Environmental

Signficant surface water draining across farm field
By: Peggy Kirk Hall, Wednesday, May 18th, 2022

We can count on legal questions about surface water drainage to flow steadily in the Spring, and this year is no exception.  Spring rains can cause drainage changes made on one person’s land to show up as harm on another’s land.  When that happens, is the person who altered the flow of surface water liable for that harm?  Possibly.  Here is a reminder of how Ohio law deals with surface water drainage problems and allocates liability for drainage interferences, followed by guidance on how to deal with a drainage dispute.

Ohio law allows landowners to change surface water drainage

Back in 1980, the Ohio Supreme Court adopted a new rule for resolving surface water disputes in the case of McGlashan v. Spade Rockledge.  Previous Ohio law treated water as a “common enemy” to be pushed onto others, then absolutely prohibited any land changes that would increase surface water drainage for lower landowners.  In McGlashan, the Court replaced these old laws with the “reasonable use rule” that remains the law in Ohio.  The rule states that landowners do have a right to interfere with the natural flow of surface waters on their property, even if those changes are to the detriment of other landowners.  But the right to alter drainage is limited to only those actions that are “reasonable.”

Drainage changes must be “reasonable”

Although it allows drainage changes, the reasonable use doctrine also states that landowners incur liability when their interference with surface water drainage is “unreasonable.”   What does that mean?  The law contains factors that help clarify when an interference is unreasonable, a determination made on a case-by-case basis.  The factors attempt to balance the need for the land use change that altered drainage against the negative impacts that change has on other landowners.  A court will examine four factors to determine whether the drainage change is unreasonable:  the utility of the land use, the gravity of the harm, the practicality of avoiding that harm, and unfairness to other landowners.    For example, if a land use change has low utility but causes drainage harm to other landowners, or the landowner could take measures to prevent unfair harm to others, a court might deem the landowner’s interference with drainage as “unreasonable.”

What to do if a neighbor’s drainage is causing harm?  

The unfortunate reality of the reasonable use doctrine is that it requires litigation, forcing the harmed party to file an action claiming that the neighbor has acted unreasonably.  Before jumping into litigation, other actions might resolve the problem.  An important first step is to understand the physical nature of the problem.  Can the cause of the increased flow be remedied with physical changes?  Is there a simple change that could reduce the interference, or is there need for a larger-scale drainage solution?  Identifying the source of the harm and the magnitude of the drainage need can lead to solutions.  Involving the local soil and water conservation district or a drainage engineer might be necessary. 

Based on the significance of the solutions necessary to eliminate the problem, several options are available:

  • If identified changes would remedy the problem, a talk with a drainage expert or a letter from an attorney explaining the reasonable use doctrine and demanding the changes could encourage the offending landowner to resolve the problem.  If the landowner still refuses to remedy the problem, litigation is the last resort.  The threat of litigation often spurs people into action.
  • Sometimes the issue is one that requires collaboration by multiple landowners.  Identifying a solution and sharing its costs among landowners, based on acreage draining into the area, can be a way to solve the problem.
  • For more substantial drainage problems, a petition for a drainage improvement with the soil and water conservation district or the county engineer might be necessary.  Petitioned drainage improvements involve all landowners in the affected area and are financed through assessments on land within that area.  A visit with those agencies would determine whether a petition improvement is necessary and if so, how to proceed with the petition.
  • For smaller fixes, a landowner always has the option of filing a claim for damages through the small claims court.  The estimated damages or repairs must fall below the $6,000 limit for small claims.  A landowner can make the claim without the assistance of an attorney, and the dispute could be resolved more quickly through this forum.

As the Spring rains continue, keep in mind that the reasonable use doctrine sets a guideline for Ohio landowners:  make only reasonable changes to your surface water drainage and don’t cause an unreasonable drainage problem for your neighbors.  Where changes and interferences are unreasonable and landowners are unwilling to resolve them, the reasonable use doctrine is the last resort that provides the legal remedy for resolving the problem.

