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Regulatory Law Annotations (Agricultural Law and Tax)

This page contains summaries of significant recent court opinions involving federal and state regulation of agricultural businesses and land use activities.

Posted April 18, 2023

U.S. Fish & Wildlife Service Can Regulate Ag Practices on Leased Land. The plaintiffs sued the defendant, U.S. Fish and Wildlife Service, claiming the defendant violated environmental laws by regulating leased farmland in the Tule Lake and Klamath Refuge. The trial court granted summary judgment in favor of the defendant. The plaintiff appealed. The appellate court noted that the Kuchel Act and the Refuge Act allow the defendant to determine the proper land management practices to protect the waterfowl management of the area. Under the Refuge Act, the defendant was required to issue an Environmental Impact Statement (EIS) and Comprehensive Conservation Plan (CCP). The defendant did issue an EIS and CCP for the Tule Lake and Klamath Refuge area, which included modifications to the agricultural use on the leased land within the region. The EIS/CCP required the leased lands to be flooded post-harvest, restricted some harvesting methods, and prohibited post-harvest field work, which the plaintiffs claimed violated their right to use the leased land. The plaintiffs argued that the language, “consistent with proper waterfowl management,” within the Kuchel Act was “nonrestrictive” and was not essential to the meaning of the Act. The appellate court held it was improper to read just that portion of the Act without considering the rest of the Act to understand the intent. The appellate court found the Kuchel Act was unambiguous and required the defendant to regulate the leased land to ensure proper waterfowl management. The Refuge Act allows the defendant to regulate the uses of the leased land, but the plaintiffs argued the agricultural practices were a “purpose” rather than a “use” so the defendant could not regulate it under the Refuge Act. The appellate court found the agriculture on the leased land was not a “purpose” equal to waterfowl management. The appellate court also held the language of the act was unambiguous and determined that agricultural activities on the land was to be considered a use that the defendant could regulate. The appellate court affirmed the trial court’s award of summary judgment for the defendant. Tulelake Irrigation Dist. v. United States Fish & Wildlife Serv., 40 F.4th 930 (9th Cir. 2022).

Posted April 18,2023

USDA Wetland Certification Upheld. The plaintiff owned farmland with a .8-acre portion that USDA certified as a “wetland” in 2011 under the Swampbuster provisions of 16 U.S.C. §§3801, 3821-3824. The plaintiff sought a review of the certification under 16 U.S.C. §3822(a)(4) which provides for review of a final certification upon request by the person affected by the certification. The USDA denied review citing its own regulation of 7 C.F.R. § 12.30(c)(6) which required the plaintiff to show how a natural event changed the topography or hydrology of the wetland that caused the certification to no longer be a reliable indicator of site conditions. The plaintiff claimed 16 U.S.C. § 3822(a)(4) provided no restriction on the ability to get a review and, as a result, 7 C.F.R. § 12.30(c)(6) violated the due process clause by restricting reviews and was arbitrary and capricious under the Administrative Procedure Act. The trial court held that 7 C.F.R. § 12.30(c)(6) merely restricted when an agency must review a final certification. The trial court also determined that 7 C.F.R. §12.30(c)(6) did not violate the due process clause as the plaintiff did not show any independent source of authority providing him with a right to certification review on request. The USDA’s denials of review were found not to be arbitrary or capricious and that the plaintiff failed to provide any evidence that the natural conditions of the site had changed, which would require a review of the certification. The plaintiff also claimed that the Swampbuster provisions were unconstitutional under the Commerce Clause and the Tenth Amendment. The trial court rejected the plaintiff’s claims and determined that the statute of limitations on challenging the certification had run. The trial court also held that the USDA was entitled to summary judgment on the plaintiff’s claim that Swampbuster was unconstitutional, holding that the provisions were within the power of the Congress under the spending clause of Article I, Section 8 of the Constitution. The trial court also ruled that Swampbuster did not infringe upon state sovereignty by requiring states to implement a federal program, statute or regulation. The trial court further rejected the plaintiff’s claim that a part of Swampbuster violated the Congressional Review Act, finding that the provision at issue was precluded from judicial review. The court dismissed all the plaintiff’s claims against the USDA and denied the ability for the area to be reviewed again. Foster v. United States Department of Agriculture, No. 4:21-CV-04081-RAL, 2022 U.S. Dist. LEXIS 117676 (D. S.D. July 1, 2022).

Posted April 18, 2023

State Engineer may depart from the doctrine of prior appropriation when designating an over-appropriated basin a critical management area. Senior water rights holders in Nevada’s Diamond Valley Basin, a groundwater-dependent farming region, filed a petition seeking the approval of a Groundwater Management Plan (GMP) so that they could petition the State Engineer to invalidate the State Engineer’s Critical Management Area (CMA) designation for the Basin. The Basin is over-appropriated and over-pumped such that groundwater is withdrawn from the Basin in an amount exceeding the replenishment rate. The GMP petition was approved and the GMP was submitted to the State Engineer for approval. Ultimately, the State Engineer approved the GMP even though it deviated from the state water law doctrine of prior appropriation. The question before the Nevada Supreme Court centered on whether Nev. Rev. Stat. §§534.037 and 534.110(7) allowed the State Engineer to approve a GMP that deviates from the doctrine of prior appropriation. The Court held that the legislature unambiguously gave the State Engineer discretion to approve a GMP that departs from the doctrine of prior appropriation and other statutes in Nevada's statutory water scheme where the State Engineer's factual findings are supported by substantial evidence. The Court recognized that its holding will significantly affect water management in Nevada but made clear that its decision took into consideration the arid nature of Nevada and the importance of effectuating the plain meaning of a statute that encourages the sustainable use of water. The Court determined that the GMP is a community-based solution to the long-term water shortages of Diamond Valley. Diamond Natural Resource Protection & Conservation Association v. Diamond Valley Ranch, LLC, 511 P.3d 1003 (Nev. 2022).

Posted April 18, 2023

State Law Allowing Warrantless Searches Unconstitutional. The plaintiffs owned farmland on which they hunted or fished. They marked fenced portions of their respective tracts where they hunted and posted the tracts as “No Trespassing.” Tennessee Wildlife Resources Agency (TWRA) officers entered onto both tracts on several occasions and took photos of the plaintiffs and their guests without permission or a warrant. Tennessee law (Tenn. Code Ann. §70-1-305(1) and (7)) allows TWRA officers to enter onto private property, except buildings, without a warrant “to perform executive duties.” The TWRA officers installed U.S. Fish & Wildlife Service surveillance cameras on the plaintiffs’ property without first obtaining a warrant to gather information regarding potential violations of state hunting laws. The plaintiffs challenged the constitutionality of the Tennessee law and sought injunctive and declaratory relief as well as nominal damages. The defendants moved for summary judgment arguing that the plaintiffs lacked standing and that there was no controversy to be adjudicated. The trial court found the Tennessee law to be facially unconstitutional. The trial court noted that the statute at issue reached to “any property, outside of buildings” which unconstitutionally allowed for warrantless searches of a home’s curtilage. The trial court also determined that the officers’ information gathering intrusions were unconstitutional searches rather than reasonable regulations and restrictions, and that the statute was comparable to a constitutionally prohibited general warrant. It was unreasonable for the TWRA officers to enter onto occupied, fenced, private property without first obtaining consent or a search warrant. The trial court also held the plaintiffs had standing to sue because they experienced multiple unauthorized entries onto their private property, and that declaratory relief was an adequate remedy. The trial court awarded nominal damages of one dollar. The defendant has appealed. Rainwaters, et al. v. Tennessee Wildlife Resources Agency, No. 20-CV-6 (Benton Co. Ten. Dist. Ct. Mar. 22, 2022).

Posted February 6, 2022

Court Says Animal Chiropractic is Veterinary Medicine. The plaintiff is a licensed chiropractor that holds herself out to the public as an “animal chiropractor.” She treats animals in her practice. She is not a veterinarian and does not hold herself out as a veterinarian. She is certified in veterinary chiropractic by the International Veterinary Chiropractic Association. She receives medical records or x-rays when necessary from a treating veterinarian and reviews them to find infusions of the spine, breaks or fracturs of the spine, misalignments of the spine or any disk space between the vertebrae. She then makes a treatment and care plan for the animal with or without the veterinarian’s input. She also practices on animals of veterinarians, and requires animal owners to complete a consultation form granting authorization for her to provide chiropractic care to the animal’s owner. All animals in her care must have a veterinarian before she will work with the animals. The defendant filed an order to show cause alleging that the plaintiff was subject to disciplinary action under state law because the services she performed in her practice constituted the unlicensed practice of veterinary medicine. The plaintiff sought a hearing on the matter and the hearing examiner issued a proposed adjudication and order concluding that the plaintiff was engaged in the unlicensed practice of veterinary medicine. The State Board of Veterinary Medicine issued a final adjudication finding the plaintiff, and the plaintiff appealed. The court rejected the plaintiff’s claim that animal chiropractic was unregulated not subject to the Board’s authority. The court held that even though animal chiropractic was not specifically regulated under the Veterinary Medicine Practice Act, it was regulated by the Board. McElwee v. Bureau of Professional and Occupational Affairs, No. 1274 C.D. 2020, 2022 Pa. Commw. LEXIS 9 (Pa. Commw. Ct. Jan. 18, 2022).

Posted December 28, 2021

FDA Proposes Tightening of Water Quality Testing. On December 6, 2021, the Food and Drug Administration (FDA) published proposed amendments to the agricultural water regulations contained in the Produce Safety Rule (PSR). The PSR is a rule that is part of the implementation of the Food Safety Modernization Act (FSMA), enacted in 2011 as an amendment to the Federal Food, Drug, and Cosmetic Act (FFDCA). The FSMA amended the FFDCA to require the FDA to establish minimum standards for the production and harvesting of certain fruits and vegetables that are raw ag commodities for which the Secretary determines that the minimum standards will minimize the risk of serious adverse health consequences or death. Accordingly, the FDA published a the proposed PSR in 2015 to apply to “covered produce” that are regularly consumed raw. Farmers of covered produce must ensure that there is no detectable E. coli in 100 milliliters of water used to irrigate the covered produce. “Very small producers” (those selling less than $250,000 of covered produce annually over the last three years) were to be in compliance by January 26, 2022. “Small producers (those selling annually between $250,000 and $500,000 of covered produce) had to comply by January 26, 2021. All other producers had to be in compliance by January 25, 2020. Based on producer feedback, the FDA issued a proposed rule in 2017 extending the compliance dates to January 26, 2024; January 26, 2023, and January 26, 2022 respectively. The December 6, 2021, proposed rule would amend the ag water requirements for farmers growing covered produce other than sprouts, and would require growers to annually prepare a pre-harvest written ag water assessment and notification anytime a significant change occurs to the grower’s ag water system that introduces a contamination risk. A grower must identify conditions that are reasonably likely to introduce known or reasonably foreseeable hazards into or onto covered produce. The proposal specifies five factors for consideration when composing an ag water assessment – 1) whether the water is ground water or surface water and whether the water is in an open or closed system; 2) the type of irrigation system used; 3) the characteristics of the crop(s) at issue; 4) environmental conditions (e.g., heavy rain or extreme weather events); and 5) the results of any testing the farmer conducted. Three exemptions from conducting an ag water assessment are provided – 1) if requirements are met for water used on sprouts and in harvesting, packing and holding; 2) if the only water used is from a public water system or public water supply; and 3) if the water used on covered produce is treated according to requirements contained in the proposed rule. The FDA also stated that it anticipates publishing another proposed rule extending the compliance dates. The comment period on the proposed rule runs until April 5, 2022. FDA Notice of Proposed Rulemaking, 86 FR 69120 (Dec. 6, 2021).

Posted December 2, 2021

Rerouting of Irrigation Ditches Not a Taking. The plaintiff, a ministry, owned a forty-acre parcel of land, which included a church camp, located within the boundaries of a national refuge. The refuge is home to many native plants and animals, including certain endemic species of fish the United States Fish and Wildlife Service (USFWS) committed to protecting beginning in 1995. The USFWS’s protection plan included filling in irrigation ditches to return spring waters back to their historic paths. As a result of this plan, the ministry’s church camp was washed away in a series of floods caused by heavy rainfall. Camp buildings, access ways, and other improvements were swept away. The ministry alleged that construction of the spring water restoration channel caused the destructive flooding and constituted a total physical taking of its property, for which it was entitled to just compensation. Repairs were estimated at a cost of over $200.000. While it is well-established that government-induced flooding of property can constitute a compensable taking for purposes of the Fifth Amendment, the court found that the ministry did not meet its burden of proving that the government’s construction of the restoration channel caused the flooding that occurred. The refuge has a long history of flooding, which was demonstrated by historical satellite images and expert testimony. Additionally, the Federal Emergency Management Agency (FEMA) had designated the ministry’s property as a high-risk flood zone, and informed it of floodplain ordinances requiring that buildings in flood zones be elevated or flood-proofed and anchored. Upon receiving this information, the ministry took no actions to bring itself into compliance with the ordinances. Consequently, the weight of the evidence showed that the flooding of the church camp would have occurred regardless of whether the restoration channel was built. Ministerio Roca Solida, Inc. v. United States, No. 16-826L, 2021 U.S. Claims LEXIS 2277 (Fed. Cl. Oct. 25, 2021).

Posted October 31, 2021

Court Gives Final Approval to Settlement in Field Worker Labor Dispute. The plaintiffs are field workers employed by the defendant’s facility. The defendant is a farm-labor contractor that employed the plaintiffs on a piece-rate and hourly basis. The plaintiff class claimed that the defendant did not pay them and other class members for time spent on “pre-shift exercises” and distribution of items and tools needed for their work, and that the defendant did not accurately record the plaintiffs’ field arrival times and work performed before their scheduled shifts. The plaintiffs also claimed that the defendant did not compensate them for any late, short or missed meal periods or breaks. The court initially certified a class action on a conditional basis and the parties later agreed to a non-reversionary settlement including a release of claims in return for injunctive relief and the defendant’s payment of $1,850,000 to be paid into a common fund. The court, in this action, gave final approval of the settlement and the motion for attorney’s fees, costs and incentive rewards. Miguel-Sanchez, et al. v. Mesa Packing, LLC, No. 20-CV-00823-VKD, 2021 U.S. Dist. LEXIS (N.D. Cal. Oct. 20, 2021).

Claims Challenging Product Labeling Not Preempted. On its website, the defendant stated that its chicken products were, “…made with 100% natural, white meat chicken and without preservatives, artificial flavors, or artificial colors.” Part of that statement was identical to the actual product labels – “Made with 100% Natural White Meat Chicken.” But, the other part of the statement was materially different from the label representations. The plaintiff brought a consumer class action claiming that the defendant falsely advertised its frozen chicken products as natural and preservative-free, when in fact they contained synthetic ingredients. The trial court determined that the USDA’s FSIS had approved the poultry labels, and thus plaintiff’s claims challenging the label and the defendant’s website advertising were preempted by the Poultry Products Inspection Act (PPIA). The trial court dismissed all of the plaintiff’s claims. The plaintiff claimed that there was insufficient evidence in the record to support the trial court’s finding that the defendant’s labels were reviewed and approved by the FSIS. The appellate court reversed, holding that the mere existence of the label was insufficient to establish that it was approved by FSIS. On remand, the parties are to submit evidence about only whether the defendant’s label was reviewed and approved by the FSIS. If it was, then the plaintiff’s claims are preempted. Cohen v. ConAgra Brands, Inc., No. 20-55969, 2021 U.S. App. LEXIS 32079 (9th Cir. Oct. 26, 2021), rev’g., and rem’g., 2021 U.S. Dist. LEXIS 174035 (C.D. Cal. Aug. 20, 2020).

Posted October 11, 2021

Meat-Packing Plant Employees Foreclosed From Bringing COVID-19 Suit Against Employer. The plaintiffs were employees of the defendant meat-packing facility. The plaintiffs sued the defendant under actions for negligence and gross negligence by alleging that that the defendant failed to take adequate safety measures, such as not providing personal protective equipment and not implementing social-distancing guidelines, which caused them to contract COVID-19. The plaintiffs argued that the defendant failed to satisfy a duty of care to keep its premises in a reasonably safe condition, and that it failed to exercise ordinary care to reduce or eliminate the risk of employees being exposed to COVID-19. The defendant filed a motion to dismiss for a failure to state a claim upon which relief can be granted. The defendant argued that the Poultry Products Inspection Act (PPIA) as promulgated by the Food Safety and Inspection Service (FSIS) of the Department of Agriculture contained an express-preemption clause that foreclosed the plaintiffs’ claims. Additionally, the defendant argued that the recently passed Pandemic Liability Protection Act (PLPA) provided the defendant retroactive protection against damages lawsuits that alleged exposure to COVID-19. The trial court agreed and noted that the PPIA’s express-preemption clause overrode state requirements that are different than the regulations. The trial court noted that although the plaintiffs argued that the defendant failed to impose adequate safety measures to reduce the spread of COVID-19 in its facility, the FSIS promulgated a number of regulations under the PPIA that directly addressed the spread of disease. The trial court held that the duty of care alleged by the plaintiffs’ negligence claim would require the defendant to utilize additional equipment, therefore the plaintiffs’ claims were preempted by federal law. The trial court next addressed the PLPA, which generally shields corporations from liability if an individual suffers injury or death as a result of exposure to COVID-19. The trial court noted that the plaintiffs needed to allege that the defendant either knowingly failed to warn them or remedy some condition at the facility that the defendant knew would expose the plaintiffs to COVID- 19, or that the defendant knowingly contravened government-promulgated COVID-19 guidance. Further, the plaintiffs must allege reliable scientific evidence that shows that the defendant’s conduct was the cause-in-fact of the plaintiffs’ contracting COVID-19. The trial court noted that the plaintiffs failed to provide any reliable scientific evidence that showed that the defendant was the cause-in-fact of the plaintiffs’ contracting COVID-19. Because the plaintiffs merely made conclusory statements that they contracted COVID-19 due to unsafe working conditions, without alleging how or when they contracted COVID-19, the trial court held the plaintiffs’ complaint failed to satisfy the PLPA. Upon granting the defendant’s motion to dismiss, the trial court noted that even if the plaintiffs amended their complaint to satisfy the causation prong, the PPIA preemption clause would still foreclose all of the plaintiffs’ claims. Fields v. Tyson Foods, Inc., No. 6:20-cv-00475, 2021 U.S. Dist. LEXIS 181083 (E.D. Tex. Sept. 22, 2021).

Posted October 10, 2021

Lawsuit Challenging Changes to Beef Checkoff Continues. The plaintiff, a cattle grower’s association, sued the United States Department of Agriculture (USDA) claiming that the USDA made substantive changes to the Beef Checkoff Program in violation of the Administrative Procedure Act (APA) by entering into memorandums of understanding (MOUs) with various state beef councils. The plaintiff asserted that such amendments should have been subject to public notice-and-comment rulemaking. The MOUs gave the USDA more oversight authority over how the state beef councils could use the funds received from the checkoff. In other litigation, the USDA has been claiming oversight authority (even though not exercised) over state beef councils to argue that the beef checkoff is government speech rather than private speech in order to defeat First Amendment claims. In the present litigation, the USDA motioned to dismiss the case for lack of standing. The court denied the USDA’s motion on the basis that the plaintiff, on the face of its claim, had established sufficient elements of associational standing – that at least one of the plaintiff’s members had suffered a diminished return on investment as a result of the MOUs. The court did not address the factual question of the plaintiff’s standing. In addition, the court postponed addressing the USDA’s defense of claim preclusion until additional evidence was submitted and the issue of jurisdiction was finally resolved. Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America v. United States Department of Agriculture, et al., NO. 20-2552 (RDM), 2021 U.S. DIST. LEXIS 187182 (D. D.C. Sept. 29, 2021).

Posted August 30, 2021

Court Strikes Kansas Animal Facility Protection Law. Kansas law makes it a crime to take pictures or record videos at a covered facility “without the effective consent of the owner and with the intent to damage the enterprise.” The plaintiffs claimed that the law violated their First Amendment free speech rights. The State claimed that what was being barred was conduct rather than speech and that, therefore, the First Amendment didn’t apply. But, the court tied conduct together with speech to find a constitutional violation – it was necessary to lie to gain access to a covered facility and consent to film activities. As such, the law regulated protected speech (lying with intent to cause harm to a business) and was unconstitutional. The court determined that the State failed to prove that the law narrowly tailored to a compelling state interest in suppressing the “speech” involved. The dissent pointed out (consistent with the Eighth Circuit) that “lies uttered to obtain consent to enter the premises of an agricultural facility are not protected speech.” The First Amendment does not protect a fraudulently obtained consent to enter someone else’s property. Animal Legal Defense Fund, et al. v. Kelly, No. 20-3082, 2021 U.S. App. LEXIS 24817 (10th Cir. Aug. 19, 2021).

Iowa Animal Production Facility Protection Legislation Partially Upheld. Iowa law attempts to provide a level of protection to livestock facilities by barring access to an animal production facility under false pretenses. At its core, the law attempts to prohibit a person having the intent to harm a livestock production facility from gaining access to the facility (such as via employment) to then commit illegal acts on the premises. See, e.g., Iowa Code §717A.3A. Here, the court of construed the Iowa law and upheld the portion of it providing for criminal penalties for gaining access to a covered facility by false pretenses. Conversely, the court held that the employment provision of the law (knowingly making a false statement to obtain employment) violated the First Amendment because the law was not limited to false claims that were made to gain an offer of employment. Instead, the provision provided for prosecution of persons who made false statements that were incapable of influencing an offer of employment. A prohibition on immaterial falsehoods was not necessary to protect the State’s interest – such as false exaggerations made to impress the job interviewer. The court determined that barring only false statements that were material to a hiring decision was a less restrictive means to achieve the State’s interest. Animal Legal Defense Fund v. Reynolds, No. 19-1364, 2021 U.S. App. LEXIS 23643 (8th Cir. Aug. 10, 2021).

California Proposition 12 Upheld. Proposition 12 was approved by California voters in 2018 and is set to take effect on January 1, 2022. Proposition 12 bans the sale of whole pork meat (no matter where produced) from animals confined in a manner inconsistent with California’s regulatory standards. It also establishes minimum requirements on farmers to provide more space for egg-laying hens, breeding pigs, and calves raised for veal. Specifically, the law requires that covered animals be housed in confinement systems that comply with specific standards for freedom of movement, cage-free design and minimum floor space. The law identifies covered animals to include veal calves, breeding pigs and egg-laying hens. The implementing regulations prohibit a farm owner or operator from knowingly causing any covered animal to be confined in a cruel manner, as specified, and prohibits a business owner or operator from knowingly engaging in the sale within the state of shell eggs, liquid eggs, whole pork meat or whole veal meat, as defined, from animals housed in a “cruel manner.” In addition to general requirements that prohibit animals from being confined in a manner that prevents lying down, standing up, fully extending limbs or turning around freely, the measure added detailed confinement space standards for farms subject to the law. The alleged reason for the law was to protect the health and safety of California consumers and decrease the risk of foodborne illness and the negative fiscal impact on California. In late 2019, several national farm organizations challenged Proposition 12 and sought a declaratory judgment that the law was unconstitutional under the dormant Commerce Clause. The plaintiffs also sought a permanent injunction preventing Proposition 12 from taking effect. The plaintiffs claimed that Proposition 12 impermissibly regulated out-of-state conduct by compelling non-California producers to change their operations to meet California’s standards. The plaintiffs also alleged that Proposition 12 imposed excessive burdens on interstate commerce without advancing any legitimate local interest by significantly increasing operation costs without any connection to human health or foodborne illness. The trial court dismissed the plaintiffs’ complaint. On appeal, the plaintiffs focused their argument on the allegation that Proposition 12 has an impermissible extraterritorial effect of regulating prices in other states and, as such, is per se unconstitutional. This was a tactical mistake for the plaintiffs. The appellate court noted that existing Supreme Court precedent on the extraterritorial principle applied only to state laws that are “price control or price affirmation statutes.” Thus, the extraterritorial principle does not apply to a state law that does not dictate the price of a product and does not tie the price of its in-state products to out-of-state prices. Because Proposition 12 was neither a price control nor a price-affirmation statute (it didn’t dictate the price of pork products or tie the price of pork products sold in California to out-of-state prices) the law didn’t have the extraterritorial effect of regulating prices in other states. The appellate court likewise rejected the plaintiffs’ claim that Proposition 12 has an impermissible indirect “practical effect” on how pork is produced and sold outside California. Upstream effects (e.g., higher production costs in other states) the appellate court concluded, do not violate the dormant Commerce Clause. The appellate court pointed out that a state law is not impermissibly extraterritorial unless it regulates conduct that is wholly out of state. Because Proposition 12 applied to California and non-California pork production the higher cost of production was not an impermissible effect on interstate commerce. The appellate court also concluded that inconsistent regulation from state-to-state was permissible because the plaintiffs had failed to show a compelling need for national uniformity in regulation at the state level. In addition, the appellate court noted that the plaintiffs had not alleged that Proposition 12 had a discriminatory effect on interstate commerce. National Pork Producers Council, et al. v. Ross, No. 20-55631, 2021 U.S. App. LEXIS 22337 (9th Cir. Jul. 28, 2021).

Posted August 29, 2021

Beef Checkoff Constitutional. The plaintiff represents cattlemen that are subject to the $1 per head of cattle sold in the United States federal beef checkoff created under the Beef Promotion and Research Act of 1985. The checkoff funds promotions to “maintain and expand domestic and foreign markets and uses for beef and beef products.” The USDA Secretary, the defendant in the case, oversees the checkoff through the Cattlemen’s Beef Promotion and Research Board that consists of members the Secretary appoints. A qualified state beef council typically collect the checkoff, retains half of the amount collected to fund state marketing efforts and forwards the balance to the federal program. A cattle producer may opt out of funding their state beef council and direct the entire assessment to the federal program. The plaintiff’s members object to their states’ advertising campaigns, and claim in particular that the distribution of funds to the Montana Beef Council under the federal program is an unconstitutional compelled subsidy of private speech. Later, the plaintiff amended its complaint to include numerous other states where it had members. The trial court entered a preliminary injunction preventing the use of checkoff funds for promotional campaigns absent the producers' consent. On the merits, the trial court determined that by virtue of a memorandum of understanding that the Montana Beef Council and the other state beef councils had entered into with the defendant, the defendant had sufficient control over the promotional program to make the speech of the various state beef councils effectively government speech. On appeal, the appellate court affirmed. The appellate court noted that the critical question in determining whether speech is public or private is whether the speech is “effectively controlled” by the government. The appellate court determined that the challenged speech was. Under the memorandums of understanding, the state beef councils had to submit for the defendant’s pre-approval “any and all promotion advertising, research, and consumer information plans and projects" and "any and all potential contracts or agreements to be entered into by state beef councils for the implementation and conduct of plans or projects funded by checkoff funds." The state beef councils also had to submit "an annual budget outlining and explaining . . . anticipated expenses and disbursements" and a "general description of the proposed promotion, research, consumer information, and industry information programs contemplated.” Failure to comply could lead to the defendant’s de-certification of a state beef council. The appellate court noted that this established "final approval authority over every word used in every promotional campaign,” and constituted government speech. In addition, all private contracted third parties that were not subject to pre-approval were “effectively controlled” by the government. The appellate court noted that the Congress expressly contemplated the participation of third parties in the beef checkoff program, designating several "established national nonprofit industry-governed organizations" with whom the Operating Committee could contract to "implement programs of promotion." In addition, the appellate also pointed out that the state beef councils had to give the defendant notice of all board meetings, and allow the defendant or his designees to participate in any discussions about payment to third parties. It was this ability to control speech that was the key rather than whether the defendant exercised final pre-approval authority over some third-party speech. Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack, No. 20-35453, 2021 U.S. App. LEXIS 22189 (9th Cir. Jul. 27, 2021).

Posted July 11, 2021

EPA Exceeded Authority Concerning E-15. In 2018, the President direct the Environmental Protection Agency (EPA) to consider expansion of the Reid Vapor Pressure (RVP) waivers for fuel blends containing gasoline and up to 15 percent ethanol (E-15) so that E-15 could be sold at retail year-round. The EPA issued a final rule in mid-2019 following notice and comment revising its regulations on fuel volatility and the renewable identification number (RIN) market. The EPA changed its interpretation of when the limits on fuel volatility under the CAA could be waived under 42 U.S.C. §7545(h)(4) so that the E-15 could be sold year-round, including the summer months despite the ozone-enhancing effect of the greater percentage of ethanol in fuel. The EPA also reinterpreted “substantially similar” in 42 U.S.C. §7545(f)(1)(A). Both the petroleum and ethanol industries and the Small Retailers Coalition challenged EPA’s decision to grant a fuel volatility waiver to E-15. The court vacated that the EPA reinterpretations exceeded the EPA’s authority under 42 U.S.C. §7545, and vacated that portion of the E-15 rule. The court noted that the EPA’s interpretation allowing all fuels containing “at least” 10 percent ethanol could be eligible for the waiver. The court also noted that the EPA determined that E-15 was “substantially similar to E-10. The court determined that the statute was plain on its face that “fuel blends containing gasoline and 10 percent…ethanol” refers to E-10 and E-10 only. As such, the EPA had no authority to alter the volatility limits for E-15. The court, because of the clarity of the statute, refused to look to legislative history. American Fuel & Petrochemical Manufacturers v. Environmental Protection Agency, No. 19-1124, 2021 U.S. App. LEXIS 19759 (D.C. Cir. Jul. 2, 2021).

Posted June 27, 2021

Lapsed Small Refiner Exemption Can Be Extended. Under the Renewable Fuels Program (RFP) of 2005 most domestic refineries are required to blend “renewable” fuels into the transportation fuels that they produce. 42 U.S.C. §7545(o)(1)(J); (o)(1)(L) and (o)(2)(A)(i). But, the economic impact of the mandate was lessened on small refiners by a blanket exemption from the mandate until 2011. The RFP also directs the Environmental Protection Agency (EPA) to extend the exemption for at least two years if the mandate would impose a disproportionate economic hardship on a small refiner. The RFP also specified that a small refiner could, at any time, petition for an extension of the exemption for disproportionate hardship. The plaintiffs, small refiners, initially received an exemption, saw it lapse because the mandate wasn’t imposing a disproportionate economic hardship, and then sought a renewed exemption due to the mandate reimposing a disproportionate economic hardship. The EPA granted the exemptions and a group of “renewable” fuel producers objected. A federal appeals court vacated EPA’s grant of exemptions on the basis that the prior exemptions for the small refiners had lapsed. The U.S. Supreme Court granted review even though there was no split among the circuit courts of appeal on the issue and reversed. The Supreme Court noted that the RFP does not define the term “extension.” However, the Court noted that the plain meaning of “extension” did not require an unbroken continuity. There could be a resumption following an interruption. To bolster its reasoning, the Court also cited federal rules of civil procedure that permit litigants to seek and “extension” of time after a lapse, and recently enacted federal laws that provide for an “extension” of benefits that previously expired months or years earlier. The Court also pointed out that there was no “consecutive” or “successive” language in the RPA provision and that the context of the extension of the exemption can last indefinitely based on the “at any time” language of the RPA. The Court also noted that a small refiner’s compliance with the mandate in any particular year has no bearing on its ability to comply in any future year. Compliance, the Court noted, depends on numerous unique factors that change annually as well as circumstances that a small refiner cannot control. Indeed, most small refiners, the Court pointed out, cannot comply with the mandate without purchasing credits from refiners that can. Each year more credits are required and the price for them is historically volatile. This, the Court reasoned, supported the notion that Congress intended for small refineries to receive an exemption for economic hardship based on fluctuating economic conditions rather than be forced to exit the market which would make the U.S. more dependent on foreign oil. HollyFrontier Cheyenne Refining, LLC, et al. v. Renewable Fuels Association, et al., No. 20-472, 2021 U.S. LEXIS 3399 (Jun. 25, 2021), rev’g., sub nom. Renewable Fuels Association v. United States Environmental Protection Agency, 948 F.3d 1206 (10th Cir. 2020).

Posted June 20, 2021

Court Overturns Ban on New Oil and Gas Leasing and Drilling Permits. On January 27, 2021, the President signed Executive Order 14008 stopping new oil and natural gas leases on public lands or in offshore waters. Attorneys General from 13 states sued for a preliminary injunction claiming that the Executive Order violated the Constitution, the Administrative Procedure Act (APA), the Outer Continental Shelf Lands Act (OCSLA), and the Mineral Leasing Act (MLA). The court concluded that the plaintiffs had standing, and that the stoppage constituted final agency actions that are subject to the notice and comment requirements of the APA as applied to both on-shore and off-shore leases. The court granted a preliminary injunction stopping the ban on new oil and natural gas leases, concluding that the plaintiffs had a strong likelihood of prevailing on the merits of their claims that the stoppage violated both the OCSLA and the MLA; that the President’s action was arbitrary and capricious with no rational explanation given for canceling the leases; that the notice and comment requirements of the APA applied; that the plaintiffs had suffered irreparable economic harm; and that the public’s interest would be served if the defendant followed the applicable laws for terminating leases. The court issued a nationwide injunction overturning the ban on all new oil and natural gas leases on public lands both on-shore and off-shore. The injunction is to remain in effect until the litigation in the matter concludes. Louisiana, et al. v. Biden, Jr., et al., No. 2:21-CV-00778, 2021 U.S. Dist. LEXIS 112316 (W.D. La. Jun. 15, 2021).

Posted April 11, 2021

Missouri Food Labeling Law Upheld. Missouri law (Mo. Rev. Stat. §265.494(7)) makes it a criminal offense to misrepresent a product as meat that is not derived from the harvested production of livestock or poultry. A violation of the law could result in up to a year in prison plus up to a $1,000 fine. The law is directed at businesses that sell “alternative” protein sources such as those that are plant-based or cell-cultured and market such products as a meat-based product. The plaintiff, a maker of a vegetarian turkey substitute, challenged the law as an unconstitutional violation of free speech, due process and the Dormant Commerce Clause. The plaintiff sought a preliminary injunction preventing the state from enforcing the law. The state submitted evidence showing how the plaintiff could comply with the law, noting that a label clearly stating that the product was “plant-based,” “veggie,” “lab grown,” or something similar. The trial court denied the plaintiff’s request for an injunction on the basis that the law only barred a company from misleading consumers into believing that a product is meat from livestock when it is not. The trial court also determined that the plaintiff had failed to prove an irreparable injury by risk of prosecution because its packaging already contained the necessary disclaimers. On further review, the appellate court affirmed. The appellate court noted that the plaintiff admitted that its products were labeled in such a way to clearly indicate that the products did not contain meat from slaughtered animals and denoted that they were plant-based, vegan or vegetarian. The appellate court noted that, on remand at the trial court, facts could be discovered that could possibly lead to a different result on appeal. Turtle Islands Foods, SPC v. Thompson, No. 19-3154, 2021 U.S. App. LEXIS 9037 (8th Cir. Mar. 29, 2021).

USDA Rule Eliminating Line Speeds Vacated. USDA inspectors, under the Federal Meat Inspection Act (FMIA), monitor port slaughter plants to ensure the safety and wholesomeness of pork products that are sold to the public. To ensure that post-mortem inspections are adequate, the Food Safety Inspection Service (FSIS) regulates the speed of evisceration lines. 9 C.F.R. §310.1(b)(3). In late 2019 the FSIS adopted as a final rule the New Swine Inspection System ("NSIS"), an optional program that implemented several reforms, including the elimination of evisceration line speed limits at pork processing plants. A labor union sued, claiming that the final rule was not properly promulgated under the Administrative Procedure Act (APA). When FSIS proposed the NSIS, it expressly identified worker safety as an important consideration and requested public comment on whether increasing line speeds would harm workers. The FSIS received many comments raising worker safety concerns before finalizing the optional rule. The court vacated the portion of the final rule pertaining to line speed limits concluding that the rule didn’t contain any discussion, analysis or evaluation of the submitted worker safety comments. The court reasoned that such failure violated the APA because worker safety was a key aspect of the rule. Thus, this part of the rule was remanded to the FSIS for review. The balance of the rule was not vacated and remains in effect. The court also stayed its order and entry of judgment for 90 days to give the FSIS time to address the issue. United Food & Commercial Workers Union, Local No. 663 v. United States Department of Agriculture, No. 19-cv-2660, 2021 U.S. Dist. LEXIS 62656 (D. Minn. Mar. 31, 2021).

Posted February 17, 2021

Zoning Ordinance Allows for CAFO. The petitioners owned property located in an area that was zoned as “agricultural.” The petitioners sought and eventually obtained a permit from the county building commissioner to build several hog barns configured as a concentrated animal feeding operation (CAFO) on their property. Neighbors of the petitioners asked the zoning board to review the building commissioner’s decision to issue the permit. The zoning board voided the permit and determined that the farming zone did not recognize industrial agricultural uses, such as the petitioners’ proposed CAFO. The petitioners sought a review of the zoning board’s decision. The trial court noted that the zoning ordinance specifically permitted animal husbandry, as well as raising and selling hogs and the erection of barns and similar farming building. The trial court determined that the zoning ordinance clearly indicated that hog raising operations were a permitted use. The trial court noted that the county could have excluded CAFOs or put other restrictions in place to maintain more traditional farming operations. Additionally, the trial court noted that several CAFOs were located and permitted in other agricultural zones in the county. Thus, the trial court held that the zoning board’s decision was reversed and the building commissioner’s decision to issue the permit to the petitioners was reinstated. On appeal, the neighbors of the petitioners argued that the zoning ordinance was ambiguous because it did not mention CAFOs. The appellate court agreed with the trial court and noted that the zoning ordinance set no limit on the scale of permitted uses in the agricultural zone. The appellate court determined that the plain language of the zoning ordinance was not ambiguous, and the petitioners were permitted to raise any number of hogs, subject to state and federal limitations. Chambers v. Delaware-Muncie Metro. Bd. of Zoning Appeals, 150 N.E.3d 603 (Ind. Ct. App. 2020).

Posted January 24, 2021

Final Rule on Industrial Hemp. The 2018 Farm Bill removed industrial hemp from the federal controlled substances list. 7 U.S.C. §1639o(1) specifies that industrial hemp has a THC level of 0.3% and is “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” The Final Rule retains the standard contained in the interim rule of looking to the total THC in collected samples rather than naturally occurring THC with a margin of error based on equipment and methodologies in labs. The Final Rule allows states and Indian tribes to adopt a performance-based approach for sampling so long as the Agricultural Marketing Service (AMS) approves of their approach. The Final Rule allows for a higher THC level for negligent violations and a change in the timing for sample collections. Negligent violations include crops that test up to 1.0%. Producers must collect compliance testing samples within a 30-day window immediately before harvest. 86 Fed. Reg. 5596 (Jan. 19, 2021).

Ag Appropriations in CAA 2021. Contained in this massive legislation is $13 billion allocated to the agricultural sector. Out of this $13 billion, approximately $11.2 billion is assigned to the United States Department of Agriculture (“USDA”) to fund agricultural programs designed to provide financial assistance to agricultural producers. Included is a third round of direct payments under the Coronavirus Food Assistance Program (“CFAP”). CFAP-3 includes certain eligibility requirements which producers must meet to qualify for a direct payment under the program. Under CFAP-3, $5 billion in direct payments is made to producers of price trigger commodities and flat-rate commodities. Price trigger commodities are major commodities, such as corn, soybeans, and barley, that suffered at least a five-percent price decline for a certain period. Flat-rate commodities are crops—like alfalfa, flax, or millet—that either did not suffer the five-percent price decline or there is no data available to calculate the price decline. Farmers and ranchers who produce these two types of commodities will receive CFAP-3 payments of $20 per planted acre under the stimulus package. For producers of specialty crops, the CAA 2021 provides support that is tied to the losses the producer suffered in 2020. Such producers are allowed to include crop insurance and disaster payments in calculating sales and may choose to use 2018 sales instead of 2019 sales for the calculation. Along with CFAP-3 payments, specialty crop producers may be eligible to receive additional financial support through $100 million that the legislation provides to Specialty Crop Block Grants, and the $100 million made available to the Local Agricultural Market Program. The legislation also provides $1 billion in direct payments to livestock and poultry contract growers that sustained losses from contract changes due to China virus. Payments will cover up to eighty-percent of losses. For other livestock and poultry growers, 80 percent of the fair market value of euthanized animals can be covered by payments. Also included in the legislation is a livestock dealer trust to ensure that livestock producers receive payment for the sales of their animals. This trust is comparable to the statutory trusts developed under the Packers and Stockyards Act and the Perishable Agricultural Commodities Act. Cattle producers will also receive supplemental payments under CFAP-3 in accordance with a formula based on the difference between the CARES Act payment rate, the Commodity Credit Corporation (CCC) payment rate, and the CFAP-2 payment rate. Also, small and mid-sized dairies may be eligible for increased payments under the Dairy Margin Coverage Program (“DMC”). A producer’s payment under this program is determined by their additional 2019 dairy production and elected DMC coverage level. For producers that have increased their operations since locking in their production based on 2011 through 2013 marketings, they may be eligible to increase their coverage for 75% of any increases in milk production, limited to 5 million pounds. Domestic users of upland cotton and extra-long staple cotton. These individuals will receive financial assistance for the cotton they purchased between March 1, 2020 through December 31, 2020. The legislation also permits the USDA to make payments to producers of advanced biofuel, biomass-based diesel, cellulosic biofuel, conventional biofuel, or renewable fuels. In addition, the legislation contains a tax credit for producing second-generation biofuels, and an excise tax credit for alternative fuel and mixtures. Businesses that harvest and haul timber are allocated $200 million in financial assistance under the stimulus package. To qualify for this assistance, the business must have suffered at least a 10% loss in profits between its 2019 profits and 2020 profits. $300 million is dispensed to the U.S. Department of Commerce to assist the fisheries industry, and $400 million in payments are available to milk processors who produce and donate dairy products to non-profit food assistance entities. To receive a payment under this program, the processor and non-profit entity must develop a donation and distribution plan. Once developed, the USDA will reimburse the processor for the costs associated with processing and donating the milk. Also, the USDA will provide $1.5 billion for purchasing food and agricultural products for donations to food banks and feeding programs. These funds may also be used to provide loans and grants to small and mid-sized food processors and distributors, producers, farmers markets, and seafood processing facilities to respond to the COVID-19 syndemic. Consolidated Appropriations Act, 2021 (signed into law, Dec. 27, 2020).

Posted December 22, 2020

California Law Doesn’t Violate Dormant Commerce Clause Violation. In the fall 2018 election, California voters passed Proposition 12 (“The Farm Animal Confinement Initiative”) that establishes minimum requirements on farmers to provide more space for egg-laying hens, breeding pigs, and caves raised for veal. Specifically, the law requires that covered animals be housed in confinement systems that comply with specific standards for freedom of movement, cage-free design and minimum floor space. The law identifies covered animals to include veal calves, breeding pigs and egg-laying hens. The implementing regulations prohibit a farm owner or operator from knowingly causing any covered animal to be confined in a cruel manner, as specified, and prohibits a business owner or operator from knowingly engaging in the sale within the state of shell eggs, liquid eggs, whole pork meat or whole veal meat, as defined, from animals housed in a cruel manner. In addition to general requirements that prohibit animals from being confined in a manner that prevents lying down, standing up, fully extending limbs or turning around freely, the measure added detailed confinement space standards for farms subject to the law. Under Proposition 12, effective January 1, 2022, all pork producers selling in the California market must raise sows in conditions where the sow has 24 square feet per sow. The law also applies to meat processors – whole cuts of veal and pork must be from animals that were housed in accordance with the space requirements of Proposition 12. The plaintiff challenged Proposition 12 as an unconstitutional violation of the Dormant Commerce Clause by imposing substantial burdens on interstate commerce “that clearly outweigh any valid state interest.” The trial court rejected the challenge, finding that the plaintiff failed to establish that the law discriminated against out-of-state commerce for the purpose of economic protectionism. On appeal, the appellate court affirmed. The appellate court determined that the trial court did not abuse its discretion in finding that the plaintiff was not likely to succeed on the merits of its Dormant Commerce Clause claim. The appellate court also stated that the plaintiff acknowledged that Proposition 12 was not facially discriminatory, and had failed to produce sufficient evidence that California had a protectionist intent in enacting the law. The appellate court noted the trial court’s finding that the law was not a price control or price affirmation statute. Similarly, the appellate court held that the trial court did not abuse its discretion in holding that Proposition 12 did not substantially burden interstate commerce because it did not impact an industry that is inherently national or requires a uniform system of regulation. The appellate court noted that the law merely precluded the sale of meat products produced by a specific method rather than burdening producers based on their geographic location. A separate legal action has been filed in a different California court against Proposition 12 and it continues. National Animal Meat Institute v. Becerra, 825 Fed. Appx. 518 (9th Cir. 2020), aff’g. sub. nom., National Animal Meat Institute v. Becerra, 420 F. Supp. 3d 1014 (C.D. Cal. 2019).

