Environmental
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:
- Along roadways and railroads
- Along partition fence rows
- On private land beyond the fence row
- 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.
Tags: noxious weeds, Ohio noxious weed law, poison hemlock
Comments: 0

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.
Tags: USDA, EPA, Fish & Wildlife, endangered species act, WOTUS, Packers and Stockyards Act, food, food security
Comments: 0

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.
Tags: USDA, Small Refinery Exemptions, dairy, Clean Water Act, Beef, Animals, Feral Hogs, Swine
Comments: 0

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.
Tags: pesticides, EPA, roundup, glyphosate, chlorpyrifos
Comments: 0

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."
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.
Tags: USDA, Wetlands, conservation, Animal Cruelty, Harm to Fam Property, aquaculture, Youth
Comments: 0
Happy Friday! It's time for another Ag Law Harvest and in this week's edition we explore landmark court rulings, pending lawsuits, and newly enacted laws that affect agriculture and the environment from around the country.
USDA announces $92.2 million in grants under the Local Agriculture Market Program. The USDA announced last week that it will be funding Local Agriculture Market Program (LAMP) grants through the Farmers Market program as part of the USDA’s Pandemic Assistance for Producers Initiative. Through these grants, the USDA hopes to support the development and growth of direct producer-to-consumer marketing and boost local and regional food markets. $76.9 million will be focused on projects that support direct-to-consumer markets like farmers markets and community supported agriculture. $15.3 million will fund public-private partnerships that will build and strengthen local and regional food markets. All applications must be submitted electronically through www.grants.gov. More information can be found on the following webpages: Farmers Market Promotion Program, Local Food Promotion Program, or Regional Food System Partnerships.
Mexico Supreme Court Rules in favor of U.S. Potato Growers. On April 28, 2021, Mexico’s highest court overturned a lower court’s decision preventing the Mexican government from implementing regulations to allow for the importation of U.S. potatoes. The ruling comes after nearly a decade of legal battles between Mexican potato growers and their government. Beginning in 2003, Mexico restricted U.S. potato imports but then lifted the restrictions in 2014, allowing U.S. potatoes full access to the Mexican market. Shortly after lifting the restrictions, the National Confederation of Potato Growers of Mexico (CONPAPA) sued its government claiming that Mexican regulators have no authority to determine if agricultural imports can enter the country. Since the filing of the lawsuit, the U.S. has been bound by the 2003 restrictions on U.S. potatoes entering the Mexican market. Mexico’s Supreme Court ultimately rejected CONPAPA’s argument and ruled that the Mexican government does have the authority to issue regulations about the importation of agricultural and food products, including U.S. potatoes. Mexico represents the third largest export market for U.S. potatoes, making this a landmark decision for U.S. potato farmers.
Indiana enacts new wetlands law. Indiana governor, Eric Holcomb, has approved a new controversial wetlands law. The new law amends the requirements for permits and restoration costs for “wetland activity” in a state regulated wetland (federally protected wetlands are excluded). Under Senate Bill 389, permits are no longer required to conduct activity in Class I wetlands, some Class II wetlands, and certain farmland. In Indiana, Class I wetlands are either: (a) at least 50% disturbed or affected by human activity; or (b) support only minimal wildlife or hydrological function. Class III wetlands are minimally disturbed by human activity and can support more than minimal wildlife or hydrologic function. Class II wetlands fall somewhere in the middle. Supporters of the law argue that the changes will reduce the cost to landowners and farmers for conducting activity in wetlands that only provide nominal environmental benefits. Opponents of the law argue otherwise. Some environmental groups believe that wetlands, whether they can support more than minimal wildlife or not, provide profound economic benefit by reducing the cost to citizens for water storage and water purification. Additionally, environmental groups argue that the subsequent loss of wetlands from this law will greatly increase flooding and erosion and reduce Indiana’s diverse wildlife. Some even suggest that this law is nothing more than a subsidy for the building and housing development industry. Senate Bill 389 became law on April 29, 2021, and has a retroactive effective date of January 1, 2021.
