The Ag Law Harvest

By:Jeffrey K. Lewis, Attorney and Research Specialist, Agricultural & Resource Law Friday, August 06th, 2021
Elephant tossing water with its trunk.

Did you know that elephants can’t jump?  In fact, it’s impossible for elephants to jump because, unlike most mammals, the bones in an elephant’s leg are all pointed downwards, which eliminates the “spring” required to push off the ground.  

Unlike elephants, we have jumped all over the place to bring you this week’s Ag Law Harvest.  Below you will find agricultural and resource law issues that include, among other things, conspiracy, preemption, succession planning support, ag spending and disaster relief, and Ohio’s broadband and salmon expansion. 

Poultry price fixing conspiracy.  According to a press release from the Department of Justice (“DOJ”) a federal grand jury has decided to indict Koch Foods and four former executives of Pilgrim’s Pride for allegedly engaging in a nationwide conspiracy to fix prices and rig bids for broiler chicken products.  These indictments combine to make a total of 14 individuals charged in the conspiracy that allegedly started in 2012 and lasted until 2019.  The indictments allege that the defendants and co-conspirators conspired to suppress and eliminate competition for sales of broiler chicken products sold to grocers and restaurants.  The DOJ reiterated its commitment to prosecuting price fixing and antitrust violations.  These indictments come on the heels of President Biden’s Executive Order seeking to promote competition within the American Economy, which focused heavily on the agriculture industry.  In addition to Koch Foods, additional companies have been indicted in the conspiracy.  So far, Claxton Poultry and Pilgrim’s Pride have both been indicted in the conspiracy with Pilgrim’s Pride agreeing to pay a $107 million fine.  Koch Foods denies any involvement in the price fixing scheme.  

FIFRA giving Monsanto a little relief.  About a week before the trial of another lawsuit against the Monsanto Company (“Monsanto”) and its Roundup products, a California judge dismissed some of the claims filed by the plaintiff.  According to the judge, some of the claims asserted by the plaintiff were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and therefore could not be pursued.  The plaintiff claimed that Monsanto had a state-law duty to warn that Roundup causes cancer.  The judge noted that under FIFRA, a state cannot impose or continue to impose any requirement that is “in addition to or different from” those required by FIFRA.  At the time, federal regulations did not require Monsanto to place a cancer warning on its Roundup products.  The judge reasoned that since federal law is supreme (i.e. preempts state law) California cannot impose a state-law duty on Monsanto to warn that Roundup causes cancer.  The judge, therefore, found that the plaintiff cannot pursue her claims against Monsanto for failure to warn under California law.  This ruling is in contrast to a recent 9th Circuit Court of Appeals decision which concluded that the failure to warn claims brought by the plaintiff in that suit were not preempted by FIFRA.  Plaintiff has time to appeal the judge’s decision, even beyond the start of the trial and could rely on the 9th Circuit’s opinion to help her argue that her claims should not have been dismissed.

Competitive loans now available for land ownership issues and succession planning.  The USDA announced that it will be providing $67 million in competitive loans through the new Heirs’ Property Relending Program (“HPRP”).  The HPRP seeks to help agricultural producers and landowners resolve land ownership and succession issues.  Lenders can apply for loans up to $5 million at 1% interest through the Farm Service Agency (“FSA”) once the two-month signup window opens in late August.  Once the lenders are selected, heirs can apply to those lenders for assistance.  Heirs may use the loans to resolve title issues by financing the purchase or consolidation of property interests and for costs associated with a succession plan.  These costs can include buying out fractional interests of other heirs, closing costs, appraisals, title searches, surveys, preparing documents, other legal services.  Lenders will only make loans to heirs who: (1) look to resolve ownership and succession of a farm owned by multiple owners; (2) are a family member or heir-at-law related by blood or marriage to the previous owner; and (3) agree to complete a succession plan.  The USDA has stated that more information on how heirs can borrow from lenders under the HPRP will be available in the coming months.  For more information on HPRP visit https://www.farmers.gov/heirs/relending.  