Posted December 11, 2020

USDA Farm-Specific Data Not Subject to FOIA Request. The plaintiff was in the business of collecting and analyzing agricultural data from various sources, including the federal government. The plaintiff submitted seven Freedom of Information Act (FOIA) requests to the USDA for specific records. The records sought included farm, tract, and customer numbers created by the USDA. The USDA created these numbers to assign them to land enrolled in USDA programs and to identify program participants. The USDA denied the plaintiff’s FOIA requests either in part or fully, citing that the records at issue were exempt from disclosure as relating to specific farm locations and specific farmers. The plaintiff administratively appealed the FOIA requests, and then sued in federal court three months later after being unsatisfied with the USDA’s failure to adjudicate the appeal. The plaintiff alleged that the USDA violated FOIA by withholding the customer, farm, and tract numbers. Additionally, the plaintiff alleged the USDA violated FOIA by following an unlawful practice of systematically failing to adhere to FOIA deadlines. The plaintiff claimed that no substantial privacy interest was at stake, and the public interest in obtaining the requested information outweighed any privacy concerns. The court held that FOIA mandates that an agency disclose records on request, unless the records fall within an exclusion. As to the farm and tract numbers, the court held that the USDA properly withheld the information as geospatial information. Under an applicable withholding statute, the court held that the USDA shall not disclose geospatial information about agricultural land or operations. The court held that the farm and tract numbers were geospatial information, as they referred to specific physical locations, and therefore were prohibited from disclosure. For the customer numbers, the court held that the USDA properly withheld the information in order to avoid an invasion of personal privacy. The court noted that while the customer numbers alone did not reveal information about landowners, they could be combined with other public data to identify individual farmers and reveal information about their farms and financial status. The plaintiff argued that disclosing the customer, farm, and tract numbers would allow the public to monitor how the USDA was administering its farm programs. Further, the plaintiff argued that the disclosure of the information would let the public determine whether the USDA was overpaying program participants and allow the public to determine whether farmers are complying with the USDA program. However, the court held that neither of the plaintiff’s arguments warranted the disclosure of the numbered information because the plaintiff showed no evidence to support its claim of fraud and because the purpose of FOIA is to shed light on what the government is up to, not the USDA program participants. As a result, the court held that the USDA also properly withheld the customer numbers. On the plaintiff’s claim that the USDA systematically failed to adhere to FOIA deadlines, the court held that the plaintiff lacked standing for failing to establish the existence of an unlawful policy or practice. The court noted that the USDA responded to the FOIA requests according to then-existing USDA regulations. The regulations stated that FOIA requests served on USDA required prepayments for the request to commence. The plaintiff failed to prepay on some of the requests, and the USDA completed the remainder of the requests within FOIA deadlines. Finally, the court held that the USDA’s failure to adhere to statutory deadlines to process the plaintiff’s administrative appeals did not rise to the level of systematically ignoring FOIA requests. Telematch, Inc. v. United States Department of Agriculture, No. 19-2372 (TJK), 2020 U.S. Dist. LEXIS 223112 (D. D.C. Nov. 27, 2020).

Posted November 25, 2020

City Sewer Project Financing Arrangement Falls Through. The plaintiffs were taxpaying residents of the co-defendant city and county. The city operated its own wastewater treatment facility, which soon required extensive repairs so that the facility would not violate the state regulations. The city council unanimously agreed to move forward with the rehabilitation project, although the city lacked the tax base to pay for the improvements. As a result, the city council passed a resolution which delegated the duty of hiring a bond counsel to the mayor. The resolution proposed using tax increment financing (TIF) to raise revenue from properties with windmills in the county to cover the costs of the city’s sewer rehabilitation project. The mayor proceeded to enter into an oral agreement with the county to launch the rehabilitation project, which the city council subsequently approved. The plaintiffs argued that the defendants violated the state’s urban renewal law by not entering into a valid joint agreement before passing the resolution. Specifically, the plaintiffs argued that the city council had not passed a resolution, required by state law, to authorize the mayor to enter into any agreement. Therefore, the plaintiffs argued that the city council could not retroactively ratify the joint agreement with the county because the contract was void. The trial court held that the city could have authorized the mayor to enter in an agreement with the county, and that the oral agreement was a voidable contract subject to ratification. As a result, the trial court held that the joint agreement was valid and enforceable because neither the city council nor the county sought to avoid the oral agreement. On appeal, the plaintiffs maintained that any agreement was void because the mayor did not secure authorization from the city council beforehand. The city and county argued that the mayor had inherent authority from the city council’s original resolution to move toward a joint agreement for the TIF and rehabilitation project. The appellate court held that the city council’s original resolution did not authorize the mayor to move toward a joint agreement, therefore the oral agreement was void and could not be later ratified. The appellate court noted that the city council erred in adopting a resolution that did not give adequate notice to the plaintiffs and the public that the mayor had the power to enter into a joint agreement to launch the rehabilitation project. Under state law, the city council was required to pass a resolution authorizing the mayor to enter into any agreement. As a result of the city council failing to authorize the mayor to execute an agreement, the appellate court held that any subsequent agreement entered into by the mayor would be void and could not be saved later by ratification. Brueggeman v. Osceola County, No. 19-1010, 2020 Iowa App. LEXIS 1050 (Iowa Ct. App. Nov. 4, 2020).

Overtime Exemption for Dairy Workers Unconstitutional. The plaintiffs brought a class action on behalf of 300 of the defendant’s workers challenging the exemption of dairy workers from overtime pay under the state (Washington) Minimum Wage Act. The plaintiffs also claimed that the defendant violated other wage and hour rules. The plaintiffs claimed that the overtime exemption violated the equal protection clause in the state constitution and was racially biased against Hispanic workers. The state Supreme Court, in a 5-4 decision, the majority held that the exemption undermined a “fundamental right” to health and safety protections for workers in dangerous jobs that the state Constitution guarantees via the privileges and immunities clause. The majority focused on Article II, Sec. 35 of the Washington Constitution requiring the legislature to pass law necessary “for the protection of persons working in…employments dangerous to life or deleterious to health,” and Article I which the majority construed as protecting “fundamental rights of state citizenship.” The majority believed that there was a connection between the requirement that the legislature pass laws to protect workers in dangerous occupations and the minimum wage law, and that the legislature didn’t have a reasonable basis to exclude dairy workers from the overtime pay requirements of the law. The dissenting justices pointed out that overtime pay is not a fundamental constitutional right and, as such, does not implicated the privileges and immunities clause. Instead, the state legislature has a “wide berth” to decide that laws that are required to carry out that purpose. The dissent pointed out that the legislature could simply repeal the overtime law and no person would have a personal or private common law right to insist on overtime pay absent an employment contract with a term promising overtime pay. The ruling means that dairy farmers will be required to pay $20.54 per overtime hour beginning in 2021. Martinez-Cuevas v. Deruyter Brothers Dairy, Inc., No. 96267-7, 2020 Wash. LEXIS 660 (Wash. Sup. Ct. Nov. 5, 2020).

Posted September 4, 2020

Misleading Beef Labeling Claim Fails. The plaintiffs are beef producers and consumers that filed suit against the defendant, a producer and seller of beef products to retailers of beef products. The plaintiffs claimed that the defendant misleads retailers and consumers by labeling their beef “Product of the USA” when, in fact, the cattle are raised in foreign countries and imported into the United States as live cattle that are then slaughtered and processed in the United States. The plaintiff consumer asserted a supposed class action of consumers that were allegedly deceived into paying higher prices for what the consumer believed to be American beef when it was allegedly foreign beef. The plaintiff cattle producer asserted a supposed class action of cattlemen who receive less for their cattle because of the influx of imported cattle that are then sold as a product of the United States. The consumer plaintiff alleged violations of the New Mexico Unfair Practices Act (NMUPA); breach of express warranty; and unjust enrichment. The cattleman plaintiff also alleged a violation of the NMUPA as well as unjust enrichment, but later sought to amend the complaint to replace the NMUPA claim with a claim for violation of the New Mexico Antitrust Act. The court noted that federal law via the Federal Meat Inspection Act (FMIA) which bars meat from being sold “under any …labeling which is false or misleading, but labeling and containers which are not false or misleading and which are approved by the Secretary are permitted.” The USDA regulates beef labels through the Food Safety Inspection Service (FSIS). The court noted that the FSIS administers a label approval program “ensuring” that no meat products are falsely labeled. The court noted that the label at issue was approved by FSIS and found not to be misleading or false. The court noted that the FSIS has never construed the phrase “Product of the U.S.A.” to actually mean that the product is derived only from animals that were born, raised, slaughtered, and prepared in the United States. Instead, the phrase “Product of the U.S.A.” only means that the product was slaughtered in the United States. Also, the court noted that the FMIA treats imported beef products as a “domestic” product upon entry into the United States. Thus, the court concluded, the law and related regulations were clear that cattle born and raised in a foreign country but slaughtered int the United States can be properly labeled as “Product of the U.S.A.” The court determined that the plaintiff’s state law claims were preempted by federal law. In addition, the court held that if the NMUPA claims were not preempted they would fail as a matter of law because the cattleman plaintiff is a competitor of the defendant under New Mexico law and because the defendant’s conduct is permissible under federal law. The unjust enrichment claims also failed as a matter of law because there is nothing unjust about the defendant’s use of a label that has been approved by the federal government. The breach of warranty claim also failed due to lack of pre-suit notice being given to the defendant in accordance with state law. The court also rejected the cattleman plaintiff’s attempt to amend the complaint to asset a violation of the New Mexico Antitrust Act on the basis of preemption by the FMIA, lack of standing and no anti-competitive injury. Consequently, all of the plaintiffs’ claims were either preempted or failed as a matter of law for failure to state a claim for which relief could be granted. The case was dismissed with prejudice. Thornton v. Tyson Foods, Inc. et al., No. 1:20-CV-105-KWR-SMV, 2020 U.S. Dist. LEXIS 156059 (D. N.M. Aug. 27, 2020).

Posted July 2, 2020

SBA Rule Barring Bankrupt Borrowers From PPP Program Upheld. The Small Business Administration (SBA) created a regulation with respect to eligibility for the Paycheck Protection Program (PPP) that makes an applicant ineligible to receive program funds if the applicant is a debtor in a bankruptcy proceeding. 85 Fed. Reg. 23, 450 (Apr. 28, 2020). The debtor was in Chapter 11 bankruptcy and was denied PPP funds. The debtor claimed that such denial violated the anti-discrimination provisions of 11 U.S.C. §525(a) which bars discrimination based on bankruptcy status in certain situations. The debtor also claimed that the regulation was arbitrary and capricious and an abuse of the SBA’s discretion. The bankruptcy court agreed and issued a preliminary injunction mandating that the SBA handle the debtor’s PPP application without considering that the debtor was in bankruptcy. The district court stayed the injunction and certified the case for direct appeal to the appellate court. On further review, the appellate court vacated the preliminary injunction noting that federal law prohibits injunctive relief against the SBA. In re Hidalgo County Emergency Service Foundation v. Carranza, No. 20-40368, 2020 U.S. App. LEXIS 19400 (5th Cir. Jun. 22, 2020).

No TRO For Asserting that PPP Ineligibility Will Create Irreparable Harm. The plaintiff had filed Chapter 11 and sought approval of a disclosure describing its Chapter 11 plan. The statement acknowledged the problems the China Virus presented to its business, but assured creditors that the plan was feasible. The plaintiff continued to project that its business would be viable and would continue in business and meet plan obligations. The statement also described a general effort to get assistance, but did not suggest any likelihood of suffering immediate and irreparable harm in the form of ceasing business if access to the Paycheck Protection Program (PPP) were denied. The plaintiff’s statement also pointed to a forecasted ability to weather the current economic problems after July 2020 and into 2022, even without receipt of funds under the PPP. The court noted the devoid record of any showing of projected receipts and disbursements and determined that it didn’t have enough information to determine if the state Governor’s conduct seriously impaired the plaintiff’s financial projections. The court denied the temporary restraining order (TRO). In re Breda, No. 20-1008, 2020 Bankr. LEXIS 1246 (Bankr. D. Me. May 11, 2020). In a later proceeding the plaintiff claimed that the defendant violated 11 U.S.C. §525. The court granted the defendant’s motion to dismiss. In re Breda, No. 18-10140, 2020 Bankr. LEXIS 1626 (Bankr. D. Me. Jun. 22, 2020).

Posted June 8, 2020

Court Vacates Dicamba Registrations. In 2015, the Obama Administration’s USDA deregulated DT soybean and cotton seeds via the Plant Patent Act (PPA). At that point, Monsanto began to sell the DT seeds in advance of the 2016 growing season. This was done before EPA had approved the companion dicamba herbicides for over-the-top (OTT) use. In 2016, approximately 1.7 million acres of DT soybeans and 50,000 acres of DT cotton were planted. The prior versions of dicamba herbicides could not legally be used on the emergent DT crops, but some farmers applied those older, more volatile versions to the DT crops. In the fall of 2016, the EPA announced that it would grant two-year conditional registrations for three lower-volatility, OTT dicamba herbicides (Monsanto’s XtendiMax; Dupont’s FeXapan; and BASF’s Engenia) in 34 states, noting the benefits of controlling noxious weeds and glyphosate-resistant weeds and that the lower-volatility formulations posed little-to-no risk of adverse environmental effects if used according to the label. Throughout the 2017 growing season, complaints of alleged dicamba-caused damage to commercial crops and other plants increased. Bayer/Monsanto proposed label changes to XtendiMax for use during the 2018 growing season to address off-site drift. The EPA approved additional label restrictions for OTT dicamba products for the 2018 growing season. In late 2018, the EPA granted conditional extensions to the 2016 registrations for two more years. The EPA determined that doing so would provide growers with an additional tool to help manage weeds that are difficult to control for which few alternatives are available, and would provide a long-term benefit by delaying resistance to other herbicides when used appropriately. The EPA also noted that, based on field trials and land-grant university research, non-DT crops could be damaged by off-site drift that could result in yield reductions if the drift occurred during the reproductive growth states of the non-DT crops and, as a result, imposed more restrictions on OTT applications of the dicamba herbicides to DT soybeans and cotton. A coalition of activist groups sought review of the EPA’s 2016 registration decision for XtendiMax, and then amended the petition to include the 2017 label amendments. Oral argument in the case was held in August of 2018. However, the EPA granted the additional two-year conditional registrations before the court decided the case. As a result, the court dismissed the petition. The plaintiffs again sued in early 2019, challenging the EPA’s late 2018 decision to extend the registrations for the OTT dicamba herbicides for two more years. The court did not hear oral arguments in the case until15 months later. Under FIFRA, the EPA must determine that any amendment to a pesticide/herbicide registration “would not significantly increase the risk of any unreasonable adverse effect on the environment.” Such effects include “any unreasonable risk to man or the environment, taking into account the economic, social and environmental costs and benefits of the use of any pesticide…”. 7 U.S.C. §136(bb). The court determined that the EPA “substantially understated the risks that it acknowledged” and “entirely failed to acknowledge other risks.” The court believed that the EPA understated the DT seed acreage plantings in 2018, failed to account for substantial non-compliance with label restrictions, and didn’t account for social cost of DT soybeans and DT cotton achieving a monopoly or near monopoly due to farmers planting DT seeds simply to avoid drift problems. But, the court failed to mention that some farmers refused to plant DT seeds for the express purpose of possibly being drifted upon and suing for damages. The court also made no mention of the fact that numerous drift complaints in 2017 did not result in any yield loss and in some cases resulted in a yield bump. The court also determined that the EPA didn’t account for the social cost of “divisiveness” that dicamba-related issues was creating in rural communities. As a result, the court vacated the registrations even though it noted the harshness that its decision would have on growers that had already purchased DT soybean and cotton seeds and the associated dicamba products. National Family Farm Coalition v. United States Environmental Protection Agency, No. 19-70115, 2020 U.S. App. LEXIS 17495 (9th Cir. Jun. 3, 2020).

Posted June 7, 2020

Senior Executives of Chicken Producing Firms Indicted. In early June of 2020, the U.S. Department of Justice (DOJ) announced that a federal grand jury in Denver returned an indictment against four executives for their role in a conspiracy to fix prices and rig bids for broiler chickens. The indictment charges four current and former senior executives from two major broiler chicken producers with conspiring to fix prices and rig bids for broiler chickens. The indictment claims that from at least as early as 2012 until at least 2017, the executives conspired to fix prices and rig bids for broiler chickens across the United States. USDOJ Press Release, Office of Public Affairs, Jun. 3, 2020.

Outdated County Ordinance Fails to Bar CAFOs. A married couple owned a rural property and obtained a building permit from the county to build several large scale hog confinement buildings on their property. The plaintiffs, nearby landowners, sought review by the Board of Zoning Appeals (BZA) of the granting of the permit. Following a hearing, the BZA voided the permit. The couple sought judicial review and the trial court reversed the BZA’s decision. On further review, the appellate court affirmed. The appellate court noted that while the proposed hog operation would house and raise up to 10,560 wean-to-finish pigs, the governing county ordinance (which became effective on December 11, 1973) with a farming zone provision (which was added in 1993) did not specifically address confined or concentrated animal feeding operations (CAFOs). The appellate court also pointed out that at least five other CAFOs had been established in the country since passage of the ordinance as permitted uses. While the county had put a hold on issuing permits for CAFOs until April 2, 2018, the couple’s permit was approved on May 17, 2018 and four days before a moratorium on certain types of CAFOs was adopted. While the BZA had voided the permit that the farming zone provision did not recognize industrial agricultural uses such as a CAFO, it did permit raising hogs in a barn. While the concept of “raising hogs in a barn” had differed tremendously since 1973 (and 1993), the appellate court noted that the county had failed to amend the ordinance to bar CAFOs if that was to be desired. Chambers, et al. v. Delaware-Muncie Metropolitan Board of Zoning Appeals, No. 19A-PL-1485, 2020 Ind. App. LEXIS 592 (Ind. Ct. App. May 13, 2020).

Posted May 31, 2020

Court Enjoins Discriminatory Tax Treatment by Kansas DOR. The defendant, Kansas Department of Revenue, assessed taxes on the personal and real property of the plaintiffs, various railroads for the 2020 assessment year at dramatically higher ratios than other industries – a minimum of 25 percent of true market value compared to other industries whose personal property was assessed no higher than 10 percent of true market value and no higher than 15.82 percent of true market value for real property. The plaintiffs claimed that such taxation constituted illegal discrimination of common carriers by rail in violation of the Railroad Revitalization and Regulatory Reform Act (49 U.S.C. §11501). The plaintiffs sought an injunction against the enforcement of the assessments. The court issued the injunction finding that the assessments amounted to discriminatory treatment of a common carrier under 49 U.S.C. §11501. The court ordered the defendant to assess the plaintiffs’ personal property (train cars, signals and fences) and real property (track material, tunnels and stations) within a range of 13.8 percent to 15.82 percent of true market value. The court’s order also blocked the defendant from assessing any delinquencies on any previously assessed taxes exceeding the reassessments. A non-evidentiary hearing is scheduled for June 29, 2020. BNSF Railway Company, et al. v. Burghart, No. 5:20-cv-04026-JWB-ADM (D. Kan. May 28, 2020).

Posted May 27, 2020

BLM Leases Vacated. The plaintiff, a radical left-wing environmentalist group, challenged two Bureau of Land Management (BLM) lease sales in Montana involving four planning areas and 287 oil and gas leases on 145,065 acres of federal land . BLM had determined that the associated environmental assessments set forth stipulations and lease notices designed to avoid or minimize impacts to resources. The plaintiff challenged the leases on the basis that they failed to comply with the National Environmental Policy Act (NEPA). Specifically, the plaintiff claimed that the BLM failed to consider the impacts from issuing oil and gas leases on Montana’s groundwater from shallow fracturing and surface casing depth. The plaintiff also claimed that the BLM failed to consider reasonable alternatives that would lessen the impact to Montana’s groundwater supply, and that the BLM failed to consider the combined impacts on climate of the lease sales as a whole. The plaintiff also claimed that the BLM improperly determined that the leases would not significantly impact Montana’s environment. The court with an opinion issued by an Obama-appointed judge, determined that the BLM failed to take a “hard look” at groundwater impacts due to shallow hydraulic fracturing and due to surface casing depth not extending past drinking water. While the BLM need not forecast groundwater impacts for each individual parcel within a lease, it needed to forecast as specific as possible with the information it has as allowed at the leasing stage. The BLM also failed to provide an adequate explanation of why it failed to consider the plaintiff’s proposed alternative. The BLM also did not show how the lease sales cumulatively affect the environment and the impact on “climate change.” Due to the lack of analysis by BLM of cumulative impacts or impacts to groundwater and climate, the court vacated the BLM’s finding of no significant impact and its issuance of the leases and remanded the matter to the BLM for further analysis and action on the environmental impacts of the decision to grant the leases. Wildearth Guardians v. United States Bureau of Land Management, No. CV-18-73-GF-BMM, 2020 U.S. Dist. LEXIS 77409 (D. Mont. May 1, 2020).

Posted April 5, 2020

Federal Trial Court Says Lying With Intent to Harm Livestock Facility Is Protected Speech. The plaintiffs, a consortium of activists opposed to the production practices of large-scale confinement agricultural facilities, regularly conduct undercover investigations on such facilities. Some of the plaintiffs gain access to farms through employment without disclosing the real purpose for which they seek employment (and lie about their ill motives if asked) and wear body cameras while working. For those hired into managerial and/or supervisory positions, they have the ability to close off parts of the facility to avoid detection when filming and videoing. The film and photos obtained are circulated through the media and with the intent of encouraging public officials, including law enforcement, to take action against the facilities. The employee making the clandestine video or taking pictures, is on notice that the facility owner forbids such conduct via posted notices at the facility. The other plaintiffs utilize the data collected to cast the facilities in a negative public light, but do no “investigation.” In 1990, Kansas enacted the Kansas Farm Animal and Field Crop and Research Facilities Protect Act, K.S.A. §§ 47-1825 et seq. (Act). The Act makes it a crime to commit certain acts without the facility owner’s consent where the plaintiff commits the act with the intent to damage an animal facility. Included among the prohibited acts are damaging or destroying an animal facility or an animal or other property at an animal facility; exercising control over an animal facility, an animal from an animal facility or animal facility property with the intent to deprive the owner of it; entering an animal facility that is not open to the public to take photographs or recordings; and remaining at an animal facility against the owner's wishes. K.S.A. § 47-1827(a)-(d). In addition, K.S.A. § 47-1828 provides a private right of action for "[a]ny person who has been damaged by reason of a violation of K.S.A. § 47-1827 against the person who caused the damage." For purposes of the Act, a facility owner’s consent is not effective if it is induced by force, fraud, deception duress or threat. K.S.A. § 47-1826(e). The plaintiff challenged the constitutionality of the Act, and filed a motion for summary judgment. The defendant also motioned for summary judgment on the basis that the plaintiffs lacked standing or, in the alternative, the Act barred trespass rather than speech. On the standing issue, the trial court held that the plaintiffs lacked standing to challenge the portions of the Act governing physical damage to an animal facility (for lack of expressed intent to cause harm) and the private right of action provision, However, the trial court determined that the plaintiffs did have standing to challenge the exercise of control provision, entering a facility to take photographs, etc., and remaining at a facility against the owner’s wishes to take pictures, etc. The plaintiffs that did no investigations but received the information from the investigations also were deemed to have standing on the same grounds. On the merits, the trial court determined that the Act regulates speech by limiting what the plaintiffs could say and by barring pictures/videos. The trial court determined that the provisions of the Act at issue were content-based and restricted speech based on viewpoint – barring only that speech that would harm an animal facility. The trial court determined that barring lying is only constitutionally protected when it is associated with a legally recognizable harm, and the Act is unconstitutional to the extent it bars false speech intended to damage livestock facilities. Because the provisions of the Act at issue restricts content-based speech, its constitutionality is measured under a strict scrutiny standard. As such, a compelling state interest in protecting legally recognizable rights must exist. The trial court concluded that even if privacy and property right involved a compelling state interest, the Act must be narrowly tailored to protect those rights. By focusing only on those intending to harm owners of a livestock facility, the Act did not bar all violations of property and privacy rights. The trial court also determined that the Governor was a proper defendant. In a separate action, the trial court entered a permanent injunction barring enforcement Kan. Stat. Ann. §47-1827(b)-(d) (the provisions barring entering a facility with intent to damage the facility or take pictures, etc., with the intent to damage the facility or remain on the premises without consent after being informed to leave, etc.). Animal Legal Defense Fund v. Schmidt, No. 18-2657-KHV, 2020 U.S. Dist. LEXIS 10202 (D. Kan. Jan. 22, 2020); permanent injunction entered, No. 18-2657-KHV, 2020 U.S. Dist. LEXIS 58909 (D. Kan. Apr. 3, 2020).

Posted March 11, 2020

Court Requests Guidance on Whether Processor of Ag Products is a “Dealer.” The parties had a grower-shipper agreement governed by Georgia law. Under the agreement the defendant was to grow produce and deliver it to the plaintiff. The plaintiff was required to buy all the produce at cost that the defendant delivered. The parties also co-owned the packing and processing facility where the produce was delivered. The agreement required the parties to split the profits equally. There was also a co-packing agreement between a partnership and the plaintiff. Under this agreement the plaintiff promised to procure and provide enough supply of produce to meet their own requirements, give oversight and direction on facility operations, and supply all necessary packaging materials. The parties’ relationship fell apart in February of 2016. The defendant failed to deliver produce from their own growing operation or third parties. The plaintiff eventually started to ship produce from California to the packaging facility in Georgia. The plaintiff never obtained state licenses for dealers in agriculture products. The parties brought claims against each other. Each party filed motions for summary judgment. Their arguments turned on the validity of the grower shipper agreement. The defendant’s only remaining argument was that the grower shipper agreement was breached for failure to pay invoices on produce that the defendant delivered and for inducing the defendant to grow produce before terminating the agreement. The plaintiff also pressed a federal claim for the alleged misweighing of produce and breach of the packaging partnership Operating Agreement claim. The Grower Shipper Agreement is the nexus of the legal issues of this suit. The court certified the following questions to the Georgia Supreme Court: (1) Does an entity that purchases produce from other growers, has it processed, and then markets, sells, and ships that produce qualify as a "[d]ealer in agricultural products" as defined in O.C.G.A. § 2-9-1(2), or does that entity meet the "farmers in the sale of agricultural products grown by themselves" exemption in O.C.G.A. § 2-9-15(a)(1) because at times it also processes, markets, sells, and ships produce that it grew itself as part of the same business operation?; (2) Under the contract rule restated in Paulsen St. Investors v. EBCO General Agencies, 514 S.E.2d at 906, are the licensing requirements set forth by the Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1 et seq., regulatory in the public interest or merely for revenue purposes?; and (3) If a "[d]ealer in agricultural products," as defined by O.C.G.A. § 2-9-1(2), fails to obtain a license, as required by O.C.G.A. § 2-9-2, prior to engaging in a business that comes within the terms of the Act, is it precluded from recovering on a contract made to carry out that business? The federal trial court stayed the case until the Georgia Supreme Court provided answers to these questions. San Miguel Produce, Inc. v. L.G. Herndon Jr. Farms, Inc., No. 6:16-cv-35, 2019 U.S. Dist. LEXIS 154960 (S.D. Ga. Sept. 11, 2019).

Posted February 9, 2020

Semi-Trailer in Farm Field Near Roadway With Advertising Subject to Permit Requirement. defendant owns farm ground along the interstate and parked his semi-trailer within view from the interstate that had a vinyl banner tied to it that advertised a quilt shop on his property. The plaintiff (State Transportation Department) issued the defendant a letter telling him to remove the advertising material. The defendant requested an administrative hearing. The sign was within 660 feet of the interstate and was clearly visible from the interstate. The defendant collected monthly rent of $300 from the owner of the quilt shop for the advertisement. The defendant never applied for a permit to display the banner. The defendant uses the trailer for farm storage and periodically moves it around his property. The administrative hearing resulted in a finding that the trailer was being used for advertising material and an order was adopted stating the vinyl sign had to be removed. The defendant did not appeal this order, but did not remove the banner. The plaintiff sued to enforce the order. After the filing of the suit, the defendant removed the vinyl sign only to reveal a nearly identical painted-on sign beneath it with the same advertising. The plaintiffs amended their complaint alleging that the painted-on sign was the equivalent of the vinyl sign ordered to be removed and requesting that the trial court order its removal. The trial court found that the trailer with the painted-on sign was not advertising material as the semi-trailer was being used for agricultural purposes and was not an advertisement. The court did concede that the semi-trailer was within 660 feet of the right-of-way of the interstate; was clearly visible to travelers on the highway; had the purpose of attracting the attention of travelers; defendant received a monthly payment for maintaining the sign. On further review, the appellate court reversed and remanded. The appellate court concluded that the trailer served a dual purpose of agricultural use and advertising and that there was no blanket exemption for agricultural use. The trailer otherwise satisfied the statutory definition as an advertisement because of its location, visibility, and collection of rental income. The appellate court concluded that the defendant could use the trailer for agricultural purposes in its current location, but that advertising on it was subject to a permit requirement. Commonwealth v. Robards, 584 S.W.3d 295 (Ky. Ct. App. 2019).

Posted January 26, 2020

Federal Trial Court Says Lying With Intent to Harm Livestock Facility Is Protected Speech. The plaintiffs, a consortium of activists opposed to the production practices of large-scale confinement agricultural facilities, regularly conduct undercover investigations on such facilities. Some of the plaintiffs gain access to farms through employment without disclosing the real purpose for which they seek employment (and lie about their ill motives if asked) and wear body cameras while working. For those hired into managerial and/or supervisory positions, they have the ability to close off parts of the facility to avoid detection when filming and videoing. The film and photos obtained are circulated through the media and with the intent of encouraging public officials, including law enforcement, to take action against the facilities. The employee making the clandestine video or taking pictures, is on notice that the facility owner forbids such conduct via posted notices at the facility. The other plaintiffs utilize the data collected to cast the facilities in a negative public light, but do no “investigation.” In 1990, Kansas enacted the Kansas Farm Animal and Field Crop and Research Facilities Protect Act, K.S.A. §§ 47-1825 et seq. (Act). The Act makes it a crime to commit certain acts without the facility owner’s consent where the plaintiff commits the act with the intent to damage an animal facility. Included among the prohibited acts are damaging or destroying an animal facility or an animal or other property at an animal facility; exercising control over an animal facility, an animal from an animal facility or animal facility property with the intent to deprive the owner of it; entering an animal facility that is not open to the public to take photographs or recordings; and remaining at an animal facility against the owner's wishes. K.S.A. § 47-1827(a)-(d). In addition, K.S.A. § 47-1828 provides a private right of action for "[a]ny person who has been damaged by reason of a violation of K.S.A. § 47-1827 against the person who caused the damage." For purposes of the Act, a facility owner’s consent is not effective if it is induced by force, fraud, deception duress or threat. K.S.A. § 47-1826(e). The plaintiff challenged the constitutionality of the Act, and filed a motion for summary judgment. The defendant also motioned for summary judgment on the basis that the plaintiffs lacked standing or, in the alternative, the Act barred trespass rather than speech. On the standing issue, the trial court held that the plaintiffs lacked standing to challenge the portions of the Act governing physical damage to an animal facility (for lack of expressed intent to cause harm) and the private right of action provision, However, the trial court determined that the plaintiffs did have standing to challenge the exercise of control provision, entering a facility to take photographs, etc., and remaining at a facility against the owner’s wishes to take pictures, etc. The plaintiffs that did no investigations but received the information from the investigations also were deemed to have standing on the same grounds. On the merits, the trial court determined that the Act regulates speech by limiting what the plaintiffs could say and by barring pictures/videos. The trial court determined that the provisions of the Act at issue were content-based and restricted speech based on viewpoint – barring only that speech that would harm an animal facility. The trial court determined that barring lying is only constitutionally protected when it is associated with a legally recognizable harm, and the Act is unconstitutional to the extent it bars false speech intended to damage livestock facilities. Because the provisions of the Act at issue restricts content-based speech, its constitutionality is measured under a strict scrutiny standard. As such, a compelling state interest in protecting legally recognizable rights must exist. The trial court concluded that even if privacy and property right involved a compelling state interest, the Act must be narrowly tailored to protect those rights. By focusing only on those intending to harm owners of a livestock facility, the Act did not bar all violations of property and privacy rights. The trial court also determined that the Governor was a proper defendant. Animal Legal Defense Fund v. Schmidt, No. 18-2657-KHV, 2020 U.S. Dist. LEXIS 10202 (D. Kan. Jan. 22, 2020).

Posted January 24, 2020

Farm Partnership and Partner Are the Same For Liability Purposes. The plaintiff was injured when a dairy cow fell on him while he was working in the scope of his employment with the defendant. The dairy was operated as a partnership. The plaintiff filed a worker’s compensation claim naming the defendant individually and as a farm. The Workers Compensation Board (Board) issued a determination in the plaintiff’s favor and the defendant, as an individual, filed an administrative appeal. While the appeal was pending, the plaintiff sued the defendant as an individual and as a farm. The defendant then withdrew the administrative appeal and the Board awarded the plaintiff $142,384.32. Both parties moved for summary judgment. The trial court granted the plaintiff’s motion and the defendant appealed. The appellate court reversed and remanded. The appellate court held that worker’s compensation was the plaintiff’s exclusive remedy, and that partners and partnerships are treated as a singular entity. Because the plaintiff had already filed a claim against the defendant individually, it was irrelevant to name the farm as a party to the lawsuit. The appellate court remanded on this issue and dismissed all other issues as moot. Kelsey v. Hourigan, 175 A.D.3d 918, 106 N.Y.S.3d 540 (N.Y. Ct. App. 2019).

Posted January 17, 2020

Breeder Deer Are Not Private Property. The plaintiff breeds deer via a permit issued by the defendant, Texas Parks and Wildlife Department (Department). The permit allowed the plaintiff to “engage in business of breeding deer in immediate locality of where permit is issued” and “sell, transfer to another person, or hold in captivity for propagation or sale.” However, any particular deer could only be sold via a separate permit if it was healthy. In In 2015, Texas had its first positive test for Chronic Wasting Disease (CWD) in a deer breeding facility. In response, the Department instituted emergency rules that heightened testing requirements and instituted a “no movement” policy unless breeders could pass heightened testing requirements. The plaintiff sued to invalidate the application of the rules on the basis that breeder deer held under permit are private property and not public property and, as a result, the rules were an unconstitutional violation of the plaintiff’s procedural due process rights. The plaintiff also sought an award of attorney fees, as did the defendant. The trial court granted the defendant’s motion for summary judgment, concluding that it did not have jurisdiction to consider the ownership issue. The trial court also awarded attorney fees of $425,862.50 to the defendant. On appeal, the appellate court affirmed. On the fee issue, the appellate court noted that the plaintiff requested millions of documents during discovery, some of which were novel. The appellate court also determined that the permit does not convey ownership of breeder. Instead, breeder deer are public property held under permit and no individual property right arises in them. Bailey v. Smith, 581 S.W.3d 374 (Tex. Ct. App. 2019).

Posted January 14, 2020

In-State Ingredient Requirement Subject to Challenge. Minnesota has a three-tiered alcohol distribution system. The manufacturer, wholesaler, and retailer cannot be the same entity unless they have a "farm winery" license. To obtain a license, an applicant must pay a $50 fee, produce less than 75,000 gallons of wine annually, and be located on agricultural land. A farm winery must also produce wine "with a majority of the ingredients grown or produced in Minnesota." If out-of-state products are necessary, the license holder must file an affidavit stating why out-of-state products are needed. The plaintiffs sought to create new varieties of wine from grapes that cannot be grown in the state’s climate, work with higher quality ingredients and more reliable suppliers, and increase the quantity of wine they produce. The plaintiffs claimed that the instate requirement prohibits them from doing so. The plaintiffs, without having filed an affidavit and being denied, challenged the in-state requirement on the basis that it violated the dormmate commerce clause. The state moved for summary judgment arguing that the plaintiffs lacked standing because they have not been injured. The trial court held that the inability to grow their businesses constituted an injury in fact but determined that the plaintiffs caused their own injuries when they chose to seek a farm winery license instead of a wine manufacturer license. The trial court concluded that the plaintiffs’ injuries were not fairly traceable to state law and that the plaintiffs lacked standing. On appeal, the appellate court reversed. The appellate court concluded that the plaintiffs’ inability to grow their business constituted an injury, and that measurable present economic harm did not have to be realized to have an injury-in-fact. The appellate court also determined that the plaintiffs’ injury was fairly traceable to state law. Alexis Bailly Vineyard, Inc. v. Harrington, 931 F.3d 774 (8th Cir. 2019).

Posted January 11, 2020

Tract Properly Classified as “Residential” Where No Intent to Profit Present. The plaintiff owns a 10.22-acre tract. 3.6 acres of the tract is cropland on which the plaintiff grows a variety of crops including hay, corn, and pumpkins. Over a recent four-year period, the plaintiff had a negative cash flow from the crops totaling $23,385. The only profitable year was 2015 where he made $338. Most of the crops are traded, used personally, or given away. The plaintiff was unable to explain how he planned to make the property profitable. The land is zoned agricultural but is taxed as residential. The plaintiff challenged the classification in 2013 and the claim was denied. The plaintiff again challenged the classification in 2015, claiming that the property was inequitably assessed to be worth $873,220. The Scott County Board of Review denied the claim once again and the plaintiff appealed to the Iowa Property Assessment Appeal Board (Board). The Board found that the plaintiff neither made or had an intent to make a profit from the property such that classification as “residential” was proper. The plaintiff also submitted five other similar properties as evidence of inequitable assessment. The Board found that only one property was similar, and one was not sufficient to show inequitable assessment. The plaintiff sought judicial review. The trial court affirmed the Board’s decision. On further review, the appellate court affirmed in part, reversed in part and remanded the case. The appellate court determined that the “residential” classification was proper. The plaintiff was not harvesting crops "all for intended profit." The past four years had not been profitable, and the plaintiff did not submit a plan for making it profitable. However, the appellate court determined that the Board did not engage in a proper comparison of properties as state law required. Only one comparable property was required, and the plaintiff did submit one that was found to be comparable. Thus, the appellate court reversed and remanded on this issue. Miller v. Iowa Property Assessment Appeal Board, No. 18-0929, 2019 Iowa App. LEXIS 745 (Iowa Ct. App. Aug. 7, 2019).

Farm Equipment Legislation May Be Unconstitutional. The North Dakota legislature passed a bill amending state law “relating to prohibited practices under farm equipment dealership contracts, dealership transfers, and reimbursement for warranty repair." The legislation prohibits equipment manufacturers from requiring dealers to maintain exclusive facilities, and a manufacturer cannot "unreasonably" refuse to approve the relocation of dealerships or impose "unreasonable" performance standards on dealers. The legislation also presumes certain denials of agreement transfers by manufacturers to be unreasonable and allows for dealers to file a cause of action challenging the denial. The new law also imposes new requirements on manufacturers as to reimbursements that they must provide to dealers for warranty repairs. Certain manufacturers sued to block implementation of the law and the trial court granted a temporary injunction and also held that the retroactivity of the law was a substantial impairment to existing contracts. While the co-sponsors of the legislation touted that this “leveled the playing field” for equipment dealers, the trial court found that the legislation was focused on a special interest which was unsupported by a significant and legitimate purpose. On appeal, the appellate court affirmed. The appellate determined that the new law would substantially enlarge the regulation of dealer reimbursements that previously had been limited to rules about labor reimbursements. Existing law barred primary and corrosive practices, but the new law makes unenforceable obligations that dealers usually negotiated as part of contracts amounting to a substantial impairment of contract. Such impairment, the appellate court determined, did not reasonably advance a legitimate state interest. Rather, the legislation benefited farm equipment dealers directly and rural communities indirectly rather than the public at large. Association of Equipment Manufacturers. v. Burgum, 932 F.3d 727 (8th Cir. 2019).

September 22, 2019

Court Has Jurisdiction Over Foreign Company in Ag Worker Dispute. The plaintiffs, farm workers, filed a class action lawsuit against various growers and companies that solicit foreign farm workers. The present action involved the defendant, a Mexican visa processing company acting as a recruitment agency, rather than the growers or representatives personally named in the suit. The defendant solicits and places workers to work harvest crews in the United States. For many years the defendant placed workers on blueberry harvests in California and Washington. The plaintiffs claimed that the defendant violated various provisions of the Washington Farm Labor Contractors Act, including failing to obtain and carry a current farm labor contractor's license at all times and exhibit it to the plaintiffs; failing to obtain a bond and disclose the existence and amount of that bond to plaintiffs; failing to furnish the plaintiffs with a written statement on the form prescribed by the Washington State Department of Labor describing the compensation to be paid and terms and conditions of employment; and making or causing to be made false, fraudulent, or misleading representations to the plaintiffs concerning the terms and conditions of employment. The defendant sought dismissal from the lawsuit for lack of personal jurisdiction, but the court denied the motion. The court noted that while the defendant did not have business offices or exclusive agents in the state; did not pay state taxes; and was not registered to do business in the state, it did purposefully direct its activities and have transactions with the state or its residents which invoked the protections of state law by contracting with the states’ market of growers through its regular sponsorship of conferences and supplied goods to the state market in the form of H-2A visa workers. In addition, the court noted that the defendant had connections with the state’s agricultural markets and agricultural workers. These factors were sufficient to give the court specific jurisdiction over the defendant such that the defendant’s motion to dismiss was denied. Rosas v. Sarbanand Farms LLC, No. C18-0112-JCC, 2019 U.S. Dist. LEXIS 95316 (W.D. Wash. Jun. 6, 2019).

September 21, 2019

Reinstated Grazing Permits Subject to Regulatory Review After Presidential Pardon. The President issued pardons for cattle ranchers that had been convicted of arson for conducting a controlled burn on federal land on which they had grazing rights. Upon their release, the Interior Secretary ordered the Bureau of Land Management ("BLM") to reinstate the ranchers’ 2014 public grazing permits (10-year permits). The plaintiffs challenged the issuance of the grazing permits on the basis that the Secretary and the BLM acted arbitrarily and capriciously in violation of the Administrative Procedures Act because they failed to follow the requirements of the National Environmental Policy Act of 1969 ("NEPA"), the Federal Land Policy and Management Act of 1976 and applicable BLM regulations when reinstating the grazing permits. The plaintiff sought a temporary restraining order ("TRO") and preliminary injunction to enjoin grazing on the permits. The trial court granted the motion for a TRO for 28 days. The trial court concluded that the plaintiff had shown that the permits were issued without the government first finding that the ranchers had a satisfactory record of performance and had been following the governing statutes and regulations. The trial court also determined that the plaintiff had shown a likelihood of harm to the sage grouse and that there was no NEPA review before the permits were reinstated. The trial court judge (Obama appointee) also determined that no amount of monetary harm to the ranchers would outweigh the harm to the environment that the plaintiff alleged. In addition, the trial court held that the public interest weighed in the plaintiff’s favor. After the 28-day period expired, the trial court allowed limited grazing on some of the allotments that the permits applied to. Western Watersheds Project v. Bernhardt, No. 2:19-cv-0750-SI, 2019 U.S. Dist. LEXIS 93984 (D. Or. Jun. 5, 2019).

