EPA exceeded its duties under FIFRA by imposing application cutoff dates of June 30 for soybeans and July 30 for cotton and establishing 310-foot and 240-foot buffer zones for certain endangered species.  The plaintiffs in that suit want the court to remove the cutoff dates and buffer restrictions from the approved dicamba labels.  Manufacturers Bayer, BASF, and Syngenta have intervened in the cases, which both now await responses from the EPA.

Two additional challenges to the dicamba 2020 label approval were consolidated for review to be heard together by the D.C. Circuit Court of Appeals and now await the court’s decision.  National Family Farm Coalition v. EPA originally filed in the Ninth Circuit Court of Appeals,  argues that EPA failed to support its conclusion of “no unreasonable adverse effects” and did not ensure that endangered species and critical habitat would not be jeopardized by approved dicamba use.  On the flip side, American Soybean Association v. EPA alleges that the 2020 label cutoff dates are too restrictive and buffer requirements are too large, which exceeds the authority granted EPA in FIFRA and the Endangered Species Act.  The EPA has filed a motion to dismiss the cases but the plaintiffs have asked to be returned to the Ninth Circuit. 

Bader Farms Appeal.  The$265 jury verdict awarded last year to Bader Farms, which successfully argued that Monsanto was responsible for harm to its peach farms resulting from dicamba drift, is on appeal before the Eighth Circuit Court of Appeals.  Monsanto filed its brief on appeal in March, arguing that the verdict should be reversed for several reasons:  because the court had not required Bader Farms to prove that Monsanto had manufactured or sold the herbicides responsible for the damages, which could have resulted from third party illegal uses of herbicides; because the damages were based on “speculative lost profits”; and because the $250 million award of punitive damages violated state law in Missouri.

Office of Inspector General Report.  The EPA’s Office of the Inspector General (OIG), also played a role in recent dicamba developments.  The OIG is an independent office within the EPA that audits, investigates and evaluates the EPA.  Just last week, the OIG issued a report on EPA’s decision in 2018 to conditionally register dicamba products, allowing them to be used during the 2019 and 2020 growing seasons.  That decision by EPA ultimately led to a legal challenge by environmental groups, a holding by the Ninth Circuit Court of Appeals that the EPA violated FIFRA in approving the registrations, and a controversial order ceasing use of the dicamba products.  The OIG evaluated the EPA’s registration decision making process for the dicamba registration.  The title to its report, “EPA Deviated from Typical Procedures in Its 2018 Dicamba Pesticide Registration Decision” is telling of the OIG’s conclusions.

OIG determined that EPA had “varied from typical operating procedures” in several ways.  The EPA did not conduct the required internal peer reviews of scientific documents created to support the dicamba decision.  Senior leaders in the EPA’s Office of Chemical Safety and Pollution Prevention were “more involved” in the dicamba decision than in other pesticide registration decisions, resulting in senior-level changes to or omissions from scientific analyses to support policy decisions.  EPA staff were “constrained or muted in sharing their scientific integrity concerns” on the dicamba registrations. The result of these atypical operating procedures by the EPA, according to the OIG, was substantial understatement or lack of acknowledgement of dicamba risks and the eventual decision by the Ninth Circuit to vacate the registrations.

The OIG recommended three actions the EPA should take in response to the report:  requiring senior managers or policy makers to document changes or alterations to scientific opinions, analyses, and conclusions in interim and final pesticide registration decisions along with their basis for changes or alterations; requiring an assistant administrator-level verification statement that Scientific Integrity Policy requirements were reviewed and adhered to during pesticide registration decisions; and conducting annual training for staff and senior managers and policy makers to promote a culture of scientific integrity and affirm commitment to the Scientific Integrity Policy.   The EPA had already taken action on the OIG’s first and third recommendations but has not resolved the second. 

Will the OIG Report affect ongoing litigation on dicamba, or lead to additional lawsuits?  That’s a critical question without an immediate answer, and one to keep an eye on beyond this spring.

To read more about legal issues with dicamba, visit our partner, The National Agricultural Law Center and its excellent series on "The Deal with Dicamba."

