Author: Rusty Rumley

Unmanned Aerial Vehicles (UAVs), often referred to as drones, create cheaper and more efficient ways to gather agronomic data and to apply pesticides to crops.  This new technology shows a great deal of promise for agriculture, but it also creates privacy concerns for neighboring landowners.  What are the legal aspects of privacy, and what can a worried landowner do about strange UAVs flying over their property?

Privacy

Privacy concerns from aerial surveillance are nothing new.  We have case law about aerial surveillance from law enforcement going back more than fifty years (click here for one example). A simplified explanation of this concept can be illustrated through examples using traditional aircraft. In the case referenced above, law enforcement was tipped off that an individual was growing marijuana on their property, so they flew a helicopter twenty feet off of the ground to capture images of the plants.  In this case, the court held that law enforcement violated the “serenity and privacy of the backyard[,]” and this constituted a search without a valid warrant. In another example, you have an individual flying over your property in an aircraft at an altitude of 500 feet and taking pictures of your property with a powerful camera. This example likely does not constitute a violation of someone’s right to privacy. What is the takeaway from these examples? Someone can violate your right to privacy, and potentially even commit trespass, by flying too low over your property, but your rights are greatly diminished when the aerial surveillance is conducted at higher altitudes.

What about UAVs? Recreational UAVs typically operate in Class G airspace which is 400 feet and below.  There are other restrictions such as flying around airports, military installations and prisons, but we will use 400 feet for the sake of simplicity. This puts UAVs in a gray area.  One question that we are struggling with legally is how low is too low? This question may end up being moot because of rapidly advancing technology.  The laws surrounding aerial privacy have changed in recent years (to see a compilation of state UAV laws click here), but technology is evolving even quicker.  UAVs have not changed the laws surrounding privacy, but they have made it much cheaper and easier to conduct aerial surveillance.  For the price of operating a helicopter for one day, an individual can buy a UAV equipped with an excellent camera and use it for weeks on end. Many early cases about aerial surveillance were against law enforcement because only the government was able to afford it. Modern UAVs and mass production have placed this technology in the hands of the general public.

Can I Shoot Down a UAV?

A common question we have received with the proliferation of UAVs is whether a landowner can shoot down a UAV that is flying low over their property. The answer is an emphatic “No!” The Federal Aviation Administration (FAA) is in charge of regulating aircraft and the airspace where they operate. UAVs are classified as aircraft by the FAA (unmanned, but still aircraft), and under federal law, 18 U.S.C.A. § 32, it is a felony to “damage, destroy, disable, or wreck any aircraft,” and the potential punishment is up to twenty years in federal prison. What can a landowner legally do about a UAV flying over their property?  The answer is very little in most cases. You can report suspicious UAV activity to the FAA. UAVs are required to display their registration numbers on the outside of the aircraft (14 CFR Section 48.205(c)). For low flying UAVs it should be possible to capture an image of this registration number to go with your complaint.  Other actions, such as capturing images through windows of residences, may also open avenues for local law enforcement to become involved. Documenting and reporting remain the safest legal way to deal with problematic UAVs around your property.

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Rumley, Rusty. “Drones Flying over my Property: What can I do?” Southern Ag Today 5(8.5). February 21, 2025. Permalink

As fall approaches, so does hunting season.  As hunters are scouting for the best locations, landowners may be searching for opportunities to generate additional revenue from agricultural and forested property. Outdoor recreation such as hunting, fishing, camping, and hiking can provide additional opportunities for landowners, depending upon the property and the willingness of the landowner to go down this path. Not all landowners are willing to accept strangers walking around their property so recreational leases are not a perfect fit for everyone.  The leases can also be challenging as they differ significantly from traditional agricultural leases.

When considering these leases, landowners must make decisions on what types of activities and limitations they are willing to allow.  Some of the issues to decide include: 

• How do you price your recreational opportunities?
• How many people have permission to enter the property? 
• Can the lessees camp and build campfires on the property? 
• What species are being hunted? 
• Are there limits on the amount of game that can be taken?
• How do you allow for recreational use while protecting growing crops and livestock?

