Recent Blog Posts
Written by Peggy Kirk Hall and Jeffrey K. Lewis
School is out and youth employment is in. As more and more youth turn to the job market during summer break, now is a good time to review the laws that apply to youth working in agricultural situations. Here’s a quick refresher that can help you comply with youth employment laws. For additional details and explanation, refer to our law bulletin on “Youth Labor on the Farm: Laws Farmers Need to Know.”
- The agricultural “exemption” applies only to your children and grandchildren. Many farmers know that there are unique exemptions for agricultural employers when it comes to employment law. Youth employment is no different. In Ohio, youth employment laws do not apply to children working on a farm owned or operated by their parent, grandparent, or legal guardian. This means that your children, grandchildren, and legal guardianship children working on farms you own or operate may perform tasks that are considered “hazardous,” receive a wage less than federal and state minimum wage and work longer hours. Keep in mind that this exemption does not apply to youth who are your cousins, nieces, nephews, and other extended family members—those family members are subject to youth employment laws.
- Lawn mowing and similar tasks are special. Ohio Revised Code § 4109.06(9) explicitly states that youth engaged in “lawn mowing, snow shoveling, and other related employment” are not subject to Ohio’s youth employment laws. This means that farms may hire youth to mow the grass and do similar tasks around the farm without having to comply with labor laws regarding working hours and wage requirements.
- Treat youth like adults for verification, workers compensation and taxes. The law doesn’t deal with youth uniquely when it comes to Form I-9 employment verification, workers compensation coverage, and withholding taxes. A farm employer must complete these same requirements for youth employees.
- Don’t start them too young. Minimum working age is a tricky area of law. Federal law allows youth under the age of 14 to be employed as long as certain requirements are met, such as having written parental consent and limiting work hours and tasks. States may preempt federal law by being more restrictive. Ohio law, however, doesn’t address youth under 14 and doesn’t explicitly permit or prohibit them from being employed. Be aware that the Ohio Department of Commerce has stated that it interprets this silence in Ohio law as a prohibition against employing youth under 14. This creates a compliance risk for employers who want to employ a youth under 14, as Ohio may deem that a violation of state law. Before hiring youth under 14 for jobs other than the specifically exempted tasks of lawn mowing, snow shoveling or similar work, consult with your attorney.
- Keep younger youth away from “hazardous” jobs. State and federal laws are clear on this point: youth under the age of 16 cannot perform “hazardous” tasks. This restriction includes operating heavy machinery with moving parts, working inside silos and manure pits, handling toxic chemicals, working with breeding livestock, sows and newborn calves, and other dangerous tasks. An exception is that 14- and 15-year-olds may operate tractors and other machinery if they have a valid 4-H or vocational agricultural certificate of completion for safe tractor and machine operation. See the complete list of prohibited hazardous tasks in our law bulletin on “Youth Labor on the Farm: Laws Farmers Need to Know.”
- Don’t make them work too early or too late. During the summer months, youth between 16 and 18 years of age may work as early or as late as needed. Youth under the age of 16, however, may not start work before 7 am or work past 9 pm.
- Give the kids a break. If youth are working longer hours, you must give them a break from working. All youth under the age of 18 must receive a 30-minute break for every 5 hours worked.
- Know how much to pay. If a farm grossed less than $323,000 in 2020, the employer must pay employees the federal minimum wage of $7.25 per hour. If the farm grossed more than $323,000 then the employer must pay employees the Ohio minimum wage of $80. Two exemptions allow a farmer to pay less than both the federal and state minimum wage to youth. If the farm is owned or operated by a youth’s parent, grandparent, or legal guardian the minimum wage requirements do not apply. Second, if the farm is a “small farm,” which means that the farm did not use more than 500 man-days of agricultural labor during any calendar quarter of the preceding year, then the farm is not required to pay the federal or state minimum wage to any youth employed on the farm.
- Sign a wage agreement. This requirement catches many employers off guard. Ohio law requires that before any youth can begin work, the youth and the employer must sign a wage agreement. Be sure to keep this signed agreement with the youth’s employment records. A sample wage agreement from the Ohio Department of Commerce is available here.
- Do your recordkeeping. Just as you would with other employees, maintain a file on each of your youth employees. The file should include the youth’s full name, permanent address, and date of birth, the youth’s wage agreement, and any 4-H or vocational agricultural certificates. Also keep time slips, payroll records, parental consent forms, and name and contact information of youth’s parent or legal guardian.
Summer is a hot time to employ our youth and school them about farming and farm-related businesses. But don’t let legal compliance ruin your summer fun. If you have youth working on the farm and have concerns about any of the items in this quick overview, be sure to talk with your attorney. Doing so will ensure that the summer job is a good experience for both you and your young employees.
