Dicamba, Roundup, WOTUS, and ag-gag: although there are important updates, this week’s Harvest topics could be considered some of the Ag Law Blog’s “greatest hits.” In addition to these ongoing issues, a bill that is meant to encourage farmers to participate in carbon markets was recently introduced in the Senate. June has certainly been a busy month.
Decisions on dicamba. If you’ve been following along with our blog posts over the past few weeks, you know that the Ninth Circuit Court of Appeals vacated the registration of several over-the-top dicamba products, and in response, the EPA announced that all such products in farmers’ possession must be used before July 31, 2020 (our last post on the topic is available here). The Ohio Department of Agriculture went a step further, making the final date for dicamba use in the state June 30, 2020, due to the state registrations expiring on that day. Since the Ninth Circuit decision, the companies that produce dicamba products such as Engenia and, FXapan, and XtendiMax have filed numerous motions with the Ninth Circuit. On June 25, the court declined a motion from the BASF Corporation, which makes Engenia, asking the court to pause and withdraw their decision from the beginning of the month. What does this mean? Basically, at this moment, the court’s ruling still stands, and use of certain over-the-top products will have to cease on the dates mentioned above. That’s the latest on this “volatile” issue.
Bayer settles Roundup lawsuits, but this probably isn’t the end. Bayer, the German company that purchased Monsanto and now owns rights to many of the former company’s famous products, has been fighting lawsuits on multiple fronts. Not only is the company involved in the dicamba battle mentioned above, but over the past few years it has had a slew of lawsuits concerning Roundup. On June 24, Bayer, the German company that now owns the rights to Roundup, announced that it would settle around 9,500 lawsuits. The lawsuits were from people who claimed that Roundup’s main ingredient, glyphosate, had caused health problems including non-Hodgkin’s lymphoma. The amount of the settlement will be between 8.8 and 9.6 billion dollars. Some of that money will be saved for future Roundup claims. Although many are involved in this settlement, there are still thousands of claims against Bayer for litigants who did not want to join the settlement.
Updated WOTUS still not perfect. As always, there is an update on the continuing saga of the waters of the United States (WOTUS) rule. If you recall, back in April, the Trump administration’s “final” WOTUS rule was published. Next, of course, came challenges of the rule from both sides, as we discussed in a previous Harvest post. Well, the rule officially took effect (in most places, we’ll get to that) June 22, despite the efforts of a group of attorneys general from Democratically-controlled states attempting to halt the implementation of the rule. The attorneys general asked the U.S. District Court for the Northern District of California a nationwide preliminary injunction, or pause on implementation of the rule until it could be sorted out in the courts. The district court judge denied that injunction on June 19. On the very same day, a federal judge in Colorado granted the state’s request to pause the implementation of the rule within the state’s territory. Remember that the 2015 rule was implemented in some states and not others for similar reasons. The same trend seemingly continues with Trump’s replacement rule. In fact, numerous lawsuits challenging the rule are ongoing across the country. A number of the suits argue that rule does not go far enough to protect waters. For instance, just this week environmental groups asked for an injunction against the rule in the U.S. District Court for the District of Columbia. Environmental organizations have also challenged the rule in Maryland, Massachusetts, and South Carolina district courts. On the other hand, agricultural groups like the New Mexico Cattle Growers Association have filed lawsuits arguing that the rule is too strict.
No more ag-gag in NC? We have mentioned a few times before on the blog that North Carolina’s ag-gag law has been embroiled in a lawsuit for several years (posts are available here). North Carolina’s version of “ag-gag” was somewhat different from other states, because the statute applied to other property owners, not just those involved in agriculture. The basic gist of the law was that an unauthorized person entering into the nonpublic area of a business was liable to the owner or operator if any damages occurred. This included entering recording or surveilling conditions in the nonpublic area, which is a tool the plaintiffs use to further their cause. In a ruling, the U.S. District Court for the Middle District of North Carolina was decided largely in the plaintiffs’ (PETA, Animal Legal Defense Fund, etc.) favor. In order to not get into the nitty gritty details of the 73-page ruling, suffice it to say that the judge found that that law did violate the plaintiffs’ freedom of speech rights under the First Amendment to the U.S. Constitution. Another ag-gag law bites the dust.
