I had the good fortune recently to attend the International Farm Management Congress in Copenhagen, Denmark, along with the pre-conference tour of farms through Norway and Sweden. It was not only a beautiful trip, but an opportunity to view farming practices and legal issues in other parts of the world. Some practices and issues were surprisingly familiar while others were quite different. As I visited farms and interacted with farm operators and agricultural business owners, I developed a list of observations about the similarities and differences. Here are a few of those observations.
- Farmland should stay in the family. Very old “allodial” and “concession” laws in Norway and Sweden prevent agricultural property from being sold outside the family or divided into smaller parcels and grant the eldest heir the right to inherit the property. It works. We visited several farms that had been in the same family for 12 to 14 generations.
- Environmental compliance and sustainability goals present both challenges and opportunities. Norway, Denmark, and Sweden have aggressive goals to reduce carbon emissions. While some businesses noted the challenges of complying with air and water regulations, they were committed to change because consumers want “more sustainable” products and experiences.
- Agritourism includes sleepovers. We visited several farms that capitalize on people’s desires to be on a farm, but they also include opportunities to stay over in a hotel or “caravan park” (campground) on the farm, and several also offer spa experiences. The “farm stay” concept that is so common in Scandinavia is just now beginning to spread across the U.S.
- Animal welfare laws concern livestock operators. As we see here in the U.S., new regulations on livestock housing have affected the bottom line of operators forced to make housing changes. Several operators noted the financial challenges of complying with new requirements, with some choosing not to continue under the new laws.
- Cooperative models are thriving. We visited a cooperative for fruit and vegetable producers in a mountain region of Norway, a sheep farm that developed a slaughterhouse to manage processing for other local livestock operators, and a start-up processing facility for pea and legume growers in Sweden, all using cooperative business structures similar to ours here in the U.S.
While some of the issues vary in Scandinavia, the attachment to farming is not all that different. One of my favorite quotes from the trip illustrates the similarity. The father in a father-son operation stated to us: “We are proudly farming, growing wheat and potatoes and having chickens.” Proudly farming—a practice shared by U.S. and Scandinavia farmers alike, in the midst of varying legal issues and opportunities.
Learn more about the International Farm Management Association at https://www.ifma.network/. The next IFMA Congress takes place in 2024 in Saskatchewan, Canada.
Did you know that the Florida Panther is the last subspecies of Mountain Lion found east of the Mississippi River? The Florida Panther is an endangered species with an estimated population of under 100 panthers. As bleak as it may seem, things may be looking up for the Florida Panther to make a roaring comeback (which is ironic because Florida Panthers can’t roar).
Like the Florida Panther, we have prowled agricultural and resource issues from across the country. Topics include a historic move by Florida to protect its wildlife and natural resources, agritourism getting a boost in Pennsylvania, Colorado’s livestock industry receiving a lifeline, and USDA efforts to expand broadband and water quality initiatives.
Florida makes conservation history. Florida has recently enacted a new law known as the Florida Wildlife Corridor Act (the “Act”). The Act creates a wildlife corridor that will connect Florida’s large national and state parks and create an unbroken area of preserved land that stretches from the Alabama state line all the way down to the Florida Keys. Specifically, the Act looks to protect about 18 million acres of habitat for Florida’s wildlife. The Act seeks to prevent wildlife, like the Florida Panther, from being cut off from other members of its species, which is a main driver of extinction. The Act also aims to protect Florida’s major watersheds and rivers, provide wildlife crossings over and/or under major highways and roads, and establish sustainable practices to help working ranches, farms and, forests that will be vital to ensuring the success and sustainability of the wildlife corridor. The Act goes into effect July 1 and provides $400 million in initial funding to help purchase land to create the corridor.
