Category: Ag Law

When one inherits or purchases an interest in open farmland – particularly between March and November in the South – chances are someone is growing crops or pasturing livestock on it. Often, there is no written agreement between landowner and farmer. Statistically we know that the majority of farm tenancies renew annually (ERS, 2016), which may support anecdotal observations that verbal farm tenancies are common. Such “handshake” agreements provide no written record of the bargain struck between landowner and farmer as to rent and term. For farmers working multiple parcels with different owners, keeping the bargains straight may pose a challenge. As land changes hands between owners due to inheritance or sale, questions emerge including the farmer’s rights to crops and fixtures, the apportionment of rent between successive owners, and circumstances of renewal. 

Given the relative vulnerability of the farmer in this equation, states’ landlord-tenant policies have evolved to provide farmer access rights through the harvesting and sale of their crop and its profits – known as emblements – in the event a landowner or successor tries to move them off and bar access. All southern states have some form of farm tenancy laws, varying in their specificity and determination of tenant rights. Such statutes may supply length of term (e.g. South Carolina) and prescribe termination notice periods required to prevent automatic renewals, often of one month or greater (e.g. Mississippi). Some laws allow a landowner to terminate a tenancy before planting, as in Alabama. The status of improvements – called trade fixtures – placed by the farmer can also come into question, and Georgiaprovides that any items on the parcel at the close of term become property of the landowner. Most such laws ensure payment of rent with a priority lien on crops in favor of the landowner. At the moment, there is no comprehensive source locating and describing farm tenancy laws for the southern states, however, this article serves as a summary of issues such laws might address, using North Carolina as an example. To locate your state’s farm tenancy law, try the search terms “farm” or “agriculture”, “tenant” or “tenancy”, and “[state] Code.”

Regardless of statutory protections, farm tenancy disputes require verbal sworn testimony in court to resolve, and otherwise require judicial interpretation of vague statutory language, so resolving disputes can be costly. Better practice dictates some form of writing to clarify the issues described above. Though farm leases can be a lengthy treatment of rights and responsibilities, or very short statement of place, rent and term, they serve as the clarifying record of the bargain which likely reduces disputes and expense to both landlords and farm tenants.

Brannon, Robert Andrew. “Verbal Farm Tenancy Protections in the South“. Southern Ag Today 2(23.5). June 3, 2022. Permalink

A judge on the United States District Court for the Western District of Texas has held that the “Use of Unmanned Aircraft” statute violates the First Amendment.  View Order here. The lawsuit, National Press Photographers Association v. McCraw, was filed by two media organizations and an individual journalist who claimed that provisions in this 2013 Texas statute violate their First Amendment rights.  In particular, the plaintiffs challenged two statutory concepts.  The first prohibits a drone from capturing an image of an individual or privately owned real property with the intent to conduct surveillance.  Numerous exceptions exist for a variety of uses including real estate agents, aerial mapping, and professional or scholarly research.  Second, they challenge a provision essentially prohibiting operating a drone over a correctional facility, detention facility, critical infrastructure facility, or sports venue.  Again, there are exceptions to the statute, allowing drones to fly over these facilities for “commercial purposes.”  Neither provision contains a newsgathering exception.  

Judge Pitman found the statute to violate the First Amendment as it is not narrowly tailored to serve a compelling state interest and is also unconstitutionally vague. To read more about this decision, click here.

Several other states have drone statutes as well, including several Southern states.  To view a compilation of those state laws from the National Agricultural Law Center, click here.

Lashmet, Tiffany. “Federal Judge Strikes Down Texas Drone Law as Unconstitutional“. Southern Ag Today 2(17.5). April 22, 2022. Permalink

The Fair Labor Standards Act (“FLSA”) does not require that employees who are employed in agriculture receive the federal overtime payment of time and one-half their regular rates for hours worked more than 40 hours per week. However, states are free to enact their own regulations that mandate overtime requirements for agricultural workers. So far six states have taken that step and implemented their own requirements. The majority of the states mandating overtime for farmworkers are doing so on a schedule to build up to the final hours’ requirement. 

For example, California started to phase in an overtime requirement for agricultural workers in 2019. In 2019, California required that people employed in an agricultural occupation could not be employed more than nine and one-half hours or work more than 55 hours in a workweek without receiving overtime compensation. In 2020, the hours in a day decreased to 9, and the hours in a week were reduced to 50 for overtime compensation. Each year the hours decrease until the final overtime requirements are in place. As of January 1, 2022, in California, it is required that any agricultural employee working more than 8 hours a day or more than 40 hours a week receive overtime compensation. Additionally, like several other states, California has a slightly different schedule for small employers (25 or fewer employees), giving them more time to implement these changes.

Most recently, the New York Farm Laborers Wage Board voted to decrease the overtime threshold for agricultural workers from 60 to 40 hours. This change will be phased-in over a ten-year period, reducing by four hours on a biannual basis. Oregon is also in the process of passing a bill into law that would also require agricultural workers to receive overtime. House Bill 4002 passed both the Oregon House and Senate in early March of 2022 and is awaiting the governor’s signature. This would make Oregon the seventh state to require agricultural workers to receive overtime compensation.