August 21, 2019

Court Says Hemp Production Cannot Start Until USDA Finalizes Rules. The 2018 Farm Bill allows for hemp (not marijuana) production and allows states and Indian tribes to opt for either primary regulatory authority, or USDA authority over any proposed hemp production. Under the primary authority option, a state may submit its own plan to the U.S. Secretary of Agriculture (Secretary). Once a plan is submitted, the Secretary has 60 days to approve or deny the plan. Under the “USDA option,” hemp can be produced under a plan established by the USDA, but the plan must still be submitted to and approved by the Secretary. The Farm Bill provides that the Secretary has explicit authority to set regulations and guidelines that relate to the implementation to both the primary regulatory authority option or the USDA option. On February 27, 2019, the USDA issued a notice that the agency had begun gathering information to promulgate rules and regulations related to the 2018 Farm Bill and the production of hemp in the United States. In March the plaintiff, an Indian tribe, submitted its own proposed hemp production plan. The Secretary issued a letter in stating that the plan would be approved or denied within 60 days after hemp production regulations were finalized – likely in the fall of 2019. On May 6, the plaintiffs submitted a letter to USDA requesting a waiver of regulatory requirements so that the plaintiff could plant hemp during the 2019 growing season. A meeting was held to discuss the waiver. Later that month the plaintiff sued for a temporary restraining order or preliminary injunction seeking to force the USDA to grant the hemp planting waiver. A hearing on the temporary restraining order was held in June. After the hearing, the court denied the plaintiff’s motion. The court determined that the plaintiff’s motion was not yet ripe and that the plaintiff was not likely to ultimately succeed on the merits of its claim. The court noted that the Farm Bill gave the Secretary broad discretion with respect to hemp production. In addition, the 60-day window to approve or reject plans did not begin until the USDA finalized regulations. The court also noted that there was no monetary remedy built into the law because the USDA was not required to pay compensation for economic losses. The court also determined that the plaintiff’s potential economic losses did not outweigh the impact on the USDA if the injunction were to be granted. The court noted that the issuance of an injunction would force the USDA to act before it could carefully lay out the regulations on hemp production. Such haste in allowing production could have detrimental long-term effects. Flandreau Santee Sioux Tribe v. United States Department of Agriculture, No. 4:19-CV-04094-KES, 2019 U.S. Dist. LEXIS 95188 (D. S.D. Jun. 6, 2019).

August 18, 2019

No Problem With Wind Energy Company Input on Local Ordinance. The defendant determined that its wind turbine ordinance was out of date and needed updating. The County Attorney began drafting a new ordinance. Wind companies, who would later apply for large projects, gave the defendant “input” on the ordinance. The companies opposed the 2,640-foot setback for wind turbines from permanent residential dwellings and suggested a 1,000-foot setback from cemeteries. The companies also completely opposed any shadow flicker provision which imposed mitigation of shadows present on a home for more than fifty hours a year. Ultimately, the final approved ordinance allowed for a 1,500-foot set-back from residential dwellings and cemeteries. The ordinance also imposed a mitigation obligation whenever at least thirty hours of shadow flicker occurred annually. A company involved with input on the ordinance applied for a project. The application requested approval for the 340-megawatt wind energy project, including 199 potential turbine locations. The defendant approved the application 3-2. The plaintiffs (some disaffected county landowners) sued claiming that the ordinance was arbitrary, capricious, unreasonable and void. The company was allowed to intervene. The company moved for summary judgment and the trial court granted the motion. On appeal, the state Supreme Court affirmed. The Supreme Court determined that, like any other citizen or entity, the company was entitled to offer its input during the ordinance’s review period. The Supreme Court ignored the fact that the company stood to profit from less restrictive ordinance terms and was, in fact, not like any other citizen or entity. The Supreme Court also noted that the plaintiffs made no procedural or substantive claims against the ordinance. The Supreme Court also upheld the approval of the defendant’s project because it disclosed that it would transfer ownership and operation of the commercial wind energy facility to another party. Hence, the company was deemed to be the “owner/developer” of the project to which approval could be granted. The Supreme Court also determined that the defendant did not act arbitrarily or capriciously in ignoring various state experts and an acoustical expert. The Supreme Court also determined that the defendant’s acceptance of decommissioning costs as set forth by the company was proper. Mathis v. Palo Alto County. Board of Supervisors, 927 N.W.2d 191 (Iowa 2019).

August 6, 2019

Buildings On Farmland Not Subject to CRP Contract. The plaintiffs are landowners and the defendant is the tenant on the land under an oral contract. Both parties are signers to CRP contracts on the property. The plaintiff gave notice of termination of the lease agreement and began leasing the ground to another party. The defendant did not stop the new lessee from entering the land, however the defendant did not remove all of his equipment from the buildings. In January 2018, the plaintiffs sued for unlawful detainer, claiming that the defendant was a holdover tenant and failed to vacate the property. The defendant claimed that the unlawful detainer was unnecessary given that the defendant was no longer in possession, except as to “a portion of the farm designated as CRP.” The defendant also claimed that the notice to termination was improper. At trial, the parties agreed that a writ of restitution could not be issued to the extent the property was subject to the CRP contracts. The trial court required additional briefing on the issue of whether the buildings on the land were part of the CRP contracts and ultimately found that the buildings were “… both ancillary to the farm land and to the CRP land…” As a result, the trial court found that if it were to grant the writ of restitution it “…would be essentially allowing the plaintiffs to remove [the defendant] from the CRP land if not specifically at least constructively.” Thus, the trial court denied the writ. The plaintiffs appealed and the appellate court reversed and ordered that possession of the shop and buildings on the property be restored to the plaintiff. The appellate court determined that there was insufficient evidence to hold that the buildings were a part of the CRP. The appellate court noted that the buildings were not on the land subject to the CRP contract inasmuch as the CRP contract applies to highly erodible cropland and not buildings and structures. In addition, the appellate court noted that thereis nothing in the CRP contracts that required farming equipment to be stored near the CRP acreage. Further there was testimony that the buildings were not necessary to service the CRP contracts. Thus, the buildings were not a part of the CRP. Vivian Loomis Family, LLC v. Bell, No. 36200-1-III, 2019 Wash. App. LEXIS 1316 (Wash. Ct. App. May 23, 2019).

July 14, 2019

No Syngenta Farmer Payments Until (At Least) 2020. The Claims Administrator for the Syngenta class action litigation has provided additional information concerning settlement payments for corn farmers who submitted claim forms in 2018. Eligible class members will receive a “Notice of Determination” showing the number of bushels on which a particular class member’s settlement payment will be calculated. This supposedly will be issued during July of 2019. If a purported class member provided insufficient information or otherwise failed to qualify as a class member, “Notices of Rejection” will be issued and those receiving such rejection notices will have the chance to attempt to cure any deficiencies. Final Notices of Rejection are to be issued by the end of August. Once appeals from final notices have been allowed, the Settlement Administrator is to provide a Final Report to the court. In addition, in June of 2019, an objection to the settlement was made by attorneys for the class who are disputing fees. The Claims Administrator is now anticipating that the earliest that farmer payments can be processed will be February of 2020. Corn Seed Settlement Program, Update Regarding Claims Processing and Payment Timing (Jun. 18, 2019).

FAA No-Hazard Determination Does Not Preempt Local Rules. In 2009, the defendant planned to construct a grain leg (bucket elevator) and grain bins. In 2013, the defendant obtained the proper county zoning permits but was told of the need to comply with the airport zoning ordinances. The grain leg stands within 10,000 feet horizontally from the end of plaintiff’s runway. The structure reaches a height of 127 feet off the ground. The parties agree the grain leg intrudes within the airport's protected airspace by approximately sixty feet. After construction began it was evident that there would be issues with the airport zoning ordinances and the plaintiff asked the Federal Airport Administration (FAA) to perform an aeronautical study of the grain leg and its impact on aviation safety. The FAA issued a letter stating, "This aeronautical study revealed that the structure does exceed obstruction standards but would not be a hazard to air navigation." It also warned, “This determination concerns the effect of this structure on the safe and efficient use of navigable airspace by aircraft and does not relieve the sponsor (i.e., the defendant) of compliance responsibilities relating to any law, ordinance, or regulation of any Federal, State, or local government body.” Lastly the FAA requested that the defendant paint the structure and add red lights to the top of it. The defendant did so. The FAA also adjusted the flight patterns in and out of the airport to accommodate this structure. The plaintiff did not seek review under this determination. Two years later, the plaintiff (the local airport commission) sued alleging the grain leg violated certain building ordinances; city and county zoning ordinances; airport commission regulations; and constituted a nuisance and hazard to air traffic. The plaintiff sought equitable relief—an injunction requiring the defendant to modify or remove the grain leg. The defendant raised an affirmative defense of federal preemption. In June 2017, the trial court found that the grain leg violated state and local zoning ordinances and constituted a nuisance and an airport hazard. The trial court found that the grain leg did not fall within the agricultural exemption to certain zoning laws and rejected the defendants’ affirmative defense that the no-hazard letter preempted state and local zoning ordinances. The appellate court affirmed, concluding that the doctrines of express, implied, and conflict preemption did not apply to the FAA no-hazard determination. On further review, the state Supreme Court affirmed. The Supreme Court concluded that the FAA no-hazard determination did not preempt local zoning ordinances, was not legally binding, and contained language notifying the defendant that compliance with local rules was required. Carroll Airport Comm'n v. Danner, No. 17-1458, 2019 Iowa Sup. LEXIS 57 (May 10, 2019).

July 5, 2019

Compost Operation Not An Acceptable Use. From 2008 to 2014 the plaintiff had a permit to compost manure on their property. The property was in an agricultural zone of the local town. On December 22, 2014 the town issued the plaintiff an updated/corrected zoning certificate and use permit. The permit authorized the plaintiff’s structures to be used solely for agricultural use in accordance with the definition of “normal agricultural operation” in the state’s Right to Farm Act (RTFA). In December of 2016, after receiving numerous odor complaints over several years, the defendant (a township zoning enforcement board) found that the plaintiff was in violation of the town ordinance by composting waxed cardboard, tough plastics, tin, aluminum, Styrofoam, and packaged foods, including meat products and hot dogs, in its structures. The plaintiff also composted materials and placed them in the windrows outside the structures, including cans, bottles, plastic buckets, sheets of plastics, and utensils. The defendant determined that the plaintiff was not raising crops or livestock, and the compost did not originate from the property. As such, the plaintiff was not a “normal agriculture operation” as defined in the RTFA or the town ordinances. The defendant also noted that the plaintiff never filed a variance for their activities. On appeal, the plaintiff argued that it was engaged in composting that constituted a "normal agricultural operation" that the RTFA protected and that they had obtained a vested right in previous permits. The plaintiff also asserted that its composting was conducted in accordance with state law which preempted any conflicting provisions and requirements of the local ordinance. The trial court determined that composting was not a normal agriculture operation and that the plaintiff had not acted in good faith. The trial court also determined that the plaintiff did not have a vested right in the permits and failed to exercise due diligence in attempting to comply with the town ordinance. The trial court also determined that there was no inconsistency between relevant state and local law. The appellate court affirmed, stating that the plaintiff’s argument on appeal was unimpressive and had “abandoned most of the legal arguments and theories that they raised before the tribunals below and instead have advanced contentions that they did not present for consideration to the tribunals below.” The appellate court also stated that the plaintiff’s “…arguments are woefully inadequate and undeveloped for this Court to conduct meaningful review.” The trial court’s decision was affirmed. Green 'N Grow Composting, LLC v. Martic Township., No. 1002 CD 2018, 2019 Pa. Commw. Unpub. LEXIS 257 (Pa. Commw. Ct. May 3, 2019).

June 29, 2019

State Acted Properly in Allowing Company To Exercise Eminent Domain. In 2014, a pipeline company filed documents with the Iowa Utilities Board (IUB) signifying its intent to lay a pipeline to pipe oil from the oil fields of northwest North Dakota to southern Illinois.. The pipeline would traverse Iowa from the northwest corner to the southeast corner of the state, passing through eighteen counties over approximately 343 miles. At the end of 2014, the pipeline company held meetings in all eighteen counties. In 2015, the pipeline company petitioned the IUB to start construction and sought “the use of the right of eminent domain for securing right of way for the proposed pipeline project” due to several landowners in the path of the pipeline refusing to grant an easement. The pipeline asserted such authority as a “common carrier” (a public or private entity that carries goods or people). In November and December of 2015, the IUB held hearings on the petition. Hundreds of people were present to give testimony for both sides. On March 10, 2016, the IUB issued a 159-page final decision and order. This order found that the pipeline would promote the public convenience and necessity, involve a capital investment in Iowa of $1.35 billion, and generate $33 million in Iowa sales tax during construction and $30 million in property tax in 2017. The order also noted that the pipeline had utilized a software program to lay the pipeline’s path to avoid critical areas, and that state law gave the pipeline the power to exercise eminent domain where necessary. After the IUB’s issuance of the order, several motions for clarification and rehearing were filed, which the IUB denied. Numerous parties sought judicial review of the order, and the parties were consolidated into a single case. On February 15, 2017, the trial court denied the petitions for judicial review. On further review, Iowa Supreme Court addressed numerous issues. The Court determined that the Iowa Chapter of the Sierra Club had standing under state law on behalf of its affected members. Those members, the Court noted under Iowa law, did not need to be landowners, just aggrieved or adversely affected by “agency action.” On the legal issues, the Court looked at the standing of the parties. While the pipeline had already largely been constructed, the Court determined that the matter was not moot because the IUB retained the authority to impose other “terms, conditions, and restrictions” in the petitioners’ favor. On the IUB’s authority to issue a construction permit to the pipeline company based on the promotion of public convenience and necessity, the Court determined that the IUB’s decision to grant the permit was not “[b]ased upon an irrational, illogical, or wholly unjustifiable application of law” and its factual determinations were supported by “substantial evidence.” The Court noted that the evidence showed that the pipeline would reduce oil transport costs which would provide a lower price for petroleum products; transport oil more safely than rail; and provide secondary economic benefits to the citizens of Iowa. However, the Court did conclude that private economic development, by itself, is not a valid “public use.” Thus, the Court rejected the U.S. Supreme Court’s holding in Kelo - joining Illinois, Michigan, Ohio and Oklahoma. The Court also did not find any violation of the statutory limit on the use of eminent domain with respect to farmland because the pipeline company was a common carrier under the IUB’s jurisdiction – an entity not statutorily limited on the use of eminent domain on farmland. Thus, the Iowa Constitutional provision on the use of eminent domain was not violated, nor was the Fifth Amendment of the U.S. Constitution. The Court also upheld the IUB’s determination that the pipeline route was proper and need not be rerouted based on speculative surface development, but did conclude that the pipeline be laid under existing field drainage tile where necessary. Puntenney, et al. v. Iowa Utilities Board, No. 17–0423, 2019 Iowa Sup. LEXIS 69 (Iowa Sup. Ct. May 31, 2019).

June 16, 2019

Pipeline Company Is a “Common Carrier” That Can Use Eminent Domain. In 2014, a pipeline company filed documents with the Iowa Utilities Board (IUB) signifying its intent to lay a pipeline. The pipeline would traverse Iowa from the northwest corner to the southeast corner of the state, passing through eighteen counties over approximately 343 miles. At the end of 2014, the pipeline company held meetings in all eighteen counties. In 2015, the pipeline company petitioned the IUB to start construction and sought “the use of the right of eminent domain for securing right of way for the proposed pipeline project” due to several landowners in the path of the pipeline refusing to grant an easement. The pipeline asserted such authority as a “common carried” (a public or private entity that carries goods or people). In November and December of 2015, the IUB held hearings on the petition. Hundreds of people were present to give testimony for both sides. On March 10, 2016, the IUB issued a 159-page final decision and order. This order found that the pipeline would promote the public convenience and necessity, involve a capital investment in Iowa of $1.35 billion, and generate $33 million in Iowa sales tax during construction and $30 million in property tax in 2017. The order also noted that the pipeline had utilized a software program to lay the pipeline’s path to avoid critical areas, and that state law gave the pipeline the power to exercise eminent domain where necessary. After the IUB’s issuance of the order, several motions for clarification and rehearing were filed, which the IUB denied. Numerous parties sought judicial review of the order, and the parties were consolidated into a single case. On February 15, 2017, the trial court denied the petitions for judicial review. On further review, Iowa Supreme Court addressed numerous issues. The Court determined that the Iowa Chapter of the Sierra Club (an environmental activist group) had standing under state law on behalf of its affected members who did not need to be landowners, just aggrieved or adversely affected to “agency action.” First the court looked at the standing of the parties. While the pipeline had already largely been constructed, the Court determined that the matter was not moot because the IUB retained the authority to impose other “terms, conditions, and restrictions” in the petitioners’ favor. On the IUB”s authority to issue a construction permit to the pipeline company based on the promotion of public convenience and necessity, the Court determined that the IUB’s decision to grant the permit was not “[b]ased upon an irrational, illogical, or wholly unjustifiable application of law” and its factual determinations were supported by “substantial evidence.” The Court that the evidence showed that the pipeline would reduce oil transport costs which would provide a lower price for petroleum products; transport oil more safely than rail; and provide secondary economic benefits to the citizens of Iowa. However, the Court did conclude that private economic development, by itself, is not a valid “public use,” rejecting the holding of the U.S. Supreme Court in Kelo v. City of New London, 545 U.S. 469 (2005), joining Illinois, Michigan, Ohio and Oklahoma. The Court also did not find any violation of the statutory limit on the use of eminent domain with respect to farmland because the pipeline company was a common carried under the IUB’s jurisdiction – an entity not statutorily limited on the use of eminent domain on farmland. Thus, the Iowa Constitutional provision on the use of eminent domain was not violated, nor was the Fifth Amendment of the U.S. Constitution. The Court also upheld the IUB’s determination that the pipeline route was proper and need not be rerouted based on speculative surface development, but did conclude that the pipeline be laid under existing field drainage tile where necessary. Puntenney, et al. v. Iowa Utilities Board, No. 17–0423, 2019 Iowa Sup. LEXIS 69 (Iowa Sup. Ct. May 31, 2019).

Posted May 31, 2019

Promulgation of 2015 WOTUS Rule Violated APA. The EPA issued a Proposed “Waters of the United States” (WOTUS) a.k.a. “Clean Water Rule” in 2014. The proposed rule included under federal control (in its definition of “adjacent” wetlands) all wetland adjacent to jurisdictional waterways including those in a riparian area or floodplain or with surface or shallow subsurface connections to waterways. The proposed rule was subject to public hearing and comment in accordance with the Administrative Procedure Act (APA). During the public comment period, a draft of a “Connectivity Report” was available which reviewed how wetlands and small streams can affect water quality of larger downstream waters. After the public comment period closed, the Science Advisory Board published a review of the Report and the public comment period was reopened. However, the public comment period was thereafter closed and not reopened after the Connectivity Report was finalized. In late June of 2015 the final rule was issued that contained limits on how far away wetlands could be from waterways and still be considered “adjacent” – waters within 100 feet of waterways and those within the 100-year floodplain of a waterway or waters 1,500 feet from the ordinary high-water mark of the Great Lakes or 1,500 feet of the high-tide line of certain Categorically Covered Waters. The plaintiffs sued, asserting violations of the APA. The court agreed, noting that the final rule “was the first time that the agencies gave notice that they intended to define adjacency by precise physical distance-based criteria – rather than the ecologic and hydrologic criteria in the proposed rule.” The court found this change to be significant because it altered the jurisdictional scope of the Clean Water Act, and that the final rule was the first time that the EPA and the COE had given notice of intent to define adjacency by precise physical distance-based criteria rather than on the ecologic and hydrologic criteria of the proposed rule. While the court noted that the agencies sought public comment on whether there should be some sort of geographic limitation on “adjacent” waters, the court concluded that the request was too vague for the public to comment on. The court stated that, “The [APA} does not envision requiring interested parties to parse through such vague references like tea leaves to discern an agency’s regulatory intent regarding such significant changes to a final rule,” and that the changes “could not have been reasonably anticipated.” The court also noted that the public was not allowed to comment on the final version of the 300-page “Connectivity Report” which reviewed how wetland and small streams can affect water quality of larger downstream waters. The court determined that the Report was the “most critical factual material used to support the final rule.” As such, the court determined that the plaintiffs had been deprived “of a meaningful opportunity to comment and possibly deconstruct the Final Connectivity Report” in violation of the APA. The court declined to address the 2015 final rule on the merits and did not vacate the regulation, but remanded the matter to the EPA and COE to cure the APA violations. The court’s ruling also did not affect other pending lawsuits challenging the 2015 WOTUS rule, and kept in place the injunction to keep the 2015 rule from taking effect in Texas, Mississippi and Louisiana. Texas v. United States Environmental Protection Agency, No. 3:15-CV-00162, 2019 U.S. Dist. LEXIS 89113 (S.D. Tex. May 28, 2019).

Posted April 25, 2019

County Properly Approved Modified Ag Protection Area. The plaintiff is a rural landowner and in 2014 filed an application with the defendant for the creation of an agriculture protection area. Under the Utah Agricultural and Industrial Protection Areas Act (Act), the application would exempt the plaintiff’s land from future zoning decisions and municipal regulations that would restrict farming practices. In response, the defendant received two modification requests. The local town requested that the defendant exclude from the protected area an easement where the town intended to install a utility line, at an undetermined future time. Second, the County Engineer’s Office requested that the defendant exclude certain rights-of-ways from the protected area because they planned on widening those roads at a future time. Ultimately the defendant decided to approve the application as amended with the modified requests. The plaintiff sued claiming that that the defendant exceeded its discretion in approving the application with modifications, and that the plaintiff’s due process and equal protection rights had been violated. The trial court rejected the claims and the plaintiff appealed. The appellate court affirmed, finding that the defendant had the authority to approve the application as amended because the defendant was required to evaluate numerous factors when approving an application. For example, the county was to determine (1) Whether or not the land is currently used for agriculture; (2) whether the land is zoned agricultural; (3) whether the land is viable for agriculture; (4) the extent and nature of farm improvements; and (5) anticipated trends in agricultural and technological conditions. In addition, the defendant was to consider the effect of the proposed area on policies and objectives of the county or municipality. Thus, the court found the defendant had acted properly within its discretion, in approving the modified application and did not act arbitrarily or capriciously. The appellate court also held that the plaintiff was not entitled to the creation of a protected area. Thus, the plaintiff’s due process and equal protection claims were rejected because they were not treated any differently than any other landowner that was similarly situated. Farley v. Utah County, No. 20161078-CA, 2019 Utah App. LEXIS 44 (Utah Ct. App. Mar. 28, 2019).

Posted April 14, 2019

Delay Of Organic Certification Rule Upheld, But Full Withdrawal Survives Dismissal. On the last day of the Obama Administration, January 19, 2017, the USDA issued the Organic Livestock and Poultry Practices Rule (the Final OLPP Rule). The Final OLPP Rule was deemed necessary by the Obama Administration because livestock care needed “additional specificity and clarity to ensure consistent compliance by certified organic operations” and to “better satisfy consumer expectations that organic livestock meet a uniform and verifiable animal welfare standard.” Thus, the rule made the regulations governing the certification of livestock as “organic” much more stringent. On the first day of the Trump Administration, January 20, 2017, the White House directed the executive agencies to delay implementation of the Final OLPP Rule. The implementation of the Rule was delayed multiple times until March 2018 when it was formally withdrawn (the OLPP Withdrawal Rule). While recognizing that the organic industry strongly supported the Obama era rule, the USDA provided two main arguments in support of the withdrawal. First, the USDA questioned whether it had statutory authority to promulgate regulations centered around “stand-alone concerns about animal welfare,” meaning the agency only has authority to promulgate standards “for the care of” organically produced livestock limited to health care practices similar to those specified by Congress in the Organic Food Products Act (OFPA). Second, the USDA determined that the costs of implementing the rule outweighed its potential benefits and that no “significant market failure” had been identified to justify the Final OLPP Rule. In short, even if USDA did have authority to regulate stand-alone concerns about animal welfare, it would choose not to as a matter of policy. The plaintiff, a lobby group, challenged the withdrawal on the basis that it violated the OFPA by delaying the implementing the Final OLPP Rule; was arbitrary and capricious; violated the OFPA because of the USDA’s failure to consult with the National Organic Standards Board before finalizing the Withdrawal Rule. The defendant moved to dismiss the claim, on the basis that the plaintiff lacked standing and had failed to state a claim for which relief could be granted. On the standing issue, the court looked to the fact that the OTA is a membership-based business association who promotes, develops, and protects organic standards on behalf of its members, including organic product consumers, farmers, livestock growers and others in the industry. As such, the court concluded that the withdrawal of the rule constituted an injury to OTA’s members that was concrete and particularized, therefore the OTA had associational standing to challenge the rule on behalf of its members. The defendant argued that the delay rule issue was moot for lack of an ongoing controversy. The court agreed, finding that any decision would no longer affect the rights of either party and dismissed that claim. However, the court determined that the defendant had alleged a legally sufficient claim against the Withdrawal Rule, and that additional briefing was needed on the issue of whether the USDA had to consult with the National Organic Standards Board on livestock regulations. Organic Trade Association v. United States Department of Agriculture, No. 17-1875, 2019 U.S. Dist. LEXIS 30695 (D. D.C. Feb. 27, 2019).

Accidental Pesticide Drift Did Not Cause Loss of Organic Certification. The defendant sprayed pesticides adjacent to the plaintiff’s certified organic alfalfa field. The pesticides drifted onto the organic crop, as confirmed by the state department of agriculture which ordered the plaintiff to destroy the alfalfa crop and issued a civil penalty to the defendant for the drift damage. The plaintiff contacted the organic certifier requesting a determination of whether the field where the drift occurred could still be certified organic. The certifier determined that the field was still certifiable. The plaintiff appealed this decision to the National Organic Program (NOP), a program within the USDA. The NOP later overruled the certifier’s decision and suspended the organic certification for the field for three years. The plaintiff then sued on nuisance and negligence theories to recover damages associated with the loss of crops and for losses in connection with the suspension of the field's organic certification. The defendant moved for summary judgment, which the court granted. On appeal, the appellate court affirmed. The plaintiff relied upon organic farming statutes as the basis for the negligence claim just as the plaintiff had done in a similar prior case. In that case, the court held that “…the regulation unambiguously prevented the organic certifying agent from suspending organic certification based on pesticide drift, as a matter of law, pesticide drift could not be the proximate cause of an organic field's certification being suspended.” The appellate court determined that the plaintiff had failed to prove to the court that this case was any different than their prior case. In addition, the plaintiff did not provide the court with any reason to not follow the prior decision. Johnson v. Consumers Cooperative. Association of Litchfield, No. A18-0517, 2019 Minn. App. Unpub. LEXIS 214 (Minn. Ct. App. Mar. 18, 2019).

Posted April 6, 2019

No Regulatory or Physical Taking For Low-Flying Aircraft or Cancellation of Wind Energy Contract. The Plaintiffs own and operate a 6,395-acre ranch in New Mexico near the Cannon Air Force Base and the “landing and drop zones” in Melrose Air Force Range. The plaintiffs claimed that, beginning in 1999, U.S. Air Force (USAF) planes regularly flew training missions only 20-500 feet above the Taylor’s land in violation of their property interest and interfered with their wind lease contract. In October 2008, the plaintiffs entered into an agreement with a wind energy company for the construction of a commercial wind energy enterprise on their property. Under that agreement, the plaintiff’s would receive $3.00 per acre for the wind resource easement, and the wind turbines to be built would be over 200 feet tall. This height triggered the requirement to send notice to the Federal Aviation Administration (FAA), so the FAA could make a determination of whether the project “may result in an obstruction of the navigable airspace…or a hazard to air navigation.” Upon review, if the FAA finds there is no hazard, they will issue a “No Hazard” determination. In September 2012, the wind energy company canceled the contract, because as plaintiffs claim, the wind energy company had been informed by the government that the FAA would not issue a “No Hazard” determination for the wind project. This lack of a “No Hazard” determination caused the company to withdraw from the project. While neither the plaintiffs nor the company submitted a notice to the FAA, and the FAA never issued an official hazard determination, the plaintiffs claimed that the government’s actions were “fatal” to the project. In 2018 the plaintiffs sued on the basis that the USAF’s overflights constituted a physical taking, and that the federal government’s conduct constituted a regulatory taking when it interfered with the plaintiff’s wind lease. The plaintiff sought a declaratory judgment that they had the exclusive right to use the air space over their property up to 500 feet and that the government’s physical occupation of the airspace constituted a taking that required just compensation. The defendant motioned to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. While the court found that a contract is private property that could be “taken,” the court determined that the government does not take contract rights pertaining to two private parties simply by engaging in lawful conduct that affects the value of one party’s rights. Instead, the plaintiff must establish that the government “put itself in the shoes of one of the parties and assumed all the rights and advantages of that party. The court determined that the government had not engaged in unlawful conduct and did not “put itself in the shoes” of any party, thus no taking occurred. Instead, the court found the plaintiffs regulatory takings claim was more appropriately characterized as a claim for tortious interference with contract over which the court lacked jurisdiction. As for a physical taking by virtue of the low-flying aircraft, On the physical takings claim, the court found that the plaintiffs failed to show that the flights were “frequent” aside from simply stating that they were frequent without providing any further evidence. Thus, the court found that this was a mere allegation and the plaintiff’s failed to state a claim for a physical taking. The court also dismissed the declaratory judgment claim, since the claims court only has jurisdiction to hear claims based on the Constitution, a federal statue or regulation or a contract with the government, but does not have authority to issue declaratory judgments, thus, with no jurisdiction on that issue, it was dismissed as well. Accordingly, the court granted the defendant’s motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief could be granted. Taylor v. United States, No. 18-1082L, 2019 U.S. Claims LEXIS 284 (Fed. Cl. Apr. 5, 2019).

Posted February 23, 2019

CRP Reenrollment Denial Within USDA Discretion. The plaintiff enrolled land in the USDA’s Conservation Reserve Program (CRP) from 1987 to 2006. As a requirement of enrollment, the plaintiff was required that to plant and maintain a “mixed stand of hardwoods best suited for wildlife in the area.” While “mixed hardwoods” was not defined at that time, to comply with the requirement, the plaintiff planted three sections of trees on his land, first, a section of walnut and white pine, another of red oak and white pine, and a third of solely white pine. At that time, the local Farm Service Agency (FSA) considered the plaintiff’s “mixed hardwood” requirement met. The plaintiff received favorable Environmental Benefit Index (EBI) scores throughout the contract period. In 2006 the plaintiff began the reenrollment process, which included an inspection by the Natural Resource Conservation Service (NRCS) to assign an EBI score and determine suitability for reenrollment. Based on the inspection, the NRCS signed off on the reenrollment plan. However, the county FSA committee found from aerial inspections that the land was in violation of the required conservation plan due to significant tree loss. Additionally, in 2006, the FSA issued a new interpretation of the “mixed hardwoods” requirement, which now required “that there be at least 2 species of hardwoods mixed into the rows of hardwoods.” In the three sections the plaintiff had planted, there was pine in each, which is a softwood, and only one species of hardwoods in each. Because there was only one species of hardwoods in each row, not two, the agency found that “there are no areas of the contract that qualify as “mixed hardwoods” and consequently, denied the reenrollment. After exhausting all his administrative remedies, the sued the USDA, challenging the reenrollment denial. At trial, the plaintiff filed a motion for summary judgment, seeking an order directing reenrollment of his land in the CRP and awarding monetary relief for an alleged breach of contract. The trial court denied the motion, finding that the USDA had not abused its discretion by denying reenrollment based on the conservation standard adopted in 2006, and also dismissed the breach of contract claim, determining that since the land was never reenrolled that no contract existed. On appeal, the appellate court affirmed, determining that as for the “mixed hardwoods” requirement, given the great discretion vested in the Secretary to obtain optimal environmental return for every dollar appropriated for the CRP, the FSA clearly had the capability to tighten the definition of “mixed hardwoods” for new contract periods. The very nature of the program gave the Secretary the authority to change the terms and conditions of participation in order to achieve the most advantageous results. Because as of 2006 the plaintiff’s acreage did not meet the FSA’s new requirement, the appellate court held that the FSA did not abuse is discretion when it determined that the plaintiff’s land did not satisfy the 2006 requirement of “mixed hardwoods.” The appellate court also found that because the FSA never accepted the plaintiff’s offer to reenroll his land, there was no contract, and the agency was under no obligation to develop a new conservation plan, thus was simply not an abuse of discretion. Mittelstadt v. Perdue, No. 17-2447, 2019 U.S. App. LEXIS 1319 (7th Cir. Jan. 15, 2019).

Posted February 16, 2019

EPA Properly Changed Obama-Era Policy of Allowing Grant Recipients to Serve on Advisory Committees. The U.S. Environmental Protection Agency (EPA) issued a directive regarding membership in its federal advisory committees specifying “that no member of an EPA federal advisory committee be currently in receipt of EPA grants.” The directive reversed an Obama-era rule that allowed scientists in receipt of EPA grants to sit on advisory panels and was resulting in biased advisory committees stacked with committee members that opposed coal and favored an expansive “Waters of the United States” rule among other matters. The plaintiffs were a group of individuals and organizations who were receiving EPA research grants, and were either serving on an EPA advisory committee or hoped to serve on a committee. They claimed that the directive illegally barred grant recipients from being members of the advisory committees, and filed suit to invalidate the directive. The EPA claimed that appointment policy was reserved to agency discretion, and that the plaintiffs failed to allege a violation of any specific statutory provision. The trial court agreed with the EPA’s position, finding that when making appointments to the committees, agency heads have complete discretion “unless otherwise provided by statute, Presidential directive, or other established authority.” One such restriction on their discretion, the trial court noted, is the applicable ethics rules, found in 18 U.S.C. §208, and the accompanying regulation that dictate that a grant recipient can participate on an EPA advisory committee without incurring liability. However, that someone may serve on an advisory committee without incurring liability under the conflict of interest statute does not dictate that an agency must appoint him as a member. In other words, the conflict of interest rules function as a floor, not a ceiling, for acceptable government service. The plaintiff also claimed that the EPA failed to adequately explain its change in policy, and challenged it as arbitrary and capricious. However, the trial court determined that the arbitrary and capricious standard cannot be enough, by itself, to provide a meaningful standard for the court. Instead, the court explained that, “When an agency departs from its prior policy, it must display awareness that it is changing position, and it ‘must show that there are good reasons for the new policy.’ But it need not establish ‘that the reasons for the new policy are better than the reason for the old ones; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better...’” This “reasonable and reasonably explained’ standard is deferential, so long as the agency’s action – and the agency’s explanation for that action – falls within a zone of reasonableness.” In defending its policy change, the EPA explained that “while receipt of grant funds from the EPA may not constitute a financial conflict of interest, receipt of that funding could raise independence concerns depending on the nature of the research conducted and the issues addressed by the committee.” Thus, the change was necessary “to ensure integrity and confidence in its advisory committees.” The trial court found the EPA’s explanation to be within the zone of reasonableness. Based on these findings, the trial court held that the EPA action was rational, considered the relevant factors and within the authority delegated to the agency. The trial court granted the EPA’s motion to dismiss. Physicians for Social Responsibility v. Wheeler, No. 1:17-cv-02742 (TNM), 2019 U.S. Dist. LEXIS 22276 (D. D.C. Feb. 12, 2019).

Posted February 10, 2019

Hunting Rights Don’t Follow Ownership. Iowa hunting law (Iowa Code Ch. 483A) allows a resident landowner to obtain annually up to two deer hunting licenses - one antlered or any sex deer hunting license and one antlerless deer free of charge. A resident landowner may also buy two antlerless deer hunting licenses. “Owner” is defined under Iowa Code Ch. 483A.24(2)(a)(3) as the owner of a farm unit who is a resident of Iowa. A “resident” is defined under Iowa Code Ch. 483A.1A(10) as including a person with a principle or primary residence or domicile in Iowa, a full-time student, a non-resident under age 18 who has a parent that is an Iowa resident or a member of the military that claims Iowa residency either by filing Iowa taxes or being stationed in Iowa. Nonresident landowners must apply for antlered licensing. The state allots 6,000 antlered or any sex deer hunting licenses to nonresidents via a lottery system for a fee. If a nonresident landowner does not receive an antlered license through the lottery system, "the landowner shall be given preference for one of the antlerless deer only nonresident deer hunting licenses." The plaintiff owned 650 acres in southcentral Iowa, but was not domiciled in Iowa. Over the prior six-year period, the plaintiff received nonresident antlered deer hunting licenses through the lottery four times. The other two years the plaintiff obtained a nonresident antlerless deer hunting license. The plaintiff has been able to hunt every year on his property. In 2016, the plaintiff filed a declaratory action against the state requesting a ruling establishing him as an "owner" under for purposes of Iowa deer hunting laws. He claimed that not treating him as an “owner” violated his inalienable (a right that cannot be taken away) rights and his equal protection rights under the Iowa Constitution. The state did not respond within 60 days and the action was treated as having been denied. The plaintiff sought judicial review. The trial court rules for the state. On further review, the appellate court affirmed. While the plaintiff claimed that he had an inalienable right to hunt the property that he owned and paid taxes on to the state of Iowa, the appellate court held that the state’s differential treatment between residents and non-residents for obtaining hunting licenses for antlered deer was reasonable, not arbitrary, and an appropriate use of the state’s police power. The appellate court also determined that the different treatment of residents and non-residents served a legitimate governmental interest in conserving and protecting wildlife and was rationally related to that legitimate governmental interest. The court, citing Democko v. Iowa Department of Natural Resources, 840 N.W.2d 281 (Iowa 2013), noted that decision held that landownership in Iowa does not give the landowner the right to hunt the land because the landowner has no interest in or title to wildlife on the owner’s property. That wildlife, the Supreme Court had determined in 2013, is owned by the state of Iowa. Thus, there is no common law right to hunt based on ownership. The legislature, as the Iowa Supreme Court noted in 2013, established extensive hunting laws (and the subsequent underlying regulations) that had eliminated that right in a manner consistent with the legitimate state interest of wildlife preservation. Carter v. Iowa Department of Natural Resources, No. 18-0087, 2019 Iowa App. LEXIS 119 (Iowa Ct. App. Feb. 6, 2019).

Posted February 4, 2019

Mushroom Price Fixing Litigation Settled. The plaintiff class of direct mushroom purchasers who bought fresh agaricus mushrooms claimed that Eastern Mushroom Marketing Cooperative, Inc. ("EMMC") and its members violated both the Sherman and Clayton Antitrust Acts. The class alleged that the defendant mushroom growers conducted a "Supply Control" campaign to reduce competition from non-EMMC mushroom producers by buying out mushroom farms and then reselling the farms at a loss. The class also claimed that the defendants purchased lease options on other mushroom farms on which they placed deed restrictions. The class also claimed that the defendants “agreed to set increased minimum prices at which its members and nonmembers would sell fresh mushrooms in six different geographic regions, covering the entire continental United States." This average price was higher than the prices before the agreement was formed. Litigation on this issue was first filed in 2006. In early 2018 a settlement class was requested. That request was granted, and the court set guidelines and ordered mediation. At the conclusion of successful mediation, the court conducted a fairness hearing, determining that the settlement was fair, reasonable, and adequate. The court approved the settlement with costs to be determined in a sperate proceeding. The class requested a recovery of $3,576,612.82 for out-of-pocket costs incurred in prosecuting all of the defendants in this case. The court determined that this amount would come from the settlement, which totaled $11.875 million. As a result of the settlement, approximately 2,000 food retailers will also be able to claim settlement funds. In re Mushroom Direct Purchaser Antitrust Litigation., No. 06-0620, 2018 U.S. Dist. LEXIS 211488 (E.D. Pa. Dec. 17, 2018).

Posted February 2, 2019

Sovereign Immunity Bar Suit Against FSA and USDA in CRP Dispute. The plaintiff and his bother own farm land together. The plaintiff’s brother forged the plaintiff’s signature when enrolling the land in the Conservation Reserve Program (CRP). The plaintiff requested information about the CRP documents from the defendants Farm Service Agency and USDA. The defendants denied that the plaintiff's signature had been forged and denied access to the information. The plaintiff, unrepresented by legal counsel, sued in the local state district court asserting that he was damaged by having to return the land to production that had been fraudulently enrolled in the CRP. The plaintiff claimed that the government owed him $5,530 plus filing fees and costs of $85. The case was moved to Federal District Court, and the defendants motioned to dismiss the case for lack of subject matter jurisdiction, failure to exhaust administrative remedies, or failure to state a claim upon which relief could be granted. The court granted the motion, determining that defendants were protected by sovereign immunity and that the plaintiff had not shown that the defendants had waived it. The court did not answer the plaintiff’s other claims and dismissed the case without prejudice. Kerber v. Carver County. Farm Service Agency, No. 18-907 (MJD/BRT), 2018 U.S. Dist. LEXIS 209231 (D. Minn. Dec. 11, 2018).

Posted January 21, 2019

Wind Energy Company Began “Wind Farm” Construction Without First Obtaining a Lease. In 2015, a federal district court decision allowed the defendant to conduct excavation work necessary to build 84 wind turbines on 8,400 acres in western Osage County in northeastern Oklahoma without first obtaining a mining permit from the Bureau of Indian Affairs (BIA) or approval from the Osage Minerals Council (OMC). The Osage Nation, acting through the OMC owns the beneficial interest in the mineral estate on the property at issue. The defendant’s excavation activity involved the digging of pits 60-feet wide and 30-feet deep, and resulting in the excavation of over 60,000 cubic yards of limestone, dolomite and other minerals. The defendant then ran the rock and minerals through a rock crusher and then returned them to the excavated area. Under federal law, “mining activity” in Osage County required a BIA permit, and the BIA defines “mining” as the “science, technique and business of mineral development.” The U.S. Interior Department sued on behalf of the OMC, but after learning that excavation had been completed, the Interior Department removed its injunction request and filed an amended complaint seeking damages for improper mineral extraction. The trial court ruled against the Interior Department and the OMC sought to intervene after learning that the Interior Department would not oppose the court’s ruling. The trial court, however, denied intervention on the basis of lack of jurisdiction. The OMC appealed. The appellate court determined that the OMC was a proper party to the appeal. The appellate court, on the merits, reversed the trial court and held that the defendant’s extraction, sorting, crushing and use of the minerals as part of the excavation was “mineral development” that required a lease approved by the federal government. The appellate court determined that “mining” was not limited to situations involving the commercial sale of minerals. The appellate court remanded the case to the trial court. On January 7, 2019, the U.S. Supreme Court declined to hear the case. United States v. Osage Wind, LLC, et al., No. 15-5121, 871 F.3d 1078 (10th Cir. 2017), cert., den. sub. nom., Osage Wind, LLC v. Osage Mineral Council, No. 17-1237, 2019 U.S. LEXIS 315 (U.S. Sup. Ct. Jan. 7, 2019).

Posted January 20, 2019

Lying and Deceit Constitutionally Protected “Speech.” In 2012, Iowa amended state law that barred disrupting, destroying, or damaging property at an animal facility or crop operation and the use of pathogens to threaten animals and crops. The amendment provided that a person commits "agricultural production facility fraud" if the person willfully obtains access to an agricultural production facility by false pretenses or makes a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized. The plaintiffs, animal activist organizations opposed to confinement livestock production, claimed that the amendment unconstitutionally prohibited their free speech right of gaining access to such facilities by deceit and fraud to make clandestine videos of production activities they are opposed to. The court determined that “speech” was at issue because "…one cannot violate [the statute] without engaging in speech." The court determined that false speech is constitutionally protected if it does not cause a "legally cognizable harm" or provide "material gain" to the speaker. The court determined that the speech at issue did not trigger either of those requirements and, thus, was protected. The court also determined that the speech was content-based because the state had to examine the content of the speech to determine if a statutory violation occurred. As such, the statute was subject to strict scrutiny and would be presumed to be unconstitutional unless it is narrowly tailored to serve a compelling state interest. However, the court determined that the state's interests of protecting private property and biosecurity were not compelling state interests and, if they were, the statute was not narrowly tailored. The court reasoned that the state had existing statutory provisions to protect private property under trespass theories that did not infringe upon speech at all. The court determined that another state statute addressed biosecurity by barring the willful possession, transportation, or transfer of "a pathogen with an intent to threaten the health of an animal or crop." The court also held that the statute would fail an intermediate scrutiny test because it criminalized speech that inflicted no 'specific harm' on property owners, “ranges very broadly,” and risks significantly chilling speech that is not covered under the statute. Accordingly, the court granted the plaintiffs’ motion for summary judgment, and ordered briefing on specific injunctive relief and legal fees. Animal Legal Def. Fund v. Reynolds, No. 4:17-cv-00362-JEG-HCA, 2019 U.S. Dist. LEXIS 6780 (S.D. Iowa Jan. 9, 2019).