However, there are other issues that may be addressed through the lease as well as other means. For example, what about liability in case someone is injured on your property? Insurance is a readily available and cost-effective means to reduce liability. Based on my conversations with insurance underwriters over the years, many claims submitted for hunting accidents involve tree stands and ATVs. In addition to insurance, simple changes to a lease agreement such as forbidding ATVs and limiting tree stands to only ones that they personally install, may help to mitigate those and other risks.  

To see a more in-depth list of factors to consider in a hunting lease, as well as a model lease form, you can read the Ranchers’ Agricultural Leasing Handbook: Grazing, Hunting and Livestock Leases handbook which discusses these issues and many more that landowners should consider. 

Even with this information, I strongly recommend that an attorney draft your recreational lease, specific to your property, your boundaries and your situation.  For tips on finding an attorney, please visit this Southern Ag Today article.

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Rumley, Rusty. “Hunting Leases and Rural Land.” Southern Ag Today 4(36.5). September 6, 2024. Permalink

On January 1^st of this year a program silently went into effect that could impact millions of business owners throughout the United States. The program, Corporate Transparency Act (CTA), is based off of a statute enacted through a defense appropriations bill passed in 2021 and the purpose of the law is to make many small business owners register their business entities and ownership structures with the United States Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”). This is not related to the annual filings that business owners across the southeast U.S. do on an annual basis with their respective Secretary of States’ offices. This new program is aimed at preventing tax fraud and money laundering through the use of “shell companies.” Shell companies are often described as businesses with little to no assets and unknown ownership interests which makes them an ideal way to hide the flow of money through the entity. The CTA, or sometimes referred to as Beneficial Ownership Interest reporting, requires that most small, registered business entities (Limited Liability Companies, Subchapter S Corporations, C Corporations, Limited Partnerships, Limited Liability Partnerships, etc.) disclose to FinCEN any owners that control more than 25% of the entity and anyone that exercises substantial control over the entity such as corporate officers or managers. There is no exemption for agricultural business entities.

For existing entities, owners have until the end of 2024 to submit the report through FinCEN’s online portal or they may be subject to monetary penalties (up to $500 per day for failure to report after the first of the year) or criminal penalties (of up to $10,000 in fines and 2 years imprisonment.) Information about the new reporting requirements is slowly being disseminated; however, another wrinkle has appeared. On March 1, 2024, a federal trial court in Alabama ruled in a motion for summary judgment that the CTA was unconstitutional because “it exceeds the Constitution’s limits on the legislative branch.” This ruling currently only applies to the plaintiff (the National Small Business Association) and not to the country as a whole. This is likely to be the beginning of legal proceedings across the country on the issue. Still, in the meantime, small, state-registered business owners across the country need to be aware of their current reporting requirements. 

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Rumley, Rusty. “The Corporate Transparency Act and Your (Potential) Duty to Register Your Business.” Southern Ag Today 4(10.5). March 8, 2024. Permalink

The EPA released an updated regulation defining “waters of the United States” (WOTUS) on August 29, 2023, which significantly narrows the scope of the previous rule.  WOTUS has been a continual issue facing landowners since the passage/update of the Clean Water Act (CWA) in 1972.  

But what is WOTUS and why does it matter?  WOTUS is a definition that determines where the federal government has jurisdiction to enforce the CWA.  

The CWA extends to “navigable waters,” and navigable waters are defined as “waters of the United States.” The definition did not provide a great deal of clarity on where and when the U.S. Environmental Protection Agency (EPA) or the U.S. Army Corps of Engineers (the Corps) could enforce the CWA against private landowners.  Courts and successive administrations have grappled with this definition for years because the definition of WOTUS matters greatly.  The broader and more expansive the definition, the more types of water bodies will be covered, extending the jurisdiction over more property.  Providing a bright-line definition on where the CWA applies has proven to be elusive. 