For more information on Ohio drainage law, refer to our law bulletin on Surface Water Drainage Rights

American Burying Beetle
By: Peggy Kirk Hall, Thursday, March 31st, 2022

When the U.S. EPA approved the seven-year renewal registration for Corteva’s Enlist One and Enlist Duo on January 12, 2022, it also prohibited use of the herbicide in 217 counties across the country.  Twelve Ohio counties were on that list, preventing farmers in Athens, Butler, Fairfield, Guernsey, Hamilton, Hocking, Morgan, Muskingum, Noble, Perry, Vinton, and Washington counties from using the herbicides.  Welcome news for those farmers came on Tuesday, when the EPA announced that it is removing the restricted use for all Ohio counties.

The prohibition against using Enlist Duo’s use was because Corteva did not submit its use in all U.S. counties in the reregistration, many of which had endangered species and critical habitat that could be impacted by the herbicides.  The twelve Ohio counties that were not submitted for use by Corteva are home to the American Burying Beetle, which is on the Endangered Species list.  But in February, Corteva submitted a label amendment that proposed use of Enlist One and Enlist Duo in 128 of the previously restricted counties, including Ohio’s twelve counties. 

Upon receiving Corteva’s amendment, federal law requires EPA to complete an “effects determination” to assess potential effects on the endangered species in the previously restricted counties.  The assessment included reviewing updated range maps for the endangered species and their habitats that were provided by the U.S. Fish and Wildlife Service.  Range maps help identify the overlap between the American Burying Beetle’s location and growing areas for corn, soybeans, and cotton where Enlist might be applied.  Based on the maps, the agency determined that the beetle was not present in 10 of the previously restricted counties and had less than a 1% overlap with crop areas in another 118 counties.

EPA also examined whether there would be direct or indirect effects on other listed endangered species or habitat in those counties.  The black-footed ferret was the only specifies identified in field areas in the 128 counties, and fifteen other listed specifies and three critical habitats were determined to exist off of the field areas.  But the EPA found that the Enlist label restrictions would address any concerns with these additional species and habitats.

After completing its effects determination and review of the amendment, the EPA concluded that “the use of these products—with the existing label requirements in place to mitigate spray drift and pesticide runoff—will not likely jeopardize the American Burying Beetle or other listed species and their critical habitats in these counties.”  Similarly, EPA determined that six Minnesota counties that are home to the endangered Eastern Massasauga rattlesnake were also removed from the prohibited list and approved for Enlist use.

EPA noted the importance of following the label restrictions for the herbicides, particularly in areas where endangered species reside.  The new label approved by the EPA in January contains changes to the previous label.  According to OSU weed scientist Mark Loux, those changes include a revised application cutoff for soybeans, “through R1” that replaces “up to R2” on previous labels, and the addition of a slew of spray nozzles to the approved nozzle list.  Enlist users should take care to review these new provisions.  As required by EPA, Corteva provides educational tools on using Enlist, available at https://www.enlist.com/en/enlist-360-training.html.

If you’re interested in reading more about the EPA’s registration review on Enlist One and Enlist Duo, the agency’s docket on the registration is available at  https://www.regulations.gov/docket/EPA-HQ-OPP-2021-0957/document.  The amendment letter for the recent removal of prohibitions on certain counties is at https://www.regulations.gov/document/EPA-HQ-OPP-2021-0957-0020.

Vintage picture of cowgirl on a horse with a lasso.
By: Peggy Kirk Hall, Friday, February 25th, 2022

It’s time to round up a sampling of legal questions we’ve received the past month or so. The questions effectively illustrate the breadth of “agricultural law,” and we’re happy to help Ohioans understand its many parts.  Here’s a look at the inquiries that have come our way,

I’m considering a carbon credit agreement.  What should I look for?   Several types of carbon credit agreements are now available to Ohio farmers, and they differ from one another so it’s good to review them closely and with the assistance of an attorney and an agronomist.  For starters, take time to understand the terminology, make sure you can meet the initial eligibility criteria, review payment and penalty terms, know what types of practices are acceptable, determine “additionality” requirements for creating completing new carbon reductions, know the required length of participation and how long the carbon reductions must remain in place, understand how carbon reductions will be verified and certified, be aware of data ownership rights, and review legal remedy provisions.  That’s a lot!  Read more about each of these recommendations in our blog post on “Considering Carbon Farming?”