Carbon markets for farmers? And, now for something completely different. In the beginning of June, a bipartisan group of four U.S. senators introduced the “Growing Climate Solutions Act.” On June 24, the Senate Committee on Agriculture, Nutrition, and Forestry held its first hearing on the new bill, numbered 3894. The text of SB 3894 is not currently available online, but it would create “a certification program at USDA to help solve technical entry barriers that prevent farmer and forest landowner participation in carbon credit markets.” The barriers “include access to reliable information about markets and access to qualified technical assistance providers and credit protocol verifiers” and “have limited both landowner participation and the adoption of practices that help reduce the costs of developing carbon credits.” You can read the Committee’s full press release about the bill here. It is backed by several notable businesses and groups, including the American Farm Bureau Federation, the National Corn Growers Association, the Environmental Defense Fund, and McDonalds and Microsoft.
Last year, we wrote a post on recent developments in ag-gag litigation. In that post, we discussed a few ag-gag laws that had been struck down on First Amendment grounds. Court actions and decisions in recent months show that this trend is continuing. Namely, decisions in Iowa and Kansas have not been favorable to ag-gag laws.
What is an ag-gag law?
“Ag-gag” is the term for state laws that prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at livestock facilities. “Ag-gag” also describes laws which make it illegal for undercover persons to use deception to obtain employment at livestock facilities. Many times, the laws were actually passed in response to undercover investigations which illuminated conditions for animals raised at large industrial farms. Some of the videos and reports produced were questionable in nature—they either set-up the employees and the farms, or they were released without a broader context of farm operations. The laws were meant to protect the livestock industry from reporting that might be critical of their operations—obtained through deception and without context, or otherwise. The state of Ohio does not have an ag-gag law, but a number of other states have passed such legislation.
Injunction in Iowa lawsuit
You may recall that Iowa’s ag-gag law was overturned in January of last year. The judge found that the speech being implicated by the law, “false statements and misrepresentations,” was protected speech under the First Amendment. The state wasted little time in passing a new ag-gag law that contained slightly different language. (We wrote about the differences between Iowa’s old and new versions of the law here.) After passage of the new law, animal rights and food safety groups quickly filed a new lawsuit against the state, claiming that like the previous law, the new law prohibited their speech based on content and viewpoint. In other words, they argued that the new Iowa law was still discriminatory towards their negative speech about the agricultural industry, while favoring speech depicting the industry in a positive light.
While the new challenge of Iowa’s law has not yet been decided by U.S. District Court for the Southern District of Iowa, the court did grant a preliminary injunction against the law late last year. This means the law cannot be enforced while the case is ongoing, which is certainly a strike against the state. We’ll have to wait and see if the court is persuaded that the new language of the law violates the plaintiff’s First Amendment rights, but for the time being, there is no enforceable ag-gag law in the state of Iowa.
Kansas law overturned
Kansas passed its ag-gag law in 1990, and has the distinction of having the oldest such law in the country. Although the law was long-standing, the U.S. District Court for the District of Kansas still determined that it was unconstitutional.
What exactly did the law say? The Kansas law, among other things, made it illegal, “without the effective consent of the owner,” to “enter an animal facility to take pictures by photograph, video camera or by any other means” with the “intent to damage the animal facility.” The law also made it illegal for someone to conceal themselves in order to record conditions or to damage the facility. “Effective consent” could be obtained by “force, fraud, deception, duress, or threat,” meaning under the law, it was not permissible for an undercover whistleblower to apply for a job at an animal facility and work at the facility if they really intended to record and disseminate the conditions.
In a 39-page opinion, the court explained its reasoning for striking down the law. Following a familiar formula for First Amendment cases, the court found that the law did in fact regulate speech, not just conduct. The court stated that the “prohibition on deception” in the law prohibited what an animal rights investigator could say to an animal facility owner, and that the outlawing of picture taking at animal facilities affected the investigator’s creation and dissemination of information, which the Supreme Court has found to be speech. Next, the court found that the law prohibited speech on the basis of its content; to determine whether someone had violated the law, they would have to look at the content of the investigator’s statement to the animal facility owner. Furthermore, the court pointed out that the law did not prohibit deceiving the facility owner if the investigator intended to disseminate favorable information about the facility. Moving on, the court cited Supreme Court decisions to show that false speech is indeed protected under the First Amendment. Since the court found that the law prohibited speech, on the basis of its content, and that false speech is protected, it had to apply strict scrutiny when considering the constitutionality of the law. Applying this test, the court explained that the law did “not prevent everyone from violating the property and privacy rights of animal facility owners,” instead, it prevented “only those who violate said rights with intent to damage the enterprise conducted at animal facilities.” As such, the law did not stand up to strict scrutiny because it was “underinclusive”—it applied to a small group of people with a certain viewpoint, but nobody else.