Posted December 31, 2018

State Board Improperly Granted Extension For Construction of Wind Energy Facility. Surrounding landowners had been in litigation concerning the proposed development of a commercial wind energy facility since 2011. In early 2012, the Ohio Power Siting Board (Board) granted the wind energy company’s certificate of construction for the facility to be comprised of 91 aerogenerators covering 24,000 acers. The certificate stipulated that the company had five years to begin construction of the facility. In 2014, the company filed a motion to extend the certificate such that construction on the project need not begin until January 23, 2019 rather than January of 2017. The company claimed that it needed the extension because of the prior litigation and changes in the wind energy market. The company also filed a motion to amend the certificate to allow for new aerogenerator models which were not on the market when the certificate was initially requested. The landowners intervened on both motions. In August of 2015, the Board filed reports recommending that the extension be granted and that the new aerogenerators be allowed. The reports included statements that the set-back requirements in the certificate should continue to apply – which allowed the company to evade new set-back rules that had been established by the Ohio legislature requiring more distance between aerogenerators and property lines. In March of 2016, the Board officially approved the motion to extend the certificate just before the new set-back rules took effect. The landowners sought a rehearing on the motion, which the Board denied in February of 2017. The landowners appealed. The company was allowed to intervene to also defend the Board’s position. The issue before the Ohio Supreme Court, was whether Board’s two-year extension of the company’s certificate was an “amendment.” The Court determined that it was based on the plain meaning of the governing statute (Ohio Rev. Code §4906.06(E) and 4906.07(B)) that granted the Board the power to grant certificates of environmental compatibility and public need for construction, operation, and maintenance of "major utility facilities." As an amendment, the Board failed to follow the statutory process to amend the certificate. Per the statute, amendments to a certificate require an application to amend, requiring the Board’s investigation and issuance of a report rather than simply modifying the existing certificate based on the company’s own motion. The Court recognized that the landowners had been harmed because of the Board’s failure to follow statutory procedure. First the Court noted that the landowners failed to receive the benefit of an investigation and report concerning the power company’s request to extend the certificate. The Court also noted that the landowners had shown a realistic possibility of a different outcome but for the Board’s failure to follow state law. The Court reversed the Board’s order and remanded the matter for a hearing consistent with the Court’s decision. In re Application of Black Fork Wind Energy, L.L.C., No. 2017-0412, 2018 Ohio LEXIS 3111 (Ohio Sup. Ct. Dec. 27, 2018).

Montana Beef Checkoff Properly Enjoined. The plaintiff, a cattle rancher advocacy group, claimed that the federal law requiring funding of the Montana Beef Council (MBC) via funds from the federal beef checkoff. The court, which involved findings and recommendations of a U.S. Magistrate Judge, determined that the plaintiffs had standing and stating a claim upon which relief could be granted. Under the Beef Checkoff, a $1.00/head fee is imposed at the time cattle are sold. The money generated funds promotional campaigns and research, and state beef councils can collect the funds and retain half of the collected amount with the balance going to the Cattleman’s Beef Production and Research Board (Beef Board). But, a producer can direct that all of the producer’s assessment go to the Beef Board. The plaintiff claimed that the use of the collected funds violated their First Amendment rights by forcing them to pay for “speech” with which they did not agree. The defendant (USDA) motioned to dismiss, but the Magistrate Judge denied the motion. The court determined that the plaintiffs had standing, and that the U.S. Supreme Court had held in prior cases that forcing an individual to fund a private message that they did not agree with violated the First Amendment. Any legal effect of an existing “opt-out” provision was not evaluated. The court also rejected the defendant’s claim that the case should be delayed until federal regulations with respect to the opt-out provision was finalized because the defendant was needlessly dragging its heels on developing those rules and had no timeline for finalization. The court entered a preliminary injunction barring the MBC from spending funds received from the checkoff. On further review by the federal trial court, the court adopted the magistrate judge’s decision in full. The trial court determined that the plaintiff had standing on the basis that the plaintiff would have a viable First Amendment claim if the Montana Beef Council’s advertising involves private speech, and the plaintiff did not have the ability to influence the advertising of the Montana Beef Council. The trial court rejected the defendant’s motion to dismiss for failure to state a claim on the basis that the court could not conclude, as a matter of law, that the Montana Beef Council’s advertisements qualify as government speech. The trial court also determined that the plaintiff satisfied its burden to show that a preliminary injunction would be appropriate. The USDA appealed the trial court’s decision, but the appellate court affirmed. Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America v. Perdue, 718 Fed. Appx. 541 (9th Cir. 2018), aff’g., No. CV-16-41-GF-BMM, 2017 U.S. Dist. LEXIS 95861 (D. Mont. Jun. 21, 2017).

USDA Withdrawal of GIPSA Rules Proper. In the fall of 2016, the USDA sent to the Office of Management and Budget (OMB) an interim final rule and two proposed regulations setting forth the agency’s interpretation of certain aspects of the Packers and Stockyards Act (PSA) involving the buying and selling of livestock and poultry. The proposals generated thousands of comments, with ag groups and producers split in their support. The proposals concern Section 202 of the PSA (7 U.S.C. §§ 192 (a) and (e)) which makes it unlawful for any packer who inspects livestock, meat products or livestock products to engage in or use any unfair, unjustly discriminatory or deceptive practice or device, or engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices or creating a monopoly in the buying, selling or dealing any article in restraint of commerce. The “effect” language of the statute would seem to eliminate any requirement that the producer show that the packer acted with the intent to control or manipulate prices. However, the federal courts have largely interpreted the provision to require a plaintiff to show an anti-competitive effect in order to have an actionable claim. The interim final rule and the two proposed regulations stemmed from 2010. In that year, the Obama administration’s USDA issued proposed regulations providing guidance on the handling of antitrust-related issues under the PSA. 75 Fed. Reg. No. 119, 75 FR 35338 (Jun. 22, 2010). Under the proposed regulations, "likelihood of competitive injury" was defined as "a reasonable basis to believe that a competitive injury is likely to occur in the market channel or marketplace.” It included, but was not limited to, situations in which a packer, swine contractor, or live poultry dealer raises rivals' costs, improperly forecloses competition in a large share of the market through exclusive dealing, restrains competition, or represents a misuse of market power to distort competition among other packers, swine contractors, or live poultry dealers. It also includes situations “in which a packer, swine contractor, or live poultry dealer wrongfully depresses prices paid to a producer or grower below market value, or impairs a producer's or grower's ability to compete with other producers or growers or to impair a producer's or grower's ability to receive the reasonably expected full economic value from a transaction in the market channel or marketplace." According to the proposed regulations, a “competitive injury” under the PSA occurs when conduct distorts competition in the market channel or marketplace. The scope of PSA §202(a) and (b) was stated to depend on the nature and circumstances of the challenged conduct. The proposed regulations specifically noted that a finding that a challenged act or practice adversely affects or is likely to affect competition is not necessary in all cases. The proposed regulations also specified that a PSA violation could occur without a finding of harm or likely harm to competition, contrary to numerous court opinions on the issue. On April 11, 2017, the USDA announced that it was delaying the effective date of the interim final rule for 180 days, until October 19, 2017, with the due date for public comment set at June 12, 2017. However, on October 17, 2017, the USDA withdrew the interim rule. The withdrawal of the interim final rule and two proposed regulations was challenged in court. On December 21, 2018, the U.S. Court of Appeals for the Eighth Circuit denied review of the USDA decision. The court noted that the USDA had declined to withdraw the rule and regulations because the proposal would have generated protracted litigation, adopted vague and ambiguous terms, and potentially bar innovation and stimulate vertical integration in the livestock industry that would disincentivize market entrants. Those concerns, the court determined, were legitimate and substantive. The court also rejected the plaintiff’s argument that the court had to compel agency action. The matter, the court concluded, was not an extraordinary situation. Thus, the USDA did not unlawfully withhold action. Organization for Competitive Markets v. United States Department of Agriculture, No. 17-3723, 2018 U.S. App. LEXIS 36093 (8th Cir. Dec. 21, 2018).

Posted December 1, 2018

Rail/Trail Activity Constitutes Temporary Taking.  In 2013, a railroad filed a proposed abandonment and a verified notice of exemption pursuant to 49 C.F.R. § 1152.50 with the federal Surface Transportation Board ("STB"). The abandonment was to become effective July 5, 2013. However, on June 24, 2013 a city and other organizations requested that a Public Use Condition under 49 U.S.C. § 10905 and a Notice of Interim Trail Use ("NITU") under the Rails to Trails Act be issued. A few days later the railroad issued a letter stating they would be willing to negotiate. On July 3, 2013 the STB issued the NITU with 180-day window for negotiations of the finer details to occur. Without an extension the NITU was to terminate on its own. The negations were futile, and on December 6, 2013 the organizations requested an extension. However, the railroad did not consent to an extension. On December 30, 2013 the NITU terminated. By March 31, 2014 the railroad finalized its abandonment, thus ending the STB’s jurisdiction. But, earlier in 2014, the plaintiffs (adjacent landowners) sued alleging an unconstitutional taking of their property under the Fifth Amendment on the basis that the ceasing of railroad usage constituted an abandonment of the railroad-purposes easement and the taking occurred when the STB barred the plaintiffs from regaining the use and possession of the property that constituted the former rail line. The plaintiffs’ complained that the STB’s action also diminished the value of the balance of their property, and sought damages equal to the full fair market value of the property on the date of the taking, including severance damages, delay damages, costs and attorneys’ fees. The trial court held that a taking had occurred based on Preseault v. United States, 100 F.3d 1525 (Fed. Cir. 1996), and the parties reached a stipulated agreement of $900 of damages. However, the government appealed claimed that the trial court should reverse itself on further review on the basis that the court used the multi-factor legal analysis set forth in Penn Central Transportation Company v. City of New York, 438 U.S. 104 (1978), and the temporary takings analysis of Arkansas Game & Fish Commission v. United States, 568 U.S. 23 (2012). The appellate court vacated and remanded the trial court’s decision with orders to develop the factual record taking into account the multi-factor analysis of Penn Central and the temporary takings analysis of Arkansas Game & Fish. On further review, the trial court determined that the NITU barred one of the plaintiffs from being able to plant crops for the next crop season and also delayed this plaintiff’s ability to harvest the timber on the subject tract. The trial court also determined that the very purpose of the rails-to-trails act was to effectuate a taking to preserve the option for interim trail use and railbanking. In addition, the trial court found that the taking of the property was a predictable and foreseeable consequence of issuing the NITU. The court also found that the land at issue was highly productive farmland, and the government’s conduct barred the plaintiff from putting the land to productive use. As a result, the trial court concluded that the government owed $900 for the taking. Caquelin v. United States, No. 14-37L, 2018 U.S. Claims LEXIS 1526 (Fed. Cl. Nov. 6, 2018).

Posted November 18, 2018

Wisconsin Butter Grading Statute Constitutional. Wisconsin law requires all retail butter sold in the state to be graded. The butter may be graded by a certified Wisconsin grader or the USDA. To become a Wisconsin grader, a person must pay a $75 fee, pass a written and practical test at designated test locations in the state. The application must also state where the butter grading will occur. The statute is silent as to whether a Wisconsin certified butter grader is authorized to grade butter outside of Wisconsin. The plaintiffs, an Ohio dairy that sells artisanal butter in Wisconsin and elsewhere, claim that the Wisconsin Ag Department (which had the discretion to authorize the grading of butter outside of Wisconsin by certified Wisconsin graders) was not certifying graders out of state. Thus, the plaintiff’s butter was not graded by Wisconsin graders and they did not pay for the USDA grading. The plaintiff sold ungraded butter in Wisconsin, and an anonymous tip to the Wisconsin Ag Dept. resulted in the issuance of a warning letter to the plaintiff about selling ungraded butter. The plaintiff sued, challenged the Wisconsin butter grading law as a violation of the Due Process Clause, the Equal Protection Clause, and the Dormant Commerce Clause. Both parties moved for summary judgment. The trial court granted the defendants motion for summary judgment. On appeal, the appellate court affirmed. The appellate court determined that the statute did violated neither the Due Process Clause nor the Equal Protection Clause. In addition, the statute did not expressly discriminate against interstate commerce; and did not have discriminatory effect on interstate commerce – it applied equally to all butter regardless of origin. The market advantage to local producers over out-of-state producers that have to travel to Wisconsin to have their butter graded was nominal. The appellate court applied a rational basis test for determining whether the statute violated due process. Under that standard, the law has a presumption of validity and the party challenging the law must prove otherwise. The appellate court reasoned that consumer protection and the promotion of commerce was a legitimate state interest. In addition, the appellate court determined that the butter grading requirements were rationally related to the state’s legitimate interests. The plaintiff did not present any compelling evidence that the statute did not protect consumers or that the statue was not reasonably related to that end. As for equal protection, the plaintiff bore the burden of establishing that the butter grading statute treated it differently than others in the same situation. The plaintiff argued the state had no rational reason to treat graded and un-graded butter differently and claimed that mandatory grading discriminated between butter and other similar commodities such as cheese, honey and maple syrup that have no voluntary grading rules. The appellate court disagreed, determining that the state had a legitimate reason to have graded butter and that butter differed from other non-graded commodities. For instance, the appellate court noted that butter preferences are less diverse than cheese, thus an objective grading process (with the goal of producing a consistent butter product for consumer protection) is possible with butter but not cheese. Minerva Dairy, Inc. v. Harsdorf, 905 F.3d 1047 (7th Cir. 2018).

Posted October 15, 2018

Farmland With “Junk” Violates County Zoning. The plaintiffs farm contained a significant amount of junk and debris, and the county determined that the plaintiffs were in violation of a zoning ordinance prohibiting agricultural property from being used as a junkyard. The trial court granted an injunction and ordered the plaintiffs to come into compliance with the county ordinance. The plaintiffs appealed. On appeal, the plaintiffs claimed that there was insufficient evidence supporting the trial court’s conclusion that they were impermissibly operating a junkyard. The appellate court noted that the plaintiffs’ land was zoned as A1-Agriculture Protection District and that the A1 zone has certain permitted uses, permitted accessory uses and structures, and development standards. A “junkyard” is a non-permitted use of land zoned as A1. The relevant ordinance defines “junkyard” as follows: “A place, usually outdoors, where waste or discarded used property other than organic matter, including, but not limited to, automobiles, farm implements and trucks, is accumulated and is or may be salvaged for reuse or resale; this shall not include any industrial scrap metal yard or normal farming activities”. There was testimony at the evidentiary hearing that described in great detail, the items covering the plaintiffs’ property. Among other things the land holds: many unused an inoperable semi-trailers and truck beds, some of which were off their wheels; metal debris; multiple inoperable vehicles without license plates; many piles of metal; propane tanks; tires; vehicle axles; a trailer entirely full of trash; box trailers; a backhoe, bulldozer, and Bobcat; and a significant amount of debris and junk. In addition, the plaintiffs admit that they did not remove the semi-trailers and flatbeds that the trial court ordered to be removed and that they have since brought additional tractors and motor vehicles onto the property. While the appellate court determined that there was no evidence in the record that they salvaged the junk for reuse or resale, the appellate court determined that zoning definition did not require that; it merely required that the items “may be salvaged for reuse or resale. The plaintiffs also claimed that there was undisputed evidence in the record that their property was a farm, arguing that the same plot of land could not simultaneously be used as a farm and a junkyard. However, the appellate court determined that one plot of land may have multiple uses and that the same plot of land could be used as both a junkyard and a farm, especially where it covers 35 acres. The plaintiffs also claimed that their property should have been protected via an established prior nonconforming use. However, the appellate court determined that the plaintiffs waived this argument by not raising it at the trial court. In addition, waiver notwithstanding, the court determined that the plaintiffs had no evidence that the items on their property predated the relevant ordinances, which went into effect in 1992. Lastly, the plaintiffs argued that the trial court’s order amounted to an unconstitutional taking by inverse condemnation. Once again, however, the plaintiffs did not raise this argument at the trial court and, thus, waived it. However, waiver notwithstanding, the court determined that a taking occurs when all reasonable use of the property is prevented by the land use regulation. Thus, a zoning regulation becomes confiscatory only when it denies the property owner all economically beneficial or productive use of the land. Here, the court pointed out, the plaintiffs did not argue that the ordinance itself is confiscatory nor did they claim that the ordinance denied them all economically beneficial or productive use of the land. The appellate court affirmed. Morris v. Putnam County Commissioners, No. 18A-PL-462 2018 Ind. App. Unpub. LEXIS 1096 (Ind. Ct. App. Sept. 21, 2018).

Posted September 15, 2018

Court Orders Lorsban Ban. The Federal Food, Drug, and Cosmetic Act (FFDCA) governs the use of pesticides on food products regulated by the EPA. The EPA sets the pesticide tolerance levels within statutory guidelines. This case originates from a 2007 petition filed by activists requesting EPA to revoke the tolerance levels for chlorpyrifos (i.e., ban chlorpyrifos, commonly known as “Lorsban”) based on alleged neurological impacts on children. In 2014, the court ordered the EPA to issue a final response to the petition by October 2015. However, in November of 2015 the EPA issued a proposed rule to revoke. The EPA, based on scientific data from the USDA, later issued an order reversing itself denying the 2007 petition, leaving the tolerance levels in place. The order did not refute any of the activists’ research, merely stating that the tolerance should not be revoked as, “the science addressing neurodevelopmental effects remains unresolved.” This order stated the EPA needed more time to clarify the unresolved science and that the EPA had the discretion to set the time table to resolve the matter. The EPA set a deadline of October 2022 to review the chlorpyrifos registration. The petitioners sued for mandamus relief, claiming that the EPA has still not adequately responded to the 2007 petition. However, the court disagreed, holding that the EPA’s 2017 order was an official denial of the 2007 petition. The petitioners appealed, and the appellate court granted the petition to review, and also permitted states to intervene with filed objections. As for the 2017 order, the appellate court ordered it vacated as in violation of the FFDCA and the issue remanded to the EPA with instructions to revoke all tolerances and cancel all registrations of chlorpyrifos within 60 days. The EPA argued that the appellate court did not have jurisdiction because the matter was an administrative one within the EPA. However, the appellate court determined that there was no jurisdictional limit on the court, just the parties involved. The appellate court weighed the need for an exhaustive use of the administrative process. Considering that there was heavy individual interest against and little institutional interest for the administrative review process, the appellate court determined that it was not necessary for the petitioners to exhaust the administrative process. In so holding, the appellate court accepted the activists’ “science” and ignored the scientific data of the USDA. League of United Latin American. Citizens v. Wheeler, No. 17-71636, 2018 U.S. App. LEXIS 22152 (9th Cir. Aug. 9, 2018)

Farming Operation Must Pay Over $10 Million For Farm Program Fraud. The defendant farming operation applied for farm subsidies and loans via the Farm Service Agency (FSA). The defendant later filed bankruptcy and the federal government filed a claim in an amount slightly exceeding $10 million to which the defendant did not object and the court ordered the clerk to enter a default judgment for $10,791,133. The court found that the defendant “caused single damages in the amount of $3,479,711, comprised of $424,065 in FSA program payments, $416,135 in FSA loan payments, and $2,639,511 in FCIC crop payments.” In addition, the trial court determined that the defendant was also liable for treble damages under the False Claims Act for $10,439,133 (three times single damages established), and $352,000 in penalties (for 32 penalties at $11,000 per penalty), for a total of $10,791,133. United States v. John Hudson Farms, Inc., No. 7:18-CV-7-FL, 2018 U.S. Dist. LEXIS 147029 (E.D. N.C. Aug. 29, 2018).

Posted September 4, 2018

Farm Is Not Employer of Contracted Workers. The plaintiffs, migrant workers with H-2A visas were hired by the defendant to work as contract harvesters. The defendant did all of the clearance paperwork, paid the plaintiffs, and had to comply with all the federal regulations pertaining to minimum pay. A citrus farm contracted with the defendant for the harvesting of the citrus crops. The plaintiffs sued for violations of the Fair Labor Standards Act (FLSA) and breach of contract. The plaintiffs claimed that the defendant demanded illegal kickback payments from the plaintiffs and threatened deportation if they were not paid. The farm involved was not aware of the kickback payments, but was brought into the suit as a “joint employer.” The defendant settled with the plaintiffs. The trial court found that the farm was liable as a joint employer. On appeal, the appellate court vacated the trial court decision and remanded the case for entry of judgment. The appellate court found that the farm was not a joint employer based on a four-part test of 1) proper focus; 2) source of the instrumentalities and tools; 3) the location of the work; and 4) the provision of employee benefits. The appellate court determined that the farm did not have control over the means or manner of the plaintiff’s work. Instead, it was up the defendant to set the details of the work by the plaintiff’s including start time and picking quota. Furthermore, the defendant had the sole discretion of hiring and firing the individual plaintiffs. The farm simply hired/fired the defendant as a whole. Also, the defendant had sole control over the plaintiff’s tools and instrumentalities as well as provision of employee benefits. While the farm did control the plaintiff’s work in the large scheme of things and did provide the place of work, those facts did not outweigh the other factors. Thus, the appellate court. Garcia-Celestino v. Ruiz Harvesting, Inc., 898 F.3d 1110 (11th Cir. 2018).

Posted August 11, 2018

Chlorpyrifos Registrations Ordered To Be Canceled. Two environmental advocacy and activist groups filed a petition in 2007 to force the Environmental Protection Agency (EPA) to revoke food tolerances for chlorpyrifos based on the activists’ concerns over its impact on drinking water and alleged neurological impacts on children. The Federal Food, Drug, and Cosmetic Act authorizes the EPA to regulate the use of pesticides on foods according to specific statutory standards, and grants the EPA a limited authority to establish tolerances for pesticides meeting statutory qualifications. The EPA is also asubject to safety standards in exercising its authority to register pesticides under the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA). In 2015, the court issued a ruling regarding the 2015 petition that required the EPA to make a decision by October 31, 2015 on whether or not it would establish food tolerances for chlorpyrifos. The EPA replied that it did not have sufficient data to make a decision and, as a result, would seek to ban chlorpyrifos. In late 2015, the EPA issued a proposed rule to revoke the tolerances. The EPA, in 2017, reversed course and left the tolerances in place citing inconsistent scientific research findings on neurodevelopmental impacts. The EPA sought more time to make a decision which would allow continued scientific research, and sought a deadline of October of 2022 as a deadline to review the registration status. However, the court denied the request and ordered the EPA to take action by March 31, 2017. Chlorpyrifos is the primary ingredient in Lorsban insecticide (Dow AgroScience) and targets pests such as soybean aphids and spider mites and corn rootworm. Chlorpyrifos is presently used on approximately 8 million soybean acres in the U.S. (approximately 10 percent of the entire U.S. planted soybean acreage). In early 2017, the USDA wrote to the EPA and commented on the EPA’s plan to revoke chlorpyrifos tolerances and the EPA’s underlying risk assessment that was issued in late 2016. In its letter, the expressed grave concerns about the EPA process that led the EPA to publish three wildly different human health risk assessments for chlorpyrifos within two years. The USDA also expressed severe doubts about the validity of the scientific conclusions underpinning EPA’s latest chlorpyrifos risk assessment. Even though use of the activists’ study to derive a point of departure was criticized by the Federal Insecticide Fungicide Rodenticide Act Scientific Advisory Panel, the EPA continued to rely on the activists’ study and paired it with an inadequate dose reconstruction approach. Consequently, the USDA called on the EPA to deny the activists’ petition to revoke chlorpyrifos tolerances. According to the USDA, such a denial would allow the EPA to ensure the validity of its scientific approach as part of the ongoing registration review process, without the excessive pressure caused by arbitrary, litigation-related deadlines. The activist groups then sought review of the EPA’s administrative review process and the court granted the petitioner to review. The court also vacated its earlier order that EPA take action by March 31, 2017, and instructed the EPA to revoke all tolerances and cancel all registrations of chlorpyrifos within 60 days. The EPA, however, challenged the court’s jurisdiction on the basis that the administrative process had not been completed. The EPA claimed that §346a(h)(1) of the FFDCA did not clearly state that obtaining a 24 U.S.C. §346a(g)(2)(c) order in response to administrative objections is a jurisdictional requirement. As such the 24 U.S.C. §346(g)(2)(C) administrative process deprived the court of jurisdiction until the EPA issued a response (final determinations) to activist groups’ administrative objections under 24 U.S.C. §346a(g)(2)(C). The court held that 24 U.S.C. §346a(g)(2)(C) was not jurisdictional, but was structured as a limitation on the parties rather than the court. The court also held that this case presented “strong individual interests against requiring exhaustion and weak institutional interests in favor of it.” Accordingly, the activist groups did not need to exhaust their administrative remedies. On the merits, the court held that there was no justification for the EPA's decision in its 2017 order to maintain a tolerance for chlorpyrifos in the face of scientific evidence that its residue on food causes neurodevelopmental damage to children. The court held that the EPA was in direct contravention of the FFDCA and the FIFRA. In so holding, the court completely ignored the detailed USDA disagreement with all of the EPA’s risk assessment conclusions. A biting dissent argued that the appellate courts have no jurisdiction in cases such as this one until the EPA makes a final determination. League of United Latin American. Citizens v. Wheeler, No. 17-71636, 2018 U.S. App. LEXIS 22152 (9th Cir. Aug. 9, 2018).

Posted July 14, 2018

Dangerous Animal Ordinance Void for Vagueness. Pinky, a dog, got in to it with the neighbor cat, Rebel. The spat left both with injuries, but Rebel ended up with the brunt of the injuries requiring 30 staples. Pinky had been previously designated as a dog that “resembled a pit bull” by the city. The owner obtained the required liability insurance and licensing to keep such a dog in 2010, but it had lapsed by the time of the incident. Pinky never had any prior incidents of biting. Rebel was not licensed either. On the day in question, a friend of Pinky’s owner accidently let Pinky out. Rebel’s owner intervened when she saw Pinky had Rebel in his mouth and was shaking him around. No witness saw which animal was the initial aggressor in the altercation. Three days later, the city impounded Pinky, he was to be held for 7 days in quarantine. On the sixth day, the Chief Humane Officer elevated Pinky’s status to a dangerous dog based on the incident. The dog’s breed had nothing to do with this designation. Pinky’s owner was going to surrender, but then changed his mind and filed for administrative appeal. Pinky’s owner then sold his rights to the plaintiff. The administrative judge affirmed the city’s designation of dangerous dog, noting that the plaintiff was claiming that the dangerous animal ordinance was constitutionally vague, which preserved that claim for a court that had the jurisdiction to hear it. The claim stated that the ordinance was broad and vague, as well as not containing a provision for an animal that was provoked into acting in a “dangerous” way. The trial court affirmed the city’s decision as well as the administrative judge’s decision. After a motion to enlarge, the court also upheld the constitutionality of the ordinance. The appellate court reversed and remanded, finding that the ordinance was unconstitutionally vague as applied to the facts of the case. The appellate court saw that the “vicious propensity” illustrations in the ordinance violated the void for vagueness doctrine as applied to the plaintiff. The appellate court realized their ability to define some gray areas, however they did not feel that they could clarify the actions that would raise to such level as vicious propensity and allow for adequate notice to owners. The appellate court felt that this imprecise definition left much to the city to decide what incidents that involved two animals would rise to the level as designating one as dangerous. Thus the court found the ordinance void for vagueness. Helmers v. City of Des Moines, No. 17-0794, 2018 Iowa App. LEXIS 322 (Iowa Ct. App. Apr. 4, 2018)

No Malicious Prosecution of Potato Insurance Scammer. The plaintiff, along with others in Washington's potato farming industry, was indicted on one count of Conspiracy to Make False Statements and Commit Fraud and one count of Making a False Application, in connection with his submissions to insurance companies that were reinsured by the USDA’s federal crop insurance program. The case proceeded to a jury trial, and both charges against the plaintiff were ultimately dismissed. The plaintiff then sued for malicious prosecution under the Federal Tort Claims Act (FTCA) based on a claim that the United States, acting through a Special Agent within the USDA's Office of the Inspector General, provided incomplete, false and misleading testimony to the grand jury that led to the plaintiff’s indictment. The trial court found that it lacked subject-matter jurisdiction to consider the plaintiff’s FTCA claim. The appellate court affirmed on the basis that it lacked jurisdiction because the FTCA only conferred jurisdiction upon district courts to hear allegations of tortious conduct by Government employees and agencies in circumstances “where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred”. The appellate court determined that the plaintiff failed to sufficiently allege a claim of malicious prosecution due to the failure to show that any of the Special Agent’s testimony was false or misleading. Thus, the plaintiff failed to meet his burden of establishing that his claim fell within the FTCA’s general waiver of immunity, and the district court lacked subject matter jurisdiction to consider the claim. In addition, the appellate court held that the special agent’s conduct in investigating the plaintiff’s alleged fraudulent activity was protected by the FTCA’s discretionary function exception. The special agent’s actions during his investigation were done pursuant to the broad discretion afforded to Office of the Inspector General agents by the Inspector General Act, the Agriculture and Food Act, and Office of the Inspector General’s implementing regulations. Accordingly, the appellate court held that the trial court properly determined that the plaintiff’s claim was barred by the discretionary function exception. Gordon v. United States, No. 16-35867, 2018 U.S. App. LEXIS 17430 (9th Cir. Jun. 26, 2018).

RMA Not Required To Provide Information Via FOIA Request. The plaintiff filed an action against the United States Department of Agriculture’s (USDA) Risk Management Agency (RMA) pursuant to the Freedom of Information Act (FOIA). The plaintiff was seeking the disclosure of soybean and corn yield within four townships in Cherokee County, Iowa. The RMA provided a no records in response to the plaintiff’s request explaining that it did not have the information available by section for townships within a county. The court determined that the purpose of the FOIA is to give the public greater access to governmental records. However, there are exceptions to this rule. The court determined that summary judgment for an agency is appropriate when the agency shows that it made a good faith effort to conduct a search for the requested records, using methods which can reasonably be expected to produce the information requested. However, the agency does not have to search every record system. In addition, the court pointed out that the FOIA neither requires an agency to answer questions disguised as FOIA requests or to create documents or opinions in response to an individual’s request for information. The court concluded that the evidence illustrated that RMA did not maintain records matching the description of the plaintiff’s requests. Although it did collect some information from the records of insurance companies which would contain some of the information the plaintiff sought, it did not maintain records containing the precise information requested. As a result, the RMA was not required to provide information that it did not have to the plaintiff. Consequently, the court granted RMA’s motion for summary judgment. On appeal, the appellate court affirmed. The appellate court noted that summary judgment is appropriate in FOIA cases where the agency at issue establishes that it has fully discharged its duties under FOIA after the underlying facts and inferences drawn from those facts are construed in the light most favorable to the party requesting records under FOIA. The RMA, the appellate court determined, satisfied that standard. Bush v. United States Department of Agriculture, No. 16-CV-4128-CJW, 2017 U.S. Dist. LEXIS 131381 (N.D. Iowa Aug. 17, 2017), aff’d. sub. nom., Bush v. Risk Management Agency, No. 17-3295, 2018 U.S. App. LEXIS 17362 (8th Cir. Jun. 26, 2018).

Posted June 16, 2018

Recruiting Foreign Workers For More Than One Ag Company May Violate State Law. The defendant, a California resident, was employed by a California blueberry producer, but also performed work for two other companies owned by her employer. The employer paid her a fee to recruit workers from Mexico to harvest blueberries for the employer and two other companies that the employer owned. The plaintiffs brought an employment class action against the defendant alleging that because she was not registered or licensed in Washington as a farm labor contractor she violated the Washington Farm Labor Contract Act (FLCA). The defendant moved to dismiss on the basis that she was exempt from the FLCA. Under FLCA, all farm labor contractors must be licensed. A farm labor contractor is any person who for a fee recruits, solicits, employs, supplies, transports, or hires agricultural employees. However, FLCA does not apply to persons performing these activities "only within the scope of his or her regular employment for one agricultural employer on whose behalf he or she is so acting, unless he or she is receiving a commission or fee, which commission or fee is determined by the number of workers recruited." The defendant claimed that the FLCA exempted employees of agricultural employers and did not apply to her. However, the court held that the fact that the defendant was an agricultural employee herself did not, by itself, exempt her from the FLCA. The court determined that because the defendant recruited workers for three different companies, she performed labor contracting activities on behalf of more than one agricultural employer. As such, the court concluded that the plaintiffs alleged sufficient facts to allow the court to draw a reasonable inference that the defendant was subject to the FLCA. Accordingly, the court dismissed the defendant’s motion to dismiss. Rosas v. Sarbanand Farms, L.L.C., No. C18-0112-JCC, 2018 U.S. Dist. LEXIS 96193 (W. D. Wash. June 7, 2018).

Posted June 9, 2018

COOL Regulations Upheld. USDA regulations require retailers to notify their customers about the country of origin of certain beef and pork products. The plaintiff claimed that two USDA regulations have caused them harm and were unlawful and should be vacated. The first USDA regulation that the plaintiffs challenged is 9 C.F.R. § 327.18(a), otherwise known as the 1989 Foreign Products Rule. This rule was issued to comply with amendments to the Federal Meat Inspection Act. The rule provides that “all products, after entry into the United States, shall be deemed and treated as domestic products and shall be subject to the applicable provisions of the Federal Meat Inspection Act. . .”. The second USDA regulation that the plaintiffs challenged is the Removal of Mandatory Country of Origin Labeling Requirements (81 Fed. Reg. 10,755), otherwise known as the 2016 COOL Requirement Removal Rule. This rule removed all country of origin labeling requirement references to beef, ground beef, pork, and ground pork in 7 C.F.R. § 65, the Agricultural Marketing Service’s regulation governing country of origin labeling requirements for specified products. The defendants argued that the plaintiffs lacked standing to bring this case. However, the plaintiffs argued and provided declarations and affidavits demonstrating that the defendants’ failure to implement country of origin labeling requirements for foreign beef diminished income to their members. The court agreed, and determined that the plaintiff had established injury in fact for standing purposes. The defendant also claimed that the plaintiffs’ challenge to the regulations at issue was time-barred because of a six-year statute of limitations. The court held that to the extent the plaintiffs sought to vacate the 1989 Foreign Products Rule, their challenge was time barred because the six-year statute of limitations on the 1989 Foreign Products Rule tolled in 1995. However, the plaintiff also claimed that the 2016 COOL Requirement Removal revived the 1989 Foreign Products Rule regulatory scheme, and reset the statute of limitations toll-date. However, the court held that the 2016 COOL Requirement Removal modified 7 C.F.R. § 65, rather than the 1989 Foreign Products Rule because the 1989 Foreign Products Rule was never repealed and simply existed in tandem with later regulations concerning country of origin labeling requirements. Therefore, the court held that any challenges to the 1989 Foreign Products Rule were time-barred. However, the court also determined that to the extent plaintiffs are challenging the 2016 COOL Requirement Removal Rule those claims were not time-barred by the statute of limitations. Finally, the court held that with regard to the USDA regulations at issue, Congress spoke directly to the question of country of origin labeling requirements, and the court must give effect to the unambiguously expressed intent of Congress. The court held that the defendants’ implementation of both regulations at issue in this case directly reflects the statutory language enacted by Congress. Furthermore, the court held that the plaintiffs did not succeed in showing that the defendants’ actions were arbitrary and capricious, or unsupported by substantial evidence. Therefore, the court refused to set aside the regulations at issue. Accordingly, the court granted summary judgment in favor of the defendant. Ranchers-Cattlemen Action Legal Fund v. USDA, No. 2:17-CV-223-RMP (E.D. Wash. Jun. 5, 2018).

Posted June, 5, 2018

NCBA Beef-Checkoff Records Not Subject To FOIA Request. The USDA's Agricultural Marketing Service (AMS) administers programs that create domestic and international marketing opportunities for U.S. producers of food, fiber, and specialty crops. Pursuant to the Beef Promotion and Research Act of 1985. The USDA issued the Beef Research and Promotion Order, which authorized the creation of the Beef Research and Promotion Program (the beef checkoff) and the Cattlemen's Beef Promotion and Research Board (Beef Board) to administer that program. The Beef Board operates through the Beef Promotion Operating Committee (BPOC), which serves as the beef checkoff's central programmatic decision-making body. As directed by statute, the BPOC must contract with established national nonprofit industry-governed organizations to implement programs of promotion, research, consumer information, and industry information. The National Cattlemen's Beef Association (NCBA) is the largest contractor to the beef checkoff program. AMS reviews and approves BPOC's annual contracts with NCBA and other contractors. Every year, NCBA enters into an annual operating agreement with BPOC. The Operating Agreement states that NCBA is required to provide BPOC with interim reports of activity as specified on an authorization request or otherwise requested by the Committee. However, NCBA retains partial ownership rights over records generated in the course of its beef checkoff contract work. The plaintiff submitted a Freedom of Information Act (FOIA) request to USDA, AMS seeking twenty-one categories of records. The plaintiff sought records concerning the relationship between the beef checkoff program and various committees and researchers from the American Academy of Pediatrics. AMS responded to plaintiff's request by stating that "searches were conducted by AMS and the Cattleman's Beef Promotion and Research Board, and no records responsive to the request were located.” The plaintiff filed an administrative appeal challenging the defendant's search as inadequate. In its appeal, the plaintiff noted that at least two responsive documents were publicly available on defendant's beef checkoff websites, and it insisted that because of defendant's failure to identify and produce those documents there is no reason to believe that AMS or the Beef Board adequately searched for documents in any of the twenty other categories involving similarly-situated researchers and entities. The defendant ultimately produced three responsive records. The defendant stated that it had produced all responsive records in its possession, so it asked plaintiff to withdraw its appeal. However, the plaintiff maintained that the defendant’s search was inadequate because it had not requested records from NCBA. The defendant did not provide any further response to the plaintiff, and the plaintiff sued. The NCBA filed a motion to intervene in the case to "protect its documents and property from search and disclosure under FOIA because NCBA's documents and property are not 'agency records' as defined under FOIA.” Both parties consented to the motion, which the Court granted the next day. The court noted that in order to qualify as agency records subject to FOIA’s disclosure rules, the defendant must have created or obtained the records and have been in control of the records at the time the FOIA request was made. The court held that there is no question that the defendant did not create the records the plaintiff sought because they were created by the NCBA. The plaintiff claimed that the defendant had the authority to audit NCBA’s records and therefore had “obtained” the records. However, the court held that an agency’s right to access to materials does not transform the records into agency records because the FOIA refers to records that have been obtained not that could be obtained. Thus, the court determined that the defendant did not create or obtain the records. In addition, the court held that the fact that NCBA retained control of the records and the defendant had never exercised its right to audit those records indicates that the defendant did not have control of the documents. In addition, the defendant had no knowledge of any of its personnel having either read or relied on the records in question and the documents were not integrated into the agency’s record systems. These facts led the court to conclude that the defendant did not have control of the records in question at the time the FOIA request was made. As such, the documents did not qualify as agency records subject to FOIA and the court granted the motions of the defendant and the NCBA for summary judgement. Physicians Committee for Responsible Medicine. v. United States Department of Agriculture., No. 13-0483, 2018 U.S. Dist. LEXIS 88219 (D. D.C. May 25, 2018).

Posted June 2, 2018

No Constitutional Right To Lie To Obtain Employment. In February 2014, Idaho enacted a law criminalizing interference with agricultural production to protect farmers. The plaintiffs sued, sued alleging that the statute violated their constitutional rights to free speech and equal protection. The trial court agreed and granted the plaintiffs’ motion for partial summary judgment. The appellate court affirmed in part and reversed in part. The appellate court determined that Idaho’s criminalization of misrepresentations to obtain records and secure employment are not protected speech under the First Amendment and do not violate the Equal Protection Clause under the Constitution. The appellate court instructed the trial court to modify its permanent injunction accordingly. The plaintiffs objected, claiming that the trial court should not just modify its permanent injunction. They asked the trial court to also enter a separate declaratory judgment clarifying the ruling on the portion of the appellate court’s decision that involved making misrepresentations to get a job. The plaintiffs claimed that their undercover investigators routinely lie when applying for jobs at agricultural production facilities. Consequently, the plaintiffs asked the trial court to issue a blanket declaration that the appellate court’s decision did not apply to the employment-based undercover investigations that the plaintiffs engage in. The trial court held that the rule of mandate prohibits it from making the declaratory judgment the plaintiffs’ sought because the appellate court ruled on the plaintiffs’ facial challenge. Thus, the trial court was barred from revisiting that determination. However, according to the plaintiffs, the appellate court narrowed the emphasized language such that it now covers only those who act with “a specific intent to cause injury.” The trial court disagreed, determining that the appellate court did separately address the intent element of the statute but without narrowing the language. The trial court held that, according to the appellate court, intent must be determined on a case-by-case basis, depending on the facts. As such, the trial court dismissed the plaintiffs’ request for a clarifying order because it lacked jurisdiction to order that form of relief. Plaintiffs’ also requested, in the alternative, a declaration that this portion of the statute was unconstitutional as applied to their intended activity. However, the trial court held that the plaintiffs were not entitled to a declaration in their favor. If they wished to obtain judgment on a claim before trial, the logical procedural move was to seek summary judgment not move for a declaratory judgment. In addition, based on the declarations the plaintiffs submitted in support of their motion, along with the sweeping order they sought, the court found that plaintiffs did not truly appear to be asserting as-applied claims. They were asking the court to hold that this portion of the statute did not apply to certain categories of people who will undertake certain types of undercover investigations at unspecified agricultural production facilities. Thus, the trial court determined that the declaration the plaintiffs sought could conceivably apply to large numbers of undercover investigators seeking employment at all sorts of agricultural production facilities. The trial court held that to obtain this sort of relief the plaintiff must satisfy the standards for a facial challenge which the plaintiffs have already sought, and the appellate court determined they were not entitled to it. As such, the district court denied the plaintiffs’ motions. Animal Legal Defense Fund v. Wasden, No. 1:14-cv-00104-BLW 2018 U.S. Dist. LEXIS 78441 (D. Idaho May 8, 2018).

Posted May 26, 2018

Generic Grape Advertising Not Unconstitutional. The plaintiffs, several California grape growers, claimed that the defendant violated the plaintiffs’ First Amendment free speech rights by collecting mandated fees to pay for a range of services including advertising and marketing. Specifically, the plaintiffs claimed the collection of assessments by the defendant under the California Ketchum Act subsidizes promotional speech on behalf of California table grapes as a generic category that violates their rights to free speech, free association, due process, liberty and privacy under the California Constitution (Article I, Section 2) because the plaintiffs have developed specialty grapes that they want to market in their own manner without being forced to pay for generic grape advertising that sponsors a viewpoint that they disagree with. The trial court ruled that the defendant is a governmental entity, and therefore its speech is government speech that can be funded by assessments collected from the plaintiffs under a constitutional analysis that is significantly deferential and is not subject to heightened scrutiny. As such, the trial court determined that the speech did not implicate Article 1, Section 2. On appeal, the California Supreme Court affirmed. The Supreme Court noted that the relevant circumstances established sufficient government responsibility for and control over the messaging at issue such that the advertising constituted government speech that the plaintiffs could be required to subsidize without any implication of their constitutional rights under Article 1, Section 2. Specifically, the Court noted that the California legislature developed and endorsed the central message that the defendant promulgated with respect to California fresh grapes generically. The articulation and broadcasting of that message was entrusted to market participants acting through the defendant. The Court viewed this as meaningful oversight by the public and other governmental actors and included oversight mechanisms serving to ensure that the defendant’s messaging remained within the statutory parameters. The Court also stated that there is no right not to fund government speech, and also determined that the Ketchum Act did not bar the plaintiffs from speaking. Delano Farms Company v. California Table Grape Commission, No. S226538, 2018 Cal. LEXIS 3634 (Cal. Sup. Ct. May 24, 2018).