I want to replace an old line fence.  Can I remove trees along the fence when I build the new fence?   No, unless they are completely on your side of the boundary line.  Both you and your neighbor co-own the boundary trees, so you’ll need the neighbor’s permission to remove them.  You could be liable to the neighbor for the value of the trees if you remove them without the neighbor’s approval, and Ohio law allows triple that value if you remove them against the neighbor’s wishes or recklessly harm the trees in the process of building the fence.  You can, however, trim back the neighbor’s tree branches to the property line as long as you don’t harm the tree.  Also, Ohio’s line fence law in ORC 971.08 allows you to access up to 10 feet of the neighbor’s property to build the fence, although you can be liable if you damage the property in doing so.

I want to sell grow annuals and sell the cut flowers.  Do I need a nursery license?  No.  Ohio’s nursery dealer license requirement applies to those who sell or distribute “nursery stock,” which the law defines as any “hardy” tree, shrub, plant, bulb, cutting, graft, or bud, excluding turf grass.  A “hardy” plant is one that is capable of surviving winter temperatures. Note that the definition of nursery stock also includes some non-hardy plants sold out of the state.  Because annual flowers and cuttings from those flowers don’t fall into the definition of “nursery stock,” a seller need not obtain the nursery dealer license.

Must I collect sales tax on cut flowers that I sell?  Yes.  In agriculture, we’re accustomed to many items being exempt from Ohio’s sales tax.  That’s not the case when selling flowers and plants directly to customers, which is a retail sale that is subject to the sales tax.  The seller must obtain a vendor’s license from the Ohio Department of Taxation, then collect and submit the taxes regularly.  Read more about vendor’s licenses and sales taxes in our law bulletin at this link.

I’m an absentee landowner who rents my farmland to a tenant operator.  Should I have liability insurance on the land?  Yes.  A general liability policy with a farm insurer should be affordable and worth the liability risk reduction.  But a few other steps can further minimize risk.  Require your tenant operator to have liability insurance that adequately covers the tenant’s operations, and include indemnification provisions in your farm lease that shift liability to the tenant during the lease period.  Also consider requiring your tenant or hiring someone to do routine property inspections, monitor trespass issues, and ensure that the property is in a safe condition. 

My neighbor and I both own up to the shoreline on either side of a small lake--do I have the right to use the whole lake?  It depends on where the property lines lay and whether the lake is connected to other waters. If the lake is completely surrounded by private property and not connected to other “navigable” waters, such as a stream that feeds into it, the lake is most likely a private water body.  Both of you could limit access to your side of the property line as it runs through the lake.  You also have the legal right to make a “reasonable use” of the water in the lake from your land, referred to as “riparian rights.”  You could withdraw it to water your livestock, for example; but you cannot “unreasonably” interfere with your neighbor’s right to reasonably use the water.   The law changes if the lake is part of a “navigable” waterway.  It is then a “water of the state” that is subject to the public right of navigation.  Others could float on and otherwise navigate the water, and you could navigate over to your neighbor’s side.  Public users would not have the riparian rights that would allow them to withdraw and use the water, however, and would be trespassing if they go onto the private land along the shore.