            On May 25^th, 2023, the United States Supreme Court (Court) ruled in Sackett v. EPA, narrowing the types of water bodies that can be considered to fall under the jurisdiction of the CWA.  The updated regulation released on August 29^th incorporated the Court’s findings in the Sackett case and significantly narrowed the scope of where the CWA can be applied (to read a summary of the changes, click here). 

            A number of lawsuits challenging the earlier version of this rule remain pending and other challenges to the revised regulation could be initiated. There will also be questions to work through as the agencies begin implementing the new rule across the country.  Still, the new rule represents a substantial change to a definition that has garnered much attention over the past four decades.

To learn more about the updated regulation, click here.

To learn more about the Sackett decision, click here.

To learn more about the Clean Water Act, click here.

States in the South are in their legislative sessions, and several are looking to amend their right to farm statutes.  A right to farm statute is a state law intended to protect qualifying agricultural operations from nuisance lawsuits brought by neighbors for noise, dust, odor, or other actions that interfere with the neighbors’ use and enjoyment of their property.  State law can vary dramatically across the country and small changes to language can have a major impact on how the law is applied in that state.

Some proposed changes in the South are relatively minor, while others would make substantial changes in how nuisance laws would affect agricultural operations.  Below are the links to current bills in the South and a short description of the potential impact of the legislation.

• Arkansas – HB 1434 – This bill was enacted into law and specifies that the burden of proof in a nuisance lawsuit is borne by the party that brought the lawsuit against the farming operation.  
• Florida – HB 1361 and SB 1472 – Both bills are companion bills (bills that are largely the same, but filed in different chambers or by different members in the state legislature) that would allow farm operations to store, process and distribute organic material.  Organic material is defined as “vegetative matter resulting from landscaping maintenance or land clearing operations … ” This definition would not include organic material from animal agriculture operations.
• Oklahoma – HB 1457 – Nuisance lawsuits involving the cultivation of medical marijuana would be excluded from the protections of the Oklahoma Right to Farm Act under this bill. 
• South Carolina – H 3432 – This bill would change several things.  Importantly for the state right to farm statute, it would define several terms deemed “covered activities”, including composting. It would also require the Commissioner of Agriculture to investigate complaints about agricultural operations and make recommendations about best management practices.
• Texas – SB 1421, HB 2308, and HB 1750
  • SB 1421 – This bill could significantly strengthen the existing Texas Right to Farm Act by setting one establishment date for the agricultural operation and protecting all activities after one year has passed (unless it is determined to be a “substantial change”).  Currently, expansions are not protected until the expansion has been in existence for at least one year.  This bill would also extend coverage to veterinary practices, increase the burden of proof to clear and convincing evidence, strengthen the attorney fees provision, limit the power of city governments to regulate farming operations in city limits, and make other small changes.
  • HB 2308 – Largely a companion bill to SB 1421; however, it does not have language about restricting the powers of city governments to regulate agricultural operations within city limits.
  • HB 1750 – Also largely a companion bill to SB 1421 and contains the language limiting city governments on how they regulate agricultural operations, but does not include the language on changing the establishment date or the addition of the language about “substantial change.”

Words matter in the legal context.  Some changes, like with the Arkansas bill, may have little impact on how the state right to farm act is applied, while the changes to the Texas law, if enacted, could substantially change how nuisance lawsuits and zoning disputes move forward.  Even if your state is not on the list for proposed changes for this legislative term, it is common for other state legislatures to copy legislation and try to enact similar bills in their states in subsequent years. To see your state’s current right to farm statute, click here.

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Rumley, Rusty. “Right to Farm Bills in the South.” Southern Ag Today 3(14.5). April 5, 2023. Permalink

Photo by Alejandro Barrón: https://www.pexels.com/photo/corn-field-during-daytime-96715/