As planting season draws to a close, new agricultural issues are sprouting up across the country. This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry.
Pork processing plants told to hold their horses. The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds. On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits. The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers. The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected. Proponents of the new rule claim that the rule was well researched and was years in the making. Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions. The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling. All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021.
Beef under (cyber)attack. Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market. JBS plants in Australia and Canada were also affected. The reason for the shut down? Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware. The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation. The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next. As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible. The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks.
Texas has a new tool to help combat feral hogs. Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state. HogStop, a new hog contraceptive bait enters the market this week. HogStop is being released in hopes of curbing the growth of the feral hog population. According to recent reports, the feral hog population in Texas has grown to over 2.6 million. It is estimated that the feral hogs in Texas have been responsible for $52 million in damage. HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce. HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product. Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers. More information about HogStop can be found at their website at www.hogstop.com.
USDA announces premium benefit for cover crops. Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring. The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit. However, farmers cannot receive more than the amount of their insurance premium owed. Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578). All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit. To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021. To file the form, farmers must contact and make an appointment with their local USDA Service Center. More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.
Federal court vacates prior administration’s small refinery exemptions. The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA. The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review. The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.
Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations. A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA. According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act. The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping. The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures. The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.
It’s been a busy spring for legal developments in pesticides and insecticides. Our last article summarized recent activity surrounding dicamba products. In today’s post we cover legal activity on glyphosate and chlorpyrifos.
Roundup award. The Ninth Circuit Court of Appeals dealt another loss to Monsanto (now Bayer) on May 14, 2021, when the court upheld a $25.3 million award against the company in Hardeman v. Monsanto. The lower court’s decision awarded damages for personal injuries to plaintiff Edward Hardeman due to Monsanto’s knowledge and failure to warn him of the risk of non-Hodgkin lymphoma from Roundup exposure. Monsanto argued unsuccessfully that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted the plaintiff’s claim that California’s Proposition 65 law required Monsanto to include a warning about Roundup’s carcinogenic risks on its label. That requirement, according to Monsanto, conflicted with FIFRA because the EPA had determined via a letter that a cancer warning would be considered “false and misleading” under FIFRA. The Ninth Circuit disagreed that the EPA letter preempted the California requirements.
The Court of Appeals also held that the trial court did not abuse its discretion in allowing the plaintiff’s expert testimony. Monsanto had challenged testimony from a pathologist whom it alleged was not qualified to speak as an expert. But the court agreed that the witness testimony met the standard that expert opinions be “reliably based” on epidemiological evidence.
Monsanto also challenged the damages themselves. The award in Hardeman included $20 million in punitive damages that the district court reduced from $75 million originally awarded by the jury. While $75 million seemed “grossly excessive,” the appellate court reasoned, $20 million did not, especially considering Monsanto’s reprehensibility, because evidence of the carcinogenic risk of glyphosate was knowable by Monsanto.
Roundup settlement. In a second Roundup case, a California district court last week rejected a motion to approve a $2 billion settlement by Monsanto (now Bayer) to a proposed class of users exposed to Roundup or diagnosed with non-Hodgkin lymphoma who have not yet filed lawsuits. The offer by Bayer in Ramirez, et al. v. Monsanto Co. included legal services, compensation, research and assistance with non-Hodgkin lymphoma diagnosis and treatment, and changes on the Roundup label advising users of a link to non-Hodgkin lymphoma, but would require class members to waive their right to sue for punitive damages if they contract non-Hodgkin lymphoma and stipulate to the opinion of a seven-member science panel about whether Roundup causes non-Hodgkin lymphoma.
The judge determined that the settlement would accomplish a lot for Bayer by reducing its litigation and settlement exposure, but it would greatly diminish the future settlement value of claims and “would accomplish far less for the Roundup users who have not been diagnosed with NHL (non-Hodgkin lymphoma)—and not nearly as much as the attorneys pushing this deal contend.” The court also determined that the benefits of the medical assistance and compensation components of the settlement, to last for four years, were greatly exaggerated and vastly overstated. The proposed stipulation to a science panel also received the court’s criticism. “The reason Monsanto wants a science panel so badly is that the company has lost the “battle of the experts” in three trials,” the court stated. Concluding that “mere tweaks cannot salvage the agreement,” the court denied the motion for preliminary approval and advised that a new motion would be required if the parties could reach a settlement that reasonably protects the interest of Roundup users not yet diagnosed with non-Hodgkin lymphoma.