Based upon its reasoning above, the court did overturn most of the Kansas ag-gag law. However, it is worth noting that it upheld the part of the law that prohibits physically damaging or destroying property or animals at an animal facility without effective consent from the owner.
What’s on the horizon?
The next two ag-gag decisions will likely be made by courts in Iowa and North Carolina. We discussed the Iowa case above—the court will have to determine whether the slightly different language in the new law passes constitutional muster. We’re also continuing to watch the lawsuit in North Carolina, which has been working its way through the courts for several years now. North Carolina’s “ag-gag” law is interesting in that it doesn’t just prevent secret recording and related actions at livestock facilities, but also prohibits such actions in “nonpublic areas” of a person or company’s premises.
In January, we wrote about state “ag-gag” laws and the trend of federal courts overturning such laws nationwide. “Ag-gag” is the term for fraud and trespass laws that aim to prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at agricultural production facilities. We specifically discussed a case in Iowa, where the state’s “agricultural production facility fraud law” was found to be unconstitutional on First Amendment grounds in the federal District Court for the Southern District of Iowa. In response to that ruling, the legislature modified the law, but a group made up of animal rights, community, and food safety organizations has again sued the state. The plaintiffs contend that the new law still violates the First and Fourteenth Amendments to the Constitution.
Iowa law: current and former
Shortly following the aforementioned district court decision, Iowa passed a new ag-gag law with slightly different language. The new Iowa law changes the crime from “agricultural production facility fraud” to “agricultural production facility trespass.” The legislature also changed the language from outlawing false statements or pretenses to outlawing deception. Another important change is the focus in the new statutory language on the “intent to cause physical or economic harm or other injury” to the farm.
The new law reads:
717A.3B Agricultural production facility trespass.
1. A person commits agricultural production facility trespass if the person does any of the following:
a. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of access to an agricultural production facility that is not open to the public, and, through such deception, gains access to the agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.
b. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of an opportunity to be employed at an agricultural production facility that is not open to the public, and, through such deception, is so employed, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.
Iowa law defines “deception,” in part, as “knowingly…[c]reating or confirming another’s belief or impression as to the existence or nonexistence of a fact or condition which is false and which the actor does not believe to be true,” or “[f]ailing to correct a false belief or impression as to the existence or nonexistence of a fact or condition which the actor previously has created or confirmed.”
The previous Iowa law, which was struck down in a district court decision, is currently still available on the Iowa Legislature’s website. The old law made it illegal to gain access to a facility through false pretenses and to make a “false statement or representation” in order to be employed by an agricultural production facility. Note that the former law did not use the word “deception,” or touch on injury to the farm.
In the district court decision overturning the previous law, Judge Gritzner agreed with the plaintiffs that the language of the law violated the First Amendment right to free speech because it was content-based, viewpoint based, and overbroad. He decided that even though the law banned false statements, such false statements are still protected under the First Amendment. In other words, just because Iowa livestock operators do not like the speech of the activists and whistleblowers trying to gain access to their farms, it does not mean that the speech should be infringed upon.
Animal rights groups and others challenge the new law
On April 22, 2019, shortly after the passage of Iowa’s new law, plaintiffs filed suit against the state once again in the U.S. District Court for the Southern District of Iowa. Plaintiffs include Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing out Benji, People for the Ethical Treatment of Animals, Inc., and the Center for Food Safety. In their complaint against the state of Iowa, plaintiffs contend that the new law still violates the Constitution, saying that “the only difference” between the two laws is that the new law “targets a slightly different form of speech.” In other words, Iowa has changed its law from outlawing false statements or pretenses to outlawing deception, but the plaintiffs believe the new law basically ends up doing the same thing as the old, overturned ag-gag law; it prevents their speech based on content and viewpoint. Plaintiffs rely on the following arguments to illustrate their reasoning:
- Iowa’s new law bans any negative speech about the agricultural industry, which creates a preference for speech favorable to the industry.