If I start an agritourism activity on my farm, will I lose my CAUV status?  No, not if your activities fit within the legal definition of “agritourism.”  Ohio law states in ORC 5713.30(A)(5) that “agritourism” activities do not disqualify a parcel from Ohio’s Current Agricultural Use Valuation (CAUV) program. “Agritourism,” according to the definition in ORC 901.80, is any agriculturally related educational, entertainment, historical, cultural, or recreational activity on a “farm” that allows or invites members of the general public to observe, participate in, or enjoy that activity.  The definition of a “farm” is the same as the CAUV eligibility—a parcel devoted to commercial agricultural production that is either 10 acres or more or, if under 10 acres, grosses $2500 annually from agricultural production.  This means that land that is enrolled in the CAUV program qualifies as a “farm” and can add agritourism activities without becoming ineligible for CAUV.

Send your questions to aglaw@osu.edu and we’ll do our best to provide an answer.  Also be sure to check out our law bulletins and the Ag Law Library on https://farmoffice.osu.edu, which explain many of Ohio’s vast assortment of agricultural laws.

Ants and aphids on a plant stem.
By: Jeffrey K. Lewis, Esq., Friday, February 04th, 2022

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.  

Grain bins with colorful sunset clouds
By: Peggy Kirk Hall, Friday, January 28th, 2022

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.

Turkey looking straight into camera.
By: Jeffrey K. Lewis, Esq., Wednesday, November 24th, 2021

Did you know that female turkeys can lay a fertilized egg without mating?  This process is called parthenogenesis, a type of asexual reproduction that can also occur in other types of animals including invertebrates, fish, and lizards.  In turkeys, this process always produces a male chick.  The likelihood of an embryo from parthenogenesis surviving to chick-hood is small, but possible.  

In this edition of the Ag Law Harvest and in the spirit of Thanksgiving, we are thankful for the opportunity to present to you the newly proposed definition of “waters of the United States”, Kansas’s battle to protect agricultural facilities, and food labeling cases from across the country.  

EPA and Army Corps of Engineers propose rule to establish the definition of “waters of the United States.”  The EPA and Army Corps of Engineers announced proposed rule to return the definition of “waters of the United States” (“WOTUS”) to the pre-2015 definition with a few updates to reflect Supreme Court decisions.  In 2020, the Navigable Waters Protection Rule went into effect and interpreted WOTUS to include: “(1) territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands).”  On January 20, 2021, President Biden signed Executive Order 13990 directing all executive agencies to review and address any federal regulations that went into effect during the previous administration. After reviewing the Trump Administration’s Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.  The new rule proposed by the agencies seeks to interpret WOTUS to include: (1) traditional navigable waters; (2) interstate waters; (3) the territorial seas and their adjacent wetlands; (4) most impoundments of WOTUS; (5) tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard of the significant nexus standard; (6) wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and (7) “other waters” that meet either the relatively permanent standard or the significant nexus standard.  The agencies will be taking comment on the proposed rule for 60 days once the rule is published in the Federal Register.  

Kansas Attorney General asks Supreme Court to review Kansas “Ag Gag” Law.  Derek Schmidt, Attorney General of Kansas, has asked the United States Supreme Court to review the Kansas Farm Animal and Field Crop and Research Facilities Protection Act (the “Act”) which criminalizes the unauthorized access to agricultural facilities without consent of the owner of the facility with the intent to damage the business of the facility.  Under the Act, consent is not effective if it is “[i]nduced by force, fraud, deception, duress or threat.”  Earlier this year, the 10th Circuit Court of Appeals found the Kansas law to be unconstitutional by violating the free speech clause in the First Amendment of the United States Constitution and prohibited Kansas from enforcing the Act.  Now, Derek Schmidt has petitioned the Supreme Court to review the Kansas law arguing that the Act does not violate the First Amendment because the Act regulates conduct not speech.  The Attorney General goes on to argue that even if trespass by deception were to be considered a form of speech, it is a form of speech that is not protected by the First Amendment.  The Attorney General reasoned that the Act protects a private property owner’s right to exclude and that the First Amendment does not provide a license to violate a person’s property rights.   