Pennsylvania provides protection for agritourism operators. Pennsylvania Governor, Tom Wolf, signed House Bill 101 into law. Like Ohio’s law, House Bill 101 shields agritourism operators from certain lawsuits that could arise from circumstances beyond their control. House Bill 101 prevents participants in an agritourism activity from suing the agritourism operator if the operator warns participants of the inherent risks of being on a farm and engaging in an agritourism activity. An agritourism operator must: (1) have a 3’ x 2’ warning sign posted and notifying participants that an agritourism operator is not liable, except under limited circumstances, for any injury or death of a participant resulting from an agritourism activity; and (2) have a signed written agreement with an agritourism participant acknowledging an agritourism operator’s limited liability or have specific language printed on an admission ticket to an agritourism activity that notifies and warns a participant of an agritourism operator’s limited liability. House Bill 101, however, does not completely shelter agritourism operators. An agritourism operator can still be liable for injuries, death, or damages arising from overnight accommodations, weddings, concerts, and food and beverage services. The enactment of House Bill 101 will help to protect farmers from costly and unnecessary lawsuits and provide additional sustainability to Pennsylvania’s agritourism industry.
Colorado Supreme Court strikes proposed ballot initiative seeking to hold farmers liable for animal cruelty. The Colorado Supreme Court issued an opinion removing Initiative 16, also known as the Protect Animals from Unnecessary Suffering and Exploitation Initiative (“PAUSE”), from voter consideration. Initiative 16 sought to amend Colorado law and remove certain agriculture exemptions from Colorado’s animal cruelty laws. Initiative 16 intended to set limitations on the slaughter of livestock and to broadly expand the definition of “sexual act with an animal” to include any intrusion or penetration of an animal’s sexual organs, which opponents of the initiative have argued would prohibit artificial insemination and spaying/neutering procedures. The Colorado Supreme Court found that the initiative violated Colorado’s single-subject requirement for ballot initiatives and therefore, was an illegal ballot initiative. The court argued that the central theme of the initiative was to incorporate livestock into Colorado’s animal cruelty laws. However, because the initiative redefined “sexual act with an animal” to include animals other than livestock, the court concluded that the ballot initiative covered two subjects, not one. The court reasoned that because the initiative addresses two unrelated subjects, voters could be surprised by the consequences of the initiative if it passed, which is why Colorado has single-subject requirement for ballot initiatives.
USDA announces dates for Conservation Reserve Program (“CRP”) signups. The USDA set a July 23 deadline for agricultural producers and landowners to apply for the CRP General and will also be accepting applications for CRP Grasslands from July 12 through August 20. Through the CRP General, producers and landowners establish long-term conservation practices aimed at conserving certain plant species, controlling soil erosion, improving water quality, and enhancing wildlife habitat on cropland. CRP Grasslands helps landowners and producers protect grasslands including rangeland, pastureland, and certain other lands, while maintaining grazing lands. To enroll in the CRP, producers and landowners should contact their local USDA Service Center.
USDA expands CLEAR30 initiative nationwide. The USDA announced that landowners and agricultural producers currently enrolled in CRP now have an opportunity to sign a 30-year contract through the Clean Lakes, Estuaries, and Rivers Initiative (“CLEAR30”). CLEAR30 was created by the 2018 Farm Bill to address water quality concerns and was originally only available in the Great Lakes and Chesapeake Bay watersheds. Now, producers and landowners across the country can sign up for CLEAR30. Eligible producers must have certain water quality improvement practices under a continuous CRP or under the Conservation Reserve Enhancement Program (“CREP”) and contracts that are set to expire on September 30, 2021. The USDA hopes that by expanding the initiative, it will enable more producers to take conservation efforts up a level and create lasting impacts. CLEAR30’s longer contracts help to ensure that conservation benefits will remain in place longer to help in reducing sediment and nutrient runoff and reducing algal blooms. To sign up, producers and landowners should contact their local USDA Service Center by August 6, 2021.
Three federal agencies enter into agreement to coordinate broadband funding deployment. The Federal Communications Commission (“FCC”), the USDA, and the National Telecommunications and Information Administration (“NTIA”) entered into an agreement to coordinate the distribution of federal funds for broadband development in rural and underserved areas. In an announcement released by the USDA, Secretary Vilsack stressed the importance of broadband in rural and underserved communities. Lessons learned from the COVID-19 Pandemic have made access to broadband a central issue for local, state, federal and Tribal governments. The goal is to get 100% of Americans connected to high-speed internet. As part of the signed agreement, the agencies will share information about existing or planned projects and identify areas that need broadband service in order to reach the 100% connectivity goal. Visit the USDA’s Rural Development Telecom Programs webpage to learn more about the USDA’s efforts to provide broadband service in rural areas.