Bayer responded to the court’s rejection immediately with a “five-point plan to effectively address potential future Roundup claims.” The plan includes a new website with scientific studies relevant to Roundup safety; engaging partners to discuss the future of glyphosate-based producers in the U.S. lawn and garden market; alternative solutions for addressing Roundup claims including the possible use of an independent scientific advisory panel; reassessment of ongoing efforts to settle existing claims; and continuing current cases on appeal.
Chlorpyrifos. The insecticide chlorpyrifos also had its share of legal attention this spring. Chlorpyrifos was first registered back in 1965 by Dow Chemical but its use has dropped somewhat since then. Its largest producer now is Corteva, who announced in 2020 that it would end production of its Lorsban chlorpyrifos product in 2021. That’s good timing according to the strongly worded decision from the Ninth Circuit Court of Appeals, which ruled in late April that the EPA must either revoke or modify all food residue tolerances for chlorpyrifos within sixty days.
The plaintiffs in the case of League of United Latin American Citizens v. Regan originally requested a review of the tolerances in 2007 based on the Federal Food, Drug and Cosmetic Act (FFDCA), which addresses pesticide residues in or on a food. FFDCA requires EPA to establish or continue a tolerance level for food pesticide residues only if the tolerance is safe and must modify or rescind a tolerance level that is not safe. Plaintiffs claimed the tolerances for chlorpyrifos are not safe based upon evidence of neurotoxic effects of the pesticide on children. They asked the EPA to modify or rescind the tolerances. The EPA denied the request, although that decision came ten years later in 2017 after the agency repeatedly refused to make a decision on the safety of the product. The Obama Administration had announced that it would ban chlorpyrifos, but the Trump Administration reversed that decision in 2017.
Plaintiffs objected to the EPA’s decision not to change or revoke chlorpyrifos tolerance, arguing that the agency should have first made a scientific finding on the safety of the product. The EPA again rejected the argument, which led to the Ninth Circuit’s recent review. The Ninth Circuit concluded that the EPA had wrongfully denied the petition, as it contained sufficient evidence indicating that a review of the chlorpyrifos tolerance levels was necessary. The EPA’s denial of the petition for review was “arbitrary and capricious,” according to the court. “The EPA has sought to evade, through one delaying tactic after another, its plain statutory duties,” the court stated.
More to come. While the spring held many legal developments in pesticide law, the rest of the year will see more decisions. The Roundup litigation is far from over, and the same can be said for dicamba. How will the EPA under the new administration handle pesticide review and registration, and the court's order to address chlorpyrifos tolerances? Watch here for these and other legal issues with pesticides that will outlive the spring.
Spring is a common time for farmers to deal with pesticides and insecticides, but this spring the legal system has also been busy with pesticides and insecticides. Important legal developments with dicamba, glyphosate, and chlorpyrifos raise questions about the future of the products, with proponents on both sides pushing for and against their continued use. In today’s post, we summarize legal activity concerning dicamba. Part 2 to this series will cover recent developments with Roundup.
Dicamba registration lawsuits. In April, the federal courts resumed two cases filed late last year that challenge the registration and label of dicamba products made by Bayer, BSF and Syngenta. The cases had been on hold since February due to the change to the Biden Administration and its EPA leadership. Center for Biological Diversity v. EPA, in federal district court in Arizona, claims that the 2020 registration of the products should not have been granted because the registration fails to meet the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) standard that a pesticide may not cause “unreasonable adverse effects” to the environment. Relief requested by the plaintiffs includes overturning the registration approvals and also ordering EPA to officially reverse via rulemaking its long-standing policy to allow states to impose local restrictions on pesticide registrations under FIFRA’s Section 24(C).
In the D.C. district court, American Soybean Association v EPA takes the opposite approach and argues that the EPA exceeded its duties under FIFRA by imposing application cutoff dates of June 30 for soybeans and July 30 for cotton and establishing 310-foot and 240-foot buffer zones for certain endangered species. The plaintiffs in that suit want the court to remove the cutoff dates and buffer restrictions from the approved dicamba labels. Manufacturers Bayer, BASF, and Syngenta have intervened in the cases, which both now await responses from the EPA.
Two additional challenges to the dicamba 2020 label approval were consolidated for review to be heard together by the D.C. Circuit Court of Appeals and now await the court’s decision. National Family Farm Coalition v. EPA originally filed in the Ninth Circuit Court of Appeals, argues that EPA failed to support its conclusion of “no unreasonable adverse effects” and did not ensure that endangered species and critical habitat would not be jeopardized by approved dicamba use. On the flip side, American Soybean Association v. EPA alleges that the 2020 label cutoff dates are too restrictive and buffer requirements are too large, which exceeds the authority granted EPA in FIFRA and the Endangered Species Act. The EPA has filed a motion to dismiss the cases but the plaintiffs have asked to be returned to the Ninth Circuit.
