Category: Ag Law

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

On January 16, 2025, the Food and Drug Administration (FDA) revoked the color additive listing for use of Red Dye No. 3, a food dye that is used to color Brach’s Conversation Hearts and other popular candies. This decision was in response to a petition filed by the Center for Science in the Public Interest (CSPI) and other stakeholders to ban Red Dye No. 3 under the Delaney Clause of the Food, Drugs, and Cosmetics Act (FDCA). The Delaney Clause is a provision in the FDCA that deems any color additive found to cause cancer in man or animals as unsafe for any use that results in its ingestion. Specifically, the CSPI petition cited two studies that showed cancer in laboratory male rats exposed to high levels of Red Dye No. 3. Though the FDA did revoke the authorized uses for Red Dye No. 3 in food and ingested drugs to comply with the Delaney Clause, it maintains that available scientific information does not support that claim that ingested Red Dye No. 2 puts people at risk. 

Red Dye No. 3 is considered a “color additive” under the FDCA. Color additives are defined as “a dye, pigment or other substance, which is capable of imparting color when added or applied to a food, drug, cosmetic or to the human body,” and are considered useful by the FDA for providing a color consistency that helps consumers identify food products on sight. To be used in food, drugs, cosmetics, or medical devices, the FDCA requires that color additives be approved by the FDA. This is done through a Color Additive Petition that provides evidence that the additive is safe for the ways in which it will be used. Once the petition is approved, a regulation identifying the conditions of use is published in the Federal Register. When a color additive’s regulation is published, it is considered “permanently listed,” however, per the FDA, it may “revoke or amend” the listings as needed. Here, the FDA is revoking the regulations formally found at 21 CFR §§ 74.303, 1303 authorizing the use of Red Dye No. 3 for coloring in foods and ingested drugs.

Though Red Dye No. 3 has been in commercial use since the early 1900s, it was not permanently listed until 1969. The current petition process for color additives was created under the Color Additive Amendments of 1960, and following the update, all additives that were previously in commercial use were reevaluated for safety. Specifically, the color additives were provisionally listed and could only be used on an interim basis until they were either permanently listed or terminated. Thus, Red Dye No. 3 was provisionally listed in 1960 and stayed under that classification until it was proved safe through the petition process in 1969 and permanently listed for use in food and ingested drugs. In 1990, the FDA revoked Red Dye No. 3’s authorization for use in cosmetics and topical drugs under the Delaney Clause. Following that revocation, the FDA announced it would also revoke Red Dye No. 3’s authorization under the Delaney Clause for use in food and ingested drugs, but it never followed through. According to the FDA, “the agency decided not to take action at that time, given the resources required to remove this authorization,” but maintained that “available data does not raise safety concerns for humans.”

State level bans 

The FDA banning Red Dye No. 3 follows several states proposing legislation that sought to ban food and color additives. Specifically, in October of 2023, California became the first state in the nation to ban the manufacture, distribution, and sale of foods and beverages containing certain color additives, including Red Dye No. 3. Following California’s passage of the law, several other states proposed food and color additive bans in 2024. Currently, at least six states have legislation introduced in their legislative sessions similar to California’s banning certain food or color additives. These states include New Jersey, Arkansas, Missouri, Oklahoma, New York, and Delaware. Additionally, in 2024, California passed the California School Food Safety Act prohibiting food with certain food and color additives from being sold in schools. So far, Texas, Hawaii, and Virginia have introduced similar legislation this session that seeks to ban the use of certain additives in food and beverages sold in schools. As most states are just beginning the 2025 legislative session, there might be more bills relating to these topics proposed in the coming months. 

Next Steps for the Federal Ban 

As the rule currently reads, food manufacturers who use Red Dye No. 3 in foods will have until January 15, 2027 to comply, while ingested drug manufacturers will have until January 18, 2028. The agency action banning Red Dye No. 3 was published in the last few days of the Biden administration. As such, its future under the Trump administration remains uncertain. The Trump administration has not spoken about its intentions regarding the issue, so the future of the Red Dye No. 3 ban remains unclear. Regardless, the conversation hearts are safe for this Valentine’s Day. To learn more about this issue, click here to read NALC article, “FDA bans Red Dye No. 3.” 

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Stone, Emily. “Be Mine: FDA bans food dye used in popular candies.” Southern Ag Today 5(7.5). February 14, 2025. Permalink

Landowners often wonder what steps need to be taken to prevent injuries to people that come onto their property. In legal terms, this area of law is referred to as premises liability. Landowners owe persons on their property a duty based on the status of the visitor. Visitors can generally be divided into the categories of invitee, licensee, and trespasser. This article focuses on a special, and controversial category of visitors, the child trespasser. While this article lays out a general description of the law, the details may differ by state.