Posted May 5, 2018

Public Use Doctrine And Eminent Domain Statues Apply To Condemnation Under Colorado Constitution. The plaintiff sought private condemnation of a public equestrian and pedestrian trail that bisects two of its adjacent properties. The public trail runs between the Highline Canal to the north and the Long Road to the south. The city owns the public trail. Several years before this suit was filed, the plaintiff proposed creating a new trail along the southern edge of its eastern tract in exchange for vacating the public trail through its property. The City ultimately rejected this offer, so the plaintiff offered to purchase the public trail for $85,300. Without responding to this offer, the City began construction to improve the public trail. Two days after the City placed surveying stakes on the public trail, the plaintiff filed this petition in condemnation under Article XVI, Section 7 of the Colorado Constitution. The plaintiff petitioned to condemn the entire public trail to construct a ditch from the Highline Canal to the southern end of its properties. The City opposed the petition in a motion to dismiss. The trial court granted the City's motion concluding that the eminent domain statutes clarified and implemented the rights and responsibilities of a party seeking to condemn property under Section 7. The plaintiff appealed. On appeal the plaintiff claimed that the trial court imposed unlawful restrictions on its right to condemn property under Section 7. The plaintiff claimed that Section 7 was self-executing and that a private condemnor need not comply with the eminent domain statutes or show necessity before exercising the right of condemnation. The appellate court determined that well-settled law recognized the legislature's ability to "regulate the exercise" of the right of private condemnation, and to hold otherwise would allow private condemnors an unfettered ability to condemn property without any guiding principles, and would leave condemnees and courts with little understanding of the contours of the right. Thus, the court held that while Section 7 may be self-executing, it was not without limitation, as suggested by the plaintiff, but may be regulated and implemented by the eminent domain statutes. The plaintiff also claimed on appeal that even if the eminent domain statutes applied, its proposed plan did not violate them. Because land that the plaintiff sought to condemn was already in public use as a public trail, the court had to determine whether the prior public use doctrine applied to private condemnation proceedings under Section 7. The court determined that the plaintiff’s argument failed to acknowledge how narrowly the court must construe the condemnation power under Section 7. Thus, although the language of Section 7 included a private right to condemn public, private, or corporate-owned property for water rights-of-way, the appellate court held that it must be viewed through the broader lens of the eminent domain statutes that regulate it. In addition, the appellate court held that although Section 7 granted the general authority to condemn public property for a right-of-way to access water, it did not expressly grant the authority to extinguish an existing public use on such property. As such, narrowly construing the right to condemn, the appellate court rejected the plaintiff’s argument that Section 7 expressly authorized it to extinguish the public trail and instead concluded that Section 7 merely grants express authority to a right-of-way, so long as the right-of-way does not extinguish the prior public use. Consistent with this holding, the trial court found that several alternatives to extinguishing the public trail existed and that the plaintiff could obtain a right-of-way to access its water rights without eliminating the existing public use. Because ample record evidence supported this conclusion, the appellate court affirmed it. Thus, while the plaintiff’s proposed water plan may reflect the most cost-effective and efficient option to achieve its own purposes, it did not reflect the only available option, nor did it consider the existing public use. Thus, the trial court’s grant of the City’s motion to dismiss was affirmed. CAW Equities L.L.C., v. City of Greenwood Village, No. 17CA0212, 2018 Colo. App. LEXIS 389 (Colo. Ct. App. Mar. 22, 2018).

Posted April 30, 2018

Company Formed to Construct and Manage High-Voltage “Clean Line” Not a Public Utility. A company was formed in 2015 to construct and manage a high voltage direct current electric transmission line that would run from an alternating current (AC) to direct current (DC) converter station in western Kansas through Kansas, Missouri, Illinois and Indiana. The company applied to the defendant for a certificate of public convenience and necessity for the construction of the line in accordance with the Illinois Public Utilities Act (Act). The company asserted in its application that it would “own, control, operate, and manage within the State of Illinois, for public use, facilities for the transmission of electricity and therefore will be a public utility.” The defendant granted the certificate. The plaintiff, a group of landowners that owned land in the geographical area of the transmission line, challenged the defendant’s authority to grant the certificate on the basis that the company was not a public utility and that only a public utility could be granted a certificate of public convenience and necessity under Sec. 8-406.1 of the Act. The court agreed, noting that to qualify as a public utility a company “must also own, control, operate, or manage, within [Illinois]…a plant, equipment, or property used or to be used for…the production, transmission, sale, etc., of one of the specified commodities or services.” At the time the application was submitted, the company did not own any property in Illinois that would have been used to implement the transmission line and was not a public utility. Accordingly, the court reversed the defendant’s grant of the certificate. Concerned Citizens and Property Owners v. Illinois Commerce Commission, No. 5-15-0551, 2018 Il App. Unpub. LEXIS 391 (Ill. Ct. App. Mar. 13, 2018).

California Blocked In Attempt to Label Glyphosate With Cancer Warning. The plaintiff, a consortium of agricultural groups, challenged the plans of the defendant (the director of the Office of Environmental Health Hazard Assessment (OEHHA)) to require label warnings on products containing glyphosate, a weed-killing chemical. California, in accordance with Proposition 65, requires the Governor to publish a list of chemicals known by the State to cause cancer, as determined by outside entities including the U.S. EPA, the U.S. FDA and the International Agency for Research on Cancer (IARC). Proposition 65 also requires a warning label. While the IARC , in 2015, classified glyphosate as “probably carcinogenic” to humans, other organizations, including the EPA, concluded that there was no evidence that glyphosate causes cancer. As a result of the IARC’s determination, the OEHHA issued a “Notice of Intent to List Glyphosate” in November of 2015, and then on July 7, 2017, listed glyphosate as a chemical known by California to cause cancer. As a result, the associated warning label took was set to take effect one year later – July 7, 2018. The plaintiff claimed that the warning label violated the First Amendment by requiring the plaintiff to make false, misleading and highly controversial statements about its products. The plaintiff sought a preliminary injunction against the label requirement. The court issued the injunction, citing the volume of evidence in the record that glyphosate is not, in fact, known to cause cancer. Thus, a warning label would not be factually accurate. National Association of Wheat Growers, et al., v. Zeise, No. 2:17-2401 WBS EFB, 2018 U.S. Dist. LEXIS 30736 (E.D. Cal. Feb. 26, 2018).

Update. State court litigation involving Proposition 65 challenged the state’s labor code and its listing mechanism for identifying known carcinogens. The issue before the court was whether Proposition 65’s reliance on the IARC to identify known carcinogens violated the California and Federal Constitutions. The plaintiff claimed that it was improper to utilize a foreign entity to determine cancer-causing chemicals, and that the CA labor code couldn’t be used to delegate rulemaking authority to the IARC. The court rejected the plaintiff’s argument that the listing of glyphosate violated its due process rights or that the listing mechanism violated the Guarantee Clause of the U.S. Constitution. The court determined that there was a “built-in” safeguard that provided for adequate protection against potentially arbitrary or abusive determinations that certain chemicals are known to the state to cause cancer. Monsanto Co. v. Office of Environmental Health Hazard Assessment, et al., No. F075362, 2018 Cal. App. LEXIS 354 (Cal. Ct. App. Apr. 19, 2018).

Posted April 18, 2018

Due Process Not Violated In Destruction of Deer Herd. The defendant, as the responsible state agency for managing wild animals, destroyed the plaintiff’s captive deer herd for fear that the herd was suffering from chronic wasting disease. When the plaintiff bought his farm, it had a herd of captive deer that the defendant had quarantined. The plaintiff did not have the required license for owning captive deer at the time he purchased the farm. The prior owner managed the herd and kept the required records on the deer. The plaintiff claimed that the defendant’s destruction order was not supported by the evidence and that his due process rights had been violated. The trial court ruled against the plaintiff. On appeal, the appellate court affirmed. The appellate court noted that chronic wasting disease can only be determined post-mortem and that it is a very real danger to all deer in the state. The appellate court noted that while diagnosing chronic wasting disease is difficult to diagnose, the potential damage to the state’s entire deer herd was very real. The appellate court also noted that some of the herd had been diagnosed with the disease and that the seller of the farm to the plaintiff could not prove that the balance of the herds were prevented from intermingling. In addition, the plaintiff was fully aware of the problem and the risk that the herd would have to be destroyed. Bales v. Ohio State Department of Agriculture, No. 17AP-757, 2018 Ohio App. LEXIS 1426 (Ohio Ct. App. Apr. 5, 2018).

Posted March 29, 2018

ELD Rule Involving Agricultural Commodities Defunded. On December 18, 2017, the U.S. Department of Transportation (USDOT) Final Rule on Electronic Logging Devices (ELD) and Hours of Service (HOS) was set to go into effect. 80 Fed. Reg. 78292 (Dec.16, 2015). The final rule was issued in late 2015. The new rule will require truck drivers to use electronic logging devices instead of paper logs to track their driving hours starting December 18. The devices connect to the vehicle's engine and automatically record driving hours. There are numerous exceptions to the ELD final rule. While the mandate was set to go into effect December 18, 2017, the Federal Motor Carrier Safety Administration (FMCSA) granted a 90-day waiver for all vehicles carrying agricultural commodities. That 90-day delay was later extended. Other general exceptions to the final rule exist for vehicles built before 2000; vehicles that operate under the farm exemption (a “MAP 21” covered farm vehicle; 49 C.F.R. §395.1(s)); drivers coming within the 100/150 air-mile radius short haul log exemption (49 CFR §395.1(k)); and drivers who maintain HOS logs for no more than eight days during any 30-day period. Under the Omnibus legislation signed into law on March 23, 2018 (H.R. 1625), the ELD rule was defunded through the end of the government's current fiscal year - September 30, 2018. Under Division L, Title I, Section 132, specifies that, “None of the funds appropriated or otherwise made available to the Department of Transportation by this Act or any other Act may be obligated or expended to implement, administer, or enforce the requirements of 5 section 31137 of title 49, United States Code, or any regulation issued by the Secretary pursuant to such section, with respect to the use of electronic logging devices by operators of commercial motor vehicles, as defined in section 31132(1) of such title, transporting livestock as defined in section 602 of the Emergency Livestock Feed Assistance Act of 1988 (7 U.S.C. 1471) or insects.” H.R. 1625, signed into law on Mar. 23, 2018.

Posted March 11, 2018

California Blocked In Attempt to Label Glyphosate With Cancer Warning. The plaintiff, a consortium of agricultural groups, challenged the plans of the defendant (the director of the Office of Environmental Health Hazard Assessment (OEHHA)) to require label warnings on products containing glyphosate, a weed-killing chemical. California, in accordance with Proposition 65, requires the Governor to publish a list of chemicals known by the State to cause cancer, as determined by outside entities including the U.S. EPA, the U.S. FDA and the International Agency for Research on Cancer (IARC). Proposition 65 also requires a warning label. While the IARC , in 2015, classified glyphosate as “probably carcinogenic” to humans, other organizations, including the EPA, concluded that there was no evidence that glyphosate causes cancer. As a result of the IARC’s determination, the OEHHA issued a “Notice of Intent to List Glyphosate” in November of 2015, and then on July 7, 2017, listed glyphosate as a chemical known by California to cause cancer. As a result, the associated warning label took was set to take effect one year later – July 7, 2018. The plaintiff claimed that the warning label violated the First Amendment by requiring the plaintiff to make false, misleading and highly controversial statements about its products. The plaintiff sought a preliminary injunction against the label requirement. The court issued the injunction, citing the volume of evidence in the record that glyphosate is not, in fact, known to cause cancer. Thus, a warning label would not be factually accurate. National Association of Wheat Growers, et al., v. Zeise, No. 2:17-2401 WBS EFB, 2018 U.S. Dist. LEXIS 30736 (E.D. Cal. Feb. 26, 2018).

Posted February 27, 2018

Amended Statutory Definition of “Agricultural Operations” Did Not Include Hosting Weddings. In 2011, the defendant town sued the plaintiff to prevent him from hosting commercial events on his farm. The parties then entered into an amended consent judgment permanently enjoining the plaintiff from using or renting his property for weddings for a fee or other commercial events. The injunction was to run with the plaintiff’s land “until such time as and to the extent that the terms of this permanent injunction are superseded by statute.” According to the plaintiff, that time came in 2014 when the general assembly amended the second sentence of R.I. Code §2-23-4(a) to read as follows: “The mixed-use of farms and farmlands for other forms of enterprise including, but not limited to, the display of antique vehicles and equipment, retail sales, tours, classes, petting, feeding and viewing of animals, hay rides, crop mazes, festivals and other special events are hereby recognized as a valuable and viable means of contributing to the preservation of agriculture.” Concluding that the amendment superseded the 2011 injunction, the plaintiff attempted to obtain a zoning certificate from the defendant that would allow him to host a commercial fundraising event on his farmland. However, the defendant rejected his attempt claiming that the 2011 injunction was still in effect. The plaintiff sued in 2015. After a bench trial, the court denied the plaintiff’s request for declaratory relief ruling that the General Assembly’s 2014 amendments to §2-23-4(a) did not supersede the 2011 injunction. The plaintiff appealed. The plaintiff’s argument on appeal was that the 2014 amendment to R.I. Gen. Laws § 2-23-4(a) expanded the definition of “agricultural operations,” thereby freeing him from the constraints of the 2011 injunction and allowing him to host weddings on his farmland. However, the appellate court held that the amendment provided only a clear and unambiguous list of mixed-uses that the general assembly had recognized as a valuable and viable means of contributing to the preservation of agriculture. The appellate court determined that the two sentences of the statute serve two different purposes: definitional and aspirational. The appellate court pointed out that the second sentence of the amended language was not devoid of meaning, but rather set forth a list of encouraged activities that the General Assembly deemed valuable and viable with respect to contributing to the preservation of agriculture. However, the court held that this is a statement of policy preference and did not transform a non-agricultural mixed-use of farmland into an agricultural operation. Thus, because hosting weddings for a fee was an activity falling outside of the statutory definition of agricultural operation, and was a nonagricultural activity subject to the town’s control. Consequently, the trial court’s judgment was affirmed. Gerald P. Zarella Trust v. Town of Exeter, No. 2016-301-Appeal, 2018 R.I. LEXIS 8 (R.I. Ct. App. Jan. 16, 2018).

Posted February 24, 2018

County Ordinance Allowing “Electrical…Transmission and Regulating Facilities” Does Not Allow Aerogenerators. The defendant county’s zoning ordinance lists several permitted uses in agriculturally-zoned districts, including one for “electrical and natural gas transmission and regulating facilities.” The ordinance also authorizes “special use permits” following notice and hearing. Landowners in the county granted easements to a company, another defendant in the case, to construct three aerogenerators on their agriculturally-zoned property. The company applied to the defendant county’s Board of Adjustment (BOA), for special use permits to construct the turbines. The BOA denied the application. When the defendant contested the denial, the defendant county’s zoning administrator requested a legal opinion from the county attorney. After examining the permitted use language, the county attorney opined that, to the extent aerogenerators can be determined to transmit electrical power and in the absence of specific rules or regulations regarding aerogenerators, no special use permit is called for or required by the defendant county’s zoning ordinance. Thus, placement of them in the ag district was allowed without a special use permit. The BOA then approved the defendant’s application for zoning compliance. The plaintiffs, a city within the county and various county residents and businesses, challenged the BOA’s approval. The plaintiff’s claimed that construction of the aerogenerators would disrupt their use and enjoyment of their land and would diminish the value of the land in and around the city. The BOA rejected the plaintiffs’ challenge. The plaintiffs appealed. The trial court held an evidentiary hearing and declared the BOA’s approvals illegal and void and ordered the removal of all aerogenerators that had been erected. The trial court based its decision on the finding that aerogenerators did not “transmit” electricity as the ordinance required. The defendant and the BOA appealed. The appellate court determined that it was undisputed that aerogenerators generate electricity. However, the appellate court determined that the real question was whether they transmitted and regulated electricity within the meaning of the ordinance. Because the ordinance did not define those terms, the court looked to their ordinary meaning “to send or convey from one person or place to another” and “to cause or allow to spread.” The appellate court further noted that the dictionary defines regulate as “to bring order, method, or uniformity to and to fix or adjust the time, amount, degree, or rate of.” Based on these ordinary meanings, the appellate court held that aerogenerators would not fall within the permitted use language. Finally, the appellate court pointed out that all the uses listed in the ordinance are commonly understood uses. The appellate court held that aerogenerators do not fall within the common understanding of “electrical and natural gas transmission and regulating facilities.” Because none of the aerogenerator companies produced evidence at any stage of the proceedings on the transmission and regulation capacities of their systems, the court determined that they did not know whether the aerogenerators would have comported with industry specifications. Thus, in the absence of a more comprehensive record on the nature of the aerogenerators and accepting the ordinary meaning of the ordinance language the court affirmed the trial court’s decision. Woods v. Fayette County Zoning Bd. of Adjustment, No. 17-0090, 2018 Iowa App. LEXIS 184 (Iowa Ct. App. Feb. 21, 2018).

Posted February 22, 2018

Private Dam Violated State Law – Penalties Upheld. Between 1997 and 2000, the plaintiffs constructed a dam and a lake on their farm and stocked the pond with fish. The dam is more than 20-feet high at some points, the lake has a surface area of approximately 40-acres and the lake contains more than 100 acre-feet of water. During the course of construction, the plaintiffs were in contact with the Department of Natural Resources (DNR), the defendant in this case, about necessary permits, but the defendant did not instruct them to obtain any specific permits. Nonetheless, between 2002 and 2008, the DNR issued to the plaintiffs a notice of violation (NOV) with respect to the dam on at least three separate occasions. The plaintiffs either did not comply with those NOVs or had them subsequently dismissed by a trial court. On May 14, 2012, the defendant issued another NOV to the plaintiffs. The 2012 NOV alleged, in relevant part, that the plaintiffs’ dam was in violation of Indiana’s Dam Safety Act (DSA) (Ind. Code Ann. §§14-27-7.5- to -15). The plaintiffs sought administrative review of the 2012 NOV. At the hearing the defendant presented expert testimony that streams existed on the plaintiffs’ property and that the lake was created by damming those streams. Following the hearing and oral arguments the Commission entered its order in favor of the defendant. The plaintiffs were ordered to draw down the water level in their lake to an elevation of between 840 and 845 feet NAVD (an acronym for a surveying and engineering term relating to ground and flood elevations) and maintain the water at that level until they have complied with the remainder of the order. In addition, they were ordered to make the necessary changes to the lake so that it would comply with the DSA. Finally, they were ordered to pay $10,000 in civil penalties for violation of the DSA. The plaintiffs filed a petition for judicial review thereafter, and the trial court affirmed the Commission’s decision. The plaintiffs then filed a motion to correct error with the trial court, which was subsequently denied. The plaintiffs appealed. On appeal, the plaintiffs asserted that the defendant misinterpreted state law when it determined that it had jurisdiction over the plaintiff’s lake. The plaintiffs claimed that the defendant’s jurisdiction hinges on whether the lake was built in, on or along a stream. The plaintiffs asserted that the body of water their lake is built along is not a stream because it is not continuously flowing. However, the appellate court determined that if the defendant only had jurisdiction over structures along a continuously flowing stream, that would ignore the variableness of the weather and the seasons. In addition, the appellate court reasoned that such a determination would exclude streams that might have a significant volume of flowing water for the majority of the year then dry up for a couple of weeks during the hottest part of the summer or during a year of extreme drought. The plaintiffs also argued that the defendant’s classification of their dam as a high hazard dam was erroneous. Specifically, they claimed that a computerized study performed by the defendant was flawed. However, the appellate court held that there were several other witnesses who presented substantial evidence to support the Commission’s conclusion that the plaintiffs’ dam was a high hazard dam. Several experts testified that the nearby vicinity of homes and high traffic roadways caused it to be a high hazard dam because if it broke it would cause serious damage. Thus, even without the study, the plaintiffs could not show that the Commission’s decision was contrary to law. Consequently, the court affirmed the trial court’s denial of the plaintiffs’ petition for judicial review. Moriarity v. Ind. Dep’t of Natural Res., No. 27A04-1612-PL-73, 2018 Ind. App. LEXIS 57 (Ind. Ct. App. Feb. 13, 2018).

Posted February 10, 2018

Nebraska Livestock Brand Act Upheld As Constitutional. The plaintiff, a non-profit corporation that represents various cattle feedlot operators in Nebraska, challenged the constitutionality of the Nebraska Livestock Brand Act (LBA) in federal court, seeking a preliminary and permanent injunction against the law’s enforcement. In accordance with the LBA, the defendant charges $1 per head for brand inspection, and charges $1,000 for a registered feedlot permit for each 1,000-head capacity, plus $250 for each additional 250-head capacity. The LBA was originally enacted in 1941 to detect and prevent livestock theft by establishing a regime for recording livestock brands and inspecting livestock (primarily cattle) to ensure proper ownership. The LBA created the defendant to enforce Nebraska’s brand laws, and the LBA consists of members appointed by the Governor. Part of the defendant’s duties include recording brands and published a book of all recorded brands. The LBA also created a brand inspection area comprised of the western two-thirds of Nebraska. Livestock that move in or out of the brand inspection area are subject to inspection and recordkeeping requirements and cannot be transported with the transporter having a transportation permit. Feedlots in the brand inspection area must be a “registered feedlot” and pay the registration fee. Once a feedlot is registered cattle in the feedlot are not subject to brand inspection when they are moved from the brand inspection area. In addition, brand inspection is not required for cattle brought in the brand inspection area from a registered feedlot for direct slaughter or for sale to a terminal market. Cattle shipped from a registered feedlot are not subject to brand inspection at origin or destination is they are destined for direct slaughter or sale at a terminal market. However, the shipper must have a shipping certificate from a registered feedlot. Cattle that are shipped from a registered feedlot, except for direct slaughter or sale at a terminal market area, are subject to brand inspection. In essence, cattle moving in or out of the brand inspection area or being sold, traded or slaughtered in the brand inspection area are subject to inspection. However, cattle shipped to or from a registered feedlot are largely not so subject. The plaintiff claimed that the LBA violated the “dormant commerce clause” by impermissibly burdening interstate commerce. However, the court noted that the plaintiff’s allegation was that the LBA burdened the plaintiff’s members and Nebraska businesses rather than interstate commerce. The court noted that the LBA merely impact the flow of interstate commerce and does not burden it. Fees on local businesses and services providers are not constitutionally defective. The LBA, the court concluded, did not disparately affect interstate commerce and did not impose a clearly excessive burden on interstate commerce in relation to the local benefits it created. The court similarly rejected the plaintiff’s equal protection claim. The plaintiff claimed that the LBA violated the Constitution’s Equal Protection Clause because it treated the brand inspection area differently from the remainder of the state. The court rejected this claim on the basis that the LBA applies to livestock in the range area of the state and all livestock within that area are treated similarly. In addition, no fundamental right or suspect class was involved. The court held that there was a rational basis for the LBA – livestock theft in the area of the state where that was most likely to occur. As such, the LBA was economic regulation subject to rational basis review. The LBA, the court held, was rational legislation by the state. The court held that the plaintiff failed to state a claim upon which relief could be granted, and dismissed the plaintiff’s complaint. Nebraska Beef Producers Committee v. Nebraska Brand Committee, No. 4:17-CV-3061, 2018 U.S. Dist. LEXIS 18413 (D. Neb. Feb. 5, 2018).

Posted January 25, 2018

County Zoning Inapplicable To Ag Land With Non-Ag Building. The Kansas Attorney General (A.G.) was asked to issue an opinion on the question of whether Kan. Stat. Ann. §19-2921 allowed a county to zone land that is used for agricultural purposes but where a non-agricultural building is located on the property. Kan. Stat. Ann. §19-2921 states in pertinent part that “Except for flood plain regulations in areas designated as a flood plain, regulations adopted pursuant to this act shall not apply to the use of land for agricultural purposes, nor for the erection or maintenance of buildings thereon for such purposes so long as such land and buildings erected thereon are used for agricultural purposes and not otherwise.” The A.G. determined that the statute had two separate and distinct exemptions – one that required the land at issue to be used for ag purposes; and a second exemption that applied only when the land and buildings are used exclusively for agricultural purposes. The question posed to the A.G. involved a tract of land of less than 10 acres, and the A.G. noted that the size of the tract is a factor to be considered because whether either exemption applies is determined based on all of the facts of a particular situation. There is no objective test, such as a minimum acreage size. The A.G. noted that the determination of whether land use constitutes an agricultural purpose is a question of law for the courts. However, once land is determined to be used for agricultural purposes, a county cannot zone it. Accordingly, the status of a building only affects the county’s ability to zone uses of the building. The status of the building does not transform the use of the land from an agricultural purpose to a non-agricultural purpose. But, the converse is also true. If a building used for agricultural purposes is located on land that is no longer used for agricultural purposes, the building would then become subject to county zoning. Thus, based on the facts presented, the A.G. opined that a county cannot impose zoning regulations on land used for ag purposes even if there is a building on the land that is not used for ag purposes. Kan. Att’y. Gen. Op. No. 2017-4 (Jan. 19, 2018).

Posted January 24, 2018

GMO-Eating Cows Don’t Produce “Unnatural” Products. The plaintiff sought class certification in a suit against the defendant challenges the defendant’s use of a “Natural” label on twelve different varieties of the defendant’s yogurt products. The plaintiff claimed that a reasonable consumer would not deem the products to be all natural if it were known that the products contained ingredients ‘derived’ either from cows that are fed crops made from genetically-modified organisms (GMOs) or cows raised using hormones and certain milk production methods. The plaintiff sought injunctive relief, restitution, compensatory and punitive damages, attorney’s fees and costs, and prejudgment interest. The defendant motioned to dismiss the case or, in the alternative, stay the case pending relevant U.S. Food and Drug Administration (FDA) regulations, which was, at the time, reviewing the proper regulation of the term “natural.” At the time the suit was filed, the FDA policy informally defined “natural” as meaning “nothing artificial or synthetic…is included in, or has been added to, the product that would not normally be expected to be there.” The court determined that current federal law did not require an end product to be labeled as “genetically-modified” where the product was derived from animals that have been fed genetically-modified feed. In addition, the court pointed out that the plaintiff’s claim was simply that yogurt is made from milk, and that today most milk is made from cows that consume feed of a particular type, and who are subjected to certain animal husbandry practices. The court noted that the plaintiff alleged very little about the defendant’s specific practices. For example, the court pointed out that the plaintiff did not allege that a single ingredient in the yogurt was not natural. Rather, the court determined that the plaintiff’s argument was predicated on speculation - that if the cows producing the milk used to make yogurt ate genetically modified feed or were fed antibiotics, their resulting milk and the yogurt made from it was necessarily not natural. The court pointed out that the plaintiff, rather than claiming that the defendant knowingly used milk from cows fed with modified grains, merely "recit[ed] facts and statistics" about the use of genetically-modified organisms in animal husbandry. Even if the plaintiff had offered more specific facts, the court explained, the plaintiff’s belief that the presence of genetically-modified organisms rendered the yogurt unnatural are "conclusory, based on her own feelings ... and on a variety of surveys" on consumers' opinions about GMOs. Also, the court noted that the plaintiff did not allege "that a single ingredient in the yogurt is not natural." In other words, cattle feed is not an ingredient of yogurt. In addition, the court pointed out that the defendant did not affirmatively represent that its yogurt was free of genetically-modified organisms. As such, the court held that this type of conclusory argument could not be nudged over the line from conceivable to plausible. As a result, the plaintiff’s claims were dismissed due to no legal support for the idea that a cow that eats genetically-modified feed or is subjected to hormones or various animal husbandry practices produced “unnatural” products. The court granted the defendant’s motion to dismiss. Podpeskar v. Dannon Company, Inc., No. 16-cv-8478, 2017 U.S. Dist. LEXIS 198948 (S.D.N.Y. Dec. 3, 2017).

Posted January 7, 2018

Portions of Idaho Law Designed to Protect Interference with Animal Ag Facilities Upheld on Appeal.  In 2012, an animal rights activist went undercover to get a job at an Idaho dairy farm then secretly filmed ongoing animal abuse there. The video was then given to Mercy for Animals, an animal rights group, that publicly released portions of the video, drawing national attention. The dairy farm owner responded to the video by firing the employees who were caught on camera, instituting operational protocols, and conducting an animal welfare audit at the farm. Following the release of the video the Idaho Legislature responded by enacting the Interference with Agricultural Production Law, Idaho Code § 18-7042. This legislation broadly criminalizes making misrepresentations to access an agricultural production facility as well as making audio and video recordings of the facility without the owner’s consent. Specifically, Idaho Code Sec. 18-7042(1)(d)) criminalizes "interference with agricultural production" when a person knowingly enters an ag production facility without permission or without a court order or without otherwise having the right to do so by statute (in other words, the person is on the premises illegally), and makes a video or audio recording of how the ag operation is conducted. In March 2014, The Animal League Defense Fund (ALDF) filed suit challenging the constitutionality of the law. The complaint alleged that the purpose and effect of the statute “are to stifle political debate about modern agriculture by criminalizing all employment-based undercover investigations and criminalizing investigative journalism, whistleblowing by employees, or other expository efforts that entail images or sounds” in violation of the First and Fourteenth Amendments. The district court determined that four subsections of the statute—§18-7042(1)(a)-(d)—were unconstitutional on First Amendment and Equal Protection Grounds. Subsection (a) of the code criminalizes entry into an agricultural production facility “by force, threat, misrepresentation or trespass.” The ALDF challenged only the misrepresentation prong of this subsection as unconstitutional and the appellate court (the U.S. Court of Appeals for the Ninth Circuit) agreed. The appellate court determined that unlike lying to obtain records or gain employment, which are associated with a material benefit to the speaker, lying to gain entry merely allowed the speaker to cross the threshold of another’s property, including property that is generally open to the public. Thus, the appellate court determined that the provision was overbroad and could potentially criminalize behavior that, by itself, was innocent, and was targeted at speech and investigative journalists. The court stated that it saw no reason why the state could not narrow the subsection by requiring specific intent or by limiting criminal liability to statements that cause particular harm. The court also held that an easy solution to the First Amendment issue would be to simply strike the word misrepresentation. However, concerning Subsection (b) that criminalizes obtaining records of an agricultural production facility by misrepresentation, the appellate court reversed the trial court by holding that subsection (b) protects against a legally cognizable harm associated with a false statement and therefore survives constitutional scrutiny. The court determined that unlike false statements made to enter property, false statements made to actually acquire agricultural production facility records inflict a property harm upon the owner, and may also bestow a material gain on the acquirer. Similarly, the appellate court reversed the trial court’s determination with respect to subsection (c) which criminalizes knowingly obtaining employment with an agricultural production facility by misrepresentation with the intent to cause economic or other injury to the facility’s operations, property or personnel. The appellate court determined that subsection (b) followed subsection properly followed U.S. Supreme Court guidance as to what constitutes a lie made for material gain. This was particularly the case, the appellate court noted, because subsection (c) limits criminal liability to only those who gain employment by misrepresentation and who have the intent to cause economic or other injury which further limits the scope of the subsection. Thus, neither subsections (b) & (c) were protected speech under the First Amendment and did not violate the Constitution’s Equal Protection Clause. Subsection (d) prohibits a person from entering a private agricultural production facility and, without express consent from the facility owner, making audio or video recordings of the “conduct of an agricultural production facility’s operations.” The court determined that because the recording process is itself expressive and is inextricably intertwined with the resulting recording, the creation of audiovisual recordings is speech entitled to First Amendment protection as purely expressive activity. In addition, the court concluded that the statute is both under-inclusive and over-inclusive. It was under-inclusive by prohibiting audio or video recordings but saying nothing about photographs. It was over-inclusive and suppressed more speech than necessary to further Idaho’s stated goals of protecting property and privacy. Therefore, the court concluded that § 18-7042(1)(a) and §18-7042(1)(d), cover protected speech under the First Amendment and cannot survive constitutional scrutiny. However, subsections (b) and (c) were upheld. Animal Legal Defense Fund v. Wasden, No. 15-35960, 2018 U.S. App. LEXIS 241 (9th Cir. Jan. 4, 2018).

Posted December 28, 2017

Bank Is Not Supplier Under Supplier Exception To KCPA. The plaintiff moved back to the family farm in 2006 to help work on the farm. The plaintiff had no farming experience. Upon the death of the plaintiff’s father in early 2010, the plaintiff received a one-fifth undivided interest in the farm. The plaintiff and his brother took over the farming operation. The following month the plaintiff approached the bank to arrange financing for the farm. In the years after the initial farm financing was secured, the plaintiff had difficulty paying down his lines of credit with the bank. In the spring of 2013, the bank suggested consolidating and securing the unpaid principal and interest from the multiple lines of credit. The plaintiff, together with other family members who controlled the remaining interests of about 300 acres, agreed to pledge as collateral an entire undivided interest in the 300 acres of farmland referred to as section nine. This agreement was memorialized in a document entitled ‘First Addendum to Family Settlement Agreement’. The parties agreed the mortgage would encumber the entire undivided interest in section nine and the bank agreed to accept section nine as collateral. In January 2014, the bank prepared the mortgage and note for the transaction which was signed by the plaintiff and recorded by the bank. The plaintiff and his brother filed a complaint alleging that the bank unilaterally changed the terms of the mortgage without the knowledge or consent of the plaintiff or his brother. This modification resulted in the mortgage encumbering the plaintiff’s undivided one-fifth interest in all of the land of the farming operation. In the petition, the plaintiff asserted six claims against the bank: breach of contract due to unilateral mistake; Kansa Consumer Protection Act violations; breach of fiduciary duty; fraud; negligent misrepresentation; and slander of title. The bank filed a motion to dismiss the petition. The trial court granted the Bank’s motion dismissing the petition. The plaintiff appealed. The plaintiff asserted 14 separate deceptive and/or unconscionable acts in violation of the Kansas Consumer Protection Act (KCPA). To successfully make a claim under the KCPA, a plaintiff must prove that the defendant is a supplier under the KCPA. In dismissing this claim the appellate court ruled the KCPA “does not apply in this case as the bank is clearly not a supplier, but rather, a regulated supplier”. However, the appellate court found that the basic text of the supplier exclusion does not limits its application to only those times when the bank is actively disposing of repossessed collateral. Rather, based on the plain language, if a bank is generally subject to regulations pertaining to disposition of repossessed collateral, the bank is excluded as a supplier under the nomenclature and reach of the KCPA. Thus, the appellate court held that the proper approach to understanding the legislature’s meaning in drafting the KCPA is the plain common-sense reading of the exclusionary language. Consequently, the appellate court concluded that as a matter of law the Bank was not a supplier for the purposes of the KCPA. Therefore, it found no error in the trial court’s dismissal of this claim. In addition, viewing the facts in a light most favorable to the plaintiff the appellate court reversed the trial court’s dismissal of the remaining counts contained in the plaintiff’s complaint and remanded the case. White v. Security State Bank, No. 115,179, 2017 Kan. App. Unpub. LEXIS 957 (Kan. Ct. App. Nov. 17, 2017).

Posted December 24, 2017

Court Affirms Denial Of Conditional Use Permit for Solar Farm. The plaintiff submitted an application to the county for a conditional use permit (CUP) for a large solar farm. After a public hearing, the county planning commission denied the CUP due largely to concerns over stray voltage and its impact on nearby dairy farms. The matter then proceeded to public hearings conducted by the county board. After the hearings, the board voted to deny issuing a CUP to the plaintiff, and the plaintiff appealed claiming that the county acted unreasonably, arbitrarily or capriciously. The court affirmed the denial, finding that the county had at least one reason for a rational basis to deny the CUP. That basis, the court determined, was grounded in findings supporting a rational basis for the increased possibility of stray voltage impacting nearby dairy farms. The court specifically noted that the interconnection infrastructure associated with the solar farm would be located adjacent to a dairy operation and would be controlled by an energy company that wouldn’t be subject to the county’s land use regulations or stray voltage conditions. The court also determined that the denial of the CUP did violate equal protection. While another solar farm had obtained a CUP even though dairy farms were in the vicinity, there were not the concerns with stray voltage in that matter as there were in the present one. Minnesota Solar, LLC v. Carver County Board of Commissioners, No. A17-0504, 2017 Minn. App. Unpub. LEXIS 1037 (Minn. Ct. App. Dec. 18, 2017).

Posted December 23, 2017

Hog Confinement Facility Conditional Use Permit Properly Granted. The defendant, in the fall of 2015, submitted a conditional-use-permit (CUP) application to the county for the construction of a hog confinement facility on its property. The facility would house up to 4,700 finishing hogs, or 1,410 animal units. State (MN) law requires farms in possession of more than 1,000 animal units to prepare an Environmental Assessment Worksheet (EAW) for review by the Minnesota Pollution Control Agency (MPCA) to determine whether the animal-farming operation must conduct an Environmental Impact Study (EIS). The defendant submitted the EAW and the MPCA, in early 2017, concluded that the facility would not pose a risk of significant environmental effects. Thus, the defendant did not have to conduct an EIS. After a public hearing on the defendant’s CUP application, the county planning commission recommended that the county board approve the defendant’s CUP application, which the county later did. The plaintiff challenged the board’s decision seeking judicial review. The court determined that the board’s grant of the CUP was not unreasonable, arbitrary and capricious or otherwise contrary to law. The court noted that the administrative record contained substantial evidence that the CUP would not violate the county odor-offset ordinance and the county did not act unreasonably in making its calculations and there was sufficient evidence to support the county’s determination. The court also held that the MPCA’s conclusion that the facility would not pose an environmental risk were not challenged by the plaintiff during the administrative process and could not be reviewed. As for the plaintiff’s claim that surrounding property values would decline because of the facility, the court held that the board permissibly relied upon the MPCA’s findings of fact and conclusions of law which the plaintiff also failed to challenge administratively and, as a result, the plaintiff’s challenge on this point was without merit. The court also held that the defendant submitted a complete application, disagreeing with the plaintiff’s contention on this point. Rosenquist v. Circle K Farms, No. A17-0279, 2017 Minn. App. Unpub. LEXIS 1040 (Minn. Ct. App. Dec. 18, 2017).

Posted December 16, 2017

Court Recognizes That State Law Beneficial Use Doctrine Establishes Water Right That Feds Had Taken. The plaintiff, a cattle ranching operation, held all “cattle, water rights, range rights, access rights, and range improvements on the base property, as well as the appurtenant federally-administered grazing allotment known as the Sacramento Allotment” in New Mexico. The petitioner obtained a permit in 1989 from the U.S. Forest Service (USFS) to graze cattle on an allotment of USFS land which allowed for the grazing of 553 cows for a 10-year period. At the time the permit was obtained, certain areas of the allotment were fenced off, but the USFS allowed the plaintiff’s cattle access to water inside the fenced areas. However, in 1996, the USFS notified the plaintiff that cattle were not permitted to graze inside the fenced areas, but then later allowed temporary grazing due to existing drought conditions. In 1998, the USFS barred the plaintiff from grazing cattle inside the fenced area, but then reissued the permit in 1999 allowing 553 cattle to graze the allotment for 10 years subject to cancellation or modification as necessary. The permit also stated that “livestock use” was not permitted inside the fenced area. In 2001, the USFS denied the plaintiff’s request to pipe water from the fenced area for cattle watering and, in 2002, the USFS ordered the plaintiff to remove cattle that were grazing within the fenced area. Again in 2006, the plaintiff sought to pipe water from a part of the fenced area, but was denied. A U.S. Fish and Wildlife Service Biological Opinion in 2004 recommended the permanent exclusion of livestock from the allotment, and the plaintiff sued for a taking of its water rights which required just compensation. While the parties were able to identify and develop some alternative sources of water, that did not solve the plaintiff’s water claims. The court determined that the plaintiff’s claim was not barred by the six-year statute of limitations because the plaintiff’s claim accrued in 1998 when the USFS took the first “official” action barring the grazing of cattle in the fenced area. The court also determined that under state (NM) law, the right to the beneficial use of water is a property interest that is a distinct and severable interest from the right to use land, with the extent of the right dependent on the beneficial use. The court held that the “federal appropriation of water does not, per se constitute a taking….Instead, a plaintiff must show that any water taken could have been put to beneficial use.” The court noted that NM law recognizes two types of appropriative water rights – common law rights in existence through 1907 and those based on state statutory law from 1907 forward. The plaintiff provided a Declaration of Ownership that had been filed with the New Mexico State Engineer between 1999 and 2003 for each of the areas that had been fenced-in. Those Declarations allow a holder of a pre-1907 water right to specify the use to which the water is applied, the date of first appropriation and where the water is located. Once certified, the Declaration of Ownership is prima facie evidence of ownership. The court also noted that witnesses testified that before 1907, the plaintiff’s predecessor’s in interest grazed cattle on the allotment and made beneficial use of the water in the fenced areas. Thus, the court held that the plaintiff had carried its burden to establish a vested water right. The plaintiff’s livestock watering also constituted a “diversion” required by state law. Thus, the USFS action constituted a taking of the plaintiff’s water right. The court will later determine the value of the water rights taken for just compensation purposes. Sacramento Grazing Association v. United States, No. 04-786 L. 2017 U.S. Claims LEXIS 1381 (Fed. Cl. Nov. 3, 2017).

Challenges To a Flawed Expert Opinion In Egg Antitrust Case Must Be Timely Made. The plaintiffs claimed that an egg price-fixing conspiracy exists throughout the United States, beginning on or about 2001. This conspiracy was allegedly conducted using a certification program run by the United Egg Producers in which egg producers achieved a decrease in supply by requiring increased cage space for chickens and mandating 100 percent compliance with the program. In support of their allegations, the plaintiffs obtained an expert opinion on whether this program affected supply significantly enough to increase prices. The expert filed his initial report, which concluded that the requirements increased prices in a measureable way, before the March 2015 deadline for Daubert motions. That month came and went without a challenge to the expert’s qualifications or report. Over a year later, on September 12, 2016, the court ruled that the plaintiffs could not recover damages for sales affected by an Arizona regulation governing cage space restrictions. As a part of that ruling, the court instructed the plaintiffs to supplement their expert report to remove damages based upon eggs produced or sold in Arizona after October 1. 2009. The expert filed a supplemental report on November 4, 2016. Another year passed after this report before the defendants brought the present Daubert motion to exclude the expert’s initial report and the supplement report. In response, the plaintiffs moved to strike the motion as untimely. The defendants pointed to two reasons that show they had good cause to file the motion after the deadline. The first was based on the court issuing opinions after the Daubert deadline. For example, one opinion was filed in September of 2015 in which the court held that the failure to account for non-conspiring producers and the failure to account for non-commodity eggs undermined the reliability of the expert report. The second opinion was filed in February 2016 in which the court held that another expert’s model failed to specify important regulatory schemes. However, the court determined that both of the supposed flaws in the initial expert’s reasoning were present before the Daubert deadline. In addition, the defendants did not point to anything in the opinions that was not discoverable before the deadline. Therefore, the court held that the intervening opinions were insufficient to establish a good cause for bringing the present motion two years late. The defendants also claimed that the expert’s supplemental report, which was also filed after the Daubert deadline, constituted good cause for late filing. The court determined that the defendants were correct that the emergence of the supplemental opinion constituted good cause to challenge the supplemental opinion itself. However, the court held that the principles and methods employed by the expert did not change in the supplement opinion. The only changed circumstances were the facts he used. Thus, even though there were changes in the supplemental expert opinion, they were not so egregious that they called the initial expert report into question. Therefore, the court held that the plaintiff’s motion to strike would granted as to all of the Daubert motion except that portion challenging the supplemental expert opinion. Finally, the court held that the defendant’s challenges to the supplemental opinion failed to undermine the expert’s opinions in the supplement to render it inadmissible. Thus, the court held that the supplemental expert opinion was admissible. Two weeks after the court’s opinion, the court approved a $75 million settlement with one egg company to settle claims against it. However, the class action, brought by direct purchasers and suppliers of eggs, continues against other defendants. In re Processed Egg Prods. Antitrust Litigation, No. 08-md-2002, 2017 U.S. Dist. LEXIS 184764 (E.D. Pa. Nov. 7, 2017).

Posted November 23, 2017

EPA Announcement on Dicamba Use. On October 13, 2017, the U.S. Environmental Protection Agency (EPA) announced amendments to the Federal Insecticide, Fungicide, Rodenticide Act (FIFRA) that will modify the label to Monsanto’s XtendiMax, BASF’s Engenia and DowDupont’s FeXapan products (more commonly known as “Dicamba) and make Dicamba a restricted use pesticide beginning in 2018. Accordingly, Dicamba will become subject to record-keeping requirements and additional spray drift mitigation measures. As a restricted use pesticide, Dicamba’s availability and use will be restricted to certified retailers and applicators. In addition, state pesticide regulators and agencies will be required to train all applicators before they can use the dicamba herbicides, and annual certification training for applicators will be required. The EPA notes that application of Dicamba will be limited to sunrise to sunset. This limitation on application will essentially ban nighttime spraying, when temperature inversions are most likely to occur. Also, applications will be limited to instances where wind speeds are between three and 10 (down from 15) miles per hour. Applicators of Dicamba will be required to keep records showing they have surveyed the surrounding area for susceptible and sensitive crops, in accordance with guidance that will appear on the Dicamba label. One of those recordkeeping requirements will require applicators to maintain “receipts of purchase” for Dicamba products for two years. The modified label, which expires in December of 2018, contains tank cleanout language designed to prevent cross contamination. Monsanto has claimed that the new formulation of its version of Dicamba is designed to be significantly less volatile than prior formulations. However, the product will still volatize and remain in the air for many hours (and, possibly, days) following application. EPA Announcement of Oct. 13, 2017 concerning use of Dicamba products.

