This article appears in the December 2015 issue of Dairy Herd Management magazine.
It was a busy and exciting year for agricultural law. From federal regulations to cloning, drones to GMOs, there’s been no shortage of legal issues affecting the agriculture industry. Here are some of the key developments in 2015.
• “Waters of the United States” (WOTUS) regulation finalized, then stayed. Probably the most-watched issue of 2015 was the U.S. Environmental Protection Agency/Corps of Engineers’ regulation defining “waters of the United States” under the Clean Water Act. The agencies solicited public comment in 2014, issuing a final rule last May. Numerous lawsuits challenged the rule’s scope and adoption procedure. These suits are pending in nine federal courts. In October, the U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay until the lawsuits can be considered. Shortly thereafter, EPA’s motion to consolidate all pending cases into one action before the U.S. District Court for the District of Columbia was denied. Although Congress considered bills seeking to overturn the rule, in November the Senate’s version of the bill failed to pass. For now, the rule is not in force and litigation continues.
• Idaho “ag gag” statute declared unconstitutional. An Idaho federal judge issued the first legal ruling on the constitutionality of a law prohibiting secret filming of farm operations (commonly referred to as “ag gag” laws). Proponents argue the purpose of such laws is to protect the safety and privacy of farm families, employees and animals from activist groups infiltrating operations. Opponents claim the laws encourage animal abuse and infringe on free-speech rights. The court agreed with the challengers, finding the Idaho law violated both the First Amendment and Equal Protection Clause. It is unclear whether Idaho will appeal the court’s decision. Several other states, including North Dakota, Montana, Kansas, Utah, Iowa and Missouri, have similar laws. The impact of the Idaho court’s decision on laws in other jurisdictions remains to be seen.
RCRA “solid waste” provision applied to manure. A Washington federal court found, for the first time, that manure met the definition of “solid waste” under the federal Resource Conservation and Recovery Act (RCRA). The case involved the alleged improper storage and application of manure by dairies in Washington state. Shortly after the decision, the parties settled the case, entering into a consent decree under which the dairies would take several steps to prevent manure contamination of groundwater. Whether this same decision will be made by other courts across the country is unclear. At least one dairy in California has reportedly been served with an “intent to sue” notice under RCRA. More lawsuits are a possibility. Producers should certainly be concerned.
U.S. Supreme Court sides with raisin farmers in takings case. It is not common for a farmer to appear before the U.S. Supreme Court, but California raisin farmers and brokers not only appeared, but prevailed on their “takings claim” earlier this year. Under the Agricultural Marketing Agreement Act (which is also the law authorizing Federal Milk Marketing Orders), USDA sets a volume quota on raisins eligible to be sold annually in the United States, requiring growers to give a certain percentage of their crop to the government. The surplus crop is then either destroyed, donated, or sold in non-competitive markets. The plaintiffs claimed this marketing scheme resulted in a taking of their private property rights without compensation. The high court agreed, ordering USDA to compensate the growers the market value of the raisins at the time they were taken. How broadly this decision will be applied, and whether it will impact any dairy marketing orders or price control laws is, for now, not clear.
Corn producers and agribusinesses file suits against Syngenta. Several agribusinesses and corn producers brought suit against Syngenta after export shipments of U.S. corn were rejected by China due to the presence of a genetically modified Syngenta variety, MIR-162. The pending lawsuits, the vast majority of which have been consolidated in multi-district litigation, generally allege Syngenta’s U.S. seed sales without Chinese approval caused a decline in the corn market due to the rejections. Syngenta argues the seed was approved for use in the United States, China was not a major purchaser of U.S. corn, and there is no evidence the MIR-162 seed caused the corn price decline.
GMO production bans and labeling issues considered. The legal issues over genetically modified organisms (GMOs) increased in 2015. Chief among these is a legal challenge to a Vermont law requiring labeling of all products containing GMO ingredients by 2016. Numerous plaintiffs, led by the Grocery Manufacturers Association, filed suit claiming the law violates the First Amendment, the Commerce Clause, and is pre-empted by federal law. In April, the court issued a ruling primarily in favor of Vermont, which is now on appeal. Although Connecticut and Maine have also passed labeling laws, only the Vermont law has a set effective date (the other states’ laws become effective once certain trigger conditions are met). Another case arose in Hawaii, where a federal judge struck down a local law prohibiting farmers from growing any GMO crops in Maui County. Specifically, the court found this local law was pre-empted by state and federal laws.
Draft drone regulations published by FAA. The Federal Aviation Administration (FAA) published much-anticipated draft regulations related to drone use in the United States. The regulations cover a variety of issues including operator qualifications, height and visual requirements for drone operation. These regulations, when finalized and enacted, will allow commercial drone use in the United States. Currently drones may only be used for recreational or hobby use. Any commercial drone requires an FAA permit. The draft rules were open for public comment, and final rules should be forthcoming.
Lesser prairie chicken listing under Endangered Species Act vacated. In September, a federal judge in the Western District of Texas found the U.S. Fish and Wildlife Service (USFWS) failed to follow their own rules when listing the lesser prairie chicken as “threatened” under the Endangered Species Act. Specifically, USFWS failed to adequately consider voluntary conservation plans by landowners prior to the listing decision. USFWS is expected to appeal. For now, however, federal protections for the bird have been removed.
AQHA cloning suit reversed, registration not required. After losing at the trial court level, the American Quarter Horse Association scored a major victory on appeal when the U.S. Court of Appeals for the Fifth Circuit found the AQHA rule banning registration of cloned horses or their offspring did not violate the law.
This article is not a substitute for the advice of a licensed attorney in your jurisdiction.