Our civil law system is built upon a system of duties owed by people and companies to others. For a successful civil lawsuit, an injured party (the plaintiff) must show that the defendant had a duty to the plaintiff, that the defendant breached that duty, and that the breach of the duty caused injury to the plaintiff.

For trespassers generally, a landowner owes the trespasser a duty to not willfully or wantonly injure the trespasser. Invitees and licensees are owed higher duties. For example, a landowner who sets up a spring gun at their storage shed, which fires when someone attempts to enter the building, would be liable to injuries to a trespasser attempting to break into the building. Booby traps, even when aimed at criminals on the property, subject the landowner to liability.

But what about a child that trespasses onto your property? A child may not appreciate certain hazards. Where the landowner has no reason to believe that a child would be on the property, the duty generally remains the same – no willful or wanton injury. However, if a landowner knows or should know that a child may come onto the property, the landowner has a duty to take reasonable care to avoid injury to the child and to warn the child of dangers known by the landowner.

In addition, if a dangerous instrumentality is on the property, the landowner has a duty to barricade the property or warn of the danger. A farm pond is not necessarily a dangerous instrumentality, but may become so if unique circumstances exist, such as a steep side slope or sudden drop off. A rope swing is not necessarily a dangerous instrumentality. Note that if a local ordinance requires, for example, a fence around a pool, the pool may be a dangerous instrumentality if no fence exists.

Finally, most states recognize the doctrine of attractive nuisance. The attractive nuisance doctrine states that where the landowner maintains a condition on their property that attracts children, the child is no longer a trespasser but is an invitee. Consequently, the landowner owes a higher duty to take ordinary care to keep the condition in a reasonably safe condition to protect the child. Natural conditions on the property cannot qualify as attractive nuisances.

For the farm owner or operator, the related so-called “unguarded dangerous conditions” present the biggest threat. For example, the landowner leaves the key in the tractor and the tractor is left outside. The farm is located in a suburban area, with families living nearby. If a child trespasses onto the property, starts the tractor, and is injured, a court may find the farm owner liable for injuries. Similarly, although a swing rope or farm pond with a dock does not necessarily qualify as a dangerous instrumentality, those types of conditions may qualify as attractive nuisances or unguarded dangerous conditions.

The lesson from these often-confusing legal doctrines is that the farm owner or operator should use an abundance of caution to be safe rather than sorry. Take keys out of tractors and store them in a safe area. Lock barns and sheds. Barricade areas that you do not wish the public to access. Inspect the property regularly and think about what areas may be dangerous to a child trespasser, then take steps to make the area off-limits or safe for trespassers. Finally, maintain adequate liability insurance.

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Richardson, Jesse, and Paul Goeringer. “Duty to Child Trespassers.” Southern Ag Today 5(3.5). January 17, 2025. Permalink

While the current outbreak of highly pathogenic avian influenza (HPAI) began in 2022 primarily infecting wild birds and domestic poultry, 2024 produced evidence of a mutated virus infecting dairy cattle in large numbers, as well as evidence of human infections thankfully limited in both case numbers and virulence.   

In human and animal health circles, the concepts underlying the terminology “One Health” (i.e. an integrated, collaborative approach by the medical and veterinary professions to the control of zoonotic disease) have been discussed for years.  However, during this past year, the reality of the general public itself following a multi-disciplinary and multi-state epidemiological investigation of the HPAI strain in dairy cattle has thus far produced a complex set of still-evolving answers. 

To some, in particular those who feel they are now armed with relevant recent knowledge gained from the COVID-19 pandemic, USDA and CDC disease control efforts have been perceived as not aggressive nor collaborative enough. In the end, perhaps only the history books will be able to render a judgment on that score.

But in the meantime, one fairly recent development in an unrelated legal dispute may address questions at the core of any One Health effort to control this zoonotic disease.  What are the statutory limits of the federal government’s attempts to control a potential animal disease?  

The federal government’s legal authority in this regard arises from a law known as the Animal Health Protection Act. This law vests broad and sweeping powers in USDA’s Animal and Plant Health Inspection Service (USDA APHIS) over the import, export and interstate movement of livestock and “articles or means of conveyance,” by regulations and orders “necessary to prevent the introduction into or dissemination within the United States of any pest or disease of livestock.”  7 U.S.C. § 8305(1). The primary statutory tools have and likely will continue to be orders designed to control interstate movement of dairy cattle, as well as other means of disease conveyance—including milk itself. 