House Ag Committee approves disaster relief bill.  The House Agriculture Committee approved an $8.5 billion disaster relief bill to extend the Wildfire and Hurricane Indemnity Program (“WHIP”).  The bill, known as the 2020 WHIP+ Reauthorization Act, provides relief for producers for 2020 and 2021 related to losses from the ongoing drought in the western half of the United States, the polar vortex that hit Texas earlier this year, wildfires that tainted California wine grapes with smoke, and power outages, like the one seen during the polar vortex in Texas, which caused dairy farmers to dump milk.  The bill makes it easier for farmers to recover for losses related to drought, now only requiring a D2 (severe) designation for eight consecutive weeks as well as allowing disaster relief payments for losses related to power outages that result from a qualified disaster event.  With the Committee’s approval the bill makes its way to the house floor for a debate/vote.  Whether it’s a standalone bill or a bill that is incorporated into an appropriations bill or a year-end spending measure remains to be seen.  

Senate Appropriations Committee approves ag spending bill.  The Senate Appropriations Committee voted in favor of a fiscal year 2022 spending bill for the USDA and FDA that includes about $7 billion in disaster relief and $700 million for rural broadband expansion.  The Committee approved $25.9 billion for the FY2022 ag spending bill, which is an increase of $2.46 billion from the current year.  In addition to disaster relief funds and rural broadband, the bill increases research funding to the USDA, increass funding for conservation and climate smart agricultural practices, and increases funding for rural development including infrastructure such as water and sewer systems and an increase in funding to transition rural America to renewable energy.  The ag spending bill is now set for debate and vote by the full Senate. 

Ohio to be the second site for AquaBounty’s genetically engineered salmon.  Land-based aquaculture company AquaBounty has selected Pioneer, Ohio as the location for its large-scale farm for AquaBounty’s genetically engineered salmon.  The new farm will be AquaBounty’s first large-scale commercial facility and expects to bring over 100 jobs to northwestern Ohio.  According to AquaBounty’s press release, the plan for the new farm is still contingent on approval of state and local economic incentives.  Ohio is still finalizing a package of economic incentives for the new location and AquaBounty hopes to begin construction on the new facility by the end of the year.  AquaBounty has modified a single part of the salmon’s DNA that causes them to grow faster in early development.  It raises its fish in what it calls “Recirculating Aquaculture Systems,” which are indoor facilities that are designed to prevent disease and protect wild fish populations.  According to AquaBounty, its production methods offer a reduced carbon footprint and no risk of pollution of marine ecosystems as compared to traditional salmon farming.  AquaBounty anticipates commercial production to begin in 2023. 

DeWine orders adoption of emergency rules to speed up the deployment of broadband in Ohio. Governor Mike DeWine signed an executive order which will help speed up the launch of the Ohio Residential Broadband Expansion Grant Program (the “Program”) which was recently signed into law by Governor DeWine.  The Program is Ohio’s first-ever residential broadband expansion program which grants the Broadband Program Expansion Authority the power to review and award Program grant money for eligible projects.  The Program requires a weighted scoring system to evaluate and select applications for Program grants.  Applications must be prioritized for unserved areas and areas located within distressed areas as defined under the Urban and Rural Initiative Grant Program.  The Program hopes to provide high-speed internet to Ohio residences that do not currently have access to such services.  With DeWine’s executive order, the Program can start immediately rather than waiting until the lengthy administrative rule making process is complete.  Normally, rules by a state agency must go through a long, drawn out process to ensure the public has had its input on any proposed rules and those affected the most can challenge or argue to amend the rules.  However, the Governor does have the ability to suspend the normal rule making process when an emergency exists requiring the immediate adoption of rules.  According to Governor DeWine’s executive order, the COVID-19 pandemic, the increase in telework, remote learning, and telehealth services have created an emergency that allows DeWine to suspend the normal rule making process to allow the Program to be enacted without delay.  Although emergency rules are in place, they are only valid for 120 days.  New, permanent rules must be enacted through the normal rule making procedure.