Posted October 28, 2017

Overtime Wage Payment Case Heads to Trial on Issue of Whether Employment Was “Secondary Agriculture” or “Manufacturing.” The defendant operates a hog farm and a feed mill. The plaintiffs were employed at the feed mill between 2013 and 2016, during which time they often worked more than forty hours per week and were never paid overtime. From the time of the feed mill’s inception until summer 2016 the defendant used its own employees to produce animal feed at the feed mill while simultaneously contracting with Bi-County Pork, Inc. to purchase feed produced by Bi-County’s own staff at its independent neighboring facilities using inputs provided solely by the defendant. Bi-County only produced feed for the defendant and the defendant purchased all the feed Bi-County produced. All of the defendant’s feed is either fed to animals that the defendant owns or raises or is sold to third-parties. Before the plaintiffs began working for the defendant at the feed mill, at least one other feed mill employee complained about not receiving overtime pay. The complaint prompted an investigation by the United States Department of Labor (DOL) into the applicability of the FLSA’s overtime exemption for secondary agricultural labor at the feed mill. The DOL concluded that the feed mill’s operations warranted a secondary agricultural designation exempting feed mill employees from overtime pay because the primary use of the feed produced there was feeding the defendant’s hogs. The DOL also concluded that the defendant used 55 percent of the feed it produced itself and sold the remaining 45 percent. The DOL also pointed out that although the feed mill qualified as secondary agricultural at that time and date, the success with outside suppliers and clients might change that designation in the future. The plaintiffs both sued alleging that the defendant’s failure to pay them overtime constituted violations of state (IN) minimum wage and wage payment statutes as well as the Fair Labor Standards Act (FLSA). The cases were subsequently removed to federal court based upon original jurisdiction arising from their claims under the federal FLSA. Through discovery actions, the defendant reported that about 75 percent of their total feed output was sold to third parties with 75-80 percent of that total feed output being produced by Bi-County. Under 29 U.S.C. § 213(b)(12), the overtime provisions of the FLSA do not apply “to any employee employed in agriculture.” The FLSA distinctly identifies two branches of agriculture: primary agriculture and secondary agriculture. The parties agreed that the work that the plaintiffs performed at the feed mill only qualified for the agricultural exemption from overtime pay if it constituted secondary agriculture. The federal court concluded that in order to defer to the DOL’s report they must first assess whether the totality of the circumstances especially with respect to the portion of the defendant’s income streams, during the time of the plaintiffs’ employment, changes significantly enough from the time covered by the DOL’s investigation to warrant reclassifying work at the feed mill from secondary agriculture to manufacturing. The court held that because the defendant failed to produce data specifying the total feed production and sales from the feed mill and Bi-County separately during the relevant period of the plaintiffs’ employment, a genuine issue of fact existed as to what proportion of the feed mill’s feed output was sold to third parties. As a result, the court concluded that neither party was entitled to summary judgement as a matter of law. Kidd v. Wallace Pork Sys., No. 3:16-CV-210-MGG, 2017 U.S. Dist. LEXIS 163174 (N.D. Ind. Oct. 2, 2017).

Posted October 20, 2017

USDA Must Pay Attorney Fees For Improperly Withholding SNAP Information. In 2011, the plaintiff filed a Freedom of Information Act (FOIA) request for information from the USDA concerning store redemptions involving the Supplemental Nutrition Assistance Program (e.g., Food Stamps). The USDA refused to divulge the requested information claiming an exemption from FOIA. The trial court agreed, but the appellate court reversed and remanded. On remand, the USDA claimed two different exemptions and moved for summary judgment. The trial court denied the motion and held a bench trial, ultimately entering judgment in the plaintiff’s favor. The plaintiff then motioned to recover attorney fees. The court noted that the release of the requested information served a public benefit in improving public policy regarding city planning, distribution of government resources and government transparency. The court also noted that while the release of the information provided a commercial benefit to the plaintiff, the plaintiff was seeking to further its private interest but to obtain information to share with the public. The court also noted that the plaintiff’s interest in the records was more akin to “disinterested scholarly purposes. While the USDA has a reasonable basis for withholding the requested information, the other factors outweighed the USDA’s interests. Accordingly, the court awarded reasonable attorney fees to the plaintiff in the amount of $60,000 plus $8,422.67 of costs. Argus Leader Media v. United States Department of Agriculture. No. 4:11-CV-04121-KES, 2017 U.S. Dist. LEXIS 122126 (D. S.D. Aug. 3, 2017). In a later action, the court granted an additional $2,900 in attorney’s fees as reasonable compensation for the time spent preparing the motion and brief to recover attorney fees. The court noted that if the plaintiff is ultimately successful on appeal, the court’s judgment for attorney fees and costs will also include the “fees on fees” amount. Argus Leader Media v. United States Department of Agriculture, No. 4:11-CV-04121-KES, 2017 U.S. Dist. LEXIS 172937 (D. S.D. Oct. 19, 2017).

State Can Regulate Captive Deer To Control CWD. The defendant, Missouri Conservation Commission, amended regulations pertaining to the importation and possession of deer, which took effect in January of 2015. Among the wildlife regulated are elk and white-tailed deer, which are native to Missouri and are in the family cervidae commonly known as cervids. The plaintiff owns hunting preserves and white-tail breeding operations in MO. The 2015 regulatory amendments were made in response to Chronic Wasting Disease (CWD). CWD is a fatal neurodegenerative disease infecting cervids that is spread directly through animal-to-animal contact as well as indirectly through environmental contamination. There is no method for testing cervids for CWD while they are still alive. The approved test must be performed post-mortem. In addition, CWD has an incubation period of eighteen months, meaning a cervid can be CWD-positive for a period of time without showing any signs of the disease. The plaintiffs challenged the regulations and sought to enjoin their enforcement. The trial court declared regulations are invalid pursuant and prohibited the defendant from directly or indirectly relying on or enforcing them. The defendant appealed. The appellate court determined that the defendant’s authority to enact the regulations was derived from the Missouri Constitution, Article IV, Section 40(a), which provides: “The control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state, . . . shall be vested in a conservation commission. . .”. The appellate court interpreted this to mean that “game” modifies “resources of the state”. Thus, in order for the defendant to have authority to regulate the plaintiff’s captive cervids, they must qualify as “game resources of the state.” The appellate court noted that Webster’s New International Dictionary defines resources as “available means as of a country or business” and gives the example of “America’s rich natural resources.” The appellate court determined that cervids, whether captive or free-ranging are resources of the state because they are available means of the state. They are considered available means of the state because they are products of the state. Thus, the court determined that cervids whether captive or free-ranging are among Missouri’s natural resources. As such the plaintiff’s captive cervids are “game resources of the state,” and are subject to regulation. The appellate court also noted that regardless of whether the defendant has the authority to regulate captive cervids, it undoubtedly has the authority to regulate free-ranging cervids. Given the highly communicable nature of CWD, the defendant’s efforts to restore and conserve free-ranging cervids would be threatened without the authority to regulate all cervids capable of infecting free-ranging cervids with this fatal disease. As a result, the appellate court reversed the trial court and found the amended regulations to be valid and enforceable. However, because of the general interest and importance of the questions involved, the appellate court also transferred the case to the Missouri Supreme Court under Rule 83.02. Hill v. Mo. Dep’ of Conservation, No. ED105042, 2017 Mo. App. LEXIS 1011 (Mo. Ct. App. Oct. 10, 2017).

Posted October 14, 2017

Land Subject To Permanent Conservation Easement Not Classified As Agricultural. The plaintiffs own land that was previously farmed, but is now subject to permanent easements under the Wetland Reserve Program (WRP). The easements prohibit the plaintiffs from any further “haying, mowing or seed harvesting the land for any reason…planting or harvesting any crop; and grazing or allowing livestock on the easement area.” Land that is classified as agricultural under Wis. Stat. § 70.32(2)(a) is assessed for tax purposes according to the income that could be generated from its rental for agricultural use. The definition of agricultural use for purposes of §70.32 excludes the plaintiffs’ land that is subject to permanent wetland conservation easements. As a result, that land is not classified as agricultural and is not assessed according to the income that could be generated from the land’s rental for agricultural use. The plaintiffs brought suit against the Department of Revenue challenging the validity of Wis. Admin. Code § Tax 18.05(1)(d) which provides the definition of agricultural use. They also allege that the defendant’s exclusion of their properties from the definition of agricultural use violates their state and federal equal protection rights and the Uniformity Clause of the Wisconsin Constitution. The circuit court granted summary judgment in favor of the defendant, and dismissed the actions. The plaintiffs appealed. The court determined that the proper standard of review was rational basis scrutiny. When applying the rational basis test, the court will uphold the law if any reasonably conceivable state of facts could provide a rational basis for the classification. The court pointed out that land subject to a permanent easement restricting the land’s agricultural use may not ever again be used for crop or animal production. However, land that is subject only to a temporary easement restricting the land’s use for crop or animal production may be returned to agricultural use in the future after the easement or program is completed. Thus, the court held it was reasonable for the legislature to give preferential tax treatment to the land that can be put to agricultural use in the future. In addition, the court pointed out that both categories effectively receive preferential tax treatment. Land in a permanent easement is not as valuable as land without such restrictions and thus is taxed less than unrestricted land. On the other hand, agricultural land also receives preferential treatment. To the extent agricultural land under temporary restrictions is taxed at a lower level than similar land in a permanent conservation easement, the court held that difference reasonably reflects the legislature’s preference for reserving farmland in the long run. In addition, the Uniformity Clause requires that the method and mode of taxing real property be applied uniformly to all property within a tax district. The last sentence in the Uniformity Clause states that “Taxation of agricultural land and undeveloped land, both as defined by law, need not be uniform with the taxation of each other nor with the taxation of other real property.” The court held that this made it clear that agricultural land need not be uniformly taxed as compared to other types of property, but it must be taxed uniformly as compared to other agricultural land. The plaintiffs argued that lands enrolled in long-term, but temporary, conservation easements and those lands such as theirs enrolled in permanent easements are currently identical in every meaningful way and it is therefore not reasonable to treat their property differently from property subject to non-permanent conservation easements. However, the court held that his argument centers on the failure of their property to be classified as agricultural and they are really just restating their arguments made in support of their equal protection challenge. As a result, the court affirmed the circuit court’s grant of summary judgment for the defendant. Multerer v. Wisconsin Department of Revenue, No. 2016AP1076, 2017 Wisc. App. LEXIS 763 (Wisc. Ct. App. Sept. 28, 2017).

Statutory CSP Payment Rates Not Part of Actual CSP Contract. The plaintiff participates in the Conservation Security Program (CSP) administered by the USDA’s Natural Resources Conservation Service (NRCS). The 2002 Farm Bill created the CSP. The statute provides that “the Secretary of Agriculture shall establish, and for each of fiscal years 2003 through 2007, carry out a conservation security program to assist producers of agricultural operations in promoting. . . conservation and improvement of the quality of soil, water, air, energy, plant and animal life, and any other conservation purposes. . .” The plaintiff entered into CSP contracts in 2005 with each contract being a base term for five years. As required by law the Secretary was to make payments upon the contracts “as soon as practicable” after October 1 of each fiscal year. The statute also provided a mechanism for calculating the payments. In the 2008 Farm Bill however, Congress amended the statute to provide that “a conservation security contract may not be. . . renewed under this subchapter after September 30, 2008.” The plaintiff brought this compliant on behalf of themselves and all others similarly situated in February 2017. The plaintiff claimed that the Government breached their CSP contracts by using payment rates contrary to the minimum rates the CSP statue required, effectively underpaying them in 2007 and 2008. In addition, the plaintiff alleged that the 2008 Farm Bill’s prohibition on the renewals of CSP contracts after September 30, 2008 constituted a repudiation and breach of all CSP contracts. The plaintiff moved for summary judgement. In its response, the Government moved to dismiss the case for failure to state a claim upon which relief can be granted. The court determined that the crux of the plaintiff’s argument was that the payments made according to their contracts, outlined in the regulations, were not based on their strict reading of the CSP statute, and that this misreading constituted a breach of contract. The court also pointed out however that the plaintiffs did not point to a specific term of the contract that was breached. The plaintiff argued that the court must read the CSP statute into the contract. However, the court held that while the contracts expressly incorporated the regulations, they did not incorporate the statute. Thus, the plaintiff did not have a contractual right to anything provided in the statutes, either the method of calculating payments, or the renewal option. Therefore, because the plaintiff failed to allege a contractual term entitling them to relief, its motion for summary judgment was denied and the Government’s motion to dismiss was granted. James M. Fogg Farms, Inc. v. United States, No 17-188C, 2017 U.S. Claims LEXIS 1195 (Fed. Cl. Sept. 27, 2017).

Posted October 9, 2017

Illegal Use of Biotech Seeds Costs Farmer Approximately Six Million Dollars. The plaintiff sued the defendant for the alleged improper conversion of the plaintiff’s seeds, interference with contractual relations, and unjust enrichment. The court entered default judgment against the defendant and temporarily enjoined the defendant from making, using, selling, transferring, offering to sell or transfer, or handling any soybean or other seed containing plaintiff’s patented biotechnology. The court determined that because seeds can proliferate exponentially, infringement could cause widespread proliferation of plaintiffs’ technology in a way that is almost impossible to monitor or redress and the potential for such a circumstance in this case satisfies the irreparable injury requirement for a permanent injunction. In addition, the court found that the nature of seed reproduction suggested that multiple lawsuits could be necessary each time the seed is wrongfully replanted and resold. Furthermore, given the ongoing nature of the defendant’s infringement in this case by allowing the plaintiff’s seeds to be planted and stored on his land, the defendant was likely to continue to infringe on the plaintiffs’ property. Thus, the court determined that money damages would be inadequate to make the plaintiff whole. The court also determined that the injunction would not force the defendant to abandon farming altogether because there are over fifty varieties of soybean and corn seeds available regionally that did not contain the plaintiff’s biotechnology. In addition, the defendant testified that he had been engaging in custom-work farming since the court issued its temporary injunction. The court found that the plaintiff on the other hand would be prevented from fully protecting its intellectual property without an injunction. In addition, the cost of research and development required to produce the infringed upon biotechnology, and the cost and difficulty of protecting intellectual technology further weighed in the plaintiff’s favor. Consequently, the court determined that the balance of the hardships weighed in favor of granting the permanent injunction. Finally, the court determined that no public interest would be disserved by the permanent injunction, which would actually support the public interest in enforcing lawful patents and protecting law-abiding farmers. As a result, the plaintiff’s request for a permanent injunction was granted. The court awarded compensatory damages in the amount of $1,933,968.40. In addition, because the defendant both sold and replanted the seed when he knew of the patent protection and that selling and replanting was prohibited, the court determined that enhancement of three times the total compensatory damages amount, as well as prejudgment interest, and attorney’s fees and costs were warranted. As a result, in addition to the permanent injunction the plaintiff was awarded compensatory damages in the amount of $1,933,968.40, an enhancement of damages totaling $5,801,905.20, prejudgment interest at a rate of 9 percent and reasonable attorney’s fees and costs. Monsanto Prod. Supply LLC v. Rosentreter, No. 3:16-cv-03038, 2017 U.S. Dist. LEXIS 158532 (C. D. Ill. Sept. 27, 2017).

Posted October 7, 2017

False Advertising Claim Not Preempted By Federal Food, Drug & Cosmetic Act. The plaintiffs purchased Canada Dry Ginger Ale within the last five years. They allege to have seen and relied upon the wording on the cans of Canada Dry that stated it was “Made from Real Ginger.” In addition, they claim that they saw commercials over the past five years for Canada Dry Ginger Ale, which depicted “Jack’s Ginger Farm,” in which a worker is harvesting ginger, but when he pulls up one of the plants by its stalk, he finds a bottle of Canada Dry Ginger Ale where the ginger root would normally be. The voice-over narrates, “Find your way to relaxation with the crisp soothing taste of real ginger and bubbles. Canada Dry. The root of relaxation.” The plaintiffs allege that this commercial reinforced their belief that Canada Dry contained real ginger. The plaintiffs filed a putative class action in state court against Dr. Pepper, the defendant in this case and the maker of Canada Dry Ginger Ale, which was later removed to federal court. The plaintiffs’ complaint contained only state law claims for false advertising; common law fraud, deceit and or misrepresentation; and unlawful, unfair and fraudulent trade practices. The defendant moved to dismiss the complaint on the ground that the court lacked personal jurisdiction over it. However, the court found that it had personal jurisdiction over the defendant as to all the claims against it because the class was a nationwide class. The defendant also moved to dismiss the complaint on the ground that the plaintiffs had not satisfied the requirements for pleading fraud under Federal Rule of Civil Procedure 9(b) which provides that, “in alleging fraud or mistake a party must state with particularity the circumstances constitution fraud or mistake.” “Averments of fraud must be accompanied by the who, what, when, where and how of the misconduct charged.” The court determined that the ‘who’ is the defendant, the ‘what’ is the four commercials featuring “Jack’s Ginger Farm,” the ‘when’ is over the last five years, the ‘where’ is throughout the United States, and the ‘how’ is that the statements and representations made in the commercials suggested that Canada Dry Ginger Ale contained ginger root. As a result, the court held that the plaintiffs’ fraud and fraud-related claims based on the Canada Dry commercials survived the 9(b) motion. The plaintiffs also argued against the motion to dismiss their fraud claims by asserting they pled a longstanding advertising campaign, which means they would not be required to plead that they had actually relied on the defendant’s commercials. The court determined that the fact that: 1) the plaintiff saw the commercials, which had been airing at different times over the five-year period; 2) the complaint attached the URLs linking to the commercial each of which contains cert key commonalities (Jack’s Ginger Farm); and 3) the plaintiffs relied on the commercials by purchasing one case of Canada Dry each year, indicated sufficient reliance on the commercials. Finally, the defendant moved to dismiss all of the claims in the complaint as preempted because the plaintiffs sought to add additional food labeling requirements in violation of the Federal Food, Drug and Cosmetic Act (FDCA). However, the court pointed out that the plaintiffs did not seek to change the labeling from “natural” to “artificial” as the defendant suggested. Instead the plaintiffs sought to enjoin the defendant from printing the “Made From Real Ginger” statement on cans of Canada Dry. The court held that because the plaintiffs’ claims appeared to be based on ingredients rather than flavor, the court did not find that their claims were preempted based on the arguments in the defendant’s motion. Consequently, the court denied the defendant’s motion to dismiss for lack of personal jurisdiction and denied the defendant’s motion to dismiss under Rule 12(b)(6). Fitzhenry-Russell v. Dr. Pepper Snapple Grp., No. 17-cv-00564 NC, 2017 U.S. Dist. LEXIS 155654 (N.D. Cal. Sept. 22, 2017).

Posted October 6, 2017

Condemnation Proceedings Brought By Pipeline Company Not Enjoined. The plaintiff owns a ranch through which the defendant plans to build an intrastate natural gas pipeline in accordance with state (TX) law which allows a natural gas utility to condemn land for a “public use.” However, for the defendant to do so, TX law requires the defendant to first attempt to negotiate with the plaintiff. An attempt was made but failed. Consequently, the defendant began condemnation proceedings. During those proceedings, the plaintiff sued for relief in federal court on grounds of a Due Process violation under the Anti-Injunction Act (AIA). Specifically, the plaintiff claimed that that TX law violated the Due Process Clause because it broadly delegated state power to a private party and failed to provide for a pre-deprivation hearing. The trial court ruled against the plaintiff on the basis that federal courts cannot enjoin ongoing state court proceedings. The local county commissioners then issued their valuation of $645,000 for cost of the defendant’s taking of a portion of the plaintiff’s land for the pipeline. The defendant completed construction of the pipeline. On appeal, the appellate court determined that the trial court decision was not dispositive of the matter and the fact that construction had been completed did not moot the plaintiff’s request for injunctive relief. The appellate court noted that could order the defendant to return the plaintiff’s land to it pre-condemnation state based on Porter v. Lee, 328 U.S. 246 (1946). However, on the merits, the appellate court held that the plaintiff could not meet its burden for the issuance of an injunction. The appellate court note that TX eminent domain laws had been on the books many years and had withstood legal challenges, including the type of claim that the plaintiff brought. The appellate court also determined that the “private nondelegation doctrine” did not apply because the doctrine does not allow the federal courts to dictate how state governments allocate their powers. Boerschig v. Trans-Pecos Pipeline, L.L.C., No. 16-50931, 2017 U.S. App. LEXIS 19179 (5th Cir. Oct. 3, 2017).

Posted October 2, 2017

Building Of Box Culvert Constitutes Fee-Simple Governmental Taking. The defendant planned to condemn a portion of the plaintiff’s property for the creation of a permanent easement so that a large box culvert and drainage system could be constructed. The project would ultimately change the plaintiff’s boundary along the entire western edge and half of the northern edge. The Narrative Description of Acquisition estimated that the after-taking utility of the permanent easement would be five percent. In addition, no benefit to the property from the easement was listed. The plaintiff desired to have the property taken in fee simple but the defendant insisted that it could only take a permanent easement per state and federal guidelines. The plaintiff argued that taking an easement would leave the plaintiff with possible liability for injury or accidents on or because of the culvert and drainage system. The defendant filed a trial court petition for condemnation seeking to take temporary construction and permanent drainage easements on the plaintiff’s property. The appointed commissioners found that the requested permanent easement would cause a $1,287 decrease in the fair market value of the property and that a fair rental value for the construction was $8,000. The plaintiff filed an answer to the petition specifically contesting the defendant’s right to take the property and arguing that the defendant was acting in bad faith or abusing its discretion by seeking to take a permanent easement rather than a fee simple interest. At the close of an evidentiary hearing the trial court ruled in the defendant’s favor. The plaintiff appealed, contending that the defendant’s planned act of taking all of the usefulness but leaving the liability and other burdens on his property through a permanent easement rather than fee simple was arbitrary and in excess of the defendant’s condemnation authority. The appellate court determined that the interest that the defendant proposed to take was neither in proportion to the 95 percent utility it would take from the property nor consistent with the pass-through function of an easement. In addition, the appellate court pointed out that the property will not be used as merely a pass through to allow the defendant to provide maintenance because the structures will be erected on the property and will be owned by the defendant. For these reasons the court determined that it was clear that the defendant is actually taking the plaintiff’s property in fee simple. Accordingly, the taking of less than a fee simple interest in the property was arbitrary and in excess of the defendant’s authority under the Eminent Domain Act. The trial court’s judgment was reversed and the case remanded for further proceedings consistent with the appellate court’s decision. Moore v. Lexington-Fayette Urban Cty. Gov’t., No. 2016-CA-000187-MR, 2017 Ky. App. LEXIS 515 (Ky. Ct. App. Sept. 15, 2017).

Posted September 23, 2017

Wind Energy Company Began “Wind Farm” Construction Without First Obtaining a Lease. In 2015, a federal district court decision allowed the defendant to conduct excavation work necessary to build 84 wind turbines on 8,400 acres in western Osage County in northeastern Oklahoma without first obtaining a mining permit from the Bureau of Indian Affairs (BIA) or approval from the Osage Minerals Council (OMC). The Osage Nation, acting through the OMC owns the beneficial interest in the mineral estate on the property at issue. The defendant’s excavation activity involved the digging of pits 60-feet wide and 30-feet deep, and resulting in the excavation of over 60,000 cubic yards of limestone, dolomite and other minerals. The defendant then ran the rock and minerals through a rock crusher and then returned them to the excavated area. Under federal law, “mining activity” in Osage County required a BIA permit, and the BIA defines “mining” as the “science, technique and business of mineral development.” The U.S. Interior Department sued on behalf of the OMC, but after learning that excavation had been completed, the Interior Department removed its injunction request and filed an amended complaint seeking damages for improper mineral extraction. The trial court ruled against the Interior Department and the OMC sought to intervene after learning that the Interior Department would not oppose the court’s ruling. The trial court, however, denied intervention on the basis of lack of jurisdiction. The OMC appealed. The appellate court determined that the OMC was a proper party to the appeal. The appellate court, on the merits, reversed the trial court and held that the defendant’s extraction, sorting, crushing and use of the minerals as part of the excavation was “mineral development” that required a lease approved by the federal government. The appellate court determined that “mining” was not limited to situations involving the commercial sale of minerals. The appellate court remanded the case to the trial court. United States v. Osage Wind, LLC, et al., No. 15-5121, 2017 U.S. App. LEXIS 17996 (10th Cir. Sept. 18, 2017).

Posted September 19, 2017

International Wind Farm With Erroneously Issued Permit Continues Operations. One of the defendants in this case constructed and began operations on a commercial wind farm in La Rumorosa, Mexico. The operation has a transmission line that runs 1.65 miles in total. Roughly 0.65 miles stands on U.S. soil and roughly one mile stands on Mexican soil. Because the transmission line connects at an international border, the defendant had to obtain a permit from the United States Department of Energy (DOE) prior to construction or operation. Pursuant to the National Environmental Policy Act (NEPA) the DOE conducted an environmental review and prepared an Environmental Impact Statement (EIS) in May 2012. In August 2012, the DOE issued the permit authorizing the defendant to connect the transmission lines across the international border. The plaintiff filed a complaint against the defendant and DOE in December 2012 for declaratory and injunctive relief for violations of a number of environmental laws. After two rounds of summary judgment, only the plaintiffs’ NEPA claim remained. The court found that the NEPA claim was meritorious because the purpose and need statement of the EIS was overly narrow and failed to consider the environmental impacts upon Mexico and the United States. Both parties agreed that, pursuant to these findings, the court should remand the case for the DOE to issue another EIS. However, the plaintiff sought a permanent injunction requiring the defendant to disconnect the line at the border and be enjoined from expanding the operation until the DOE published a valid EIS. In addition, the plaintiff argued that under the Administrative Procedures Act (APA) the Court should vacate the permit because it was issued in error. The court pointed out that under the APA the court is allowed to take into account the effect of the error on the final determination of whether to issue the permit. In narrowly framing the purpose and need statement, the DOE failed to consider distributed power generation as an alternative to the project. However, because it had already been determined that distributed power generation was not a feasible alternative to a utility scale wind farm the defendant’s narrow framing of the purpose and need statement did not cause them to make an erroneous decision. In addition, the court determined that because the Mexican Ministry of Environmental Natural Resources reviewed the impacts of the project and determined that they were acceptable, the defendants’ lack of consideration of the environmental impacts on Mexico again did not lead to an erroneous decision to issue the permit. The court also determined that an injunction would disrupt a substantial flow of a substantial revenue stream to both the defendant and members of the Mexican Agricultural Community and take away a number of paying jobs. Balancing the seriousness of the errors against the disruptive consequences of setting aside the permit and enjoining operations the court denied the plaintiff’s request for vacatur as well as the plaintiff’s request for an injunction prohibiting continued operation. In addition, the court determined that because the expansion of the operation was not a planned certainty and because it is highly unlikely that the added turbines would even be viewable from the United States the court denied the plaintiff’s request for a permanent injunction prohibiting further expansion of the wind farm during the remand project. Backcountry Against Dumps v. Perry, No. 3:12-cv-03062-L-JLB, 2017 U.S. Dist. LEXIS 139090 (S.D. Cal. Aug. 29, 2017).

Posted September 13, 2017

Farm Pond Regulated Out of Existence. The plaintiffs constructed a pond on their farm. They thought they were entitled as of right to build this pond under Conn. Gen. Stat. § 22a-40(a) which allows the construction of a farm pond as a matter of legal right if the farm pond is essential to the farming operation. However, the defendant issued a cease-and-desist order and required the plaintiffs to submit an application and to seek permission from the defendant to build the pond. The defendant determined that the plaintiffs’ farm was not essential to their farming operation and that plaintiffs had to remediate the pond to restore the land to its previous condition. The plaintiffs did not do so and the defendant issued another cease-and-desist order and sued. The defendant ultimately prevailed in the state court action and the state court issued a permanent injunction that required the plaintiffs to remove the pond and remediate their land. The trial court’s decision was affirmed on appeal. More than three years later, the plaintiffs brought a federal court action against the defendant, the Inland Wetlands and Watercourses Commission and the defendant’s environmental planner. The plaintiffs claimed that, pursuant to 42 U.S.C. § 1983, the defendant’s regulations and their implementation of them through the previous actions violated the plaintiffs’ clearly established statutory right to use their land and their constitutional right to pursue their farming occupation. The defendants moved for a judgment on the pleadings arguing that the complaint is barred by the statute of limitations. The statue of limitations for a §1983 action for violation of the Constitution that is filed in federal court is three years. The court determined that the plaintiffs’ cause of action accrued more than three years earlier when the first cease and desist order was issued. The court also pointed out that the plaintiffs were aware of their injury when they litigated with the defendants about it in the state court system. In addition, the court determined that the continuing violation doctrine did not apply because the plaintiffs did not argue that the defendant’s actions accumulated over time to the point that only after a certain point did their actions become unlawfully injurious. The court held that through both cease-and-desist orders and the state court litigation the plaintiffs had reason to know many times over of their alleged injury. As a result, their case was barred by the statute of limitations and the defendant’s motion for judgment on the pleadings was granted. Andrews v. Town of Wallingford, No. 3:16-cv-01232, 2017 U.S. Dist. LEXIS 133486 (D. Conn. Aug. 21, 2017).

Posted September 11, 2017

Lack Of Payment For Pickles Violates PACA Trust Provisions. The plaintiff sells wholesale quantities of produce. The defendant is engaged in buying perishable agricultural commodities in wholesale or jobbing quantities. The parties entered into a written contract for the sale of fresh cucumbers, also known as Persian pickles. Pursuant to the contract, the plaintiff was to sell 3,200 cartons of pickles to the defendant at a set price of $13 per carton on 21-day payment terms every week from October 2015 through January 2016. The contract also specified that the quality must be “#1” and the product must be “crunchy and dark green.” The plaintiff completed 10 shipments of pickles to the defendant before December 11, 2015. The defendant claimed that each of the shipments was non-conforming to the contract specifications and, as a result, never paid the invoices despite having received and accepted the pickles. The defendant claimed that he attempted to sell the non-conforming pickles in good faith, but did so at a loss. Following December 11, 2015, the defendant terminated the contract citing the plaintiff’s failure to provide conforming goods. The plaintiff sued, asserting claims for recovery of Perishable Agricultural Commodities Act (PACA) trust benefits, recovery of damages of the defendant’s unlawful conduct under PACA, and breach of contract. PACA requires produce buyers to hold all perishable commodities purchased on short-term credit, as well as sales proceeds, in trust for the benefit of unpaid sellers. The court pointed out that PACA requires the produce buyer to maintain records that contain specific information regarding goods returned or rejected by a buyer, goods dumped as commercially worthless, and regarding other allowable expenses; which the defendant did not do. The court determined that the defendant could not recover losses related to non-conforming goods when it unlawfully failed to maintain records to prove those losses. In addition, the court determined that the defendant breached the contract by failing to pay for the 10 shipments that it accepted. As a result, the plaintiff was entitled to re-sell the goods and was entitled to recover the lost balance. Consequently, the court granted the plaintiff’s motion for summary judgment, and the defendant’s counterclaim for breach of contract was dismissed. Horti Ams., L.L.C. v. Steven Produce King, Inc., No. 16 Civ. 889, 2017 U.S. Dist. LEXIS 134203 (E.D.N.Y. Aug. 22, 2017).

Posted September 10, 2017

Glyphosate Used During Harvesting of Oats Does Not Bar ‘Natural’ Label. The plaintiffs brought a class action suit against the defendant. They sought damages for several state statutory and common law claims concerning their assertion that the defendant’s products contained glyphosate. The defendant, buys oats from farmers who, during the growing and harvesting of the oats, use glyphosate to aid in the drying of the oats and produce an earlier and more uniform crop. Traces of glyphosate was found to be present in the defendant’s products in an amount well under the EPA-allowed maximum. The plaintiffs claimed that they were induced to purchase the defendant’s oats because of its labeling as “Natural,” “100% Natural,” “100 % Natural Whole Grain,” “Heart Healthy,” or “Part of a Healthy Diet” and that had they been aware of the presence of glyphosate they would not have purchased the defendant’s products – a deceptive labeling claim. The court pointed out that the labeling of food is governed by the Federal Food, Drug and Cosmetic Act (21 U.S.C. § 301 et seq.). The court concluded that the language in this act which states: “no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in the interstate commerce,” indicates that Congress intended to prohibit states from imposing food labeling requirements on manufacturers. In addition, the Food and Drug Administration (FDA) has published guidance specifically addressing the use of the term “natural”. According to the FDA the use of the term “natural” was not intended to address food production methods such as the use of pesticides. Consequently, the court determined that because the Congress has preempted the field of food labeling, and the presence of pesticides and chemical residues is governed by federal statues, the plaintiffs could not challenge the defendant under state or common law. The court granted the defendant’s motion to dismiss. Gibson v. Quaker Oats Co., No. 16 CV 4853, 2017 U.S. Dist. LEXIS 130696 (N.D. Ill. Aug. 14, 2017).

Posted September 4, 2017

Court Invalidates Obama-ERA DOL Overtime Rules. Under the Fair Labor Standards Act (FLSA), ag employees that are exempt from the overtime wage payment rate, they must be paid a minimum amount of wages per week. Until December 1, 2016, the minimum amount was $455/week ($23,660 annually). Under a proposal of the Department of Labor (DOL), however, the minimum weekly amount was to increase to $913 ($47,476 annually). Thus, an exempt employee that is paid a weekly wage exceeding $913 is not entitled to be paid for any hours worked exceeding 40 in a week. But, if the $913 weekly amount was not met, then the employee would generally be entitled to overtime pay for the hours exceeding 40 in a week. Thus, the proposal would require farm businesses to track hours for those employees it historically has not tracked hours for – managers and those performing administrative tasks. But, if the employee is an agricultural worker performing agricultural work, the employee need not be paid for the hours in excess of 40 in a week at the overtime rate. The proposal also imposes harsh penalties for noncompliance. Before the new rules went into effect, many states and private businesses sued to block them. The various lawsuits were consolidated into a single case, and in November of 2016, the court issued a temporary nationwide injunction blocking enforcement of the overtime regulations. Nevada v. United States Department of Labor, 218 F. Supp. 3d 520 (E.D. Tex. 2016). The court later entered summary judgment for the plaintiffs in the case thereby invalidating the regulations. In its ruling, the court focused on the congressional intent behind the overtime exemptions for “white-collar” workers as well as the authority of the DOL to define and implement those exemptions. The court determined that the Congress clearly intended to exempt overtime wages for work that involved “bona fide executive, administrative, or professional capacity duties.” Consequently, the DOL did not have regulatory authority to use a “salary-level test that will effectively eliminate the duties test” that the Congress clearly established. The court also concluded that the DOL did not have any authority to categorically exclude workers who perform exempt duties based on salary level alone, which is what the court said that the DOL rules did. The court noted that the rules more than doubled the required salary threshold and, as a result, “would essentially make an employee’s duties, functions, or tasks irrelevant if the employee’s salary falls below the new minimum salary level.” The court went on to state that the overtime rules make “overtime status depend predominantly on a minimum salary level, thereby supplanting an analysis of an employee’s job duties.” The court noted that his was contrary to the clear intent of the Congress and, as a result, the rules were invalid. Nevada v. United States Department of Labor, No. 4:16-cv-731, 2017 U.S. Dist. LEXIS 140522 (E.D. Tex. Aug. 31, 2017).

Posted August 30, 2017

Co-Owner Of Agricultural Company Is Considered An Employer Under Migrant And Seasonal Worker Protection Act. The defendant co-owns a wholesale plant nursery facility. The plaintiffs claimed that, starting in November 2016, defendants have employed up to 283 employees to make and produce plants for their wholesale nursery, who have not been paid any wages for the work performed. The plaintiffs’ complaint alleged that the defendant violated the “Hot Goods” provisions of the Fair Labor Standards Act (FLSA) and that the defendant violated the Migrant and Seasonal Agricultural Worker Protection Act (MSWPA). The defendant motioned to dismiss, claiming that although he shared the day-to-day management duties of the company with his partner from 1997-2014, he relinquished the day-to-day duties to his partner starting in 2014. As a result, he claimed that he was not an employer with regard to the FLSA and MSWPA, and moved for summary judgment. The court determined that when an individual exercises control over the nature and structure of the employment relationship or economic control over the relationship then that individual is considered an “employer” within the meaning of the FLSA and MSWPA. Because the defendant had the power to hire and fire employees and authority over some of the conditions of employment, the court determined that he exercised control over the nature and structure of employment. In addition, the defendant continuously and on a regular basis had toured the nursery and interviewed and directed employees as to their job assignments. The defendant also made various contributions to, and directed payment to, the employee payroll. Thus, the court concluded that the defendant also had control over the purse strings, and denied the defendant’s motion to dismiss. Acosta v. EuroAmerican Propagators, LLC, No. 17-cv-00131-H-RBB, 2017 U.S. Dist. LEXIS 129072 (S.D. Cal. Aug. 14, 2017).

Posted August 29, 2017

Vacation Of Highways Needed To Access Public Resources Upheld. Three townships vacated portions of several section-line highways. The plaintiff, South Dakota Department of Game, Fish and Parks, opposed the action on the basis that the highways provided access to bodies of water held in trust by the State for the public. The trial court affirmed in part and reversed in part and the plaintiff appealed. The appellate court held that the determination of whether vacating the highways will better serve the public interest is a practical legislative determination which was entrusted to the discretion of the townships. Therefore, the issue was not for the court to decide. In addition, the appellate court held that the legislature empowered the townships with the ability to vacate highways if the public interest would be better served by the proposed vacating. The appellate court noted that there is no restraint on vacating highways that provide access to a public resource. As a result, the question was whether the public harm of cutting off such access was outweighed by the public benefit in vacating the highway. However, the court determined that this balancing of competing public interests is a policy question and therefore not one properly answered by the courts. The appellate court did find, however, that one township’s decision to vacate was based not on a determination that vacating the highway segments would better serve the public interest, but rather on a determination that doing so would better prevent public access. As a result, the court of appeals reversed that township’s decision to vacate. State v. Troy Township, No. 27981, 2017 S.D. LEXIS 105 (S.D. Sup. Ct. Aug. 16, 2017).

Posted August 19, 2017

Plaintiff Not Entitled to Resident Hunting License To Hunt Father’s Land. The plaintiff resided at a trailer on his father’s Iowa property on weekends or during hunting season. The defendant sent the plaintiff a letter requesting information about the plaintiff’s residency status. The plaintiff replied that he was employed in Minnesota (five hours away), did not receive mail in Iowa, did not pay any utility bills and considered his father’s IA home to be his residence. The plaintiff also had no vehicles registered in IA. The plaintiff, it was determined, listed a MN address on his tax returns, but paid property tax in IA. Based on these facts, the defendant notified the plaintiff that they believed he was claiming residency status only for hunting purposes, and that he did not meet the residency requirements of Iowa Code §483A.1A(10)(a). The plaintiff appealed the defendant’s administrative decision and an Administrative Law Judge upheld the defendant’s determination on the basis that the plaintiff had claimed a residency privilege in MN. On review, the head of the defendant affirmed. On review, the trial court reversed and remanded on the basis that the defendant should not have based its decision on the fact that the plaintiff had claimed a residency privilege in MN and spent little time in IA. On remand, however, the Administrative Law Judge again held that the plaintiff did not meet the residency requirements of IA law, and the defendant’s director affirmed. The trial court affirmed, and the plaintiff appealed. The appellate court affirmed, concluding that the trial court did not base its decision solely on the fact that the plaintiff had a MN driver’s license. The appellate court determined that the plaintiff did not have a principal and primary residence in IA, a prerequisite of being able to obtain a resident hunting license. The appellate court also determined that the statute was not void for vagueness and that the burden of proof to establish residency was on the plaintiff. Schultz v. Iowa Department of Natural Resources, No. 16-1689, 2017 Iowa App. LEXIS 853 (Iowa Ct. App. Aug. 16, 2017).

Posted August 14, 2017

Onion Packing Employees Do Not Fall Under FLSA Exception. The defendant is the largest producer of sweet onions in the country. As a part of its operation, the defendant ran a packing shed where employees process and package onions that the defendant grew as well as those raised by other onion farmers. The Department of Labor (DOL) filed a lawsuit alleging that the defendant's practices violated the Fair Labor Standards Act (FLSA) because it did not pay its packing shed workers overtime wages during the 2012-2016 onion seasons when those employees processed onions grown by farmers other than the defendant's onions. Under the FLSA, employers must generally pay their employees overtime wages when the employees work more than 40 hours in a week. However, there is an exception which provides that employees employed in “agriculture” are not entitled to overtime wages (29 U.S.C. § 213 (b) (12)). The definition of agriculture with respect to the FLSA has two distinct branches: primary agriculture which includes typical farming activities like the cultivation and tillage of the soil, and secondary agriculture which includes any practices, whether or not farming practices, that are performed by a farmer on a farm and are incident to or in conjunction with such farming operations. The court determined that secondary practices must relate to the farmer’s own farming operations and not the farming operations of others. Because the defendant was not the farmer of the onions grown by the contract growers, the processing of those onions was incidental to or in conjunction with the farming operations of the contract growers and not the defendant. As a result, the court determined that the agriculture exemption did not apply to the packing-shed employees when they were processing onions owned by others because they were not performing secondary agricultural practices at that time. Acosta v. Bland Farms Prod. & Packing, LLC No: CV 614-053, 2017 U.S. Dist. LEXIS 119874 (S.D. Ga. July 31, 2017).

Posted August 4, 2017

USDA Must Pay Attorney Fees For Improperly Withholding SNAP Information. In 2011, the plaintiff filed a Freedom of Information Act (FOIA) request for information from the USDA concerning store redemptions involving the Supplemental Nutrition Assistance Program (e.g., Food Stamps). The USDA refused to divulge the requested information claiming an exemption from FOIA. The trial court agreed, but the appellate court reversed and remanded. On remand, the USDA claimed two different exemptions and moved for summary judgment. The trial court denied the motion and held a bench trial, ultimately entering judgment in the plaintiff’s favor. The plaintiff then motioned to recover attorney fees. The court noted that the release of the requested information served a public benefit in improving public policy regarding city planning, distribution of government resources and government transparency. The court also noted that while the release of the information provided a commercial benefit to the plaintiff, the plaintiff was seeking to further its private interest but to obtain information to share with the public. The court also noted that the plaintiff’s interest in the records was more akin to “disinterested scholarly purposes. While the USDA has a reasonable basis for withholding the requested information, the other factors outweighed the USDA’s interests. Accordingly, the court awarded reasonable attorney fees to the plaintiff in the amount of $60,000 plus $8,422.67 of costs. Argus Leader Media v. United States Department of Agriculture. No. 4:11-CV-04121-KES, 2017 U.S. Dist. LEXIS 122126 (D. S.D. Aug. 3, 2017).

Posted July 22, 2017

USDA Improperly Delayed Implementation of Crop Insurance Provision. A provision in the 2014 Farm Bill, Actual Production History (APH) Yield Exclusion, allows eligible producers impacted by severe weather to receive a higher approved yield on their insurance policies through the federal crop insurance program. APH works by allowing a farmer to exclude yields in particularly bad years (e.g., those having a natural disaster or other extreme weather event) from their production history when calculating yields that are used to establish their crop insurance coverage. The level of crop insurance available to a farmer is based on the farmer’s average recent yields. Particularly low yields in a prior year would reduce the level of insurance coverage in future years but for the APH provision. Farmers are eligible for the APH exclusion when the county yield is at least 50 percent below the average of the immediately previous 10 consecutive crop years. The provision was to become effective in the spring of 2015 for spring crops with a November 30, 2014 change date. Eligible crops include corn, soybeans, wheat, cotton, grain sorghum, rice, barley, canola, sunflowers, peanuts and popcorn. However, the USDA later decided to delay the APH Yield Exclusion for wheat for the 2015 crop year for winter wheat. The plaintiff challenged that decision as arbitrary, but the USDA’s National Appeals Division (NAD) upheld the decision. However, in late 2016 a U.S. Magistrate Judge recommended that the court reverse the USDA’s decision to delay implementation of the APH Yield Exclusion (i.e., “yield plug”) for winter wheat. The USDA appealed, but the trial court found that the NAD’s decision was erroneous because it failed to recognize the Farm Bill’s (7 U.S.C. §1508 (g)(4)(A)) effect on implementation for the 2015 winter wheat crop year. The court determined that Congress chose to leave the applicability provision in place thereby making it self-executing and immediate for the APH Yield Exclusion. In addition, the fact that Congress chose to include specific application/implementation language for other crops and yet stay silent as to winter wheat indicates a direct intention to allow the governing and existing statutory law to be applicable as to the implementation of the APH Yield Exclusion for the 2015 winter wheat crop. As a result, the court adopted the findings and conclusions of the Magistrate Judge. On July 18, 2017, the USDA filed a notice of appeal with the Fifth Circuit. Adkins v. Vilsack, No. 1:15-CV-169-C 2017 U.S. Dist. LEXIS 72790 (N. D. Tex. May 12, 2017).