By fortunate historical circumstances and decades of regulatory precedent, mandatory pasteurization of milk in interstate commerce fits the bill as the most effective and efficient control measure for this zoonotic disease.  

Nevertheless, re-examination and a fundamental questioning of the Animal Health Protection Act’s parameters of authority has been raised by the October 30, 2024, commencement by beef cattle producers of a lawsuit seeking to invalidate USDA’s final rule on electronic identification eartag (“EID”) requirements for certain cattle and bison. The final rule was promulgated, effective November 5, 2024, pursuant to Animal Health Protection Act authority, specifically animal disease traceability as a subset of the broad authority over any and all means of disease conveyance. 

In Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America v. United States Department of Agriculture, No. 5:24-cv-05085, multiple beef cattle producers (hereinafter collectively referred to simply as “R-CALF USA”) commenced a lawsuit by complaint in the U.S. District Court for the District of South Dakota seeking to invalidate the USDA APHIS final rule titled “Use of Electronic Identification Eartags as Official Identification in Cattle and Bison” (89 FR 39540). For the purposes of this article, the portion of the final rule at issue is the new text at 9 CFR §86.4(a)(1)(i) stating that all official eartags sold for and applied to cattle and bison that are required to be officially identified for interstate movement must be readable both visually and electronically. 

The producers allege, among multiple claims, that the final rule exceeds the authority granted by the Animal Health Protection Act to take actions “necessary to prevent the introduction or dissemination” of a pest or disease of livestock because “participants within the production chain [of affected animals] may continue to use EID eartags in the exact same way that they use visual-only eartags,” and as such, the rule is not necessary because it “does not actually fix the problems it is supposedly addressing.”  In other words, the determination of “necessity” is lacking for the new requirement of electronic readability. 

By way of further explanation, according to the complaint, “USDA has previously ‘stated that a participation rate of 70 percent of the nation’s cattle herd would be necessary for a [animal disease traceability, or “ADT”] program to be effective’ . . . but the Rule only applies to 11 percent of the nation’s cattle herd.”  R-CALF USA goes on to state: “APHIS provides only a conclusory statement that the ADT program helps prevent the dissemination of disease by helping minimize the effect of outbreaks through restrictions, such as the EID eartag requirement, that the agency has determined are necessary for efficient livestock tracing. . . But this bold statement does not reasonably explain how the EID Final Rule achieves any efficiency gains or why hypothetical efficiency gains are significant enough to be deemed ‘necessary’ under the Animal Health Protection Act.”

This litigation’s outcome could have broad and negative implications for all USDA APHIS actions taken pursuant to Animal Health Protection Act authority. The case essentially argues that every aspect of each regulatory requirement justified as serving animal disease control objectives must be subjected to the type of rigorous and individualized proof of “necessity” suggested by the R-CALF USA plaintiffs, taken out of the context of its role and place in the cumulative impact of the regulatory scheme on disease control and regulation. If this position is a correct interpretation of the law, the toolbox of measures available to USDA APHIS may shrink to only a handful of measures—perhaps only those which are proven to have a direct and independent causal relationship to ending the disease’s biological functioning. 

While such a restrictive view of executive branch regulatory authority under the Animal Health Protection Act may not be inconsistent with some recent U.S. Supreme Court decisions reigning in administrative rulemaking, it would be a sea change in zoonotic disease control.

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Duer, Brook, and Paul Goeringer. “2024 Brings Unprecedented Zoonotic Disease Control Challenge As Well As Far-Reaching Questions of Legal Authority.” Southern Ag Today 5(2.5). January 10, 2025. Permalink

In November 2024, the D.C. Circuit Court of Appeals ruled that the Council on Environmental Quality (“CEQ”) does not have authority to issue binding regulations. Since the late 1970s, CEQ has issued regulations that implement the National Environmental Policy Act (“NEPA”). Federal agencies have followed these regulations when carrying out the NEPA while courts have consistently enforced them. Following the D.C. Circuit’s decision in Marin Audubon Soc’y v. Fed. Aviation Admin., No. 23-1067 (D.C. Cir. 2024), it is unclear what authority CEQ will have going forward. 

The primary purpose of NEPA is to “declare a national policy which will encourage productive and enjoyable harmony between man and his environment[.]” To achieve this goal, NEPA outlines a process by which federal agencies can assess the environmental impacts of their actions before making final decisions. 