This edition of the Ag Law Harvest is heavily focused on recent environmental case law at the federal level. Read on to find out how habitats, migratory birds, environmental and administrative laws, and Trump’s new Waters of the United States rule have fared in recent decisions.
What does “habitat” mean to you? Think about it carefully, because now is your chance to provide your input to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). Readers of the blog may remember we reported on a Supreme Court case dealing with critical habitat under the Endangered Species Act (ESA) a few years ago. The Supreme Court remanded the case back to the Fifth Circuit Court of Appeals. The Court of Appeals was charged with interpreting the word “habitat.” The Court of appeals then punted the interpretation to the U.S. District Court for the Eastern District of Louisiana, where the parties settled the case. Even with a settlement, the question of what “habitat” means remains. To remedy this omission, the FWS and NMFS published a proposed rule on August 5th to define “habitat” under the ESA. In this proposal, FWS and NMFS put forward two possible definitions of “habitat”:
- The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species; or
- The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.
The agencies are asking for public comment on the two definitions, and “on whether either definition is too broad or too narrow or is otherwise proper or improper, and on whether other formulations of a definition of ‘habitat’ would be preferable to either of the two definitions, including formulations that incorporate various aspects of these two definitions.” The comment period is open until September 4, 2020.
Will a lawsuit stop planned changes to NEPA? At the end of July, a number of environmental groups banded together and filed a 180-page complaint against the U.S. Council on Environmental Quality (CEQ). The complaint challenges the Council’s update to rules under the National Environmental Protection Act (NEPA). The groups’ basic argument is that the CEQ, under the direction of the Trump administration, published a new administrative rule under NEPA, but did not follow the Administrative Procedure Act (APA), which governs agency actions, when doing so. The lawsuit alleges: “[r]ather than make this drastic change deliberately and with the careful process the APA requires, CEQ cut every corner. The agency disregarded clear evidence from over 40 years of past implementation; ignored the reliance interests of the citizens, businesses, and industries that depend on full and complete NEPA analyses; and turned the mandatory public engagement process into a paper exercise, rather than the meaningful inquiry the law requires.” Basically, the groups argue that the administration ignored the APA all together. Why is this important? The environmental groups argue that the new rule essentially makes it possible for the federal government to push through projects that might have impacts on citizens and the environment, such as pipelines and roadways, much more quickly, and without much input from the public. You can read the final NEPA rule here. We will have to wait and see whether the court agrees that the APA was violated in the creation of this rule.
Ruling on Migratory Bird Act clips the administration’s wings. Another lawsuit against the federal government was decided on August 11, 2020. The U.S. District Court for the Southern District of New York sided with a number states as well as environmental groups, including the Natural Resources Defense Fund and the National Wildlife Federation. The Court found that the U.S. Department of the Interior (DOI) and FWS (at the direction of the administration) could not overturn 50 years of DOI interpretations of what “killings” and “takings” of birds meant under the Migratory Bird Treaty Act of 1918 with a single memo. Traditionally, the killing or taking any migratory bird, even accidentally or incidentally, has been interpreted as a violation of the Act. DOI’s memo sought to change this, only making the Act only apply to intentional hunting, killing, or taking. Essentially, if a business or person had a pond full of wastewater, and migratory birds swam in it, eventually killing the birds, it would only be “incidental” taking and not intentional under DOI’s logic in the memo. Ultimately, Judge Valerie Caproni channeled Atticus Finch by stating “It is not only a sin to kill a mockingbird, it is also a crime,” meaning that one memorandum could not overturn the fact that incidental and accidental takings of birds are still takings punishable by the Act.