Oklahoma’s meat labeling law on trial.  Earlier this month, the Plant Based Foods Association and the Tofurky Company (“Plaintiffs”) filed an amended complaint challenging Oklahoma’s Meat Consumer Protection Act (the “Act”) alleging that the Act violates the dormant commerce clause, the due process clause, and the supremacy clause of the United States Constitution.  Plaintiffs allege that the Oklahoma law “institutes a protectionist trade barrier” that is contrary to and preempted by federal law.  According to Plaintiffs, the Act “forbids plant-based meat producers from using meat terms unless they include a disclaimer on their product labels in the same type size and prominence to the ‘name of the product’ that their plant-based products are not actually meat derived from animals.”  Plaintiffs argue that the Oklahoma law would require plant-based meat producers to develop Oklahoma specific labels or abandon the Oklahoma market which is essentially interfering with interstate commerce and in violation of established federal law. This case is set for trial in 2022.  But, this is not the first time the Oklahoma law has been challenged on constitutional grounds.  Plant Based Foods Association and Upton’s Naturals Company also filed suit alleging the Oklahoma law violated the First and Fourteenth Amendments of the Constitution.  However, a Federal District Court in Oklahoma denied an injunction to prevent Oklahoma from enforcing the law.  The court found that the disclosure requirement in the Act is reasonably related to Oklahoma’s interest in preventing the confusion or deception of consumers.  The court reasoned that the commercial speech at issue could potentially be misleading to reasonable consumer.  The court argued that “the possibility of deception flowing from the use of meat-related terms for the plant-based products is self-evident from the natural inference a consumer would draw from the meat-related terms used.”  This not the end of the battle for the Oklahoma law, there will likely be appeals to higher courts to help settle the dispute. 

Pepperidge Farm sued over “Golden Butter” cracker label.  Hawa Kamara decided to file a lawsuit against Pepperidge Farm, Inc. after purchasing “Golden Butter” crackers at a local Target store in New York. According to the ingredients list attached to Kamara’s complaint, the crackers were made with butter but also included vegetable oils.  Kamara asserted that the presence of vegetable oils makes the “Golden Butter” packaging misleading and/or deceptive because a reasonable consumer would conclude the crackers were “all or predominantly made with butter.”  A Federal District Court in New York, however, did not find the packaging misleading or deceptive.  The court reasoned that “the packaging accurately indicated that the product contained butter, and the ingredients list confirmed that butter predominated over other oils and fats.”  Further, the court argued that a reasonable consumer could believe the “Golden Butter” labeling described the product’s flavor and not the ingredient proportions.  Ultimately, the court decided to dismiss the case against Pepperidge Farm because Kamara’s complaint did not plausibly allege that the “Golden Butter” packaging materially misrepresented the ingredients in the crackers.  

 

Thank you for reading and we hope that everyone has a happy and safe Thanksgiving!! 

Blue sturgeon swimming in river.
By: Jeffrey K. Lewis, Esq., Friday, November 12th, 2021

Did you know that white sturgeon are North America’s largest fish?  The largest white sturgeon on record was caught in 1898 and weighed approximately 1,500 pounds. Sturgeon is the common name for the species of fish that belong to the Acipenseridae family. The largest sturgeon on record was a Beluga sturgeon weighing in at 3,463 pounds and 24 feet long.  Talk about a river monster!  Swimming right along, this edition of the Ag Law Harvest brings you some intriguing election results from across the country, pandemic assistance for organic producers, and a lesson in signatures. 

Maine first state to have “right to food.”  Earlier this month, Maine voters passed the nation’s first “right to food” constitutional amendment.  The referendum asked voters if they favored an amendment to the Maine Constitution “to declare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing their own nourishment, sustenance, bodily health and well-being.”  Supporters of the new amendment claim that the amendment will ensure the right of citizens to take back control of the food supply from large landowners and giant retailers.  Opponents claim that the new amendment is deceptively vague and is a threat to food safety and animal welfare by encouraging residents to try and raise their own products in their backyards without any knowledge or experience.  The scope and legality of Maine’s new constitutional amendment is surely to be tested and defined by the state’s courts, but until then, Maine citizens are the only ones the in the United States that can claim they have a constitutional right to food.  