USDA being sued for promotion of meat and dairy industry. Three physicians have filed a lawsuit against the USDA in a federal court in California. The doctors, part of the Physicians Committee for Responsible Medicine (PCRM), argue that some of the USDA’s new 2020-2025 Dietary Guidelines for Americans, issued last December, contradict current scientific and medical knowledge. PCRM believes that the USDA is acting out of its interests in the dairy and meat industry rather than the health interests of U.S. residents. For example, PCRM argues that the USDA’s statement suggesting that more individuals would benefit by increasing their intake of dairy contradicts scientific evidence that increased dairy intake can increase the chances of prostate cancer and that 1 in 4 Americans is lactose intolerant. PCRM seeks a court order requiring the USDA to delete dairy promotions, avoid equating protein with meat, and eliminate deceptive language hiding the ill effects of consuming meat and dairy products. In an email to the Washington Post, a spokesperson for the USDA, claims that the dietary guidelines are just that – guidelines. The USDA argues that the dietary guidelines are meant to help provide guidance based on the best available science and research and provide many alternatives for people based on an individual’s preferences and needs.
Sesame added to the list of major allergens. On April 23, 2021, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law requires that sesame be added to the list of major allergens and be disclosed on food labels. Up until this law was enacted, sesame was allowed to be labeled as a “natural flavor” or a “natural spice.” With the new law, sesame, in any form, must be labeled as an allergen on packaged foods. Food manufacturers have until 2023 to add sesame allergen statements to their labels. This is the first time since 2006 that a new allergen has been added to the Food Allergen and Consumer Protection Act (FALCPA). Sesame joins peanuts, tree nuts, fish, shellfish, soy, dairy, eggs, and wheat as the FDA’s list of allergens that require specific labeling.
Florida passes updated Right to Farm Law. Florida Governor, Ron DeSantis, signed into law Florida’s new and improved Right to Farm Act. The new law adds agritourism to the definition of “farm operations” so that agritourism is also protected under Florida’s Right to Farm Law. Additionally, Florida lawmakers have expanded the protection given to farmers under the new law by defining the term nuisance. Under Florida’s Right to Farm Law, nuisance is defined as “any interference with the reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibrations.” Florida’s definition of nuisance also includes all claims brought in negligence, trespass, personal injury, strict liability, or other tort, so long as the claim could meet the definition of nuisance. This protects farmers from individuals disguising their nuisance claim as a trespass claim. The importance of defining nuisance to include claims such as trespass can best be demonstrated by an ongoing federal lawsuit in North Carolina. In that case, Murphy-Brown, LLC and Smithfield Foods, Inc. are being sued for having ownership in a hog farm that caused odors, dust, feces, urine, and flies to “trespass” onto neighboring properties. North Carolina’s Right to Farm Law only protects farmers from nuisance claims, not trespass claims. Although Murphy-Brown and Smithfield argue that the neighbors are disguising their nuisance claim as a trespass claim, the federal judge is allowing the case to move forward. The judge found that farmers are protected from nuisance claims, not trespass claims and even if the trespass could also be considered a nuisance, the neighbors to the hog farm are entitled to seek compensation for the alleged trespass.
Tags: USDA, Food Allergens, Agricultural Exports, Right to Farm Law, Wetlands
Comments: 0

Pesticide drift is a risk many farmers face. Pesticides in the wrong place can injure unintended targets such as crops, trees and other vegetation, animals, and people, and can raise questions of liability for the misapplication. What should you do if you suspect pesticide drift? Whether you’re on the sending or the receiving side of it, here’s a summary of what could happen after an incident of pesticide drift.
Documentation. Many pieces of information are necessary to analyzing whether and why pesticide drift occurred and can be helpful to determining liability. Documentation of an incident should include:
- Date, time, and location of the potential drift occurrence.
- Weather conditions at the time of the occurrence, including temperature, wind speed, and wind direction.
- Photographs of the site at the time of the possible drift.
- Date, time, and description of any damages that become noticeable after the pesticide application. Note that damage symptoms may not be visible for at least 7 days.
- Photographs of damages. A series of photographs taken over several weeks can help document damages as they develop, and a phone or time stamp will ascertain the date and time of each photograph.