Bader Farms Appeal. The$265 jury verdict awarded last year to Bader Farms, which successfully argued that Monsanto was responsible for harm to its peach farms resulting from dicamba drift, is on appeal before the Eighth Circuit Court of Appeals. Monsanto filed its brief on appeal in March, arguing that the verdict should be reversed for several reasons: because the court had not required Bader Farms to prove that Monsanto had manufactured or sold the herbicides responsible for the damages, which could have resulted from third party illegal uses of herbicides; because the damages were based on “speculative lost profits”; and because the $250 million award of punitive damages violated state law in Missouri.
Office of Inspector General Report. The EPA’s Office of the Inspector General (OIG), also played a role in recent dicamba developments. The OIG is an independent office within the EPA that audits, investigates and evaluates the EPA. Just last week, the OIG issued a report on EPA’s decision in 2018 to conditionally register dicamba products, allowing them to be used during the 2019 and 2020 growing seasons. That decision by EPA ultimately led to a legal challenge by environmental groups, a holding by the Ninth Circuit Court of Appeals that the EPA violated FIFRA in approving the registrations, and a controversial order ceasing use of the dicamba products. The OIG evaluated the EPA’s registration decision making process for the dicamba registration. The title to its report, “EPA Deviated from Typical Procedures in Its 2018 Dicamba Pesticide Registration Decision” is telling of the OIG’s conclusions.
OIG determined that EPA had “varied from typical operating procedures” in several ways. The EPA did not conduct the required internal peer reviews of scientific documents created to support the dicamba decision. Senior leaders in the EPA’s Office of Chemical Safety and Pollution Prevention were “more involved” in the dicamba decision than in other pesticide registration decisions, resulting in senior-level changes to or omissions from scientific analyses to support policy decisions. EPA staff were “constrained or muted in sharing their scientific integrity concerns” on the dicamba registrations. The result of these atypical operating procedures by the EPA, according to the OIG, was substantial understatement or lack of acknowledgement of dicamba risks and the eventual decision by the Ninth Circuit to vacate the registrations.
The OIG recommended three actions the EPA should take in response to the report: requiring senior managers or policy makers to document changes or alterations to scientific opinions, analyses, and conclusions in interim and final pesticide registration decisions along with their basis for changes or alterations; requiring an assistant administrator-level verification statement that Scientific Integrity Policy requirements were reviewed and adhered to during pesticide registration decisions; and conducting annual training for staff and senior managers and policy makers to promote a culture of scientific integrity and affirm commitment to the Scientific Integrity Policy. The EPA had already taken action on the OIG’s first and third recommendations but has not resolved the second.
Will the OIG Report affect ongoing litigation on dicamba, or lead to additional lawsuits? That’s a critical question without an immediate answer, and one to keep an eye on beyond this spring.
To read more about legal issues with dicamba, visit our partner, The National Agricultural Law Center and its excellent series on "The Deal with Dicamba."
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.
We learn early in law school that it’s an uphill battle when challenging agency actions in court, as the law typically grants agencies discretion to apply expertise and professional judgment when making decisions. A landowner in Clark County just learned this lesson. The landowner appealed the Ohio tax commissioner’s adoption of the 2016 Current Agricultural Use Valuation (CAUV) table, but the Ohio Supreme Court found no showing of an abuse of discretion by the agency.
The case arose from the CAUV valuation update in 2016 of William Johnson’s land in Clark County. In setting the CAUV values, the county auditor consulted the unit-value table adopted by the tax commissioner. The unit-value table lists soil types and ratings of each soil type along with per-acre values for each soil type. The tax commissioner annually adopts the table using a potential-income approach, as required by Ohio law, which determines typical net income from agricultural products for each type of soil, assuming typical management, yields, and cropping and land use patterns. A county auditor refers to the unit-value table when determining CAUV farmland values, applying the per-acre values from the table to the soil types on a parcel.
Johnson claimed that his CAUV value was too high because the 2016 unit-value table adopted by the tax commissioner did not list separate values for drained and undrained soils on his land. The table does list differing values for Adrian, Carlisle and Linwood soils—one value for drained soils and one value for undrained soils. However, the table lists just one value for all Crosby, Kokomo, and Patton soil types, the soils contained on the Johnson’s parcel. Johnson argued that the tax commissioner erred by adopting the unit-value table without establishing separate values for drained and undrained Crosby, Kokomo, and Patton soil types.
The Supreme Court explained that Johnson’s challenge required showing that the tax commissioner committed an “abuse of discretion” in adopting the unit-value table. Two important principles apply to the “abuse of discretion” standard, the first being that the court will not substitute its judgment for the agency’s judgment unless the agency acted with an unreasonable, arbitrary, or unconscionable attitude. The court also presumes that an agency’s decision is carried out in good faith and with sound judgment, unless there is proof to the contrary.
