Environmental

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.    

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.

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.  

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."