New York voters approve constitutional environmental rights amendment.  New Yorkers voted on New York Proposal 2, also known as the “Environmental Rights Amendment.”  The proposal passed with overwhelming support.  The new amendment adds that “[e]ach person shall have a right to clean air and water, and a healthful environment” to the New York constitution.  New York is one of a handful of states to have enacted a “green amendment” in its state constitution.  Proponents of the amendment argue that such an amendment is long overdue while opponents argue that the amendment is too ambiguous and will do New York more harm than good. 

USDA announces pandemic support for certified organic and transitioning operations.  The U.S. Department of Agriculture (“USDA”) announced that it will be providing pandemic assistance to cover certification and education expenses to agricultural producers who are currently certified or to those seeking to become certified.  The USDA will make $20 million available through the Organic and Transitional Education and Certification Program (“OTECP”) as part of the USDA’s Pandemic Assistance for Producers initiative. OTECP funding is provided through the Coronavirus Aid Relief, and Economic Security Act (“CARES Act”).  Producers can apply for expenses paid during the 2020, 2021, and 2022 fiscal years.  For each fiscal year, OTECP will cover 25% of a certified operation’s eligible certification expenses, up to $250 per certification category.  Crop and livestock operations transitioning to organic production may be eligible for 75% of eligible expenses, up to $750 for each year.  Both certified organic operations and transitioning operations are eligible for 75% of eligible registration fees, up to $200, per year for educational events to help operations increase their knowledge of production and marketing practices.  Applications are now open and will be available until January 7, 2022.  Producers can apply through their local Farm Service Agency office.  For more information on OTECP visit https://www.farmers.gov/pandemic-assistance/otecp.    

A signature case.  In 2018 Margaret Byars died intestate survived by her 5 children.  After Byars’s death, one her sons, Keith, revealed that Margaret had allegedly executed a quitclaim deed in 2017 giving her Dayton home to Keith.  The other siblings brought this lawsuit claiming that the deed was invalid and unenforceable because the facts surrounding the execution of the deed seemed a little odd.  In 2017, Margaret was diagnosed with breast cancer and moved into a nursing facility.  Shortly after entering the nursing home, Sophia Johnson, a family friend and the notary on the deed, showed up to notarize the quitclaim deed.  Trial testimony revealed that the quitclaim deed was prepared and executed by a third party.  Margaret did not physically sign the deed herself.  In fact, the trial court noted that the signature looked like the handwriting of the person that prepared the deed and that no one saw Margaret authorize another to sign the deed for her.  Sophia testified that when she showed up to notarize the deed, the deed was already completed and signed.  Sophia also testified that Margaret seemed to intend to transfer the house to Keith and understood the nature and consequences of the deed.  After hearing all the testimony, the trial court concluded that the deed was enforceable, and the house belonged to Keith.  However, on appeal, the Second District Court of Appeals found the deed to be invalid.  The Second District stated that in Ohio a grantor need not actually sign a deed in order to be valid, however, the court concluded that the “signature requirement may be satisfied by another affixing a grantor’s signature on a deed so long as the evidence shows that the grantor comprehend the deed, wanted its execution, and authorized the other to sign it.”  The court concluded that the evidence showed that Margaret comprehended the deed and perhaps even wanted its execution.  But the evidence did not show that Margaret authorized anyone to sign the deed for her.  Because it could not be established that Margaret authorized the preparer or anyone else to sign the deed for her, the Second District court held that that deed was invalid under Ohio law.  This case demonstrates the importance of attorneys and the work they do to make sure all asset transfers and estate planning documents are in compliance with the law to help avoid unnecessary lawsuits and prevent any unintended outcomes.

Hippopotamus in water.
By: Jeffrey K. Lewis, Esq., Friday, October 29th, 2021

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.