According to Johnson, the tax commissioner abused his discretion in several ways: by departing from the USDA’s taxonomy of soils, excluding data for land lacking artificial drainage, and not listing all soils with drained and undrained variations. The court found no abuse of discretion, however, and no evidence to support the Johnson’s claims. The court pointed out that the commissioner, as required by law, consulted with the “agricultural advisory committee” in preparing the table and referred to both Ohio State University’s Bulletin 685 and updates to the USDA taxonomy for guidance on soil types. Explaining that the CAUV potential-income approach required the commissioner to determine “typical” management practices, the court stated that the commissioner was justified in not establishing a separate value for the Johnson’s “atypical practice” of not installing artificial drainage for the specific soils on his property. Considering investments required for artificial drainage for some soil types but not for others doesn’t prove an abuse of discretion, the court stated.
The court’s conclusion reiterates the lesson on the difficulty of challenging an agency decision:
“To repeat: the differential treatment of soil types reflects the exercise of judgment by the commissioner, which we presume to be sound. . . The record does not disclose the rationale for every consideration underlying the unit-value table, but it was not the commissioner’s burden to demonstrate the reasonableness of the CAUV journal entry—it was Johnson’s burden to show an arbitrary or unconscionable attitude on the part of the commissioner. He has not done so.”
Barry Ward; Leader, Production Business Management; Director, OSU Income Tax Schools, May 19, 2021
What a difference a year makes! The crop margin outlook for this year is decidedly different from where we were last year at this time. Factors affecting both supply and demand have driven commodity crop prices much higher over the last 12 months and the result is a positive margin outlook for 2021 commodity crops. In spite of higher fertilizer, fuel and insurance costs among others, there is a good profit outlook for 2021.
Fuel costs have increased as the state of the overall economy has improved over the last months and fertilizer prices have increased fairly dramatically as a number of factors have impacted costs in manufacturing, and overall supply and demand for nitrogen, phosphorous and potassium fertilizers.
Each year producers tend to purchase inputs over a period of several months leading up to planting for a variety of reasons. Some farmers look to spread risk by pricing fertilizer over several months, some purchase inputs early to take advantage of early buying discounts while many will pre-pay for certain inputs to manage income taxes. On-farm fuel and fertilizer storage tend to give producers more flexibility in spreading their purchases over a longer period to take advantage of possible lower prices. This large input purchase window may have paid dividends this year especially if producers priced fertilizer prior to big price increases.
Production costs for Ohio field crops are forecast to be higher than last year with higher fertilizer prices leading the way. Variable costs for corn in Ohio for 2021 are projected to range from $405 to $488 per acre depending on land productivity. The trend line corn yield (177.9 bpa) scenario included in the corn enterprise budget shows an increase in variable costs of 9.5%.
Variable costs for 2021 Ohio soybeans are projected to range from $227 to $253 per acre. Variable costs for trend-line soybeans (55.3 bpa) are expected to increase 12.8% in 2021 compared to 2020.
Wheat variable expenses for 2021 are projected to range from $173 to $207 per acre. The trend line wheat yield (70.6 bpa) scenario included in the wheat enterprise budget shows an increase in variable costs of 5.8%.
Returns will likely be positive for most producers depending on price movement throughout the rest of the year. Grain prices used as assumptions in the 2021 crop enterprise budgets are $5.00/bushel for corn, $13.20/bushel for soybeans and $6.30/bushel for wheat. Projected returns above variable costs (contribution margin) range from $307 to $579 per acre for corn and $357 to $623 per acre for soybeans. Projected returns above variable costs for wheat range from $182 to $327 per acre.
Return to Land is a measure calculated to assist in land rental and purchase decision making. The measure is calculated by starting with total receipts or revenue from the crop and subtracting all expenses except the land expense. Returns to Land for Ohio corn (Total receipts minus total costs except land cost) are projected to range from $135 to $389 per acre in 2021 depending on land production capabilities. Returns to land for Ohio soybeans are expected to range from $233 to $484 per acre depending on land production capabilities. Returns to land for wheat (not including straw or double-crop returns) are projected to range from $93 per acre to $229 per acre.
Total costs projected for trend line corn production in Ohio are estimated to be $824 per acre. This includes all variable costs as well as fixed costs (or overhead if you prefer) including machinery, labor, management and land costs. Fixed machinery costs of $78 per acre include depreciation, interest, insurance and housing. A land charge of $195 per acre is based on data from the Western Ohio Cropland Values and Cash Rents Survey Summary. Labor and management costs combined are calculated at $83 per acre. Details of budget assumptions and numbers can be found in footnotes included in each budget.