- Identify of the applicator.
- Notes of conversations between neighbors, investigators, the applicator, and others.
Ohio Department of Agriculture (ODA) investigation. A person who believes drift occurred can file a pesticide complaint with the Pesticide Regulation Section of ODA, which has the authority to investigate an alleged pesticide drift situation and assess potential risks to human health, damages to crops and vegetation, and whether the applicator violated Ohio pesticide laws.
If someone files a pesticide complaint, ODA’s investigation could include reviewing maps of the properties, visiting the site, talking with the person who filed the complaint, taking photographs, and collecting samples. The agency might also seek a written statement from the complaining party and others aware of the occurrence. The inspector next meets with the pesticide applicator to gather information about the application, such as pesticide applied, pesticide labels, mixing and spraying practices, and weather conditions.
After reviewing a case, ODA submits an investigation report to the complaining party. If a violation occurred, the agency takes enforcement action against the applicator in the form of a warning, civil penalty, license restriction, or criminal prosecution. It could take months for ODA to complete the investigation and make an enforcement decision. Note that an ODA investigation and decision does not address compensation to any harmed parties—that must come through other mechanisms.
Settlement. It’s not uncommon for parties to agree between themselves on how to handle harm from a pesticide misapplication, especially if the damages are minor. Settlement might include a direct payment for estimated losses of crops or other goods, replacement of vegetation, or remediation of the damaged area. A well written settlement agreement can clarify the terms and prevent future liability issues from arising.
Insurance coverage. An insurance policy can provide compensation for pesticide drift damages, but it’s important to ascertain whose insurance applies to the situation and whether there is coverage for the particular incident. Many policies provide coverage for losses resulting from negligence or unintentional behaviors, such as drift resulting from an unexpected gust or an equipment malfunction. Liability insurance held by the landowner, a tenant operator, or a custom applicator could cover the damages resulting from negligence.
Some insurance policies will not cover certain intentional actions that could cause pesticide drift. Failing to follow the label or applicable laws and regulations could lead to a loss of coverage, for example. Additionally, a policy might contain a “pollution exclusion” that would deem pesticides and herbicides as “pollution” that is not covered by the policy. Note that federal crop insurance policies typically are not applicable, as they do not cover crop losses resulting from pesticide drift.
Civil litigation. Sometimes a pesticide drift situation can end in civil litigation between the applicator and those who claim harm from the application. The most common legal claims for pesticide drift in Ohio are a negligence cause of action claiming that the applicator failed to use the required standard of care when applying the pesticides and a “negligence per se” action claiming that the applicator’s violation of pesticide laws caused the harm. The harmed party might sue everyone involved with the land where the application took place, including a landowner, tenant operator, and custom applicator, leaving the parties to fight among themselves about who is liable. Claimed damages might include compensation for lost crops, costs of restoration, differences in property value before and after the harm, and expenses for medical treatment. If insurance hasn’t already been considered, it could arise in the litigation setting.
Pesticide drift is a risk that we hope won’t become a reality. Many management strategies can reduce that risk--education, following label instructions, selecting the right nozzle for the job, calibrating spray equipment, spraying in appropriate weather conditions, adapting buffers for sensitive crops and animals on nearby properties, and more. If the risk does become reality, both the applicator and the harmed party should be aware and prepared for what might happen next.
Tags: pesticides, pesticide drift, drift liability, Insurance
Comments: 0

There’s a lot of talk about carbon markets and agriculture these days. While carbon markets aren’t new, recent proposals in Congress and announcements by the Biden administration are raising new interests in them. Some companies are actively pursuing carbon trading agreements with farmers, further fueling the discussion in the agricultural community.
As is common for any new opportunity, the talk on carbon markets may be tinged with a bit of skepticism and a lot of questions. Do carbon sequestration practices have real potential as an agricultural commodity? That’s a tough question and the answer isn’t yet clear. There are answers for other questions, though, as well as resources that may be helpful for those considering carbon markets for the first time. Here’s a sampling.