U.S. House Agriculture Committee hearing room
By: Peggy Kirk Hall, Thursday, October 28th, 2021

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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

Peregrine Falcon flying straight at camera.
By: Jeffrey K. Lewis, Esq., Friday, October 15th, 2021

Did you know that the fastest animal in the world is the Peregrine Falcon?  This speedy raptor has been clocked going 242 mph when diving.

Like the Peregrine Falcon, this week’s Ag Law Harvest dives into supply chain solutions, new laws to help reduce a state’s carbon footprint, and federal and state case law demonstrating how important it is to be clear when drafting legislation and/or documents, because any ounce of ambiguity could lead to a dispute.      

Reinforcing the links in the supply chain.  President Joe Biden announced that ports, dockworkers, railroads, trucking companies, labor unions, and retailers are all coming together and have agreed to do their part to help reduce the supply chain disruption that has left over 70 cargo ships floating out at sea with nowhere to go.  In his announcement, President Biden disclosed that the Port of Los Angeles, the largest shipping port in the United States, has committed to expanding its hours so that it can operate 24/7; labor unions have announced that its workers have agreed to work the additional hours; large companies like Walmart, UPS, FedEx, Samsung, Home Depot and Target have all agreed to expand their hours to help move product across the country.  According to the White House, this expanded effort will help deliver an extra 3,500 shipping containers per week.  Port and manufacturing disruptions have plagued retailers and consumers since the beginning of the COVID-19 pandemic.  Farming equipment and parts to repair farming equipment are increasingly in short supply.  The White House hopes that through these agreements, retailers and consumers can finally start to see some relief.  

California breaking up with gas powered lawn equipment.  California Governor Gavin Newsom recently signed a new bill into law that would phase out the use of gas-powered lawn equipment in California.  Assembly Bill 1346 requires that new small off-road engines (“SOREs”), used primarily in lawn and garden equipment, be zero-emission by 2024.  The California legislation seeks to regulate the emissions from SOREs which have not been as regulated as the emissions from other engines.  According to the legislation, “one hour of operation of a commercial leaf blower can emit as much [reactive organic gases] plus [oxides of nitrogen] as driving 1,100 miles in a new passenger vehicle.”  The new law requires the State Air Resources Board to adopt cost-effective and technologically feasible regulations to prohibit engine exhaust and emissions from new SOREs.  Assembly Bill 1346 is a piece of the puzzle to help California achieve zero-emissions from off-road equipment by 2035, as ordered by Governor Newsome in Executive Order N-79-20

U.S. Supreme Court asked to review E15 Vacatur.  A biofuel advocacy group, Growth Energy, filed a petition asking the U.S. Supreme Court to review a federal court’s decision to abolish the U.S. Environmental Protection Agency’s (“EPA”) rule allowing for the year-round sale of fuel blends containing gasoline and 15% ethanol (“E15”).  Growth Energy argues that the ethanol waiver under the Clean Air Act for the sale of ethanol blend gasoline applies to E15, the same as it does for gas that contains 10% ethanol (“E10”).  Growth Energy also claims that limiting the ethanol waiver to E10 gasolines contradicts Congress’s intent for enacting the ethanol waiver because E15 better achieves the economic and environmental goals that Congress had in mind when it drafted the ethanol waiver.  Growth Energy asks the Supreme Court to overturn the lower court’s decision and instead interpret the ethanol waiver as setting a floor, not a maximum, for fuel blends containing ethanol that can qualify for the ethanol waiver.  Growth Energy now awaits the Supreme Court’s decision on whether or not it will take up the case. Visit our recent blog post for more background information on E15 and the waivers at issue.  