Mikolajczyk, Samantha. “Overtime for the Agricultural Industry“. Southern Ag Today 2(16.5). April 15, 2022. Permalink

Agricultural operations often cause dust and odors which could impact neighbors and bring nuisance claims.  All 50 states have a right-to-farm law on the books, providing a nuisance defense for agricultural operations.  This defense varies from state to state, but each state’s law operates to provide a defense in situations when a party is claiming the farm is a nuisance.

What is a nuisance? A nuisance is a condition or situation impacting another person’s use and enjoyment of property. Let’s say, for example, that a grain producer applies nutrients to a field neighboring a residence. The neighbors might not be able to use their property immediately after the producer applies the nutrients due to the smell. This could be a potential nuisance because the neighbors have lost the use and enjoyment of their property.

A right-to-farm law operates to provide a defense to the agricultural operation when facing nuisance lawsuits.  To use the defense, the agricultural operation must meet their state’s statutory requirements, which vary from state to state.  In several states, for example, the farming operation would need to either preexist the non-agricultural uses in the area or at least be in operation for a set period. In many states, the operation must also comply with other federal, state, or even local laws, such as environmental laws or local zoning ordinances.

The right-to-farm law defense can be a powerful tool to protect a farming operation, but an operation needs to qualify for the defense.  The National Ag Law Center has compiled all of the state right-to-farm laws: https://nationalaglawcenter.org/state-compilations/right-to-farm/.

Goeringer, Paul. “What Are Right-to-Farm Laws?”. Southern Ag Today 2(15.5). April 8, 2022. Permalink

On March 11, 2022, the United States Court of Appeals for the Tenth Circuit dismissed a case holding that beef products labeled as “Product of the U.S.A” are not misleading. Thornton v. Tyson Foods, Inc., — F.4^th —, No. 20-cv-2124, 2022 WL 727628 (10th Cir. 2022). Robin Thornton, one of the plaintiffs, is a beef consumer and claimed that “Product of the U.S.A.” labels deceived her into thinking the labeled beef originated from cattle born, raised, and slaughtered in the United States. The other plaintiff, Michael Lucero, is a beef producer who claimed he was paid less for his domestic cattle as a result of Defendant’s labeling practices. Both plaintiffs claimed that “Product of the U.S.A.” labels are misleading when the beef is derived from cattle either imported live or imported post-slaughter. Both plaintiffs brought their claims under New Mexico state law, not under the Federal Meat Inspection Act (FMIA). However, the main issue in the case was whether the FMIA preempts such state law claims.

This case dealt with two provisions of the FMIA. Under the first provision, meat labels must not be “false or misleading” and must be “approved by the Secretary” of Agriculture. 21 U.S.C. § 607(d). Secondly, the FMIA prohibits states from imposing any additional requirements which are “in addition to, or different than” the requirements imposed by the FMIA. 21 U.S.C. § 678.

The court reasoned that there is a presumption that labels are not false or misleading if the Secretary of Agriculture, through the Food Safety and Inspection Service (FSIS), approves the labels. Because FSIS approved Defendant’s labels, the court found that the labels were not misleading. Therefore, the court held that the plaintiffs failed to state a false advertising claim.

Additionally, the court found that the plaintiffs’ state law claims are expressly preempted by the FMIA. The court explained that if a federal statute expressly preempts state laws, then the corresponding state law must be interpreted and applied the same way as the federal law. Therefore, the court held that the FMIA expressly preempts state laws, and therefore, New Mexico state law must be interpreted and applied exactly as the FMIA.  

However, not all of the Circuit Court judges who heard this case agreed. One dissenting judge disagreed with the majority opinion, and argued that just because FSIS approved a label does not mean that the label is not false or misleading. The dissent focused on the language of the FMIA, which states meat labels must “not [be] false or misleading and … [must be] approved by the Secretary.” Thornton v. Tyson, (quoting 21 U.S.C. § 607(d)). The dissent argued that the use of “and” to connect these two requirements suggests the FMIA “contemplates the existence of—and indeed proscribes—labels that are both misleading and approved by the Secretary.”   

If the plaintiffs choose to, they can appeal the 10th Circuit’s opinion to the Supreme Court of the United States. However, the Supreme Court only hears a fraction of the cases appealed to them. Also, regarding “Product of the U.S.A” labeling, FSIS currently has an information collection request awaiting approval from the Office of Management and Budget (OMB). FSIS is seeking approval to conduct a “web-based survey/experiment to help gauge consumer awareness and understanding of current ‘Product of USA’ labeling claims on meat (beef and pork) products and consumer willingness to pay”.

Caracciolo, Jana. “The 10th Circuit Dismisses “Product of the U.S.A.” Mislabeling Claims“. Southern Ag Today 2(14.5). April 1, 2022. Permalink