What is a carbon market? A carbon market revolves around carbon credits generated by carbon reduction practices. In the farm setting, a producer who either lowers the farm’s carbon emissions or captures carbon through “sequestration” practices can earn carbon credits. Like other markets, a carbon market involves a transaction between a seller and a buyer. The seller sells a carbon credit to a buyer who can use the carbon credit to offset or reduce its carbon emissions.
Do carbon markets already exist? Yes, although they may be private markets with varying names occurring in different regions. For example, Bayer Crop Sciences began its Carbon Initiative last year, paying producers for adopting carbon reduction practices that will help Bayer reach its goal of reducing its greenhouse gas emissions by 30% in 2030. Indigo Ag began entering into long-term carbon agreements with producers in 2019, paying $15 per ton for carbon sequestration practices. Food companies and agribusinesses including McDonald’s, Cargill, and General Mills formed the Ecosystem Services Market Consortium, which will fully open its private carbon market in 2022.
Are legal agreements involved? Yes. Using a written agreement is a common practice in carbon market transactions, but the agreements can vary from market to market. Provisions might address acceptable practices, calculating and verifying carbon reductions including third-party verification, sharing data and records, pricing, costs of practices, minimum acreage, and contract period. As with other legal contracts, reviewing a carbon agreement with an attorney is a wise decision. Watch for more details about carbon agreements as we share our analysis of them in future blog posts.
What is President Biden considering for carbon markets? The Biden administration has expressed interest in developing a federal carbon bank that would pay producers and foresters for carbon reduction practices. The USDA would administer the bank with funding from the Commodity Credit Corporation. Rumors are that the bank would begin with at least $1 billion to purchase carbon credits from producers for $20 per ton. The proposal is one of several ideas for the USDA outlined in the administration’s Climate 21 Project.
What is Congress proposing for carbon markets? The bipartisan Growing Climate Solutions Act would require USDA to assess the market for carbon credits, establish a third-party verifier certification program overseen by an advisory council, establish an online website with information for producers, and regularly report to Congress on market performance, challenges for producers, and barriers to market entry. An initial $4.1 million program allocation would be supplemented with $1 million per year for the next five years. The Senate Agriculture, Nutrition and Forestry Committee has already passed the bill. The Rural Forest Markets Act, also a bipartisan bill, would help small-scale private forest landowners by guaranteeing financing for markets for forest carbon reduction practices.
Is there opposition to carbon markets? Yes, and skepticism also. For example, a recent letter from dozens of organizations urged Congress to “oppose carbon offset scams like the Growing Climate Solutions Act” and argued that agricultural offsets are ineffective, incompatible with sustainable agriculture, may further consolidate agriculture and will increase hazardous pollution, especially in environmental justice communities. The Institute for Agriculture & Trade Policy also criticizes carbon markets, claiming that emission credit prices are too low and volatile, leakages and offsets can lead to accountability and fraud issues, measurement tools are inadequate, soil carbon storage is impermanent, and the markets undermine more effective and holistic practices. Almost half of the farmers in the 2020 Iowa Farm and Rural Life Poll were uncertain about earning money for carbon credits while 17% said carbon markets should not be developed.
To learn more about carbon markets, drop into an upcoming webinar by our partner, the National Agricultural Law Center. “Considering Carbon: The Evolution and Operation of Carbon Markets” on May 19, 2021 at Noon will feature Chandler Van Voorhis, a leading expert in conservation and ecological markets. The Center also has a recording of last month’s webinar on “Opportunities and Challenges Agriculture Faces in the Climate Debate,” featuring Andrew Walmsley, Director of Congressional Relations and Shelby Swain Myers, Economist, both with American Farm Bureau. A new series by the Center on Considering Carbon will focus on legal issues with the carbon industry and will complement our upcoming project on “The Conservation Movement: Legal Needs for Farm and Forest Landowners.” There’s still more talking to do on carbon markets.
Tags: carbon markets, carbon trading, carbon credits, Growing Climate Solutions Act, Rural Forest Markets Act, conservation, National Agricultural Law Center
Comments: 0
The final day of April is already here! Spring feels like it has finally arrived and planting season is in motion across Ohio. Just like farmers in the field, legislatures, government bodies, and courts across the country are hard at work addressing critical agricultural and resource law issues. We've gathered a collection of those issues for this Ag Law Harvest.
