Category: Ag Law

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/

There is understandable concern within the livestock production community and processing industry that footage of production practices may be used to build public opinion against the accepted practices of their trade. One known purpose of so-called “ag gag” laws is to prevent animal rights organizations from directing an individual to infiltrate an animal agriculture operation as an employee of that operation – usually a swine, poultry, or dairy farm – to secretly record activities, which may then be used to publicize perceived animal cruelty and the like. Such laws variously impose criminal or civil penalties on farm employees who clandestinely gather imagery and may also hold accountable a third party (i.e., an animal rights organization) directing such activity. Ag gag laws have generally been challenged in federal courts as violations of free speech.

Early iterations of ag gag laws focused squarely on agricultural protection – such as Alabama’s 2002 Farm Animal, Crop, and Research Facilities Protection Act – in an era of bioterrorism fears. More recent laws – such as those passed in Arkansas and North Carolina – do not specifically target agricultural protection. Though initially dismissed, the challenge to Arkansas’ statute was revived in 2022 by the 8th Circuit Court of Appeals and remains under review.

North Carolina’s “ag gag” law – The Property Protection Act (N.C.G.S. 99A-1)[1]  – was recently tested before the U.S. Court of Appeals for the 4th Circuit, which limited the application of the statute but did not invalidate it. The NC Property Protection Act creates a right of action on behalf of employers against employees who, without permission, collect information by various means, including unattended recording devices, offering employers recoverable damages up to $5,000 per day, plus attorney’s fees. The Act also holds accountable those who intentionally direct, assist, compensate, or induce another person to trespass (i.e., animal rights organizations).

The 4th Circuit Court’s opinion, North Carolina v. PETA, illustrates how language in an ag gag statute can run afoul of U.S. constitutional protections on newsgathering and free speech, and declined to apply principles of common law trespass or an employee’s “duty of loyalty” to supersede free speech protections of employees and their newsgathering efforts. Because the NC law has not been tested, the Court limited the bar of its application only to the parties in the case (i.e., PETA and others), and declined to invalidate the law, adopting a wait and see approach to how it might be used in the future.

A more in-depth look at the Court’s opinion can be found in this article.

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Branan, Robert Andrew. “What is an “Ag-Gag” Law?” Southern Ag Today 3(13.5). March 31, 2023. Permalink

Photo by CQF-Avocat: https://www.pexels.com/photo/scrabble-tiles-613508/

The U.S. Court of Appeals  for the Fourth Circuit (“4^th Circuit”) recently decided InterProfession Du Gruyere vs. U.S. Dairy Export Council, which considered whether a geographic indication was essential to the use of the label “gruyère.”  The 4^th Circuit decided that it was not, finding that using that term on labels in the United States does not depend on where the cheese was produced (often referred to as a geographical indication), but merely on whether it meets Food and Drug Administration’s (FDA) standard of identity.

FDA is responsible for the labeling of dairy products, among other things.  It partially regulates labels by creating “standards of identity,” outlining how specific words may be used.  FDA has created a standard of identity for gruyère cheese, defining it by the process needed to create the cheese, not by the location where the cheese is made.  

In Europe, however, the label can only be used on cheese produced in the Alps region, near the Swiss/French border.  As a result, a group of Swiss and French cheese producers brought the lawsuit at issue today.  Ultimately, the court decided that FDA- and ultimately American consumers- saw gruyère as a type of cheese (similar to a label of “mozzarella” or “cheddar”) rather than one produced in a specific place.  

Geographical indications are used worldwide, helping protect producers’ market share in specific regions.  Whether you’re interested in “Idaho Potatoes” or “Parmigiano-Reggiano,” a part of the label’s meaning includes an indication of the area where the product originated.  This case illustrates a trend that international food and beverage manufacturers are becoming more proactive in protecting names with a regional geographical significance.  This is an important international trade issue because we expect similar litigation from other affected producers. On a larger scale, the European Union focuses on including geographical indicators as a critical part of trade deals and we expect this trend to continue.  To learn more about geographical indications and international trade, click here for a National Agricultural Law Center webinar.