- Whistleblowing is not criminalized in other Iowa industries.
- Iowa statutes already outlaw fraud, trespass, and adulteration of food products, as well as the theft of trade secrets, so agriculture already has adequate protection from economic harm.
- Outlawing deception “with the intent to cause…other injury” is too vague; it is not easily discernable what other kinds of speech or actions might be illegal under the statute.
As such, the plaintiffs allege that the Iowa law violates freedom of speech under the First Amendment because it is overbroad, viewpoint-based discrimination, and because it is vaguely written under the First and Fourteenth Amendments. Finally, plaintiffs contend that the law violates the Fourteenth Amendment’s Due Process clause because it “substantially burdens” their exercise of free speech. The court must determine whether or not they agree with this assessment.
Many “ag-gag” statutes struck down as unconstitutional, but many more decisions to go
As was mentioned in our January blog post, there is ongoing ag-gag litigation outside of Iowa, as well. Kansas and North Carolina have both been sued for their ag-gag statutes, and both cases are still pending. Will the federal courts find laws in Iowa, Kansas and North Carolina unconstitutional like they have previously in Iowa, as well as in Idaho, Utah and Wyoming, or will they find that they do not violate freedom of speech and due process? Will lawsuits challenge the remaining ag-gag laws in Alabama, Arkansas, Missouri, Montana, and North Dakota? The answers may take a while to sort out.
Nationwide, it seems as though “ag-gag” laws are being challenged and overturned left and right. “Ag-gag” is the term for laws that prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at livestock facilities. “Ag-gag” also describes laws which make it illegal for undercover persons to use deception to obtain employment at livestock facilities. Many times, the laws were actually passed in response to under-cover investigations which illuminated conditions for animals raised at large industrial farms. Some of the videos and reports produced were questionable in nature—they either set-up the employees and the farms, or they were released without a broader context of farm operations. The laws were meant to protect the livestock industry from reporting that might be critical of their operations—obtained through deception and without context, or otherwise.
Here in Ohio, we do not have an ag-gag law; instead we have the Ohio Livestock Care Standards, which are rules for the care of livestock in the state. The rules are made by the Ohio Livestock Care Standards Board, which is made up of farmers, food safety experts, farmers’ organizations, veterinarians, the dean of the agriculture department from an Ohio college or university, consumers, and county humane society representatives. There are standards for the care of different species of livestock, as well as standards for euthanizing livestock, feeding and watering livestock, transporting livestock, etc. Violating the standards could lead to civil penalties. Part of the thinking behind the Livestock Care Standards was that by bringing together farmers, veterinarians, and animal welfare representatives, among others, all sides would be represented, and therefore ag-gag laws and deceptive reporting could be avoided. The laws regarding the Ohio Livestock Care Standards can be found here, and the regulations here.
Kansas law challenged
On December 4, 2018, the Animal Legal Defense Fund (ALDF), along with other animal and food safety organizations, filed a complaint against the state of Kansas, arguing that the state’s ag-gag law is unconstitutional on freedom of speech grounds.
Kansas’ ag-gag law can be found in the Kansas Statutes, sections 47-1826, 47-1827, 47-1828 and 21-6604. The law, among other things, makes it illegal, “without the effective consent of the owner,” to “enter an animal facility to take pictures by photograph, video camera or by any other means” with the “intent to damage the animal facility.” The law also makes it illegal for someone to conceal themselves in order to record conditions or to damage the facility. “Effective consent” cannot be obtained by “force, fraud, deception, duress, or threat,” meaning it is not permissible for an undercover whistleblower to apply for a job at an animal facility and work at the facility if they really intend to record and disseminate the conditions.