Debt relief for socially disadvantaged farmers is in the works. The USDA has announced its plans for implementing debt relief to socially disadvantaged producers mandated by the American Rescue Plan Act of 2021 that Congress passed in March. The payments will be 120% of any outstanding Farm Service Agency Direct and Guaranteed Farm Loans and Farm Storage Facility Loans held by a socially disadvantaged farmer on January 1, 2021. The additional 20% on top of the loan balance is for tax liabilities associated with the payment, as it will be considered income. For purposes of this debt relief program, a “socially disadvantaged producer” is one who is Black or African American, American Indian, Alaskan Native, Hispanic or Latino, Asian American or Pacific Islander. A producer must indicate the identification on the Customer Data Worksheet, USDA Form AD-2047, filed with the FSA. Producers who fit into the socially disadvantaged producer definition can update those forms now with the local FSA office. No other action by a producer who is eligible for the debt relief is necessary, as the FSA will notify producers of the payoff process as it occurs. For more information, visit this webpage for the USDA’s American Rescue Plan Debt Payments.
Missouri’s Truth in Labeling Law. In 2018, Missouri enacted a law making it a criminal offense to “misrepresent a product as meat that is not derived from harvested production livestock or poultry.” Violators could potentially face up to one year in prison and/or a fine up to $2,000.00. Shortly after the law went into effect, Turtle Island Foods Inc., a business that makes Tofurky (an alternative meat product) and advocacy groups such as the Animal Legal Defense Fund (collectively the “Plaintiffs”), filed a lawsuit challenging Missouri’s law on the grounds that the law violated the U.S. Constitution including the Free Speech Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Dormant Commerce Clause. The district court denied Plaintiffs’ request for an injunction determining that Missouri’s law only prohibits companies from misleading consumers. Plaintiffs then appealed to the federal circuit court. Last month the Eighth Circuit Court issued its opinion and agreed with the district court. However, the Eighth Circuit noted that the facts of this specific case did not support overturning Missouri’s law, but that facts and circumstances of another case may provide otherwise. As it stands, Missouri’s law remains in full force and effect.
Renewable Fuel Standard deadlines extended. The EPA issued its final rule extending deadlines for obligated parties to comply with Renewable Fuel Standard deadlines for 2019 and 2020. Under the extension, small refineries must submit 2019 compliance forms by November 30, 2021, and their associated attest engagement forms by June 1, 2022. For 2020, obligated parties must submit their compliance documents by January 31, 2022, and their associated attest engagement reports by June 1, 2022. Lastly, the EPA extended the deadline for obligated parties to submit attest engagement reports for 2021 to September 1, 2022, the deadline for 2021 compliance documents remains unchanged.
Ohio man sentenced for stealing grain. How often do you hear of farmers being victims of theft and a criminal on the run? Well, last month an Ohio man was sentenced to one year in prison and 5 years of probation after stealing over $94,000.00 in harvested grain. The defendant took his employer’s gravity wagon full of grain and sold it to a local co-op in Ashland County under false pretenses. After the theft was discovered, the defendant fled from Ohio, eventually having to be extradited from New Mexico. This case demonstrates just how vulnerable farmers are to potential crimes. For more information on intentional harm to farm property and your rights, check out our law bulletin.
Iowa passes agricultural trespass law. Iowa lawmakers have recently passed a new law that will make certain types of trespass on Iowa farms a criminal offense in an effort to stop animal activists and others from secretly documenting activities. House File 775 makes it illegal to take soil or water samples and samples of an animal’s bodily fluids or other byproducts. Additionally, the law makes it a crime to place or use a camera on the farm property without the owner’s consent. Proponents of the law argue that such laws are necessary to protect private property rights and prevent bioterrorism. Opponents of the bill are expected to challenge the law on First Amendment grounds.
