aquaculture

By: Jeffrey K. Lewis, Esq., Friday, May 21st, 2021

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

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

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

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

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

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

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

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

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

By: Ellen Essman, Friday, November 16th, 2018

A few weeks ago we attended the American Agricultural Law Association’s (AALA) annual conference, which was held in Portland, Oregon this year. While we were there, we had the opportunity to learn about numerous topics related to agricultural law.  One such topic was presented by our colleague from the National Sea Grant Law Center, Amanda Nichols.  Nichols presented her research on state “right-to-farm” statutes and their applicability to aquaculture. 

What is aquaculture?

For those who don’t know, aquaculture is defined by the National Oceanic and Atmospheric Administration (NOAA) as “the breeding, rearing, and harvesting of fish, shellfish, plants, algae, and other organisms in all types of water environments.”  Thus, aquaculture is essentially the farming of aquatic species in freshwater and saltwater, in manmade and natural bodies of water.

 What are right-to-farm laws?

Right-to-farm laws are meant to protect agricultural operations against nuisance lawsuits brought by neighboring landowners complaining about smell, dust, noise, or other annoyances.  In terms of “traditional,” terrestrial farming, for example, right-to-farm laws could potentially protect against lawsuits claiming the spreading or accumulation of livestock manure is a nuisance to neighbors.  Every state in the U.S. has their own right-to-farm statute, and some of the statutes protect farming operations more completely than others do.  For example, Ohio’s right-to-farm language provides farmers with a complete defense to civil nuisance lawsuits when certain conditions are met.  On the other hand, neighboring Michigan and Pennsylvania’s statutes provide no such defenses. 

Where aquaculture and right-to-farm laws overlap

In her research on the topic of which states include protection of aquaculture operations in their right-to-farm laws, Nichols found that twenty-six states, including Ohio, “expressly include fish or aquaculture within the scope of their right-to-farm protections.” As a result, any right-to-farm protections to traditional agriculture, as well as any conditions agricultural operations must meet in order for the right-to-farm language to apply, would also extend to aquaculture in those twenty-six states.  Nichols found that one state, New Jersey, did “not mention aquaculture or fish expressly” but has adopted a manual for best management practices (BMPs) for aquaculture within the state, which shows the state’s “intent” to protect aquaculture from nuisance lawsuits.  

Ohio’s right-to-farm legislation

As mentioned above, Ohio’s right-to-farm legislation “expressly include[s]” aquaculture.  It does so by defining “agricultural production” not only as “animal husbandry” or production of plants for “a commercial purpose,” but also as “commercial aquaculture” and “algaculture meaning the farming of algae.”

Ohio farmers, including those involved in aquaculture, have right-to-farm protection in two parts of the Ohio Revised Code (ORC).  ORC Chapter 929 establishes “agricultural districts.”  Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor.  Certain requirements must be met in order for an application to be accepted.  Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality.  If the application is accepted, the land is placed in an agricultural district for five years.  The owner may submit a renewal application after that time is up.

Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits.  ORC 929.04 reads: 

In a civil action for nuisances involving agricultural activities, it is a complete defense if:

  1. The agricultural activities were conducted within an agricultural district;
  2. Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
  3. The plaintiff was not involved in agricultural production; and
  4. The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices. 

The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.”  Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.

Not only is Ohio’s right-to-farm legislation more forceful in its protection of agriculture than many other states, but it also explicitly includes aquaculture under that protection.  AALA gave us the chance to learn about this very interesting study of right-to-farm legislation as applies to aquaculture, which is an area of agriculture that many Ohioans might not necessarily think about.  If you are interested in learning more about state right-to-farm laws and aquaculture, the National Sea Grant Law Center’s report is available here

Posted In: Animals, Property
Tags: livestock, aquaculture, right-to-farm
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