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Posted In: Crop Issues, Environmental, Food
Tags: dicamba, EPA, FIFRA, Bader Farms
Comments: 0
By: Jeffrey K. Lewis, Friday, May 21st, 2021

It’s that time of year again.  A time full of excitement and hope.  Kids and students are eagerly waiting for that final bell to ring, releasing them into weeks of freedom and fun.  Some are celebrating with their closest loved ones as they prepare to embark on their next journey.  And lastly, some parents have circled a certain fall date for when things return back to normal.  It is finally nice to see hope, joy, and excitement return to our lives.  These past 18 months have been a real wake-up call, and by no means is it over, but the light can be seen at the end of the tunnel.  This past week has also been abuzz with interesting agricultural and resource issues.  This edition of the Ag Law Harvest brings you some interesting lawsuits, reports, and initiatives from across the country affecting agriculture and the environment. 

USDA expands aquaculture disaster assistance.  The USDA has announced a policy change that makes food fish and other aquatic species eligible for the Emergency Assistance for Livestock, Honey Bees and Farm-raised Fish Program (ELAP).  Previously, only losses of farm-raised game and bait fish were eligible under ELAP.  Under the program, eligible producers can receive financial assistance for losses due to disease and certain severe weather events.  To be eligible, losses must have occurred on or after January 1, 2021.  The Farm Service Agency (FSA) is waiving the requirement to file a notice of loss within 30 calendar days for farm-raised fish and other aquatic species death losses that occurred prior to June 1, 2021.  Producers must still provide records to document any eligible losses.  The deadline to file an application for payment for the 2021 program year is January 31, 2022.  The USDA also announced that it will purchase up to $159.4 million in domestically produced seafood, fruits, legumes, and nuts for distribution to domestic food assistance programs in order to address disruptions in the food production and supply chains resulting from the COVID-19 pandemic. 

Oregon ballot initiative seeks to redefine animal cruelty.  Supporters of Oregon Initiative Petition 13 (“IP13”) have succeeded in meeting their first requirement to putting their proposed law on the 2022 Oregon ballot.  IP13 seeks to amend the definition of what constitutes animal cruelty and who can be punished.  Oregon, like many other states, does have an animal cruelty law that prohibits individuals from unnecessarily harming animals.  Additionally, Oregon’s current law specifically exempts certain practices from being assumed to be animal abuse (activities like farming, breeding livestock, hunting, fishing, wildlife management practices, rodeos, slaughter, and scientific or agricultural research).  However, IP13 seeks to remove all the above listed exemptions and would make it a crime to engage in those types of activities.  IP13 only exempts individuals that harm an animal because the animal posed an immediate risk of danger and veterinarians.  Supporters of IP13 claim that no one should be above the law and should be held accountable for any and all animal abuse and neglect.  Opponents of IP13 fear that if the initiative passes and becomes law, Oregon’s animal agriculture industry will be destroyed.  Opponents argue that IP13 makes common farming practices like breeding and slaughtering livestock for food, illegal.  If supporters of IP13 continue to collect signatures and meet the required thresholds, IP13 will be voted on by the citizens of Oregon in 2022. 

Indiana passes law to purchase locally grown food from youth agricultural education programs.  Indiana’s governor signed a bill into law that allows schools to purchase up to $7,500 worth of food from youth agricultural education programs.  The bill, sponsored by State Rep. Steve Davisson, was born after local Indiana FFA students were raising hogs and growing hydroponic lettuce to sell to their school cafeteria but hit a roadblock because of state laws and requirements.  House Bill 1119 provides an avenue for local youth agricultural programs to sell to their respective school districts and not compete against wholesale distributors.  Rep. Davisson hopes the program will expand into other Indiana schools to give students practical agricultural experience and potentially launch students into a career in agriculture.  