USDA discussing current issues surrounding shipping U.S. agricultural exports. USDA had a meeting with the U.S. Department of Transportation and agricultural stakeholders to discuss the challenges of exporting U.S. agricultural products. Challenges arose in the fall of 2020 and have only continued to get worse. With the resurgence of international trade, nearly every sector of the supply chain has been under stress, including warehousing, trucking, rail service, container availability, and vessel service. Farmers have long struggled with finding a market for their products and getting a fair price for their work. With worldwide markets opening back up, the USDA and the Department of Transportation are hard at work trying to ensure that U.S. farm products reach consumers across the globe.
Farmers to Families Food Box program to end May 31, 2021. As part of the Coronavirus Food Assistance Program announced in April 2020, the Farmers to Families Food Box program was designed and implemented as a temporary relief effort to purchase produce, dairy, and meat products from American farmers and distribute these products in family-sized boxes to Americans in need. In a letter to stakeholders, the USDA announced that due to the improving economy and the access food insecure Americans have to expanded federal nutritional programs like SNAP, WIC, P-EBT, and more, the need for the Farmers to Families Food Box program no longer exists. The USDA also stated that the lessons learned from the Farmers to Food Box program will continue to be implemented in current and future programs. The USDA has already begun to offer a fresh produce box on a temporary basis through The Emergency Food Assistance Program (TEFAP) and is in the process of designing a Dairy Donation Program to facilitate the timely donation of dairy products to nonprofit organizations that distribute food to persons in need and to help prevent and minimize food waste.
Grant program to enhance the waters of Lake Erie. The Ohio Department of Agriculture (ODA) has announced that the USDA has awarded ODA’s Division of Soil and Water Conservation a five-year, $8-million grant to help improve the water quality in Lake Erie. The program will reinforce Governor Mike Dewine’s H2Ohio initiative by assisting farmers in developing nutrient management plans and conservation practices. The grant will be available to farmers in Crawford, Erie, Huron, Marion, Ottawa, Richland, Sandusky, Seneca, Shelby, and Wyandot counties. Farmers can start applying for the program through their local soil & water district office later this summer.
Radio Frequency Identification (RFID) tags replacing the branding iron? Last year the USDA’s Animal and Plant Health Inspection Service proposed to approve a rule that would require using RFID eartags for use on cattle that move across state lines. While the rule has not yet been finalized, the proposed rule, which is supposed to take effect January 2023, has not been free of controversy. The USDA believes the use of a RFID tag will provide the cattle industry with the best protection against the rapid spread of animal diseases. Some farmers, on the other hand, feel they should be able to use currently approved methods to maintain their cattle. To fight for their right, the Ranchers Cattlemen Action Legal Fund (R-CALF) has filed a lawsuit in a Wyoming Federal Court on behalf of some Wyoming cattle producers. R-CALF argues that the USDA has improperly used advisory committees to create new rules in violation of the Administrative Procedure Act and the Federal Advisory Committee Act. Essentially, R-CALF argues that neither the USDA nor its subcommittees followed correct procedure as required by federal law in order to create this proposed RFID rule. R-CALF seeks to prevent the USDA from using the recommendations obtained from the subcommittees in violation of federal law and in its place ask the court to require the USDA to revisit the RFID eartag issue with subcommittees that are compliant with federal law.
All farm employees are set to receive overtime pay in the state of Washington. Last November the Washington Supreme Court ruled that Washington’s exclusion of dairy workers from overtime pay was in violation of the state’s constitution. Since the Washington Supreme Court ruling, several class-action lawsuits were filed against Washington dairy farmers for unpaid overtime hours, threatening to wipe out the Washington dairy industry. Fearing the worst, Washington legislators worked diligently to pass Senate Bill 5172 ending the overtime exemption for all of agriculture and to make the transition for agricultural employers as smooth as possible. The prevents lawsuits for unpaid overtime from being filed after the Washington Supreme Court decision and to phase in overtime in the agriculture industry. Beginning in 2022, agricultural employees will be paid overtime for time worked over 55 hours in any one workweek and by 2024, employees shall be paid overtime for any time worked over 40 hours in any one workweek. Senate Bill 5172 awaits the Washington Governor's signature.
Tags: ag law harvest, socially disadvantaged farmers, employment law, Food Labeling, meat labeling, RFS, renewable fuel standards, trespass, Lake Erie, RFID
Comments: 0