NEPA provides two levels of environmental review. For proposed actions that have a “reasonably foreseeable significant effect on the quality of the human environment,” agencies should issue an environmental impact statement (“EIS”) that provides detailed information about the expected impacts of the action. For all other actions, agencies should prepare a “concise” document known as an environmental assessment (“EA”) that will either establish the agency’s “finding of no significant impact” or conclude that preparation of an EIS is necessary. NEPA also allows federal agencies to identify categories of actions that do not have significant effects on the environment. Such actions are called “categorical exclusions” and do not require NEPA review. 

NEPA also established CEQ and laid out its functions and duties, such as reviewing federal government activity to ensure NEPA compliance and making an annual report to the President on the “state and condition of the environment.” 

In 1970, President Nixon issued an Executive Order directing CEQ to issue “guidelines” to federal agencies on how to prepare NEPA documents. In 1977, President Carter issued a separate Executive Order empowering CEQ to issue regulations rather than guidelines. CEQ’s first round of NEPA regulations were issued in 1978 and established a framework that is still largely in effect today. Since 1978, federal agencies have followed those regulations while drafting NEPA documents and the Supreme Court in Andrus v. Sierra Club, 442 U.S. 347 (1979), held that CEQ’s NEPA regulations are “entitled to substantial deference.”

The plaintiffs in Marin Audubon Soc’y v. Fed. Aviation Admin. initiated their lawsuit in early 2023 to challenge a finalized plan between the FAA and the NPS that would allow tourism flights to operate over four parks in northern California. When the FAA and the NPS first announced the air tour plan, they also announced their intent to develop an EA. However, the agencies ultimately concluded that the plan was categorically exempted from NEPA review. That decision prompted the plaintiffs to file suit, claiming that the FAA and the NPS had violated NEPA by failing to conduct necessary review.

The D.C. Circuit Court of Appeals issued its ruling in Marin Audubon Soc’y v. Fed. Aviation Admin. on November 12, 2024. While the court concluded that the FAA and the NPS had violated NEPA by approving the air tour management plan without drafting an EA or an EIS, the bulk of the court’s decision focused on whether CEQ had authority to issue NEPA-implementing regulations. Ultimately, the court concluded that CEQ lacked that authority.

According to the court, the text of NEPA does not grant CEQ specific rulemaking authority. While NEPA provides that CEQ shall “make recommendations to the President,” Congress did not include language instructing CEQ to draft rules and regulations to implement NEPA. Instead, CEQ relies on the Executive Orders as the basis for its rulemaking authority. According to the D.C. Circuit, agencies cannot derive rulemaking authority from Presidential Executive Orders. The court relied on the Take Care Clause of the U.S. constitution which provides that the President “shall take care that the laws with faithfully executed[.]” Specifically, the court concluded that the Take Care Clause does not authorize the President to grant federal agencies rulemaking authority to “faithfully execute” the laws passed by Congress. Only Congress has the authority to grant federal agencies rulemaking power. Because NEPA does not specifically instruct CEQ to adopt implementing regulations, the D.C. Circuit concluded that CEQ does not have the authority to issue regulations, and any regulations it has issued are non-binding.

The decision was issued by a three-judge panel, but only two judges joined in the majority ruling. The third judge on the panel dissented. Primarily, the dissenting judge noted that neither the plaintiffs nor the defendants in Marin Audubon Soc’y v. Fed. Aviation Admin. challenged CEQ’s regulations. According to the dissent, the majority’s opinion violated the “principle of party presentation,” a legal concept which provides that judges may only consider the legal questions that are presented and argued before the court. The dissent concluded that there was no reason for the majority to consider the validity of the CEQ regulations because no one had asked them to do so.

It is currently unclear exactly what impact the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. will have. While the court declined to vacate CEQ’s NEPA regulations, the decision establishes a precedent that CEQ lacks rulemaking authority, and that all regulations it issues are non-binding. The parties are expected to seek an en banc review of the decision, but the timeline is currently unclear.

In the meantime, the ruling is likely to cause delays for any activity currently undergoing NEPA review as federal agencies determine how to proceed. If the decision ultimately withstands further judicial review, federal agencies may face the challenge of drafting their own NEPA regulations or otherwise establishing some sort of policy to ensure that the agency meets its NEPA obligations. At the moment, the decision in Marin Audubon Soc’y v. Fed. Aviation Admin. has provided more questions than answers.

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Rollins, Brigit. “D.C. Circuit Rules that CEQ Lacks Rulemaking Authority.” Southern Ag Today 5(1.5). January 3, 2025. Permalink