Welcome to August! Despite the fact that most of us haven’t seen much besides the inside of our homes lately, the world still turns, which is also true for the gears in Washington D.C. In this issue of the Ag Law Harvest, we will take a look at some recently introduced and passed federal legislation, as well as a proposed federal rule.
Great American Outdoors Act is a go. The Great American Outdoors Act, one of the last pieces of legislation introduced by the late Representative John Lewis, was signed into law by the President on August 4. The new law secures funding for deferred maintenance projects on federal lands. The funding will come from 50% of the revenues from oil, gas, coal, or alternative energy development on federal lands. The funding will be broken down between numerous agencies, with 70% to the National Park Service each year, 15% to the Forest Service, 5% to the U.S. Fish and Wildlife Service, 5% to the Bureau of Land Management, and 5% to the Bureau of Indian Education. You can read the law in its entirety here.
A meat processing slowdown for worker safety? In addition to the Great American Outdoors Act, numerous bills have been introduced to help farmers, ag-related businesses, and rural areas in the wake of COVID-19. For instance, in early July, Ohio’s own Representative from the 11th District, Marcia Fudge, introduced H.R. 7521, which would suspend increases in line speeds at meat and poultry establishments during the pandemic. Notably, if passed, the bill would “suspend implementation of, and conversion to the New Swine Slaughter Inspection System,” which has been planned since the USDA published the final rule in October of 2019. It would also make the USDA suspend any waivers for certain establishments related to increasing line speed. The resolution was introduced to protect the safety of workers, animals, and food. In theory, slower line speeds would make it easier for workers to social distance. This is especially important in the wake of outbreaks among workers at many processing plants. On July 28, Senator Cory Booker introduced a companion bill in the Senate.
Will livestock markets become more competitive? On July 9, a group of Representatives from Iowa introduced H.R. 7501. The bill would amend the Agricultural Marketing Act of 1946 “to foster efficient markets and increase competition and transparency among packers that purchase livestock from producers. To achieve this outcome, the bill would require packers to obtain at least 50% of their livestock through “spot market sales” every week. This means that the packers would be required to buy from producers not affiliated with the packer. “Unaffiliated producers” would have less than a 1 percent equity interest in the packer (and vice versa), no directors, employees, etc. that are directors, employees, etc. of the packer, and no fiduciary responsibility to the packer. Additionally, the packer would not have an equity interest in a nonaffiliated producer. Basically, this bill would make it easier for independent producers to sell to packers. This bill is a companion to a Senate Bill 3693, which we discussed in a March edition of the Ag Law Harvest. According
New bill would make changes to FIFRA. Just last week, a new bill was proposed in both the House and Senate that would alter the Federal Insecticide, Fungicide, and Rodenticide Act. The bill is called the “Protect America’s Children from Toxic Pesticides Act of 2020.” In a press release, the sponsoring Senator, Tom Udall, and Representative, Joe Neguse, explained that the proposed law would ban organophosphate insecticides, neonicotinoid insecticides, and the herbicide paraquat, which are linked to harmful effects in humans and the environment. Furthermore, the law would allow individuals to petition the EPA to identify dangerous pesticides, close the loopholes allowing EPA to issue emergency exemptions and conditional registrations to use pesticides before they are fully vetted, allow communities to pass tougher laws on pesticides without state preemption, and press the pause button on pesticides found to be unsafe by the E.U. or Canada until they undergo EPA review. Finally, the bill would make employers report pesticide-caused injuries, direct the EPA to work with pesticide manufacturers on labeling, and require manufacturers to include Spanish instructions on labels. You can read the text of the bill here.
USDA AMS publishes proposed Organic Rule. Moving on to federal happenings outside Congress, the USDA Agricultural Marketing Service published a proposed rule on August 5. The rule would amend current regulations for organic foods by strengthening “oversight of the production, handling certification, marketing, and sale of organic agricultural products.” The rule would make it easier to detect any fraud, trace organic products, and would make organic certification practices for producers more uniform. Anyone interested in commenting on this proposed rule has until October 5, 2020 to do so. You can find information on how to submit a comment on the website linked above.
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.
Written by Ellen Essman, Sr. Research Associate
Over the last several months, three nuisance cases have been decided against Smithfield Foods in federal court in North Carolina. The juries in the cases have found Smithfield’s large farms, with thousands of hogs, and the odor, traffic, and flies that come along with them, to be a nuisance to neighboring landowners. Smithfield has been ordered to pay hefty damages to the neighbors, and more cases against the company remain to be decided. Given the outcomes of the cases that have been decided thus far, farmers and landowners in Ohio might be wondering how Ohio law compares to North Carolina law as pertains to agricultural nuisances.
Ohio’s Right-to-Farm law
Many states, including both Ohio and North Carolina, have “right-to-farm” legislation, which in part is meant to protect agriculture from nuisance lawsuits such as those filed against Smithfield. While nearly every state has a right-to-farm statute, they do differ in language and how they go about protecting agriculture.