ALDF and their fellow plaintiffs argue that the Kansas ag-gag law violates the First Amendment guarantee of freedom of speech. The plaintiffs argue that purpose of the Kansas law is to suppress certain kinds of political speech, namely the speech of animal rights activists and food safety organizations “because of their viewpoint and the content of their messages.” The plaintiffs assert that “[t]he law ensures only [the livestock] industry’s side of the debate” is heard. Furthermore, the plaintiffs argue that the Kansas law is overbroad in its attempt to limit freedom of speech, “prohibiti[ng] substantially more speech than the First Amendment permits.” The Kansas lawsuit is very similar to one in Iowa, where the judge recently overturned the state’s ag-gag statute.
Iowa law overturned
On January 9, 2019, James E. Gritzner, a U.S. District Court judge in the Southern District of Iowa found Iowa’s ag-gag law to be unconstitutional on First Amendment grounds. Like the complaint in Kansas, this lawsuit was initiated by ALDF and other groups against the state of Iowa. Gritzner’s decision is available here.
Iowa’s law, which, as of this writing is still available here, makes it a crime to “[o]btain access to an agricultural production facility by false pretenses,” and/or “[m]ake a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.”
Much like the Kansas lawsuit discussed above, the plaintiffs in this case argued that Iowa’s law was content-based, viewpoint-based, and overbroad, and thus violated the First Amendment right to free speech. Judge Gritzner agreed.
Judge Gritzner used precedent to explain that “a free speech challenge proceeds in three stages. First, the Court resolves whether the challenged statute implicates protected speech. If it does, the Court determines which level of scrutiny applies. Then, the Court applies the appropriate scrutiny and confirms whether the statute satisfies the applicable standard.”
In this case, Gritzner found that the speech being implicated, “false statements and misrepresentations,” was protected speech, citing the Supreme Court to make his point: “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.” In other words, even though the protected speech in this case consists of false statements, such speech is still protected under certain circumstances.
Secondly, Judge Gritzner weighed in on the issue of scrutiny. Here, it was a question of whether to apply strict scrutiny, which the plaintiffs argued should apply, or intermediate scrutiny, which the defendants favored. Strict scrutiny requires that the challenged law deals with a compelling state interest, and that the law is narrowly tailored to accomplish that interest. Intermediate scrutiny is a step down from strict scrutiny; it requires the law to serve an important government objective, and to be substantially related to realizing that objective. Gritzner reasoned that it didn’t matter which level of scrutiny applied, because the Iowa law did not pass either one of the scrutiny tests.
Finally, Gritzner explained why the Iowa statute did not satisfy either scrutiny standard. Here, the state of Iowa argued that the law was meant to protect the “state’s interests of private property and biosecurity.” Judge Gritzner noted that private property and biosecurity were not the only reasons for the statute—at least one state senator had been quoted as saying that the bill was meant to stop groups from giving “the agriculture industry a bad name.” In addition, Gritzner reasoned that these interests were not “compelling,” pointing to case law that found similar interests—protection to animals, people, and property—did not fall under the “compelling” category. Furthermore, Gritzner found that the statute was not “narrowly tailored,” because the language was not “actually necessary to protect perceived harms to property and biosecurity.” In other words, Gritzner thought it was a stretch to believe that someone giving a false statement or misrepresentation in order to access or become employed by an agricultural production facility is really related to property damage or biological harm. Gritzner also pointed out that Iowa has protected against such harms elsewhere in its statutes in “content neutral” language that does not affect freedom of speech. The judge did not spend much time discussing intermediate scrutiny, instead he explained that the Iowa law is simply too broad, harm is unlikely, and the need to prohibit the lies is small, which can be interpreted to mean that the law does not serve an important government objective.
Future not looking good for ag-gag laws
Several other states— including Idaho, Missouri, Montana, North Carolina, North Dakota, and Utah, have passed ag-gag laws similar to the laws in Kansas and Iowa. However, the laws have also been overturned in several states. In January 2018, the Ninth Circuit Court of Appeals determined most of Idaho’s ag-gag law violated the First Amendment. A federal district court in Utah also struck down Utah’s ag-gag law for violating freedom of speech. A similar lawsuit against a North Carolina law is also in progress. The North Carolina lawsuit will be an interesting one to watch since the statute applies to other property owners, not just those involved in agriculture. Time will tell whether the remaining state ag-gag laws meet constitutional muster. Stay tuned to the Ag Law Blog for any future developments.