When in doubt, trust the trust.  A farm family in Preble County may finally be able to find some closure after the 12th District Court of Appeals affirmed the Preble County Court of Common Pleas’ decision to prevent a co-trustee from selling farm property.  Dorothy Wisehart (“Dorothy”), the matriarch of the Wisehart family established the Dorothy R. Wisehart Trust (the “Trust”) in which she conveyed a one-half interest in two separate farm properties, both located within Preble County to the Trust.  Dorothy retained her one-half interest in the two farms which passed to her son, Arthur, upon her death.  Furthermore, upon Dorothy’s death, the Trust became an irrevocable trust with Arthur as the sole trustee.  The Trust had five income beneficiaries – Arthur’s wife and four kids.  The Trust specifically allowed for removal and replacement of the trustee upon the written request of 75% of the income beneficiaries.  In 2010, four of the five income beneficiaries executed a document removing Arthur as the sole trustee and instead placed Arthur and Dodson, Arthur’s son and one of the income beneficiaries, as co-trustees.  Arthur, however, argued that only Dorothy had the power to remove and appoint a new trustee and once Dorothy passed, no new trustee could be appointed.  In 2015, Dodson filed suit against his father after Arthur allegedly tried to sell the two farms and further alleged that Arthur breached his fiduciary duty by withholding funds from the Trust.  Dodson also asked the court to determine the issue of whether Dodson was validly appointed as co-trustee.  The common pleas court sided with Dodson and found that (1) the Trust held an undivided one-half interest in the farms, (2) Dodson was validly appointed as co-trustee, and (3) Arthur wrongfully withheld funds from the Trust, breaching his fiduciary duty as a trustee.  Arthur appealed, arguing that the case was not “justiciable” because the harms alleged by Dodson were hypothetical and no real harm occurred.  However, the 12th District Court of Appeals disagreed with Arthur.  The court found that the Trust expressly provided for the removal and appointment of trustees by 75% of the income beneficiaries.  Further, the court ruled that this case was justiciable because Dodson’s allegations needed to be resolved by the courts or else real harm would have occurred to the income beneficiaries of the Trust.  This case highlights perfectly the importance of having well drafted estate planning documents to help clear up any disputes that may arise once you’re gone.  

No need to cut the “GRAS” today.  Consumer advocates, Center for Food Safety (“CFS”) and Environmental Defense Fund (“EDF”), brought suit against the Food and Drug Administration (“FDA”) asking the court to overturn the FDA’s rule regarding “Substances Generally Recognized as Safe (the “GRAS Rule”).  According to the plaintiffs, the GRAS Rule subdelegated the FDA’s duty to ensure food safety in violation of the United States Constitution, the Administrative Procedure Act (“APA”), and the Federal Food, Drug, and Cosmetic Act (“FDCA”).  In 1958, Congress enacted the Food Additives Amendment to the FDCA which mandates that any food additive must be approved by the FDA.  However, the definition of “food additive” does not include those substances that are generally recognized as safe.  Things like vinegar, vegetable oil, baking powder and many other spices and flavors are generally recognized as safe to use in food and not considered to be a food additive.  Under the GRAS Rule, anyone may voluntarily, but is not required to, notify the FDA of their view that a substance is a GRAS substance.  There are specific guidelines and information that must be presented to back up a manufacturer’s claim that a substance is GRAS.  In any case, the FDA retains the authority to issue warnings to manufacturers and to stop distribution when the FDA believes that a substance is not a GRAS substance.  Plaintiffs claim that under the GRAS Rule, the FDA is subdelegating its duty by allowing manufacturers to voluntarily notify the FDA of a GRAS substance rather than requiring it.  However, the Federal District Court for the Southern District of New York found that the FDA did not subdelegate its duties because the FDCA does not require the FDA provide prior authorization that a substance is GRAS.  Further, the court held that the FDA has done nothing more than implement a process by which manufacturers can notify the FDA of GRAS determinations and the FDA can choose to agree or disagree.  The court reasoned that even if a mandatory GRAS notification procedure or prior approval process were in place, manufacturers could simply lie about what’s in their products and the FDA would be none the wiser.  The court also noted that mandatory submissions would consume the FDA’s resources which would be better spent evaluating higher priority substances.  The court ultimately concluded that the FDA’s GRAS Rule does not highlight a constitutional issue, nor does it violate the FDCA or APA.

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