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Rumley, Rusty. “A Cheese by Any Other Name.” Southern Ag Today 3(12.5). March 24, 2023. Permalink

In January 2023, the United States Department of Agriculture (USDA”) published its latest report of information collected under the Agricultural Foreign Investment Disclosure Act (AFIDA) of 1978, which provides data on foreign U.S. landholdings through December 31, 2021. Under AFIDA, certain foreign persons are required to disclose their ownership interests and investments in farm, ranch, and forestland to USDA. According to the report, foreign persons hold an interest in over 40 million acres of private U.S. agricultural land, an increase of 2.4 million acres from 2020. From 2011 through 2021, foreign ownership in private U.S. farmland has increased 35.7%.

This increase of foreign agricultural landholdings has become a growing concern for the majority of state legislatures. In the past two years or so, the issue of restricting foreign ownership and investments in privately held agricultural land emerged or reemerged in at least twenty-six states. Currently, there are approximately fourteen states that specifically forbid or limit nonresident aliens, foreign business entities, and/or foreign governments from acquiring or owning an interest in farmland within their state.

Additionally, several other states have introduced bills that take their own approach to restricting foreign acquisitions of farmland and real property. Some states have proposed measures that would restrict foreign ownership in not only agricultural land, but all real property located within their state. Of the states that have considered restrictions within the previous two years, Indiana is currently the only state to enact a foreign ownership law during that time period. With the majority of states considering proposals that seek to restrict foreign interests in farmland, other states may begin to consider the issue of prohibiting or limiting foreign purchases and ownership of land within their state.

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Brown, Micah. “State Foreign Ownership Proposals.” Southern Ag Today 3(8.5). February 24, 2023. Permalink

On January 18, 2023, the United States District Court for the Northern District of Oklahoma ruled on a lawsuit filed by the State of Oklahoma against 11 poultry producers. The lawsuit alleged that the poultry producers polluted and continue to pollute the Illinois River with phosphorus and bacteria from poultry litter applied to lands in the Illinois River watershed.

The original lawsuit included 11 causes of action. The court dismissed six causes of action before trial: cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); natural resource damages under CERCLA; a Solid Waste Disposal Act (SWDA) citizen suit; unjust enrichment/restitution/disgorgement; and two claims under Oklahoma state statutes and regulations. A trial was held on the following five causes of action:  violation of Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6972; state law public nuisance and state law nuisance per se;  federal common law nuisance; trespass; and two claims under Oklahoma state law.

The court granted two posttrial motions, dismissing the RCRA claim, the per se nuisance claim, and one of the state law claims because poultry litter can have a beneficial use and was not being disposed of on the fields. On the merits, the court found that the poultry growers were liable for state law nuisance, federal common law nuisance, trespass, and one state law claim.

Oklahoma proved that each poultry grower contributed significantly to the phosphorus loading of the river and that the state need not trace the exact contribution of each. State-approved permits to apply poultry litter needed to be more specific to immunize the poultry growers from liability. In addition, Oklahoma statute prohibits the creation of an environmental or public health hazard or contamination of waterways from poultry waste handling.

Since activities in Arkansas caused damages in Oklahoma, the interstate nature of the activities implicates federal nuisance law. The court found that the Clean Water Act did not displace federal nuisance law in this instance. Further, the court found that the poultry growers have unreasonably interfered with the public’s use of the Illinois River in Oklahoma and are liable under state nuisance law and federal nuisance law.

As to trespass, the activities of the poultry growers resulted in runoff containing phosphorus entering the waters of the Illinois River, constituting a physical invasion. But, again, the state-issued permits did not immunize the poultry growers against the trespass claim. Likening the alleged violation of state law prohibiting waterway pollution to trespass, the court also found the poultry growers liable on those grounds.

The court ordered the parties to attempt to reach an agreement on the remedies and present the agreement to the court for approval on March 17, 2023. If no agreement is reached, the court will rule on the remedies.

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Richardson, Jesse. “Oklahoma Prevails in Lawsuit Against Poultry Growers for Pollution of Illinois River.” Southern Ag Today 3(7.5). February 17, 2023. Permalink

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