Ohio farmers have right-to-farm protection in two parts of the Revised Code. 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:
- The agricultural activities were conducted within an agricultural district;
- Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
- The plaintiff was not involved in agricultural production; and
- 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.
North Carolina’s Right-to-Farm law
Much like Ohio, North Carolina farm land can be part of an “agricultural district.” North Carolina’s preservation of farmland law is available here. This program is meant to protect agricultural land—land that is part of an agricultural district is must be used for agriculture for at least 10 years. However, unlike Ohio’s law, North Carolina does not specifically spell out that land in agricultural districts will be protected from nuisance suits when the landowner follows the rules of the agricultural district. North Carolina’s law does state that one of the purposes of agricultural districts is to “increase protection from nuisance suits and other negative impacts on properly managed farms,” but unlike Ohio, it does not explicitly state that being part of an agricultural district is a defense to a nuisance lawsuit.
North Carolina also has a statute which specifically spells out the right-to-farm. In response to the recent jury decisions, however, North Carolina has changed its right-to-farm law. The original law read:
- No agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality outside of the operation after the operation has been in operation for more than one year, when such an operation was not a nuisance at the time the operation began.
(a1) The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change. A fundamental change does not include any of the following:
- A change in ownership or size.
- An interruption of farming for a period of no more than three years.
- Participation in a government-sponsored agricultural program.
- Employment of new technology.
- A change in the type of agricultural or forestry product produced.
The original law did not protect agricultural operations if their actions were negligent or improper. The original law is available here.
Following the first decision against Smithfield, the North Carolina legislature overrode the Governor’s veto to implement amendments to the state’s right-to-farm law. In the amendments, available here (sections 106-701 and 106-702), the legislature substantially changed the language of the law, making what constitutes a nuisance much more explicit and dependent on certain factors. What is more, the new version of the law places limits on when plaintiffs can recover punitive damages for a private nuisance action.
A comparison of the Ohio and North Carolina’s sections of legislation promoting the “right-to-farm” shows how different the two states are. Ohio’s legislative language makes it obvious that the meaning of the law is to protect agriculture from nuisance suits—by specifically stating that being in an agricultural district is a complete defense to nuisance, and that otherwise, agriculture is generally exempt from nuisance suits. North Carolina’s law concerning agricultural districts does not specifically state that being in such a district is a defense to nuisance, instead, it simply expresses the hope that districts will “increase protection from nuisance suits.” Furthermore, while North Carolina’s original right-to-farm law stated that agricultural operations do not “become a nuisance” due to changed conditions in the community, that language is not very specific. Ohio’s agricultural district language lays out exactly what must be done to have a complete defense against a nuisance lawsuit; North Carolina’s language in multiple parts of the General Statutes does not have the same degree of specificity.
Permit as a defense to nuisance
In addition to the right-to-farm law, under ORC 903.13, those owning, operating, or responsible for concentrated animal feeding facilities in Ohio have an affirmative defense to a private civil action for nuisance against them if the CAFO is in compliance with best management practices established in the installation permit or permit to operate and the agricultural activities do not violate federal, state, and local laws governing nuisances. North Carolina does not appear to have similar language protecting permitted farms in its General Statutes.
Other factors that may come into play
In the lawsuits against Smithfield farms, the lawyers for the plaintiffs (neighboring landowners) have continuously asserted that Smithfield has “means and ability” to “reduce the nuisance from existing facilities” by ending the use of “lagoon and sprayfield” systems at their farms. Plaintiffs stress that not only is Smithfield Foods, Inc. a large, wealthy, multinational company, but that they have also changed their lagoon and sprayfield practices outside of North Carolina. In lagoon and sprayfield systems, all waste is collected in an open-air lagoon and then sprayed on fields as fertilizer. The practice was first banned for new construction in North Carolina in 1997, and in 2007, the state permanently banned the practice for newly constructed swine facilities. Although many of the facilities in question were opened before any ban on the construction of lagoon and sprayfield facilities, the plaintiffs contend that changes made in other states mean Smithfield can afford to change in North Carolina. The ban on new lagoon and sprayfield systems in North Carolina, and evidence that Smithfield has used different practices to reduce the smell from the farms in other states, likely helped the juries in the cases that have been tried to date find that the farms are a nuisance to their neighbors. The above argument is something operators of livestock facilities in Ohio should be aware of. Although Ohio has not specifically banned lagoon and sprayfield systems like North Carolina has, the ability to change the system could still potentially be used to argue nuisance. Ohio operators are supposed to follow best management practices and the Natural Resources Conservation Service’s Field Office Technical guide when applying and storing manure, which include ways to reduce odor from manure and other applications, as well as reducing other types of nutrient pollution. Following such guidelines would likely help operators in any argument against nuisance.