Posted July 16, 2017

Utah Law Banning Photographing, Audiotaping and Videotaping While Under False Pretenses or Trespassing Unconstitutional. Utah law (Code §76-6-112) (hereinafter Act) criminalizes entering private agricultural livestock facilities under false pretenses or via trespass to photograph, audiotape or videotape practices inside the facility. A citizen-activist was arrested while filming what appeared to be a bulldozer moving a sick cow at a slaughterhouse. However, the plaintiff was on public property at the time and the charges were eventually dismissed. Ultimately, anti-livestock activist groups sued on behalf of the citizen-activist claiming that the Act is an unconstitutional restriction on speech in violation of the First Amendment. The defendant claimed that the plaintiffs lacked standing to because they have not yet suffered an injury under the statute. The court noted that there is a three-part test for a plaintiff alleging injury based on a chilling effect of speech. The plaintiff needs to (1) have been engaged in the type of speech in the past; (2) have the desire but no specific plans to engage in the speech; and (3) presently has no intention of engaging in the speech because of the credible threat that the statute will be enforced. The court determined that the plaintiffs satisfied all three of these requirements. The state also argued that lying, which the statute regulates, is not protected by free speech. The court determined that only lying that causes “legally cognizable harm” falls outside First Amendment protection. The court admitted that while some of the misrepresentations criminalized by this Act cause a legally cognizable harm, it concludes that not all of them do. As a result, the court determined that if the state wishes to criminalize these misrepresentations as well, then the act must survive First Amendment scrutiny. The state also argued that the act of recording is not speech that is protected by the First Amendment. However, the court determined that a consensus among courts is that the act of recording is protectable First Amendment speech. The court concluded that the fact that the speech occurred on a private agricultural facility does not render it outside First Amendment protection. Restrictions to speech are subject to either strict or intermediate scrutiny. Content-based speech is subject to strict scrutiny. If the law is content neutral it is subject to intermediate scrutiny. The court determined that both the lying and the recording provisions of the Act are content- based provisions and are subject to strict scrutiny. To survive strict scrutiny the state must demonstrate that the restriction furthers a compelling state interest. The court determined that “the state has provided no evidence that animal and employee safety were the actual reasons for enacting the Act, nor that animal and employee safety are endangered by those targeted by the Act, nor that the Act would actually do anything to remedy those dangers to the extent that they exist”. For those reasons, the court determines that the actwas unconstitutional. Animal Legal Defense Fund v. Herbert, No. 2:13-cv-00679-RJS 2017 U.S. Dist. LEXIS 105331 (D. Utah Jul. 7, 2017).

Posted July 7, 2017

Company Fails To Follow Law to Get Authority To Install Transmission Line. Ameren Transmission Company of Illinois (ATXI) applied to the Missouri Public Serve Commission (PSC) for a conditional certificate of convenience and necessity (CCN) authorizing ATXI to construct, install, operate, control, manage and maintain a new electric transmission line running though several Missouri counties. PSC granted the CCN with the condition that ATXI acquire the required county assents before the CCN would become effective. Neighbors United Against Ameren’s Power Line (Neighbors United) is a not-for-profit corporation whose members are mostly residents of the Missouri counties that ATXI’s line will be running through. Neighbors United sued claiming that ATXI had not obtained the county commission assents required by Missouri law. It further claimed that because the transmission line crosses farming and ranching property it infringes on the rights of farmers and ranchers under Article I, Section 35 of the Missouri Constitution to engage in farming and ranching practices. The court noted that MO law bars public utilities from erecting power lines in a county without first obtaining the approval of the county commission. Further, the court pointed out that Missouri law specifically states that the applicant for a CCN shall file evidence of local government consent before the PSC issues a CCN. As a result, the court determined that the PSC is authorized to issue a CCN only after the applicant has submitted evidence satisfactory to the PSC that consent has been secured by the public utility. ATXI claimed that the PSC could only impose reasonable and necessary conditions on a CCN. However, the court disagreed, pointing out that Missouri law requires that the county commission consents “shall” be on file before the PSC grants a CCN. Thus, the court held that the county commission assents must be submitted to the PSC before the PSC could grant a CCN. Consequently, the PSC’s issuance of a CCN contingent on ATXI’s subsequent provision of required county commission assents was unlawful as it exceeded the PSC’s statutory authority. Because the court invalidated the PSC’s issuance of the CCN on these grounds it did not need to consider Neighbors United’s second argument involving the infringement on the rights of farmers and ranchers. In re Ameren Transmission Co., No. WD79883 2017,2017 Mo. App. LEXIS 244 (Mo. Ct. App. Mar. 28, 2017), app. to transfer den., No. SC96427, 2017 Mo. LEXIS 266 (Mo. Sup. Ct. Jun. 27, 2014).

Posted July 6, 2017

Farmer’s Re-enrollment in Conservation Resource Program Properly Rejected. A farmer began participating in the Conservation Resource Program (CRP) in 1998. In order to determine which tracts are eligible for re-enrollment the FSA uses a scoring factor based on the number of trees and shrubs best suited for wildlife in the area. In 2006, the farmer was notified of the opportunity to re-enroll his land in the CRP for another 10 years. He began the process of getting re-enrolled and signed a conservation plan provided by the FSA identifying the conservation practices necessary for the upcoming year. However, after the performance of a maintenance inspection, the FSA terminated the contract because a population of failed red oak on the property lowered the scoring factor below the acceptable level of re-enrollment. The farmer argued that the FSA could not expect him to predict that the conservation plan standards that he was meeting under his 1997 contract would be changed when he applied for re-enrollment 10 years later. The court determined that even if he had received more advance notice he would not have been able to comply with the changed standards before he was required to offer the tract for re-enrollment given the maturity of his forest by 2006. In addition, the court determined that the statutes and regulations allow the FSA to flexibly address standards to meet the needs of the CRP over time in order to carry out the objectives of the program. The plaintiff’s argument that he was entitled to re-enrollment under the original standards would be contrary to this flexibility. Finally, the court held that the farmer’s commitment to pay liquidated damages if the offer was revoked was not consideration. Instead, it was simply proof of earnest which is no more binding on the offeree than it would be or any other good faith deposit required for an offer. Mittelstadt v. Vilsack, No. 15-cv-725-wmc, 2017 U.S. Dist. LEXIS 91280 (W.D. Wisc. Jun. 14, 2017).

Posted June 27, 2017

Feed Yard Expansion Approved Under Exception To Separation Distance Requirements. The defendant owned and operated a cattle feed yard. The plaintiff owned a home near the defendant’s facility. In 2012 the defendant applied for and received a permit from the Kansas Department of Health and Environment (KDHE) to expand its facility to 2000 head of cattle and build a water pollution control system. The plaintiff sued, claiming that the expansion violated the separation distance requirements between a confined feeding facility and the nearest habitable structure set forth in K.S.A. 2016 Supp. §65-171d(j)(1). The plaintiff also filed a nuisance action on behalf of her late husband’s estate claiming that the expansion interfered with his burial site in the nearby cemetery. The court determined that the expansion did violate the distance requirements, but that the feed yard fell under one of the exceptions provided in K.S.A. 2016 Supp. §65-171(l)(1)(A)-(C). However, the court concluded that the exceptions provided in subsections (l)(1)(A) & (B) could not apply to the 2012 expansion because those exceptions were only applicable to facilities that existed and were approved before July 1, 1996. But, the court found that the exception provided by subsection (l)(1)(C) could apply to expansions made after July 1, 1996 as long as the utilization of the exception did not result in the facility being closer in distance to the nearest habitable structure than it was before the expansion. Since the defendant’s 2012 expansion did not decrease the distance between his facility and the plaintiff’s home the expansion fell under this exception. The court also held that the estate could not bring a private or a public nuisance claim. A private nuisance claim could not survive in favor of a personal representative of the deceased unless it accrued during the decedent’s lifetime. Since in this case the nuisance did not occur during the decedent’s lifetime, the private nuisance claim failed as a matter of law. Furthermore, individuals could not bring a public nuisance claim unless the private individual’s alleged harm is distinguishable from that suffered by the general public. Since the harm suffered resulted in an increase in insects and foul odors, it was not different than the harm suffered by any member of the public who visited the cemetery. Herd v. Shrauner Feedyard, LLC, No. 116,193, 2017 Kan. App. Unpub. LEXIS 468 (Kan. Ct. App. Jun. 16, 2017).

Posted June 26, 2017

Deer-Hunting Preserve Quarantine Not An Unconstitutional Taking. The plaintiffs land was formerly used as a whitetail-deer hunting preserve. During the preserve’s operations deer harvested on the property tested positive for chronic wasting disease (CWS). The landowners were given instructions from the Iowa Department of Natural Resources (IDNR) to depopulate and disinfect their land. The IDNR also required the plaintiffs to construct an electric fence and be solely responsible for its repair and maintenance. Upon completing the depopulation and disinfection, the plaintiffs sent a letter to the DNR announcing that they would no longer be operating the land as a deer-hunting preserve. The DNR responded by issuing an emergency order to require them to keep the electric fence and to close and keep closed all of the gates. The landowners appealed the emergency order on the grounds that the DNR lacked jurisdiction over the property since it was no longer a hunting preserve, and that the terms of the quarantine provided by the emergency order constituted an unconstitutional taking. The court found that a straightforward interpretation of the language of Iowa Code § 484C supported the landowner’s position that the term “quarantine” is modified by the phrase following it, “of diseased preserve whitetail.” Therefore, the statue did not allow for quarantine of non-diseased whitetail or whitetail that are not preserve whitetail. As a result, the agency lacked statutory authority to issue the emergency order. In determining if the order constituted an unconstitutional taking the court analyzed several factors. The court stated that the order was merely temporary and not permanent, and that the economic impact of the order was not large enough to weigh in favor of a taking. The court also determined that a reasonable investor would be aware that a hunting preserve is subject to state regulation, therefore investment-backed expectations were not dramatically upset in this case, further weighing against an unconstitutional taking. As a result, the court determined that the order did not constitute an unconstitutional governmental taking. Brakke v. Iowa Dep’t of Natural Res., No. 15-0328, 2017 Iowa Sup. LEXIS 70 (Iowa Sup. Ct. Jun. 16, 2017).

Posted June 24, 2017

Montana Beef Checkoff Enjoined. The plaintiff, a cattle rancher advocacy group, claimed that the federal law requiring funding of the Montana Beef Council (MBC) via funds from the federal beef checkoff. The court, which involved findings and recommendations of a U.S. Magistrate Judge, determined that the plaintiffs had standing and stating a claim upon which relief could be granted. Under the Beef Checkoff, a $1.00/head fee is imposed at the time cattle are sold. The money generated funds promotional campaigns and research, and state beef councils can collect the funds and retain half of the collected amount with the balance going to the Cattleman’s Beef Production and Research Board (Beef Board). But, a producer can direct that all of the producer’s assessment go to the Beef Board. The plaintiff claimed that the use of the collected funds violated their First Amendment rights by forcing them to pay for “speech” with which they did not agree. The defendant (USDA) motioned to dismiss, but the Magistrate Judge denied the motion. The court determined that the plaintiffs had standing, and that the U.S. Supreme Court had held in prior cases that forcing an individual to fund a private message that they did not agree with violated the First Amendment. Any legal effect of an existing “opt-out” provision was not evaluated. The court also rejected the defendant’s claim that the case should be delayed until federal regulations with respect to the opt-out provision was finalized because the defendant was needlessly dragging its heels on developing those rules and had no timeline for finalization. The court entered a preliminary injunction barring the MBC from spending funds received from the checkoff. On further review by the federal trial court, the court adopted the magistrate judge’s decision in full. The trial court determined that the plaintiff had standing on the basis that the plaintiff would have a viable First Amendment claim if the Montana Beef Council’s advertising involves private speech, and the plaintiff did not have the ability to influence the advertising of the Montana Beef Council. The trial court rejected the defendant’s motion to dismiss for failure to state a claim on the basis that the court could not conclude, as a matter of law, that the Montana Beef Council’s advertisements qualify as government speech. The trial court also determined that the plaintiff satisfied its burden to show that a preliminary injunction would be appropriate. Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America v. Perdue, No. CV-16-41-GF-BMM, 2017 U.S. Dist. LEXIS 95861 (D. Mont. Jun. 21, 2017).

Posted June 18, 2017

Denial of SURE Payment Upheld, But Equitable Relief Improperly Denied. The plaintiff suffered loss to his planted wheat crop due to wind and drought. An adjuster inspected the field, verified the loss and processed the claim. The wheat was destroyed with the adjuster’s approval and the plaintiff planted 622.3 acres of uninsured grain sorghum on the wheat acres. The plaintiff submitted Form CCC-576 with the county FSA committee. While the Form relates to uninsured losses, it is denoted on the Form that it relates to insured losses. The Form sought coverage for the 622.3 acres under the Supplemental Revenue Assistance Payments Program (SURE), USDA’s federal crop insurance program. The county committee requested documentation from the plaintiff’s insurance agency to verify the loss but never received any response by September. The county committee did not contact the plaintiff or notify him that no response was received from his insurance agency. As a result, the notice was disapproved and a letter was mailed to the plaintiff informing him of the disapproval advising him that the disapproval was because the wheat crop was destroyed and a grain sorghum crop replanted before he advised the FSA that the wheat crop had been planted and failed. The letter advised the plaintiff of his right to appeal within 30 days. The plaintiff claimed that he never received the letter, which was the reason he didn’t contact the county FSA until two years later when he provided the county committee with the insurance documentation. He then filed an application for payment which was approved, but for no benefits on the basis that he had no failed acres. The plaintiff appealed, but the county denied the appeal on the basis that there was no factual dispute. The plaintiff then filed a direct appeal with the USDA’s National Appeals Division (NAD). The NAD hearing officer determined that the plaintiff’s attempt to appeal the disapproval was untimely. The plaintiff then filed a complaint with the court arguing that the award of $0 and NAD director’s decision was arbitrary and capricious and that the USDA’s overall treatment of his SURE application was a denial of due process. The court determined that the award of $0 was not arbitrary and capricious because the plaintiff’s appeal was not timely filed. On this point, the court noted that the letter from FSA to the plaintiff was deemed to have been received seven days after it was mailed because it was not returned. The court also determined that although the plaintiff had a cognizable property interest in a SURE payment, the government’s denial of that payment did not violate his due process rights because “due process does not require that a property owner receive actual notice before the government take his property”. Instead it merely requires that the government provide notice reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity present their objections. The committee accomplished this requirement when they sent the letter to the plaintiff. However, the court held that the NAD Director improperly denied the plaintiff’s request for equitable relief. The court reversed the NAD Director’s decision and remanded the case to the Director for consideration of the plaintiff’s equitable relief claim. Hixson ex rel. Hixson Farms v. United States Dep’t of Agric., No. 15-cv-02061-RBJ, 2017 U.S. Dist. LEXIS 90207 (D. Colo. Jun. 13, 2017).

Posted June 3, 2017

California Proposition Involving Egg Production Safe From Challenge. The plaintiff, MO Attorney General, sued the defendant, CA Attorney General, seeking declaratory and injunctive relief, costs and fees, associated with blocking enforcement of CA's Proposition 2 and A.B. 1437 which will increase size of egg-laying hen enclosures and decrease flock densities for CA egg producers and egg producers in other states desiring to sell eggs in CA. A 2008 CA ballot initiative required all CA egg producers to produce eggs from laying hens in cages that allowed the hens to “lie down, stand up, fully extend its limbs, and turn around freely.” Because of the additional cost placed on CA egg producers which made their eggs non-competitive with eggs produced in other states not subject to such restrictions, CA passed a law in 2010 making it a crime to sell shelled eggs in CA (regardless of whether the eggs were produced in CA) that came from a laying hen that was confined in a cage not allowing the hen to “lie down, stand up, fully extend its limbs, and turn around freely.” The law was purportedly based on consumer health concerns, but it had the effect of regulating egg production in all states. The plaintiff noted that CA consumers bought one-third of all eggs produced in MO in 2013 and CA requirement will substantially increase cost of MO egg production if egg producers continue to sell eggs in CA, which will also make eggs too expensive to sell in other states. The plaintiff also noted that if MO producers choose to not participate in CA market, other markets will have surplus eggs and egg prices will fall which could force some producers out of business; suit claims that CA provision was an unconstitutional violation of the Commerce Clause by "conditioning the flow of goods across its state lines on the method of their production." In the alternative, the suit alleged federal preemption via 21 U.S.C. Sec. 1052(b) – the Federal Egg Products Inspection Act. The suit was filed after the Farm Bill conferees rejected House Farm Bill provision that would have barred the conduct that CA has engaged in. The trial court held that the plaintiff lacked standing for failure to articulate an interest separate and apart from the interests of private parties, and that the claim that egg price effect on consumers were remote and speculative. The trial court also determined that the CA law was not discriminatory. On further review, the appellate court affirmed, but remanded for dismissal without prejudice. The U.S. Supreme Court declined to hear the case. Missouri v. Harris, No. 2:14-cv-00341-KJM-KJN, 2014 U.S. Dist. LEIXS 76305 (E.D. Ca. Jun. 2, 2014), aff’d., No. 14-17111, 842 F.3d 658 (9th Cir. 2016), cert. den. sub.nom., Missouri v. Becerra, No. 16-1015 (U.S. Sup. Ct. May 30, 2017).

Posted May 30, 2017

County Setback Distance Upheld. The plaintiff sought to build a wind generation facility on more than 29,000 acres in two counties in Indiana containing 95 aerogenerators. In 2015, the plaintiff filed an application with the defendant (county zoning board of appeals) for the approval of a special exception from the applicable zoning ordinance to build a portion of the facility in the defendant’s county. The county zoning ordinance required a minimum setback distance of 1,000 feet from residential dwellings. Concerned landowners in the designated area raised concerns about harmful side effects of the project including noise, stress, sleep disruption, vibration, flicker, and other annoyances that would impact them personally and lower their property values. The plaintiff then amended its application to have a 1,400-foot setback from landowners that didn’t enter into leases with the plaintiff. A member of the defendant proposed a 2,300-foot setback from the property lines of landowners not entering into lease agreements with the plaintiff and the measure passed on a majority vote of the defendant. The plaintiff filed for judicial review of the increased setback requirement. The trial court upheld the enhanced setback requirement based on the explicit language of the county zoning ordinance at issue that specified a “minimum” 1,000-foot setback as merely a guideline. The trial court also allowed the disaffected landowners to participate in the lawsuit. On appeal, the appellate court affirmed. The appellate court held that, as a guideline, the setback was subject to a “reasonable restrictions” to preserve the public’s health and safety. On the landowners’ motion to intervene, the appellate court also upheld the trial court on the basis that IN Trial Rule 24(A)(2) was satisfied – the landowners showed an interest in the subject of the action; disposition of the action could impede the protection of the landowners’ interest; and representation of the interest by the plaintiff and defendant would inadequately represent the landowners’ interest if the defendants’ decision were modified or reversed. The court pointed to the negative impact on land values and health impacts if the setback distance were reduced. On May 25, 2017, the Indiana Supreme Court refused to hear the case. Flat Rock Wind, L.L.C. v. Rush County Area Board of Zoning Appeals, No. 70A01-1606-PL-1382, 2017 Ind. App. LEXIS 60 (Ind. Ct. App. Feb. 14, 2017), pet. to transfer jurisdiction den., Ind. Sup. Ct. May 25, 2017.

Posted May 20, 2017

Court Lack Jurisdiction To Hear Claim That Utilities Violated FERC. The plaintiffs bought a wind-powered generator in an attempt to reduce their energy expenses by producing their own power and selling any excess energy to the defendant, a non-regulated utility in the plaintiff’s locale. The wind generator is a “qualified facility” under the Public Utility Regulatory Policy Act of 1978 (PURPA). The plaintiffs have been selling excess power from their wind turbine to the defendant at avoided cost (the price the defendant pays for its electricity from Central Iowa Power Cooperative (CIPCO). The plaintiffs challenged the defendant’s calculation of avoided cost and attempted to have the Federal Energy Regulatory Commission (FERC) initiate an enforcement action against both the defendant and CIPCO). The defendant claimed that the court lacked personal jurisdiction over the matter. The court agreed with the defendant, noting that to establish personal jurisdiction over a non-resident defendant, the plaintiffs had to establish jurisdiction under the D.C. long-arm statute and that conferring jurisdiction satisfies constitutional due process. Here, the court noted that the FERC did not have any contact with Iowa and no facts were alleged that would satisfy the D.C. long-arm statute. The court also noted that the FERC has no statutory duty to initiate an enforcement action, and the PURPA has no guidelines for determining whether to commence an enforcement action. FERC can simply decline to bring an enforcement action. In that event, the plaintiff can bring an action. FERC’s decision to not initiate an action is not reviewable. The decision is up to agency discretion and the court lacked subject-matter jurisdiction. The court granted the defendant’s motion to dismiss. Swecker v. Midland Power Cooperative, No. 16-1434 (CRC), 2017 U.S. Dist. LEXIS 74872 (D. D.C. May 17, 2017).

FAA Registration Rule Inapplicable As Applied to “Model Aircraft.” The plaintiff is a model aircraft hobbyist that was required to register with the Federal Aviation Administration (FAA) due to an FAA regulation issued in 2015 (the “Registration Rule”) that required the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Such aircraft are termed “model aircraft.” The FAA regulation resulted from the FAA Modernization and Reform Act of 2012 (49 U.S.C. § 40101). The court noted that Section 336 of the Act specifies that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” The Act defines “model aircraft” as an unmanned aircraft that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.” However, the FAA Registration Rule required the owners of small unmanned aircraft, including model aircraft, to register with the FAA by providing their names, physical mailing address, email address and any other information that the FAA might desire. The Registration Rule also requires that a $5 fee be paid for each registration and requires each model aircraft to have a unique identifier number issued by the FAA. Failure to register is punishable by civil or criminal monetary penalties and up to three years in prison. The court determined that the Registration Rule is a rule regarding model aircraft that establishes a new regulatory regime for model aircraft and uses the same definition of “model aircraft” as the Act. As such, the Registration Rule was not allowed under the FAA’s regulatory authority as it was contrary to the clear language of the Act. The court would not allow a policy consideration of improving aviation safety to override the clearly expressed congressional intent. Accordingly, the court vacated the Registration Rule to the extent it applied to model aircraft. Taylor v. Huerta, No. 15-1495, 2017 U.S. App. LEXIS 8790 (D.C. Cir. May 19, 2017).

Posted May 5, 2017

Ownership of Crops Not Represented Properly and Farm Program Benefits Forfeited. The plaintiffs were farmers that applied for farm program payments with the defendant. The defendant determined that all three applicants were eligible for payments, but later determined that each of the plaintiffs had misrepresented their respective ownership interests in crops produced on particular tracts. The plaintiffs appealed the denial of program benefits to the USDA National Appeals Division (NAD), and the NAD upheld the findings of the Farm Service Agency. The plaintiffs then sought judicial review, and the trial court upheld the NAD. On further review, the appellate court affirmed. The appellate court found that the record contained evidence that a reasonable mind might accept as adequate to support a conclusion that the plaintiffs submitted false or erroneous information on their application for benefits via submitted bank documents and the completed Certification of Disaster Losses form. The trial court’s decision was affirmed. Davis v. United States Department of Agriculture, No. 16-16846, 2017 U.S. App. LEXIS 7722 (11th Cir. May 2, 2017).

Posted May 4, 2017

Animal Facility Video Statute Challenge Dismissed For Lack of Standing. The plaintiffs, numerous animal rights activist groups, brought a pre-enforcement challenge to the North Carolina Property Protection Act (Act). The Act creates a civil cause of action for a NC employer against an employee who “captures or removes” documents from the employer’s premises or records images or sound on the employer’s premises and uses the documents or recordings to breach the employee’s duty of loyalty to the employer. The plaintiffs claimed that the Act stifles their ability to investigate NC employers for illegal or unethical conduct and restricts the flow of information those investigations provide in violation of the First and Fourteenth Amendments of the U.S. Constitution and various provisions of the NC Constitution. The defendants motioned to dismiss the case. The court granted the defendant’s motion for lack of standing, noting that the plaintiffs had yet to sustain any particularized invasion of a legally protected interest. Merely having fear of liability was insufficient, and there was no substantial risk that the Act would be enforced against them. The court noted that “it is purely speculative “ whether the defendants would invoke the law. The Act also did not infringe the plaintiffs’ rights to receive speech from “investigators” because the right was to too remote and speculative to confer standing. The court also did not find any standing based on state law. People for the Ethical Treatment of Animals v. Stein, No. 1:16CV25, 2017 U.S. Dist. LEXIS 66310 (M.D. N.C. May 2, 2017).

Posted April 29, 2017

State Legislation Establishes Review Process for Wind Projects. The Tennessee House has passed, on an 85-3 vote, HB 1021. The bill, if approved by the Tennessee Senate, will impose a moratorium against activities associate with wind energy facilities in certain counties and create a joint legislative study committee. Counties and municipalities would be exempt from the moratorium if they adopt regulations by July 1, 2018. Without the exemption, the amendment imposes a moratorium on the construction, operation, expansion or redevelopment of a wind energy facility. The bill also creates a six-member joint legislative study committee to evaluate and make recommendations relative to the siting of wind energy facilities. The committee will be composed of three members of the Senate, to be appointed by the speaker of the Senate, and three members of the House, to be appointed by the speaker of the House. The committee is to timely report its findings and recommendations, including any potential legislation, to the energy, agriculture and natural resources committee of the Senate, and the House agriculture and natural resources committee by January 1, 2018. The committee will cease to exist at that point. Tennessee HB 1021.

Posted April 27, 2017

Iowa Agricultural Legislation Enacted. During its 2017 session the Iowa legislature enacted several provisions of relevance to agriculture. One provision, HF 410, places Palmer Amaranth on the primary noxious weed list and bars it from import, sale or distribution in Iowa. An exception is provided for the weed’s presence on Conservation Reserve Progam (CRP) land where it can only be controlled consistent with the terms of any existing CRP contract. The provision is effective July 1. SF 357 modifies Iowa Code §103 with respect to electrical wiring projects on farms. Under the provision, the farm need not have electrical work completed by a licensed electrician, but the person performing the work must have a business interest in the farm, be related to the farm’s owner, or be an operator or manager of the farm. For purposes of the bill, “farm” means land, buildings and structures used for agricultural purposes including, but not limited to, storage, handling, and drying of grain and the care, feeding and housing of livestock. The provision excludes the farm residence. The provision is effective July 1. SF 362 provides immunity to the Iowa state fair and county fairs from tort liability for damages caused by any domesticated animal pathogen transmitted at the animal’s premises at the fair. The immunity applies regardless of whether the pathogen is transmitted while the animal is present at the fair or is engaged in a domesticated animal activity. The immunity is conditioned upon the fair’s postage of appropriate signage that warns visitors to take appropriate precautions to help prevent the spread of pathogens (e.g,, not touching face and washing food, etc.). The provision is effective July 1. HF 254 allows a deer carcass to be tagged in the immediate vicinity of where the deer was taken if tagging the deer without moving it would pose a safety hazard (such as in a waterway, entanglement or other safety hazard) to the party that killed the deer or a third party. The provision is effective July 1. HF 464 allows an all-terrain vehicle or off-road utility vehicle to cross a state or county highway directly at a 90-degree angle after coming to a complete stop and yielding the right of way to any oncoming traffic. The crossing must be made from a designated all-terrain vehicle trail to another all-terrain vehicle trail and, if a divided highway is being crossed, the crossing must be made at an intersection. The provision is effective July 1. SF 406 eliminates any otherwise applicable permitting requirements for any motor vehicle that a farmer operates to transport an implement of husbandry between fields or repair or storage locations. Any applicable size, weight, load and lighting restrictions still apply. The provision is effective July 1.

Posted April 15, 2017

GIPSA Interim Final Rule on Marketing of Livestock and Poultry Delayed. In the fall of 2016, the USDA sent to the Office of Management and Budget (OMB) interim final rules that provide the agency’s interpretation of certain aspects of the Packers and Stockyards Act (PSA) involving the buying and selling of livestock and poultry. The proposed interim final rules generated thousands of comments, with ag groups and producers split in their support. The interim final rules concern Section 202 of the PSA (7 U.S.C. §§ 192 (a) and (e)) which makes it unlawful for any packer who inspects livestock, meat products or livestock products to engage in or use any unfair, unjustly discriminatory or deceptive practice or device, or engage in any course of business or do any act for the purpose or with the effect of manipulating or controlling prices or creating a monopoly in the buying, selling or dealing any article in restraint of commerce. The “effect” language of the statute would seem to eliminate any requirement that the producer show that the packer acted with the intent to control or manipulate prices. However, the federal courts have largely interpreted the provision to require a plaintiff to show an anti-competitive effect in order to have an actionable claim. However, the USDA issued proposed regulations in June of 2010 providing guidance on the handling of antitrust-related issues under the PSA. 75 Fed. Reg. No. 119, 75 FR 35338 (Jun. 22, 2010). Under the proposed regulations, "likelihood of competitive injury" is defined as "a reasonable basis to believe that a competitive injury is likely to occur in the market channel or marketplace.” It includes, but is not limited to, situations in which a packer, swine contractor, or live poultry dealer raises rivals' costs, improperly forecloses competition in a large share of the market through exclusive dealing, restrains competition, or represents a misuse of market power to distort competition among other packers, swine contractors, or live poultry dealers. It also includes situations “in which a packer, swine contractor, or live poultry dealer wrongfully depresses prices paid to a producer or grower below market value, or impairs a producer's or grower's ability to compete with other producers or growers or to impair a producer's or grower's ability to receive the reasonably expected full economic value from a transaction in the market channel or marketplace." According to the proposed regulations, a “competitive injury” under the PSA occurs when conduct distorts competition in the market channel or marketplace. The scope of PSA §202(a) and (b) is stated to depend on the nature and circumstances of the challenged conduct. The proposed regulations specifically note that a finding that a challenged act or practice adversely affects or is likely to affect competition is not necessary in all cases. The proposed regulations also note that a PSA violation can occur without a finding of harm or likely harm to competition, but as noted above, that is contrary to numerous court opinions that have decided the issue. On April 11, 2017, the USDA announced that it was delaying the effective date of the interim final rule for 180 days, until October 19, 2017. The due date for public comment is June 12, 2017.

Posted March 23, 2017

Court Upholds State Listing of Glyphosate As Cancer-Causing Chemical. California voters approved Proposition 65 in 1986. That initiative became the Safe Drinking Water and Toxic Enforcement Act of 1986. Under that law, California must publish a list of chemicals known to cause cancer or birth defects or other reproductive harm. The list is updated at least one time every year. It now contains about 800 chemicals. The state delegated its authority to the International Agency for Research on Cancer (IARC) to determine which chemicals are to be added to the list of possible cancer-causing agents, and IARC determined that glyphosate, the active ingredient in the plaintiff’s Roundup chemical product, should be listed. The plaintiff challenged that delegation of authority as unconstitutional and the court disagreed, reasoning that an independent, authoritative source was making the decision concerning listing as opposed to the fundamental policy decision of whether to create a list. The plaintiff also asserted a due process violation on the basis that its property interest and business goodwill and reputation would be damaged by the listing and that no procedural safeguards existed. However, the court held that due process did not apply because the matter involved a quasi-judicial action to which procedural due process did not apply. The court also dismissed the plaintiff’s Guarantee Clause claim because such a challenge only involves a political question. The court likewise dismissed the plaintiff’s claims based on unlawful amendment to the CA Constitution and free speech. On the free speech claim, the court noted that being a listed chemical does not require a label. The court determined that the mere listing of glyphosate on the list of chemicals known to cause cancer does not require the plaintiff to provide a warning, and the plaintiff may never actually be required to provide a warning. The plaintiff argued that the listing was the functional equivalent of being required to provide a warning label. The plaintiff claimed that it was caught in a catch 22 - if it provided a warning label, then sales would drop and if it didn’t provide a label that the law did not require, it could get sued if someone proves injury because the plaintiff didn’t provide a label. However, the court disagreed, noting that CA has the discretion to determine if glyphosate poses no significant risk of causing cancer even if glyphosate is placed on the Prop. 65 list of chemicals. In addition, the court noted, the plaintiff is not required to provide a warning label if it can show that glyphosate poses no significant risk of causing cancer in humans. So the issue of whether the plaintiff is required to provide a warning label, the court ruled, is not yet ripe for adjudication. Monsanto Co. v. Office of Environmental Health Hazard Assessment, No. 16CECG00183,2017 Cal. Super. LEXIS 3 (Ca. Super. Ct. Mar. 10, 2017).

Posted March 13, 2017

Farmer Not Separate Person from LLC for Payment Limitation Purposes. The plaintiff received federal farm program payments from 2005 through 2008. The defendant determined that the plaintiff was not a separate “person” from his LLC which also received farm program payments for the same years. As a result, the defendant required the plaintiff to refund to the government the payments that he had received. The defendant exhausted his administrative remedies with the defendant to no avail, and the trial court upheld the defendant’s determination on summary judgment. On appeal, the appellate court affirmed. The court noted that the plaintiff was required to show that he was “actively engaged in farming” and that he was a “separate person” from the LLC because the definition of “person” applied to all of part 1400 of the Code of Federal Regulations which contains the “separate person” rules and, consequently, the defendant’s interpretation of its own regulation defining “person” for payment limitation purposes that is set forth in 7 C.F.R. §1400.3 was consistent with the regulation and not plainly erroneous. The court also determined that substantial evidence supported the conclusion that the plaintiff was not a separate person from his LLC due to many unexplained transfers or loans between the plaintiff and the LLC without accompanying documentation which suggested a commingling of funds and the making of operating loans back and forth between the plaintiff and the LLC. As such, the appellate court believed it was not possible to determine the true assets and liabilities of either the plaintiff or the LLC. The court believed that the plaintiff had not made a good faith effort to comply with the per-person payment limitations, was not a separate person from the LLC and was entitled to only one payment limit instead of two. Also, the finality rule which makes a determination by a state or county Farm Service Agency final and binding 90 days from the date an application for benefits was filed did not bar the Farm Service Agency from evaluating the plaintiff’s program eligibility because the determination was based on misrepresentations that the plaintiff should have known were erroneous. On the application, the plaintiff had represented that he provided all of the capital and labor on his farm and didn’t receive any operating loans from related entities. In addition, while the National Appeals Director’s decision did not meet the 30-day deadline, it was not void because the statute at issue (7 U.S.C. §6998(b)(2)) contains no remedy for failure to comply. Harmon v. United States Department of Agriculture, No. 14-35228, 2016 U.S. App. LEXIS 23105 (9th Cir. Dec. 22, 2016).

Posted February 16, 2017

County Setback Distance Upheld. The plaintiff sought to build a wind generation facility on more than 29,000 acres in two counties in Indiana containing 95 aerogenerators. In 2015, the plaintiff filed an application with the defendant (county zoning board of appeals) for the approval of a special exception from the applicable zoning ordinance to build a portion of the facility in the defendant’s county. The county zoning ordinance required a minimum setback distance of 1,000 feet from residential dwellings. Concerned landowners in the designated area raised concerns about harmful side effects of the project including noise, stress, sleep disruption, vibration, flicker, and other annoyances that would impact them personally and lower their property values. The plaintiff then amended its application to have a 1,400-foot setback from landowners that didn’t enter into leases with the plaintiff. A member of the defendant proposed a 2,300-foot setback from the property lines of landowners not entering into lease agreements with the plaintiff and the measure passed on a majority vote of the defendant. The plaintiff filed for judicial review of the increased setback requirement. The trial court upheld the enhanced setback requirement based on the explicit language of the county zoning ordinance at issue that specified a “minimum” 1,000-foot setback as merely a guideline. The trial court also allowed the disaffected landowners to participate in the lawsuit. On appeal, the appellate court affirmed. The appellate court held that, as a guideline, the setback was subject to a “reasonable restrictions” to preserve the public’s health and safety. On the landowners’ motion to intervene, the appellate court also upheld the trial court on the basis that IN Trial Rule 24(A)(2) was satisfied – the landowners showed an interest in the subject of the action; disposition of the action could impede the protection of the landowners’ interest; and representation of the interest by the plaintiff and defendant would inadequately represent the landowners’ interest if the defendants’ decision were modified or reversed. The court pointed to the negative impact on land values and health impacts if the setback distance were reduced. Flat Rock Wind v. Rush County Area Board of Zoning Appeals, No. 70A01-1606-PL-1382, 2017 Ind. App. LEXIS 60 (Ind. Ct. App. Feb. 14, 2017).

Posted February 12, 2017

Livestock Regulation Did Not Violate Constitution. The plaintiff operated a cattle ranch and wheat farm and sought to add a new chicken barn and egg-laying operation. The plaintiff went through an application and approval process with the defendant before being granted approval in late 2015. In early 2016, the plaintiff sued the defendant for an equal protection claim arguing that the defendant’s approval process treated egg-laying operations differently from similarly situated chicken-raising operations. Under the defendant’s rules, new confined animal operations had to go through the approval process where livestock are raised or fed out, but ag uses of the land that produce ag and livestock products originating from the land’s productivity are exempt. The court dismissed the plaintiff’s claim on the basis that the plaintiff had misrepresented the provision on the basis that its purpose was to maintain the same general uses of the community. The plaintiff’s claim that a farmer could buy chickens and sell the live young without an approval process as long as no eggs were sold was, the court opined, “an absurd interpretation of the defendant’s regulatory process. Kuntz v. Delta County Board of Commissioners, No. 16-CV-710-CMA-GPG, 2017 U.S. Dist. LEXIS 17065 (D. Colo. Feb. 7, 2017).

Posted January 14, 2017

Montana Beef Checkoff Enjoined. The plaintiff, a cattle rancher advocacy group, claimed that the federal law requiring funding of the Montana Beef Council (MBC) via funds from the federal beef checkoff. The court, which involved findings and recommendations of a U.S. Magistrate Judge, determined that the plaintiffs had standing and stating a claim upon which relief could be granted. Under the Beef Checkoff, a $1.00/head fee is imposed at the time cattle are sold. The money generated funds promotional campaigns and research, and state beef councils can collect the funds and retain half of the collected amount with the balance going to the Cattleman’s Beef Production and Research Board (Beef Board). But, a producer can direct that all of the producer’s assessment go to the Beef Board. The plaintiff claimed that the use of the collected funds violated their First Amendment rights by forcing them to pay for “speech” with which they did not agree. The defendant (USDA) motioned to dismiss, but the Magistrate Judge denied the motion. The court determined that the plaintiffs had standing, and that the U.S. Supreme Court had held in prior cases that forcing an individual to fund a private message that they did not agree with violated the First Amendment. An legal effect of an existing “opt-out” provision was not evaluated. The court also rejected the defendant’s claim that the case should be delayed until federal regulations with respect to the opt-out provision was finalized because the defendant was needlessly dragging its heels on developing those rules and had no timeline for finalization. The court entered a preliminary injunction barring the MBC from spending funds received from the checkoff. The court’s decision will be reviewed by the federal trial court.  On December 23, 2016, the defendnat filed its objections to the Magistrate Judge's recommendations, and on January 5, 2017, the plaintiff filed its opposition brief to the defendant's objections.  Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America v. Vilsack, No. CV-16-41-GF-BMM-JTL, D. Mont. Dec. 12, 2016).

Posted December 8, 2016

Senate Has Now Approved Bill With HRA Relief.  During the early evening hours of November 30, the U.S. House of Representatives passed on a 392-26 vote H.R. 34, and on December 7, the U.S. Senate voted 392-26 to approve the legislation. The bill is essentially a biomedical research and funding bill, but Section 18001 of the bill (on page 824) contains a provision that amends Obamacare to allow a "small employer" (defined as one with less than 50 full-time employees who does not offer a group health plan to any employees) to offer a health reimbursement arrangement (HRA) that the employer funds to reimburse employees for qualified medical expenses, including health insurance premiums. Under the provision, employees that are covered by such an HRA will generally not be eligible for subsidies (i.e., the premium assistance tax credit (PATC)) for health insurance purchased under an exchange during the months that they (and their family members) are covered by the employer’s HRA. That is the case for any month the employee is covered by an HRA if the HRA provides "affordable coverage." An HRA provides "affordable coverage" if the excess of the amount that would be paid by the employer as the premium for such month for self-only coverage under the second lowest cost silver plan offered in the relevant individual health insurance market, over 1/12 of the employee's permitted benefit (as defined in Sec. 9831(d)(c)) under the HRA does not exceed 1/12 of 9.5 percent of the employee’s household income. The maximum annual reimbursement that can be provided under an HRA is $4,950. That amount rises to $10,000 if the plan provides for the employee's family members. Those amounts are prorated for the months of coverage. Other requirements are that funding of the HRA is to be solely by employer contributions, with no salary reduction contributions. Also, an employee with such an HRA is to have health insurance coverage via a plan that is acceptable under Obamacare. The HRA is to be provided on the same terms to all eligible employees, but some employees can be excluded from being offered an HRA – employees lacking 90 days of employment; employees not age 25 or older; part time (less than 30 hours weekly) or seasonal employees; and non-resident aliens that have don’t have U.S. income. In addition, employers offering such HRAs will have to adhere to notification and reporting requirements. The employer has to give the employee notice within 90 days of the beginning of the tax year (or 90 days from the date the employee is eligible to participate). The notice is to include a statement of the amount that would be the employee's permitted benefit under the HRA for the year; a statement that the employee needs to provide information to a health insurance exchange if they apply to the exchange for advance payment of the PATC; and a statement that if the employee does not have minimum essential coverage for any month, the employee may be subject to the penalty imposed by I.R.C. Sec. 5000A for the month and that HRA reimbursements may be included in the employee's gross income. Failure to give the notice subject the employer to a penalty of $50/employee per incident (capped at $2,500 annually) unless the employer shows reasonable cause and no willful neglect. The provision will, effective for plan years beginning after December 31, 2016, deem such HRAs to no longer be a violation of Obamacare's market "reforms" that would subject the employer to a penalty as stated in IRS Notice 2013-54, I.R.B. 2013-40 (thereby triggering a$100/day penalty per affected person). "Large" employers would remain, however, subject to the Obamacare restrictions on HRAs. In addition, the provision retroactively extends the initial penalty relief provided to small businesses under Notice 2015-17, I.R.B. 2015-14, 845, to apply to any plan year beginning on or before December 31, 2016. In accordance with Rev. Rul. 61-146, 1961-2, CB 25, reimbursed medical expenses are excluded from the employee’s gross income, even if the employer pays the premiums directly to the insurer. The relief provided by Notice 2015-17 applies to any plan year beginning before 2017. That apparently means that the $100 daily penalty won't apply, but the law is unclear. Of course, all of this becomes irrelevant if Obamacare is repealed. However, lack of support in the Senate blocked Senator Grassley's bill from getting through.