Another WOTUS lawsuit bites the dust. There’s always something going on with the Waters of the United States (WOTUS) rule. In April, the Trump administration published its final rule on WOTUS, which replaced the Obama administration’s beleaguered rule from 2015. Almost immediately, the rule was challenged in court by those who thought it went too far in protecting waters, as well as those who felt it didn’t go far enough. The Oregon Cattlemen’s Association, which falls into the latter camp, filed suit against the EPA and the U.S. Army Corps of Engineers over the 2015 rule, later amending their complaint to address the 2020 rule. The Association claimed that both the old and new rules went too far, and that EPA did not have the authority to carry them out under the Clean Water Act. The judge dismissed the Association’s case without prejudice for lack of standing, meaning that the issue may be litigated again, but the Oregon Cattlemen’s Association could not show that its members are being negatively affected by the 2020 rule at this time.
You’re never going to make everyone happy. This is especially true when it comes to the federal definition of “waters of the United States,” or WOTUS, under the Clean Water Act (CWA). The definition of WOTUS has changed over the years in order to adapt to numerous court decisions. The Obama administration’s 2015 rule has been litigated so much that a patchwork of enforcement has been created across the country, with some states falling under the 2015 rule and others falling under the previous iterations of the rule from 1986 and 1988. In fact, in New Mexico, parts of the state follow one rule and other parts follow the other. You can see the current state breakdown here.
To add even more chaos to all of this confusion, the Trump administration decided to repeal and replace Obama’s 2015 rule. In September, a rule was announced that would repeal the 2015 WOTUS rule and replace it with the 1986 and 1988 rule. This reversion would not be permanent; the 1986/1988 rule is simply a placeholder until the EPA and Army Corps of Engineers finalize a new WOTUS rule to replace it. The repeal is set to become effective in December. You can read our blog post on the repeal here.
Of course, there are those who are unhappy with the 1986/1988 rule being reinstated, even if only for a time. In October, two lawsuits were filed against the EPA and Army Corps of Engineers in federal district courts. In South Carolina, environmental groups sued because they feel that the 1986/1988 rules do not go far enough to protect waters. On the other hand, in the New Mexico Cattle Growers’ Association sued because they feel that returning to the 1986/1988 rules goes too far in regulating water. Below, we will briefly break down the arguments in each of these lawsuits.
South Carolina lawsuit
Following the October repeal announcement, environmental groups, including the South Carolina Coastal Conservation League and the Natural Resources Defense Council, sued the EPA and U.S. Army Corps of Engineers in the U.S. District Court for the District of South Carolina, Charleston Division, claiming that the repeal rulemaking was unlawful. In their complaint, the environmental groups make several arguments. They allege that the repeal rulemaking violates the Due Process Clause, Administrative Procedure Act (APA), and Supreme Court precedent. They say that the Due Process Clause has been violated because the rulemaking was not undertaken with an open mind, instead it was already pre-judged or all but decided before the process even started. They cite many violations of the APA—including failing to provide a “reasoned explanation” for the repeal, failing to discuss alternatives to repealing the rule, and failing to provide a meaningful opportunity for public comment on the rulemaking. Additionally, the environmental groups claim that the repeal “illegally departs from Justice Kennedy’s” opinion in the Rapanos case. Ultimately, Kennedy’s opinion in Rapanos is what led the EPA and Corps to scrap the 1986/1988 rule and create the 2015 rule to be more consistent with that opinion. Therefore, the environmental groups argue that going back to the 1986/1988 version would violate Kennedy’s “significant nexus” test for WOTUS, which invalidated the old version of the rule. In other words, the environmental groups believe that going back to the 1980s rules will result in less waters being protected.
New Mexico lawsuit
The New Mexico Cattle Growers’ Association (NMCGA) sued the EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico. In the complaint, NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment. The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS. Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule. NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions.
Will the tide turn on WOTUS in the future?