Total costs projected for trend line soybean production in Ohio are estimated to be $565 per acre. (Fixed machinery costs: $62 per acre, land charge: $195 per acre, labor and management costs combined: $55 per acre.)
Total costs projected for trend line wheat production in Ohio are estimated to be $479 per acre. (Fixed machinery costs: $36 per acre, land charge: $195 per acre, labor and management costs combined: $45 per acre.)
Data used to compile these enterprise budgets includes research, surveys, market data, economic modeling, calculations and experience of authors.
Current budget analyses indicates very favorable returns for all three primary commodity crops but crop price change and harvest yields may change this outcome. These projections are based on OSU Extension Ohio Crop Enterprise Budgets. Newly updated Enterprise Budgets for 2021 have been completed and posted to the Farm Office website: https://farmoffice.osu.edu/farm-mgt-tools/farm-budgets
Happy Friday! It's time for another Ag Law Harvest and in this week's edition we explore landmark court rulings, pending lawsuits, and newly enacted laws that affect agriculture and the environment from around the country.
USDA announces $92.2 million in grants under the Local Agriculture Market Program. The USDA announced last week that it will be funding Local Agriculture Market Program (LAMP) grants through the Farmers Market program as part of the USDA’s Pandemic Assistance for Producers Initiative. Through these grants, the USDA hopes to support the development and growth of direct producer-to-consumer marketing and boost local and regional food markets. $76.9 million will be focused on projects that support direct-to-consumer markets like farmers markets and community supported agriculture. $15.3 million will fund public-private partnerships that will build and strengthen local and regional food markets. All applications must be submitted electronically through www.grants.gov. More information can be found on the following webpages: Farmers Market Promotion Program, Local Food Promotion Program, or Regional Food System Partnerships.
Mexico Supreme Court Rules in favor of U.S. Potato Growers. On April 28, 2021, Mexico’s highest court overturned a lower court’s decision preventing the Mexican government from implementing regulations to allow for the importation of U.S. potatoes. The ruling comes after nearly a decade of legal battles between Mexican potato growers and their government. Beginning in 2003, Mexico restricted U.S. potato imports but then lifted the restrictions in 2014, allowing U.S. potatoes full access to the Mexican market. Shortly after lifting the restrictions, the National Confederation of Potato Growers of Mexico (CONPAPA) sued its government claiming that Mexican regulators have no authority to determine if agricultural imports can enter the country. Since the filing of the lawsuit, the U.S. has been bound by the 2003 restrictions on U.S. potatoes entering the Mexican market. Mexico’s Supreme Court ultimately rejected CONPAPA’s argument and ruled that the Mexican government does have the authority to issue regulations about the importation of agricultural and food products, including U.S. potatoes. Mexico represents the third largest export market for U.S. potatoes, making this a landmark decision for U.S. potato farmers.
Indiana enacts new wetlands law. Indiana governor, Eric Holcomb, has approved a new controversial wetlands law. The new law amends the requirements for permits and restoration costs for “wetland activity” in a state regulated wetland (federally protected wetlands are excluded). Under Senate Bill 389, permits are no longer required to conduct activity in Class I wetlands, some Class II wetlands, and certain farmland. In Indiana, Class I wetlands are either: (a) at least 50% disturbed or affected by human activity; or (b) support only minimal wildlife or hydrological function. Class III wetlands are minimally disturbed by human activity and can support more than minimal wildlife or hydrologic function. Class II wetlands fall somewhere in the middle. Supporters of the law argue that the changes will reduce the cost to landowners and farmers for conducting activity in wetlands that only provide nominal environmental benefits. Opponents of the law argue otherwise. Some environmental groups believe that wetlands, whether they can support more than minimal wildlife or not, provide profound economic benefit by reducing the cost to citizens for water storage and water purification. Additionally, environmental groups argue that the subsequent loss of wetlands from this law will greatly increase flooding and erosion and reduce Indiana’s diverse wildlife. Some even suggest that this law is nothing more than a subsidy for the building and housing development industry. Senate Bill 389 became law on April 29, 2021, and has a retroactive effective date of January 1, 2021.
USDA being sued for promotion of meat and dairy industry. Three physicians have filed a lawsuit against the USDA in a federal court in California. The doctors, part of the Physicians Committee for Responsible Medicine (PCRM), argue that some of the USDA’s new 2020-2025 Dietary Guidelines for Americans, issued last December, contradict current scientific and medical knowledge. PCRM believes that the USDA is acting out of its interests in the dairy and meat industry rather than the health interests of U.S. residents. For example, PCRM argues that the USDA’s statement suggesting that more individuals would benefit by increasing their intake of dairy contradicts scientific evidence that increased dairy intake can increase the chances of prostate cancer and that 1 in 4 Americans is lactose intolerant. PCRM seeks a court order requiring the USDA to delete dairy promotions, avoid equating protein with meat, and eliminate deceptive language hiding the ill effects of consuming meat and dairy products. In an email to the Washington Post, a spokesperson for the USDA, claims that the dietary guidelines are just that – guidelines. The USDA argues that the dietary guidelines are meant to help provide guidance based on the best available science and research and provide many alternatives for people based on an individual’s preferences and needs.