Posted December 7, 2016

Insecticide-Coated Seeds Exempt From EPA Regulation Under FIFRA. The plaintiff is a consortium of individuals and groups with concerns about the effect of pesticide-treated seeds on bees and other pollinators. The plaintiff claimed that the EPA failed to enforce the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) with respect to pesticide-treated seeds, claiming that seeds coated with neonicotinoids (a type of pesticide that distributes throughout the resultant plant and kills insects by direct contact and when they eat the plant). The plaintiff also claimed that the pesticide-treated seeds can release pesticidal “dust-off” that spreads the insecticide beyond the seeds themselves. The plaintiff claimed that the use of such seeds has a systematic and catastrophic impact on bees and the beekeeping industry in the U.S. The plaintiff claimed that the seeds were subject to FIFRA regulation which requires their registration before usage. The court disagreed, noting that the 1988 FIFRA exemption for “an article or substance that is treated with or that contains a pesticide to protect the article or substance itself if the pesticide is registered for such use” applied. In 2003, EPA published a document in which it said that such seeds were exempt from FIFRA regulation if the pesticide protection of the seed does not extend beyond the seed itself to offer pesticidal benefits or value attributable to the treated seed. Thus, when a treated seed is planted and the seed is treated with a registered pesticide, the seed itself is exempt from FIFRA. In addition, a 2013 EPA guidance document discussed pesticide-related bee deaths and the plaintiff claimed that the guidance document was a final action that needed to be supported by an exhaustive record and is reviewable under the Administrative Procedures Act (APA) and subject to the APA’s rulemaking requirements. The court disagreed. Anderson v. McCarthy, No. C16-00068 WHA, 2016 U.S. Dist. LEXIS 162124 (N.D. Cal. Nov. 21, 2016).

Posted December 4, 2016

Health Reimbursement Arrangements for "Small Employers."  During the early evening hours of November 30, the U.S. House of Representatives passed on a 392-26 vote H.R. 34. The bill is a essentially a biomedical research and funding bill, but Section 18001 of the bill (on page 824) contains a provision that amends Obamacare to allow a "small employer" (defined as one with less than 50 full-time employees who does not offer a group health plan to any employees) to offer a health reimbursement arrangement (HRA) that the employer funds to reimburse employees for qualified medical expenses, including health insurance premiums. Under the provision, employees that are covered by such an HRA will not be eligible for subsidies for health insurance purchased under an exchange during the months that they are covered by the employer’s health reimbursement arrangement. The maximum reimbursement that can be provided under an HRA is $4,950. That amount rises to $10,000 if the plan provides for the employee's family members. Other requirements are that funding of the HRA is to be solely by employer contributions, with no salary reduction contributions. Also, an employee with such an HRA is to have health insurance coverage via an plan that is acceptable under Obamacare. In addition, employers offering such HRAs will have to adhere to notification and reporting requirements. The provision will, effective for plan years beginning after December 31, 2016, deem such HRAs to no longer be a violation of Obamacare's market "reforms" that would subject the employer to a penalty. "Large" employers would remain, however, subject to the Obamacare restrictions on HRAs. In addition, the provision retroactively extends the initial penalty relief provided to small businesses under Notice 2015-17, I.R.B. 2015-14, 845, to apply to any plan year beginning on or before December 31, 2016.  During the week of December 4, the U.S. Senate will take up H.R. 34 and is expected to pass it without any amendment. The President has already indicated that he will sign the bill.

Posted November 30, 2016

Raisin Producer’s Takings Claim Survives Dismissal. The plaintiff, a California raisin producer, refused to participate in the USDA marketing order program for raisins which would have diverted a percentage of the plaintiff’s raisins into a “reserve pool” which USDA then sold in non-competing markets such as foreign countries. Funds from the sale of “reserve pool” raisins paid for the administrative costs of the program, with remaining funds each year (if any) returned to participants. In 2015, the U.S. Supreme Court determined that the marketing order program constituted an unconstitutional taking. In that case, Horne v. United States Department of Agriculture, 135 S. Ct. 2419 (2015), the plaintiff grew and packed raisins and refused to forfeit 47 percent of his crop in one year and 30 percent of his crop in another year to the USDA for the privilege of selling the balance of his crop not subject to the marketing Order implemented in 1949 that is based on the Agricultural Marketing Agreement Act of 1937 allowing the USDA to seize the specified percentages of his crop. The USDA fined the plaintiff $483,843.53 for the market value of the raisins he refused to give up, plus a $200,000 civil penalty for disobeying the marketing order. The plaintiff sued for a constitutional taking. Reversing the Ninth Circuit, the U.S. Supreme Court held that a physical taking was involved since title to the subject grapes had been taken by the government. As such, the plaintiff was entitled to "just compensation" under the Fifth Amendment. That amount was the market value of the amount of the grapes that the government seized. In the present case, the plaintiff claimed that it was required to turn over 10-15 percent of its raisin crop for crop years 2006-2009. The “reserve pool” for each of the raisin crops wasn’t closed out until 2010-2012. The crops were valued at $1,210-$1,343 per ton. The plaintiff claimed that it didn’t receive any money back in three of the four years at issue. The plaintiff sued for an unconstitutional taking and the defendant motioned for dismissal on the basis that the plaintiff’s claim is barred by the six-year statute of limitations. The defendant claimed that any takings claim ripened in mid-October of each crop year and that the plaintiff only had six years from each crop’s mid-October taking during which they could make a timely claim. Because the plaintiff didn’t file its claim until August 26, 2015, the defendant asserted that the only claim not barred by the statute of limitation would be for the 2009-2010 crop year. The court disagreed with the defendant, pointing out that the plaintiff was effectively barred from filing a takings claim until the U.S. Supreme Court’s decision in Horne. Only then did the plaintiff’s claims become legally defensible. Until that time, the court reasoned, the plaintiff did not have a reasonable belief that it had a legally defensible claim due to prior precedent. Thus, the court dismissed the defendant’s partial motion to dismiss the takings claim with respect to the 2007-2009 crop years. Lion Farms v. United States, No. 15-915, 2016 U.S. Claims LEXIS 1812 (Fed. Cl. Nov. 29, 2016).

Posted, November 21, 2016

California Proposition Involving Egg Production Safe From Challenge. The plaintiff, MO Attorney General, sued the defendant, CA Attorney General, seeking declaratory and injunctive relief, costs and fees, associated with blocking enforcement of CA's Proposition 2 and A.B. 1437 which will increase size of egg-laying hen enclosures and decrease flock densities for CA egg producers and egg producers in other states desiring to sell eggs in CA. A 2008 CA ballot initiative required all CA egg producers to produce eggs from laying hens in cages that allowed the hens to “lie down, stand up, fully extend its limbs, and turn around freely.” Because of the additional cost placed on CA egg producers which made their eggs non-competitive with eggs produced in other states not subject to such restrictions, CA passed a law in 2010 making it a crime to sell shelled eggs in CA (regardless of whether the eggs were produced in CA) that came from a laying hen that was confined in a cage not allowing the hen to “lie down, stand up, fully extend its limbs, and turn around freely.” The law was purportedly based on consumer health concerns, but it had the effect of regulating egg production in all states. The plaintiff noted that CA consumers bought one-third of all eggs produced in MO in 2013 and CA requirement will substantially increase cost of MO egg production if egg producers continue to sell eggs in CA, which will also make eggs too expensive to sell in other states. The plaintiff also noted that if MO producers choose to not participate in CA market, other markets will have surplus eggs and egg prices will fall which could force some producers out of business; suit claims that CA provision was an unconstitutional violation of the Commerce Clause by "conditioning the flow of goods across its state lines on the method of their production." In the alternative, the suit alleged federal preemption via 21 U.S.C. Sec. 1052(b) – the Federal Egg Products Inspection Act. The suit was filed after the Farm Bill conferees rejected House Farm Bill provision that would have barred the conduct that CA has engaged in. The trial court held that the plaintiff lacked standing for failure to articulate an interest separate and apart from the interests of private parties, and that the claim that egg price effect on consumers were remote and speculative. The trial court also determined that the CA law was not discriminatory. On further review, the appellate court affirmed, but remanded for dismissal without prejudice. Missouri v. Harris, No. 2:14-cv-00341-KJM-KJN, 2014 U.S. Dist. LEIXS 76305 (E.D. Ca. Jun. 2, 2014), aff’d., No. 14-17111, 2016 U.S. App. LEXIS 20613 (9th Cir. Nov. 17, 2016).

Posted November 20, 2016

County Ban on GMO Crops Struck Down. In the fall of 2014, the defendant county adopted an ordinance that banned the cultivation and testing of genetically modified engineered organisms (GMOs). In an earlier action, the court entered an injunction preventing enforcement of the ordinance until the court decided the merits of a challenge to the ordinance. The trial court invalidated the ordinance as unenforceable as being expressly preempted by the Plant Protection Act (PPA) (7 U.S.C. §7756(b)) and the regulations thereunder to the extent that it bans genetically engineered plants in the United States. The ordinance, the court held, also exceeded the authority that the state had delegated to the county and that the fines specified in the ordinance were excessive. On appeal, the court affirmed. The appellate court held that the ordinance was expressly preempted by the PPA to the extent that it banned genetically engineered plants that the Animal and Plant Health Inspection Service (APHIS) regulates as plant pests, but is not impliedly preempted by the PPA in its application to genetically engineered crops that APHIS has deregulated. However, with respect to deregulated genetically engineered crops, the appellate court held that the ordinance was impliedly preempted by Hawaii’s comprehensive state statutory scheme for the regulation of potentially harmful plants. Robert Ito Farm, Inc., et al. v. County of Maui, et al., No. 14-00511, 2015 U.S. Dist. LEXIS 84709 (D. Haw. Jun. 30, 2015), aff’d., Atay v. County of Maui, No. 15-16466, 2016 U.S. App. LEXIS 20670 (9th Cir. Nov. 18, 2016).

Another Hawaii Ordinance Banning GMOs Struck Down. Plaintiff seed companies filed an action against the County of Kauai, seeking to invalidate and enjoin enforcement of Kauai County Code § 22-22 (2013) (Ordinance 960), relating to pesticides and genetically modified organisms (GMO). Generally, the provision (which was originally set to take effect August 16, 2014, but was delayed until October 1, 2014) required commercial agricultural entities to: issue weekly and annual reports regarding their use of "restricted use" pesticides and their possession of GMOs and to establish pesticide buffer zones between crops to which “restricted use” pesticides were applied and surrounding properties. The plaintiffs argued that the law was preempted by state and federal law and that it imposed burdensome operational restrictions violating their due process and equal protection rights. They also alleged that the buffer zone requirement would result in “takings” without just compensation. On motions for summary judgment, the court ruled that Ordinance 960 was preempted by state law and was, therefore, invalid. The court stated that its decision “in no way diminishes the health and environmental concerns of the people of Kauai… [but] simply recognizes that the State of Hawaii has established a comprehensive framework for addressing the application of restricted use pesticides and the planting of GMO crops, which presently precludes local regulation by the County.” The court did not find that the Ordinance was preempted by federal law. It also did not need to rule on the constitutional claims since state preemption invalidated the law. On appeal, the appellate court affirmed and specifically noted that the GMO reporting provision of the law was impliedly preempted by state law. Syngenta Seeds v. County of Kauai, No. 14-00014 BMK, 2014 U.S. Dist. LEXIS 117820 (D. Haw. Aug. 23, 2014), aff’d., No. 14-16833, 2016 U.S. App. LEXIS 20689 (9th Cir. Nov. 18, 2016).

Posted November 6, 2016

Beef Checkoff Case Continues With Procedural Moves. In 2011, the Office of Inspector General for the USDA initiated an audit of the Beef Checkoff Program, released it in 2013, withdrew it, and later re-released it in 2014. The checkoff program bars the producer-derived funds from being used for policy activities. The initial audit said that the National Cattleman Beef Association (NCBA) was in full compliance, but the re-released audit removed that statement. Before the OIG audit, there was an independent audit that disclosed problems with the use of checkoff funds by NCBA. In 2013, a livestock market advocacy group (assisted by the Humane Society of the U.S.) filed a Freedom of Information Act (FOIA) request with respect to OIG the audit reports. After that filing, the OIG withdrew the initial audit for further consideration. In 2014, the same group filed a complaint for injunctive relief against the OIG requesting that the OIG make a final determination and release all required records related to the audits. The advocacy group sought the information to determine if there is a connection between the drop in cattle-producer numbers and the price of calves and losses, with the use of checkoff funds. The NCBA claims that the audit activities will weaken the checkoff and asserts that the audits have found the NCBA to be in full compliance with the checkoff rules. In 2016, the NCBA sought to intervene in the injunction case, and in late September the advocacy group filed its response. NCBA sought intervention because some of the information in the audit reports involved confidential business information unrelated to the checkoff. It has been reported that there are approximately 9.300 pages of financial data involving the beef checkoff. The case is filed in the U.S. District Court for the District of Columbia and a ruling is soon expected on the NCBA’s request for intervention.

October 1, 2016

Final Rules Finalized on Drones - Unmanned Aircraft Systems (UASs). The Federal Aviation Administration (FAA) issued a Final Rule on UASs (“drones”) on June 21, 2016. The Final Rule largely follows the Notice of Proposed Rulemaking issued in early 2015 (80 Fed. Reg. 9544 (Feb. 23, 2015)) and allows for greater commercial operation of drones in the National Airspace System. At its core, the Final Rule allows for increased routine commercial operation of drones which prior regulations required commercial users of drones to make application to the FAA for permission to use drones - applications the FAA would review on a case-by-case basis. The Final Rule (FAA-2015-0150 at 10 (2016)) adds Part 107 to Title 14 of the Code of Federal Regulations and applies to unmanned “aircraft” that weigh less than 55 pounds (that are not model aircraft and weigh more than 0.5 pounds). The Final Rule became effective on August 29, 2016.

The following are the highlights of the Final Rule:

• The drone must be registered with the FAA. Registration is primarily done online and the registrant must be at least 13 years of age. A $5.00 fee is required at the time of registration and the make and model of the drone must be provided and the drone must be labeled with the registration number. Registration lasts for three years;

• Drones may operate during daylight or “civil twilight” (30 minutes before sunrise and 30 minutes after sunset), and there must be at least three miles of visibility;

• Drones cannot be operated more than 400 feet above ground and groundspeed must be kept at 100 miles per hour or less. Also, the drone must be operated out-of-doors, and cannot be operated over other persons who are not involved in the drone’s operation. In addition, the drone operator must yield the right-of-way so as to avoid accidents with other airspace users;

• Drones must stay within the vision (without binoculars) of either the operator or an observer that is in communication with the pilot;

• The drone operator must obtain FAA air traffic control permission before flying the drone in controlled airspace;

• The drone operator must be at least 16 years of age, communicate in English, and have a “remote pilot airman certificate” (obtained either by passing an aeronautical knowledge test (initially and then every two years) or by having a pilot certificate, completing a flight review in the prior two years and an online FAA training course (at a cost of approximately $150) for small drones) containing, at a minimum, a small drone rating. The certificate will last for two years. The drone can be flown by the certified operator or a person under the certified operator’s direct supervision;

• The operator must conduct a “pre-flight check” of the drone’s safety and make it available for FAA inspection;

• The drone can be operated from a moving vehicle located in an area that is sparsely populated, but it cannot be operated from a moving aircraft;

• If the drone is used in agricultural operations to dispense agricultural chemicals or fertilizer, the drone must comply with the “agricultural aircraft operation” regulations of 14 C.F.R. Part 137;

• The operator must report to the FAA within 10 days any “operation that results in at least serious injury, loss of consciousness, or property damage of at least $500;

• A small drone operator can apply for a waiver from the operational rules, but must submit with the waiver application documentation that the safe operation of the drone can be maintained if the waiver were granted; and

• Violation of the regulations can result in civil fines of up to $27,500. Criminal penalties of up to $250,000 can apply if destruction of property occurs or the drone causes a threat to public safety.

September 27, 2016

OSHA Memo Constituted Safety Standard Subject to Notice and Comment Requirements. In April of 2013 an explosion at a Texas fertilizer company killed 15 people and injured many others. The plant stored large quantities of anhydrous ammonia for distribution as fertilizer to farmers. In 1992, the Occupational Safety and Health Administration (OSHA) promulgated a Process Safety Management (PSM) Standard (Standard) designed to protect employees in industries having processes that involve highly hazardous chemicals. The Standard exempted “[r]etail facilities” from its requirements. Such facilities were defined as “an establishment…at which more than half of the income is obtained from direct sales to end users.” After the explosion, President Obama issued an executive order directing changes be made to the Standard. OSHA, in 2015, issued a Memo rescinding the 50 percent test and restricting the exemption to retail facilities that are “organized to sell merchandise in small quantities to the general public. The Memo had the effect of subjecting farm supply establishments to the Standard’s requirements for managing highly hazardous chemicals. The plaintiffs, an association of agricultural retailers, filed petitions for review challenging the narrowed definition of “retail facilities on the basis that the OSHA Act required OSHA to follow notice-and-comment procedures in changing the definition. The court agreed because the definitional change amounted to a standard rather than simply an interpretation of an existing standard. The court determined that the Memo was to expand the substantive reach of the Standard by narrowing its exemption and subjecting many more businesses to additional safety standards in order to address a “particular significant risk.” Accordingly, the court had jurisdiction to review OSHA’s action and the Memo was subject to public notice-and-comment requirements of the Administrative Procedure Act. Consequently, the court vacated the Memo. Agricultural Retailers Association v United States Department of Labor, et al., No. 15-1326, 2016 U.S. App. LEXIS 17367 (D.C. Cir. Sept. 23, 2016).

September 25, 2016

Feeding and Caring for Animals is “Agriculture” for FLSA Purposes. The plaintiff worked at a small farm, originally commuting to the farm from his home, where he assisted the resident caretaker. When the resident caretaker died, the plaintiff moved to the farm and assumed full responsibility for caring for the animals and grounds. At the farm were several retired racehorses, a mule, a donkey, two llamas, two cows, about 20 chickens, ten ducks, twenty pigeons and a dog. Also, on the farm was the deceased caretaker’s 1,000-pound pig. The plaintiff fed the animals twice daily, took them from the stable to pasture, sprayed the horses with fly spray and groomed them, and also check on the horses at night. The plaintiff also drove the farm truck to buy food and supplies for the all of the livestock. The plaintiff was also responsible for the animals’ medical care by lining up veterinarians. On a daily basis, the plaintiff called the owner to report on the animals. The plaintiff also maintained the farm grounds by shoveling snow, mowing grass, trimming trees, and controlling weeds. The plaintiff had some assistance in these tasks, but remained on the farm on a constant basis to care for the animals. After the owner died, the plaintiff filed a claim against the owner’s estate for overtime pay under the Fair Labor Standards Act (FLSA). The FLSA requires overtime pay for works hours exceeding 40/week, but a worker who works in “agriculture” for a small agricultural operation is exempt from the overtime requirements. The FLSA defines “agriculture” to include “farming in all its branches and among other things includes…the raising of livestock, bees, fur-bearing animals, or poultry, and any practice…performed on a farm as an incident to or in conjunction with such farming operation.” The court held that the plaintiff was engaged in the primary agricultural practice of raising livestock, which the FLSA defines as “cattle, sheep, swine, horses, mules, donkeys, and goats.” The court also noted that the FLSA regulations define “raising” of livestock as “the breeding, fattening, feeding, and general care of livestock.” The court also held that the balance of the plaintiff’s work on the farm that did not involve feeding and general care of the animals also qualified for the agriculture exemption because they were performed on the farm and were incidental to the farming activities. Chhum v. Anstett, No. 3:15-cv-00900 (JAM), 2016 U.S. Dist. LEXIS 104463 (D. Conn. Aug. 9, 2016).

September 11, 2016

Farm Groups Have Standing To Bring “Reverse” FOIA Suit. In 2008, the Government Accounting Office (GAO) issued a report stating that the Environmental Protection Agency (EPA) had inconsistent and inaccurate information about confined animal feeding operations (CAFOs), and recommended that EPA compile a national inventory of CAFO’s with NPDES permits. Also, as a result of a settlement reached with environmental activist groups, the EPA agreed to propose a rule requiring all CAFOs to submit information to the EPA as to whether an operation had an NPDES permit. The information required to be submitted had to provide contact information of the owner, the location of the CAFO production area, and whether a permit had been applied for. Upon objection by industry groups, the proposed rule was withdrawn and EPA decided to collect the information from federal, state and local government sources. Three environmental activist groups submitted Freedom of Information Act (FOIA) requests to obtain the EPA’s records containing CAFO information. In response, the EPA released information gathered from 28 states and from the EPA’s data systems. The released information contained the CAFO owner’s name, mailing address, email address and primary telephone number. When ag groups were notified of the release, the EPA agreed to look into whether it had disclosed information that was not publicly available that could trigger FOIA privacy concerns. The EPA determined that the records released obtained from 19 states were not eligible for exemption from FOIA under 5 U.S.C. §552(b)(6) because the information was publicly available over the internet. The EPA obtained additional information about CAFOs, and various environmental activist groups filed a FOIA request. Some of the requested information include the CAFO owner’s legal name and mailing address, email address, and telephone number. EPA released information gathered from 28 states, and from its own data systems. The plaintiffs, two national ag groups, sued seeking an order to bar the EPA from making additional disclosures of personal information already collected, and recalling the personal information already released. The plaintiffs claimed that the EPA abused its discretion and acted arbitrarily and capriciously by releasing the information. Several environmental activist groups intervened in support of the disclosure. The trial court granted summary judgment for the EPA on the basis that the plaintiff lacked standing. On appeal, the court reversed, finding that the trial court improperly addressed the merits of the plaintiffs’ claims rather than the standing issue, and noted that the claims were still live because the EPA had proposed to release more information from seven states (including Minnesota). The appellate court noted that an individual’s interest in controlling the dissemination of information regarding personal matters does not disappear simply because the information may be publicly available in some form. Here, the EPA made it much easier for the activist groups to identify and target particular CAFOs. Accordingly, the appellate court held that the disclosure would invade a substantial privacy interest of the CAFO owners and further little public interest recognizable under FOIA. As such, the records were exempt from public disclosure, and the EPA had abused its discretion in determining that the exemption from mandatory FOIA disclosure did not apply. The court remanded on the issue of injunctive relief to bar the EPA from disclosing the additional records. American Farm Bureau Federation v. United States Environmental Protection Agency, No. 15-1234, 2016 U.S. App. LEXIS 16623 (8th Cir. Sept. 9, 2016).

August 13, 2016

Rock Island Clean Line Not a Utility – Decision To Grant Certificate of Public Convenience and Necessity Reversed. The plaintiff is a subsidiary of a transmission energy development company and also owns four other companies that are developing long-distance transmission projects across several states. It is also owned partly by a company that owns and operates more than 8,600 miles of high voltage transmission facilities in the U.S. The plaintiff was formed to construct and manage a high-voltage line running from northwest Iowa to just southwest of the Chicago area, with the purpose of connecting wind generation facilities in northwest Iowa, South Dakota, Nebraska and Minnesota with electricity markets to the east. The plaintiff filed an application with the Illinois Commerce Commission (ICC) for a certificate of public convenience and necessity under IL law to allow it to operate as a transmission-only public utility in IL and to construct, operate and maintain an electric transmission line for wind energy, and to condemn private property for the purpose of building its line. The application set forth a proposed route, but did not seek the right of eminent domain. The plaintiff claimed that its project would deliver 15 million megawatt-hours of electricity annually. The plaintiff asserted it was a “merchant developer” and not a traditional utility with cost-based rates, and claimed that IL residents would not pay for the line via rate assessments. The plaintiff anticipated that the project would pay for itself through revenues received from anticipated purchase agreements with wind generators – “anchor tenants” in northwest Iowa, and then attract lenders using the “anchor tenants” as collateral. However, the plaintiff’s financing plan did not identify any current anchor tenants or lenders. Several parties intervened in the application process asserting that the plaintiff was not a public utility because it did not own any infrastructure for electric transmission lines in IL, and argued that only a utility can obtain a certificate to construct facilities. At the public hearing, the testified that the “need” for the transmission line was driven by legislation mandating utilities to replace energy generated by fossil fuels with renewable energy, 75 percent of which must come from wind. The plaintiff admitted that its projections were based on predictions that did not yet exist – there are no transmission customers until the project is built. The plaintiff testified that was about $1 billion short of funds anticipated to be required to build the project. An expert economist in federal electricity regulation and policy testified that the project’s impact was not known because the plaintiff had not addressed the costs of negative land use impacts or the impact of connecting generators, and that the financial aspects of the project left open the possibility of allocating future transmission costs of unknown amounts to electricity customers in IL. Ultimately, the ICC granted the plaintiff a certificate of public convenience and necessity to transact business as a transmission public utility and to operate a transmission line. The ICC determined that the plaintiff qualified as a public utility and satisfied the statutory “public use” requirement. On review, the court reversed on the basis that the plaintiff did not “own, control, operate, or manage utility assets directly or indirectly, within the state.” Therefore, it didn’t also offer those assets for public use without discrimination – a second statutory requirement under the IL Public Utilities Act. Importantly, the court determined that the primary beneficiary of the project would be wind generator companies operating as the “anchor tenants” in northwest Iowa, not those in Illinois. While the court noted that an applicant for a certificate need not be a public utility at the time an application for certification is filed, jurisdiction was not properly conferred based on the ICC’s decision that the plaintiff was a public utility. Illinois Landowners Alliance v. Illinois Commerce Commission, No. 3-15-0099, 2016 Ill. App. LEXIS 535 (Ill. Ct. App. Aug. 10, 2016).

July 4, 2016

Activist Group Lacks Standing to Challenge Hog Farm Approval. A hog farming operation filed a “Notice of Intent to Construct” a 3,384 animal unit hog facility (approximately 17,000 head of hogs) with the defendant. The defendant held a public informational meeting regarding the proposal at which some of the plaintiff’s members testified and determined that the proposed hog farm “more likely than not” satisfied the state (IL) Livestock Management Facilities Act (Livestock Act). The plaintiff sought review of the decision, but the trial court dismissed the action on the basis that the plaintiff lacked standing to seek review of the Defendant’s decision because the plaintiff was not a party or record in the administrative proceedings. On appeal, the plaintiff claimed that standing only required a showing of injury a legally cognizable interest and that being a party to the administrative proceedings was not required to have standing. The plaintiff claimed that some of its members lived, worked and recreated in the vicinity of the proposed hog farm. The appellate court affirmed dismissal on the basis that the proposal complied with the Livestock Act, and that the only resident within the “occupied residence” setback distance of 1,760 feet waived the setback distance. While the plaintiff had members living in the “populated area” setback distance, the appellate court noted that there were insufficient persons living within the “populated area” to confer standing by statute. Also, the court noted that the informational meeting was held in accordance with the Livestock Act which did not involve legal relations between the parties. A concurring justice to point out that is a permit were denied that the hog farm could seek administrative review, but if the permit were erroneously granted, only the people within the 1,760 setback distance could object even though other might be negatively impacted. Save Our Sandy v. Department of Agriculture, No. 4-15-0582, 2016 Ill. App. LEXIS 421 (Ill. Ct. App. Jun. 30, 2016).

Final Rule Issued on Unmanned Aircraft Systems (UASs). The Federal Aviation Administration (FAA) issued a Final Rule on UASs (“drones”) on June 21, 2016. The Final Rule largely follows the Notice of Proposed Rulemaking issued in early 2015 (80 Fed. Reg. 9544 (Feb. 23, 2015) and allows for greater commercial operation of drones in the National Airspace System. At its core, the Final Rule allows for increased routine commercial operation of drones which prior regulations required commercial users of drones to make application to the FAA for permission to use drones which applications the FAA would review on a case-by-case basis. The Final Rule (FAA-2015-0150 at 10 (2016)) adds Part 107 to Title 14 of the Code of Federal Regulations and applies to unmanned “aircraft” that weighs less than 55 pounds (that are not model aircraft). The following are the highlights of the Final Rule:

• The drone must be registered with the FAA;

• Drones may operate during daylight or “civil twilight” (30 minutes before sunrise and 30 minutes after sunset);

• Drones cannot be operated more than 400-feet above ground and groundspeed must be kept at 100 miles per hour or less;

• Drones must stay within the vision of either the operator or an observer;

• The drone operator must obtain FAA air traffic control permission before flying the drone in controlled airspace;

• The drone operator must be at least 16 years of age, communicate in English, and have a “remote pilot airman certificate” (obtained by either passing either an aeronautical knowledge test (initially and then every two years) or by having a pilot certificate, completing a flight review and an FAA training course for small drones) containing, at a minimum, a small drone rating;

• The operator must conduct a “pre-flight check” of the drone and make it available for FAA inspection;

• The operator must report to the FAA within 10 days any “operation that results in at least serious injury, loss of consciousness, or property damage of at least $500; and

• A small drone operator can apply for a waiver from the operational rules, but must submit with the waiver application documentation that the safe operation of the drone can be maintained if the waiver were granted.

The FAA homepage containing an FAQ on the new rule can be found here: https://www.faa.gov/uas/faqs/

Posted April 14, 2016

Certificate for Construction of Wind Power Station Approved Over Biting Dissent. A wind energy company filed an application with the state (OH) Power Siting Board (Board) for a 56-aerogenerator development on 13,500 acres. The application was challenged by a non-profit citizen group as well as the county where the development would occur and three local townships. The Board approved, in late 2012, a construction certificate with 72 conditions and denied a rehearing and the challengers appealed on four grounds – (1) blade throws and setbacks; (2) wind-turbine noise; (3) requirements under the state’s public interest, convenience and necessity law; and (4) procedural and evidence-related arguments. On the first issue, the challengers claimed that the Board did not properly consider a blade throw from another wind power station where the largest piece of blade traveled 764 feet from the failed generator. However, the court noted that state law had been amended since that event to prescribe greater setback distances and that those distances were sufficient to deal with the blade throw issue. The court also deferred to the judgment of the Board on the setbacks and the consideration of the evidence allowed and offered. The court also deferred to the Board’s judgment on the noise issue and claimed that “…exposure to turbine noise has not been scientifically demonstrated to harm humans.” On the public interest claim, the court claimed that the challengers asserted that the repealed mandated requirement that a certain portion of the state’s electricity come from renewable sources such as wind eliminated the public interest of the wind power station. However, the court upheld the Board’s determination that there were other ways the wind power station could satisfy the public interest such as “benefitting the environment” and the availability of electricity to Ohio consumers.” On the procedural challenges, the court determined that they were not significant enough to send the matter back to the Board. The dissent noted that this case was the first time the court had considered setbacks since the blade throw event, and that the case was the first time the court had been presented with the correct way to account for noise issues. On the setback issue, the dissent noted that the setback requirements were clearly insufficient to accommodate blade throws. The dissent also noted that all of the experts involved in the case agreed that an unsuitable method was used to calculate background noise. As such, the dissent pointed out that the granting of the certificate was “unreasonable, unconscionable and unlawful.” In re Application of Champaign Wind, L.L.C., No. 2013-1874, 2016 Ohio LEXIS 929 (Ohio Sup. Ct. Apr. 13, 2016).

Posted April 6, 2016

Montana Revenue Department Overstepped Its Authority With Rules Governing Ag Operations. The taxpayer had a 1.029-acre property that had a dwelling and a 3-year old vineyard that was planted in 2011. In 2012 the defendant, state Department of Revenue, granted the property provisional ag status for tax purposes. Under state (MT) law at the time, the taxpayer had five years for the vines to mature and produce at least $1,500 of annual revenue to maintain the ag status for the property. The provisional ag status was renewed in 2013 and 2014. Later in 2014, the plaintiff promulgated new regulations that required a taxpayer seeking ag status for a tract to have a tract of at least 2 acres (if a residence present). As a result, the defendant, denied the provisional ag status in 2015. The State Tax Appeal Board held that the new regulation not only clarified the definition of “bona fide agricultural land,” but also added a new minimum acreage requirement. As such, the regulation (Mont. Adm. Code §42.20.601(7) and .683(16)(a) were invalid because the exceeded the legislature’s grant of authority to the defendant because the statute only set a qualification of $1,500 annual revenue from agricultural activity on the property. The appeal board also noted that the rule was arbitrary because it didn’t account for modern practices of grape-growing that used non-mechanized growing techniques that could allow small operations to generate much more than the $1,500 annual revenue threshold. Goodspeed v. Montana Department of Revenue, No. PT-2015-3 (Mont. Tax App. Bd. Mar. 22, 2016).

Posted April 5, 2016

Transfer of Lost Dog to New Owners Does Not Sever Original Owners’ Rights. The plaintiffs, a brother and sister, owned a German Shepherd dog. They bought him for $2,500 and spent $10,000 for dog training. They owned him from a puppy and owned him as a family pet for seven years. On New Year’s Day, 2013, the dog escaped through an open garage door. The plaintiffs searched for the dog, posted signs, offered a reward, and made website inquiries. The defendant, the city animal control department, found the dog on January 2 running at large without tags. They listed him on a website as a Belgian Malinois rather than a German Shepherd. As a result, the plaintiffs did not find him on the website because they searched for German Shepherd dogs. The defendant also incorrectly designated the dog as “owner surrender.” The dog tested positive for heartworms, was not considered healthy, and could not be sold. The dog was scheduled to be euthanized on January 7, but gave the dog to a dog rescue volunteer instead. Two days later, the plaintiff sister saw a message on a lost and found website stating that her dog might be at the defendant’s facility. She went to the facility and was told the dog had been given away. The plaintiff sister visited the party with the dog who refused to give up the dog. The plaintiffs sued for conversion, et al., seeking an injunction ordering the dog’s return. The trial court agreed and ordered the dog returned and awarded costs to the plaintiffs. The court of appeals reversed, and the plaintiffs appealed. On further review, the state Supreme Court reversed the court of appeals. The Court noted that the record did not support any notion that the plaintiffs had abandoned the dog, and there is no statutory or common law support for the notion that the plaintiffs’ property rights in the dog were lost merely because the dog could not be found for a few days. Applicable ordinances indicated that the defendant did not intend to transfer ownership of an animal while at the facility. Instead, if title passes, it passes to the county. Also, one ordinance only allowed dogs with tags to be euthanized. In addition, the court noted that the ordinances should be construed to prohibit a forfeiture of property rights. Lira v. Greater Houston German Shepherd Dog Rescue, Inc., No. 14-0964, 2016 Tex. LEXIS 231 (Tex. Sup. Ct. Apr. 1, 2016).

Posted April 1, 2016

No Trademark Violation Where Product Lines Not Similar. The plaintiff manufactures and sells fishing tackle that he initially started to sell in an area of Wisconsin called Land O’ Lakes. The plaintiff’s business grew to where it was selling fishing tackle in numerous states. In 2000, the plaintiff registered “LAND O’ LAKES” as the trademark of his fishing tackle. However, an agricultural cooperative, “LAND O’ LAKES” also has a trademark on the same name. The cooperative wrote the plaintiff to inform him that he was infringing on the cooperative’s trademark and that he would need a license to continue to use the name for his fishing tackle. The plaintiff refused and the cooperative brought a proceeding in the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office opposing the plaintiff’s registration of the trademark. That proceeding was suspended awaiting the outcome of this case. The trial court dismissed the dilution claim because the cooperative had waited too long to make the claim and the appellate court agreed. Stating further that the cooperative would not win the case on the merits. The court noted that the cooperative’s name was derived from the state of Minnesota’s catch-phrase and, as such, the cooperative could not claim it was the sole lawful user of the phrase for all products. The court also noted that the product line of fishing tackle was completely unlike dairy products that the cooperative sold and that neither business line of products would be impacted by sales of the other company. The court dismissed the case. Hugunin v. Land O’ Lakes Tackle Co., No. 15-2815, 2016 U.S. App. LEXIS 3779 (7th Cir. Mar. 1, 2016).


Court Says That Rancher’s Water Right on Federal Land Did Not Mean Rancher’s Cattle Could Drink. The defendant, the estate of a deceased rancher, held a water right to water on federal grazing land in Nevada. The federal government sued the rancher for trespass, but the trial court held that the water rights created an easement by necessity allowing the cattle to graze the federal land without a permit and, thereby, created a defense to the trespass claim. The court also determined that Bureau of Land Management (BLM) personnel violated the rancher’s Due Process rights in their investigation and denial of grazing permits and did so in a contemptuous manner. On appeal, the court reversed. The court in its opinion (composed by two Clinton appointees and one Obama appointee) reversed and remanded the trespass issue for a determination of damages to a different judge than authored the trial court opinion (who was appointed by G.W. Bush), and also reversed the contempt ruling against the BLM officials. The trial court determined that the rancher had a property right in a grazing permit for substantive and procedural Due Process purposes that could not be deprived without the BLM officials following procedural safeguards, and certain adverse actions could not be taken against a permittee irrespective of the procedures taken. However, the appellate court determined that the Taylor Grazing Act revoked prior federal practices and policies that allowed “indiscriminate” grazing on federal rangeland. In addition, the court determined that the Congress had later revoked any implied license to graze national forest lands. The court determined that the Taylor Grazing Act conferred only a benefit of being first in line for holders of water rights when a grazing permit is offered, but that the TGA did not change the requirement that a rancher obtain a grazing permit before grazing cattle on federal land. Thus, the rancher was liable for trespass. On the rancher’s counterclaim that the government’s filing of the trespass claim in 2011 was a final agency action that could be appealed, the court disagreed. The end result of the court’s opinion is that the rancher had a water right to the water on federal land but that his cattle had no right to access that water. United States v. Estate of Hage, 810 F.3d 712 (9th Cir. 2016).


USDA Denial of Rulemaking Petition is Reviewable. The plaintiff, an animal activist group, filed a petition with the defendant in 2011 requesting that the defendant label foie gras (duck liver) to bear a warning label that stated, “NOTICE: Foie gras products are derived from diseased birds.” The plaintiff claimed that the Administrative Procedure Act (APA) required the defendant to act on the petition within a reasonable time and that the defendant had violated the APA by not responding for more than four years before denying the petition. The plaintiff claimed that the denial was arbitrary, capricious and an abuse of discretion. The trial court dismisses the case for lack of subject-matter jurisdiction. On appeal, the court reversed. The court determined that while agency actions not to take enforcement action are within an exception to judicial review, an agency decision not to initiate rulemaking is presumed to be reviewable and that the trial court erred in determining that the defendant’s denial of the plaintiff’s petition was the same as an agency decision not to take an enforcement action. The court reversed the trial court and remanded the case for an evaluation of various standing arguments that were not considered below. Animal Legal Defense Fund v United States Department of Agriculture, No. 13-55868, 2015 U.S. App. LEXIS 21182 (9th Cir. Dec. 7, 2015).


Worker Was Ranch-Hand Rather Than Sheepherder Under FLSA. The plaintiff, a citizen of Peru, was hired by the defendant as a sheepherder under an H-2A visa. The Fair Labor Standards Act (FLSA) set the minimum wage for a sheepherder at the time at $750/month plus food and lodging, and the employer must pay for all related visa fees and all related travel expenses and recruitment costs. Under the FLSA and H-2A procedures, a sheepherder works around the clock caring for flocks in remote grazing locations and also does other related farm work on an incidental basis. Basically, a sheepherder is on-call 24-hours/day. However, the plaintiff claimed that the higher monthly wage for a ranch hand should apply to him because he did not work in a remote location and worked regular hours that were monitored by the defendant’s employees. The trial court granted summary judgment for the defendant, and the plaintiff appealed. The appellate court reversed. The record showed that the plaintiff did not work in a remote location, but in the immediate vicinity of the defendant’s headquarters. The animals he worked with were not grazing animals. The court also determined that the plaintiff worked a normal workday schedule of 8-10 hours rather than around that clock as a sheepherder would work. The court also determined that the plaintiff performed more than mere incidental work beyond sheepherding. Thus, the plaintiff did not qualify as a H-2A sheepherder, but was a ranch hand entitled to the FLSA’s minimum wage requirement. Mencia v. Allred, d/b/a Allred Land & Livestock, No. 14-4047, 2015 U.S. App. LEXIS 21609 (10th Cir. Dec. 14, 2015).


Court Says Plaintiffs Lacked Standing To Challenge Poultry Inspection Rules. The defendant finalized new poultry inspection rules the became effective in 2014, and the plaintiffs, a food safety activist group and an individual, claimed that the new rules made poultry products less safe and threatened the health and safety of consumers. The trial court dismissed the case for lack of standing and the appellate court affirmed. The appellate court determined that the plaintiffs’ complaint did not plausibly allege that the New Poultry Inspection System (NPIS) that the rules established substantially increased the risk of foodborne illness as compared to prior inspection methods, and that mere allegations that consumers would incur costs to avoid NPIS inspected poultry were insufficient to confer standing. Thus, only a non-particularized, abstract injury was alleged. Food & Water Watch, Inc., et al. v. United States Department of Agriculture, No. 15-5037, 2015 U.S. App. LEXIS (D.C. Cir. Dec. 22, 2015), aff’g., 79 F. Sup. 3d 174 (D. D.C. 2015).


Bobcats Are Not Dangerous Wild Animals Under State Statute Barring Licensure for Ownership. The plaintiff has owned a bobcat since 2003 and has always received from the defendant a non-commercial propagating license to allow ownership of the bobcat. In 2012, the state (OH) legislature enacted legislation regulating the possession of wild animals that barred the licensure of any “dangerous” wild animal. Based on the legislation, the defendant refused to issue a license for the bobcat on the basis that a bobcat was of the genus of “lynx” that was listed in the statute as a dangerous wild animal. On review, the trial court reversed the defendant’s order on the basis that the legislature used common names for animals listed as “dangerous wild animals” and that the term “lynx” did not include the lynx genus. On appeal, the court affirmed, noting that nowhere in the statute did the legislature identify an animal by using its scientific genus, but rather used common names and “bobcat” was not listed. The appellate court also noted testimony from the chair of the task force that submitted recommendations to the legislature as to which animals to include and that bobcats were not recommended to be listed. Federer v. Ohio Department of Natural Resources, No. 15AP-104, 2015 Ohio App. LEXIS 5181 (Ohio Ct. App. Dec. 22, 2015).


Claim That Farm Flooding Caused By Improperly Constructed Railroad Embankment Preempted. The plaintiff’s farm was flooded by, what the plaintiff claimed, was a defectively constructed railroad embankment that blocked water flow. The embankment bisected the plaintiff’s farm. Over the years, as the railroad increased the height of the embankment to stop water from flowing over the tracks, additional drainage capacity was not provided. In 2011, the embankment was breached, resulting in significant topsoil loss to the plaintiff’s farmland. The plaintiff sued in state court based various tort theories. The state court stayed the litigation pending a determination by the defendant whether federal law preempted the claims. The defendant determined that the claims were largely preempted except for an alleged violation of federal regulations under the Federal Railroad Safety Act (FRSA). The defendant determined that state courts have no jurisdiction over matters that the defendant directly regulates and that the claims involved how rail transportation was managed or governed, which the defendant determined. However, any claims related to FSRA regulations applicable to drainage under the tracks were not preempted. On appeal, the court affirmed. The court determined that the plaintiff’s state law claims would unreasonably burden or interfere with rail transportation based on the evidence before the Board. Tubbs v. Surface Transportation Board, et al., No. 14-3898, 2015 U.S. App. LEXIS 22686 (8th Cir. Dec. 28, 2015).


Regulatory Agencies Cannot Be Sued For Violating CWA Permitting Procedures. The plaintiffs sued the defendants due to algae in the local water supply that created unsafe tap water for three days. At the crux of the case was the plaintiffs’ challenge to a state (OH) law that transferred permitting of confined animal feeding operations (CAFOs) under the NPDES permit program from the state EPA to the state Dept. of Agriculture, subject to federal EPA approval. The plaintiffs claimed that the OH Dept. of Agriculture was making most of the permitting decisions for several years without the federal EPA approving the transfer of decision making as the CWA required, and that such permitting decisions were invalid as a result. The trial court dismissed the case for lack of subject matter jurisdiction. The appellate court affirmed on the basis that the CWA does not allow suits to be filed against regulators for regulatory functions. Askins v. Ohio Department of Agriculture, et al., No. 15-3147, 2016 U.S. App. LEXIS 57 (6th Cir. Jan. 6, 2016).


Court Finds Private Right of Action for Mislabeled Organic Products. The defendant is a large herb grower that became the subject of a class action accusing the defendant of mixing organic and conventionally grown herbs in the same package and selling the package at a premium as "fresh organic." The class sued under state (CA) unfair competition and false advertising laws. The trial court held that the class action was preempted by federal law governing organic labeling. On appeal, the CA Supreme Court reversed. The court noted that the federal Organic Foods Act displaced state law concerning organic standards and thereby created a federal definition of "organic" and created a federal organic certification procedure. The court, however, determined that federal law did not either explicitly or implicitly preempt state rules for mislabeling. Likewise, the court held that state consumer protection law furthered the Congressional objective of ensuring reliable organic standards. Quesada v. Herb Thyme Farms, No. S216305, 2015 Cal. LEXIS 9481 (Cal. Sup. Ct. Dec. 3, 2015).