Despite the Trump EPA’s repeal and upcoming replacement of the 2015 rule, the future of WOTUS is anything but certain. The lawsuits in South Carolina and New Mexico are just the latest proof of that. What is more, the lawsuits to enjoin the 2015 rule are still ongoing, and it is unclear whether they will be wiped out when the repeal rule becomes effective in December. When the replacement rule is finally published, there is no doubt even more lawsuits will follow. It’s also important to remember that we have an election next year, so if there’s a new administration, they’ll probably put their own stamp on WOTUS.
In August, the Secretary of the Interior announced that the Trump Administration would be making revisions to the way the Endangered Species Act (ESA) is carried out under federal regulations. The move was made in part to further the Administration’s goal to “ease the regulatory burden” on citizens. The revised regulations apply to sections 4 and 7 of the ESA, which means they make changes to how species are listed as endangered, how critical habitat for species is determined, how threatened species are treated, and how the different federal agencies cooperate to carry out the ESA.
Revision of endangered, threatened, and critical habitat protections
The changes to how the ESA is carried out were made in three rulemakings published on August 27, 2019. One of the rules, available here, is meant to increase cooperation between federal agencies when carrying out the ESA (this rule is set to become effective on October 28). Changes made by the other two rules, available here, and here, are much more controversial because they have a great impact on how endangered and threatened species and their habitats are treated under federal regulations. The new rules went into effect on September 26, 2019. We discuss some of the biggest modifications below.
First, the rules change the term “physical or biological features” to “physical or biological features essential to the conservation of the species.” This change will likely diminish the number of natural features and areas that will be protected, since only those deemed essential to an endangered species will be protected. Similarly, the new rules give the federal government more leeway to determine when habitat is not critical habitat for species, which may result in less habitat being protected under the new iteration of the rules.
In yet another change, the new rules separate the discussion of “threatened” and “endangered” species within the regulatory text. Due to this uncoupling, some read the new version of the rule as stripping threatened species of protections they enjoyed when they were more closely related to endangered species. The new edition of the rules instead includes factors for determining whether a species can be listed as threatened, such as whether it is likely the species will become endangered in the “foreseeable future,” which will be determined on a case by case basis. Critics of the new rules believe that this language will give the government the discretion to overlook the effects of climate change on a species, which could play out over a period of time longer than the “foreseeable future.” Along the same lines, the rules also make it harder to ban certain activities in order to protect threatened species.
The rules weaken the ESA by allowing the federal government to take into account the actions of states, other nations, and local jurisdictions when listing and delisting species. In other words, if the species is being protected on another level of government or by another country, the U.S. government may be less inclined to protect the species; either by choosing not to list the species, or by removing its threatened or endangered status. Importantly, the new rules also allow “commercial information,” not just scientific information, to be considered when making a decision. Under the old rules, agencies were not allowed to consider the economic impacts of listing or delisting a species. On the whole, the rules seem to give the federal government a lot more discretion to determine that species or habitats should not be protected.
On September 25, 2019, the day before the new rules became effective, the attorneys general from 17 states, including Ohio’s neighbors Michigan and Pennsylvania, sued the Trump Administration in federal court over the changes to the rules. You can find the complaint here. The states assert that the rulemaking violates several federal statutes, including the Administrative Procedure Act, which governs federal administrative agencies. The states further claim that the weakening of protections for endangered and threatened species and their habitats will cause harm to their natural resources, harm to their citizens through environmental degradation, take away the current and future economic benefits of protected species, and increase costs for state governments.
Amidst all the rule changes and lawsuits, members of Congress have been working on their own potential changes to the ESA. Recently, the Congressional Western Caucus, a group of congress members from all around the country who are concerned with land use and resource rights, among other causes, introduced nineteen bills meant to “modernize” the ESA. If you’re interested in the specifics of each bill, they are listed on the Caucus’ website, here. Overall, the bills focus on fixing the ESA by implementing “defined recovery goals” for species, relying on “standardized…publically available” science, and allowing more involvement from states and stakeholders on endangered species decisions.
With action taking place on the administrative, legislative, and judicial levels of the federal government, the way the ESA is written and interpreted seems to be up in the air at present. We will be sure to update the Ag Law Blog with any developments.