Sesame added to the list of major allergens. On April 23, 2021, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law requires that sesame be added to the list of major allergens and be disclosed on food labels. Up until this law was enacted, sesame was allowed to be labeled as a “natural flavor” or a “natural spice.” With the new law, sesame, in any form, must be labeled as an allergen on packaged foods. Food manufacturers have until 2023 to add sesame allergen statements to their labels. This is the first time since 2006 that a new allergen has been added to the Food Allergen and Consumer Protection Act (FALCPA). Sesame joins peanuts, tree nuts, fish, shellfish, soy, dairy, eggs, and wheat as the FDA’s list of allergens that require specific labeling.
Florida passes updated Right to Farm Law. Florida Governor, Ron DeSantis, signed into law Florida’s new and improved Right to Farm Act. The new law adds agritourism to the definition of “farm operations” so that agritourism is also protected under Florida’s Right to Farm Law. Additionally, Florida lawmakers have expanded the protection given to farmers under the new law by defining the term nuisance. Under Florida’s Right to Farm Law, nuisance is defined as “any interference with the reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibrations.” Florida’s definition of nuisance also includes all claims brought in negligence, trespass, personal injury, strict liability, or other tort, so long as the claim could meet the definition of nuisance. This protects farmers from individuals disguising their nuisance claim as a trespass claim. The importance of defining nuisance to include claims such as trespass can best be demonstrated by an ongoing federal lawsuit in North Carolina. In that case, Murphy-Brown, LLC and Smithfield Foods, Inc. are being sued for having ownership in a hog farm that caused odors, dust, feces, urine, and flies to “trespass” onto neighboring properties. North Carolina’s Right to Farm Law only protects farmers from nuisance claims, not trespass claims. Although Murphy-Brown and Smithfield argue that the neighbors are disguising their nuisance claim as a trespass claim, the federal judge is allowing the case to move forward. The judge found that farmers are protected from nuisance claims, not trespass claims and even if the trespass could also be considered a nuisance, the neighbors to the hog farm are entitled to seek compensation for the alleged trespass.
Energy is a hot topic at the statehouse these days. The Ohio General Assembly is reviewing several proposals dealing with energy sources, including solar and wind facilities, oil, gas, and gas pipelines. The proposals raise a critical question about where control over energy production activities should lie: with the state or with local communities? The proposals offer contrasting views on the answer to that question.
Solar and wind projects. We reported in March that companion bills H.B. 118 and S.B. 52 were on hold due to conflicts with the proposals, which would have allowed citizens to use the referendum process to reject proposed large scale wind and solar energy developments in their communities. On May 12, the bill sponsors offered a substitute bill to the House Public Utilities Committee. The new approach in the substitute bill would allow a township to adopt a resolution designating all or parts of the township as “energy development districts.” Doing so would allow wind and solar facilities to be constructed within the designated district(s) and would prevent the Ohio Power Siting Board from approving any projects that are not within a designated district. The residents in a township, however, would have the right to petition an energy development district designation and submit it to a vote by township residents. Sponsor Sen. Rob McColley (R-Napoleon) explained that the new approach would allow a township to let energy developers know “up front” that the community is “open for business.” The committee will hear responses to the substitute bill in additional hearings, not yet scheduled.
Fossil fuel and gas pipelines. A proposal regarding energy generation from fossil fuels and gas pipelines takes an opposite approach on local control. H.B. 192, sponsored by Rep. Al Cutrona (R-Canfield) would prohibit counties, townships, and municipal corporations from prohibiting or limited the use of fossil fuels for electricity generation and the construction or use of a pipeline to transport oil or gas. About a dozen opponents testified against the bill at its third hearing before the House Energy and Natural Resources last week, with most arguing that the proposal removes rights of local communities to control their energy sources and violates the home rule authority for municipalities provided in Ohio’s Constitution. The bill is not yet scheduled for an additional committee hearing.