Federal lawsuit about USDA’s RFID tags for cattle dismissed.  Last month we reported that farmers and ranchers from South Dakota and Wyoming filed a lawsuit against the USDA and its subagency, the Animal and Plant Health Inspection Service (“APHIS”), for improperly using advisory committees to create new rules in violation of federal law.  Well, last week a Wyoming federal court dismissed the complaint against the USDA and APHIS.  The court concluded that APHIS did not “establish” the Cattle Traceability Working Group (“CTWG”) or the Producer Traceability Council (“PTC”) as advisory councils to create the RFID tag rules.  The court also found that the advisory groups were completely private and consisted of cattle industry representatives, showing that APHIS did not “establish” these advisory groups.  Additionally, the court held that APHIS did not “utilize” or control the actions of the advisory groups.  The court reasoned that the advisory groups and APHIS were working on parallel tracks to achieve the same goal, preventing and tracing animal disease for livestock moving across state lines, and that APHIS only provided input to the advisory groups.  The court held that the USDA and APHIS were not in violation of federal law because the advisory groups were not subject to the Federal Advisory Committee Act.  As it stands, the USDA and APHIS have rescinded their July 2020 notice that RFID tags would be required for cattle crossing state lines. However, attorneys and interest groups representing the farmers and ranchers in the Wyoming case still fear that APHIS and the USDA will use the information provided by these advisory groups to implement an “unlawful mandate” in the future.  

South Dakota farmer suing the USDA over a mud puddle?  On May 05, 2021, Arlen and Cindy Foster filed a federal lawsuit in South Dakota claiming that the USDA has improperly identified a mud puddle in the middle of their farm field as a federally protected wetland and that the Swampbuster Act violates the U.S. Constitution.  Under the Swampbuster Act, farmers that receive USDA benefits cannot produce crops on or around a federally protected wetland or they risk losing all federal agriculture benefits.  The Fosters contend that Arlen’s father planted a tree belt in 1936 to help prevent soil erosion which is now causing snow to accumulate under the tree belt producing a puddle in the field when the snow melts.  The Fosters argue that this makes the puddle in their field an unregulated “artificial wetland” and is not subject to the Swampbuster Act or the USDA’s control.  Additionally, the Fosters claim that the Swampbuster Act violates the Tenth Amendment of the U.S. Constitution, and that the federal government cannot regulate the Fosters’ alleged wetland.  The Fosters reason that if their puddle should be considered a wetland, any regulation of that wetland should come from the state of South Dakota, not the federal government.   

Hawai’i man fined over $600,000 for pouring poison into Paahe’ehe’e Stream.  Hawai’i’s Board of Land and Natural Resources (“BLNR”) fined a Hilo resident $633,840 for pouring poison into a North Hilo stream and causing the death of an estimated 6,250 Tahitian prawns.  North Hilo has a history of individuals using poison to harvest Tahitian prawn.  DLNR, in conjunction with other natural resource protection entities, are continuously concerned with the impact that the poison will have on the local wildlife and environment.  The $633,840 fine is the largest in BLNR history and advocates hope that it is a step in the right direction to let illegal fishers know that Hawai’i is committed to prosecuting individuals that engage in harmful environmental practices to the full extent of the law in order to protect Hawai’i’s natural resources. 

Montana man sentenced to prison for cattle theft.  A ranch manager has been sentenced to 30 months in prison and ordered to pay back $451,000 after pleading guilty to wire fraud and to selling cattle that he did not own.  The Montana man was a ranch manager at Hayes Ranch in Wilsall, Montana from 2008 to 2017 and also started his own cattle company in 2015.  When the owners of Hayes Ranch were out of town, the ranch manager began stealing cattle from his employer and selling them as if they were his own.  The ranch manager was ordered to repay his former employer $241,000 for the stolen cattle.  Additionally, the ranch manager was ordered to pay Northwest Farm Credit Services over $200,000 for selling cattle that he pledged as collateral for loans obtained from the lender.  

The return of the U.S. Jaguar?  Environmental groups and scientists recently published a paper urging U.S. wildlife managers to consider reintroducing jaguars to the American Southwest.  Advocates argue that reintroducing jaguars to the region is essential to species conservation and restoration of the ecosystem.  In July 2018, the U.S. Fish and Wildlife Service published a jaguar recovery plan as required by the Endangered Species Act of 1973.  While the recovery plan does not call for the reintroduction of jaguars into the Southwest region of the U.S., federal officials have been increasingly focused on sustaining habitat, eliminating poaching, and improving public acceptance for jaguars that naturally make their way across the U.S.-Mexico border.  The southwest region of the U.S. makes up 1% of the jaguar’s historic range but is suitable for sustaining the big cat.  Jaguar sightings have been reported in the area, although very rarely.  Jaguar advocates hope that potential opposition to the reintroduction of jaguars, specifically from ranchers and rural residents, can be eased by implementing compensation programs focused on things like increased livestock deaths. 

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