Natural gas. A bill that guarantees access to natural gas passed the House of Representatives on May 6, largely along party lines. H.B. 201, sponsored by Rep. Jason Stephens (R-Kitts Hill), guarantees that every person has a right to obtain any available distribution service or competitive retail natural gas service from gas suppliers, and bars a political subdivision from enacting laws that would limit, prevent, or prohibit a consumer within its boundaries from using distribution services, retail natural gas service, or propane. Opponents argue that the bill violates home rule authority and is unnecessary, since no community in Ohio has ever banned the use of natural gas. The bill was referred to the Senate Energy and Public Utilities Committee on May 12.
We'll keep you posted on the progress of these bills as the Ohio General Assembly continues to deal with the question of local versus state control of energy production and distribution in Ohio.
Pesticide drift is a risk many farmers face. Pesticides in the wrong place can injure unintended targets such as crops, trees and other vegetation, animals, and people, and can raise questions of liability for the misapplication. What should you do if you suspect pesticide drift? Whether you’re on the sending or the receiving side of it, here’s a summary of what could happen after an incident of pesticide drift.
Documentation. Many pieces of information are necessary to analyzing whether and why pesticide drift occurred and can be helpful to determining liability. Documentation of an incident should include:
- Date, time, and location of the potential drift occurrence.
- Weather conditions at the time of the occurrence, including temperature, wind speed, and wind direction.
- Photographs of the site at the time of the possible drift.
- Date, time, and description of any damages that become noticeable after the pesticide application. Note that damage symptoms may not be visible for at least 7 days.
- Photographs of damages. A series of photographs taken over several weeks can help document damages as they develop, and a phone or time stamp will ascertain the date and time of each photograph.
- Identify of the applicator.
- Notes of conversations between neighbors, investigators, the applicator, and others.
Ohio Department of Agriculture (ODA) investigation. A person who believes drift occurred can file a pesticide complaint with the Pesticide Regulation Section of ODA, which has the authority to investigate an alleged pesticide drift situation and assess potential risks to human health, damages to crops and vegetation, and whether the applicator violated Ohio pesticide laws.
If someone files a pesticide complaint, ODA’s investigation could include reviewing maps of the properties, visiting the site, talking with the person who filed the complaint, taking photographs, and collecting samples. The agency might also seek a written statement from the complaining party and others aware of the occurrence. The inspector next meets with the pesticide applicator to gather information about the application, such as pesticide applied, pesticide labels, mixing and spraying practices, and weather conditions.
After reviewing a case, ODA submits an investigation report to the complaining party. If a violation occurred, the agency takes enforcement action against the applicator in the form of a warning, civil penalty, license restriction, or criminal prosecution. It could take months for ODA to complete the investigation and make an enforcement decision. Note that an ODA investigation and decision does not address compensation to any harmed parties—that must come through other mechanisms.
Settlement. It’s not uncommon for parties to agree between themselves on how to handle harm from a pesticide misapplication, especially if the damages are minor. Settlement might include a direct payment for estimated losses of crops or other goods, replacement of vegetation, or remediation of the damaged area. A well written settlement agreement can clarify the terms and prevent future liability issues from arising.
Insurance coverage. An insurance policy can provide compensation for pesticide drift damages, but it’s important to ascertain whose insurance applies to the situation and whether there is coverage for the particular incident. Many policies provide coverage for losses resulting from negligence or unintentional behaviors, such as drift resulting from an unexpected gust or an equipment malfunction. Liability insurance held by the landowner, a tenant operator, or a custom applicator could cover the damages resulting from negligence.
Some insurance policies will not cover certain intentional actions that could cause pesticide drift. Failing to follow the label or applicable laws and regulations could lead to a loss of coverage, for example. Additionally, a policy might contain a “pollution exclusion” that would deem pesticides and herbicides as “pollution” that is not covered by the policy. Note that federal crop insurance policies typically are not applicable, as they do not cover crop losses resulting from pesticide drift.
Civil litigation. Sometimes a pesticide drift situation can end in civil litigation between the applicator and those who claim harm from the application. The most common legal claims for pesticide drift in Ohio are a negligence cause of action claiming that the applicator failed to use the required standard of care when applying the pesticides and a “negligence per se” action claiming that the applicator’s violation of pesticide laws caused the harm. The harmed party might sue everyone involved with the land where the application took place, including a landowner, tenant operator, and custom applicator, leaving the parties to fight among themselves about who is liable. Claimed damages might include compensation for lost crops, costs of restoration, differences in property value before and after the harm, and expenses for medical treatment. If insurance hasn’t already been considered, it could arise in the litigation setting.
Pesticide drift is a risk that we hope won’t become a reality. Many management strategies can reduce that risk--education, following label instructions, selecting the right nozzle for the job, calibrating spray equipment, spraying in appropriate weather conditions, adapting buffers for sensitive crops and animals on nearby properties, and more. If the risk does become reality, both the applicator and the harmed party should be aware and prepared for what might happen next.