Category: Ag Law

‘Tis the season for camo, foothills that are sprouting pickup trucks, and men, women and children afoot on varying terrain armed with rifles, bows, and dogs. If you are a landowner, there is a good chance you have been approached by someone seeking permission to hunt on or traverse your land. Before counting points on bucks, here are some points for landowners’ consideration to prepare for this season.

Get a signed lease. A hunting lease will provide clarity and protection to all parties by defining access, laying out expectations, addressing property management and use, and providing some liability protections. Agreements should be documented in writing with detail to prevent any confusion or misunderstanding of the agreed terms and as insurance should a dispute or issue arise. When drafting a lease, be specific and thorough. The danger of a “simple” lease is that most lease disputes don’t arise over terms that are clearly set forth in the lease, but rather most disputes arise from terms that are not addressed in the lease. Among the important lease terms such as naming the lessor(s) and lessee(s), payment terms, length of lease, liability, identifying the property and access points, remedies for breach and the like. A thorough hunting lease should address management kills, ATV use, fence and trail repairs, fallen trees, feeding plots, use and location of outbuildings, blinds and tree stands, whether guests are permitted and how many at once, communication with lessor, whether the hunting rights are exclusive or nonexclusive, wildlife that may be hunted, known or potential hazards, and other considerations of important to either party. If a dispute arises, a court will first look at the lease, and only the lease, to resolve it. Absent extenuating circumstances, additional agreements or promises which are not reflected in the lease itself will not be enforced. 

Reinforce to anyone hunting on your land that it is their responsibility to know the property boundaries. It is unlawful for hunters to track or retrieve wounded game on private property without permission. Hound hunters should check to see if their state has a right to retrieve law. These statutes generally allow the owners of hunting dogs to enter upon the land of another without permission for the purpose of retrieving their hunting dogs. Virginia’s 100-year-old statute was recently challenged by a group of landowners arguing that Virginia’s right to retrieve law amounted to a taking of private property without just compensation, converting their private property to public use.^[1] Despite alleging that hounds were a nuisance which had killed a landowner’s chickens and would spook horses allegedly justifying compensation from the state, the circuit court held that the law was merely an exception to criminal trespass and did not deprive the landowners of any property rights. In response, Virginia’s Board of Wildlife Resources considered two proposals which would have required hound hunters to use GPS collars and make reasonable attempts to prevent their dogs from entering another’s property. Though it was questioned whether the Board had authority to require such measures, both were ultimately rejected. 

Hunting leases are contractual agreements to which every other basic principle of contract law applies. Make sure leases are written, thorough, and reviewed by a knowledgeable agricultural attorney licensed in your jurisdiction. If you are hunting on your own land or that of others, know the property boundaries and as necessary, consult with a local attorney on your state specific laws related to one of the oldest practices in the world.

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^[1] Medeiros, et al v. Virginia Dep’t of Wildlife Res., Record No. 230691 (Va. Sept. 26, 2024) (unpub. order).

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Friedel, Jennifer Shaver. “Preparing for the (Camo) Season.” Southern Ag Today 4(47.5). November 22, 2024. Permalink

Each state has a right-to-farm law that protects agricultural operations from lawsuits that the farm is a nuisance.  In many cases, these laws vary from state to state.  Although the laws vary, decisions from other states often help us understand how these laws might be interpreted in other states.  Two recent decisions out of Kansas and Maryland highlight what farms might want to consider when determining if their operation meets the guidelines in their states.

In Kansas, the state’s supreme court recently upheld the decision of the Court of Appeals of Kansas not to allow a hog operation to utilize the defense.  The hog farm had expanded, and the new facilities required additional pipelines to be run in other fields to apply effluent from the operation.  The operation never got permission from the neighboring landowners to run the pipelines along the county road.  The Supreme Court of Kansas agreed that the easement for the road to the county only created a right to use the road and did not give permission to run pipelines along the right of way without the permission of the neighboring landowners.  Because the Kansas right-to-farm law required the operation to comply with all laws, the operation could not use the law since they had committed trespass to put in the pipelines.  That decision is in Ross v. Nelson (Kan., 2024).

In Maryland, a new farmland owner switched from using chemical fertilizers to a form of biosolids as fertilizer. Neighbors complained, and the Appellate Court of Maryland recently upheld the producer’s right to switch practices on the farmland and maintain the right-to-farm law protections.  Maryland state law requires an operation to exist for one year to gain protection, and the court agreed that switching nutrient management practices did not reset that clock.  The court pointed to legislative history, stating that the legislature should have fully understood that the one-year provision would allow operators to switch practices without resetting the one-year clock.  That decision is In the matter of Cheryl Lewis, et al. and is currently being appealed to the state’s supreme court.

I realize many of you are not in those states, but those decisions will often remind producers that they need to understand what their state’s right-to-farm law requires to ensure the farm can utilize the defense if needed. If you do not know your state’s right-to-farm law, the National Ag Law Center has compiled a list of all 50 states here.

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Goeringer, Paul. “What Other State Decisions Can Tell Us About Right-to-Farm Laws.” Southern Ag Today 4(43.5). October 25, 2024. Permalink

In February, a federal district court in Arizona vacated the only three post-emergent formulations of dicamba on the marketplace, marking the second time post-emergent dicamba registrations were vacated since their 2017 commercialization.  When the EPA subsequently clarified that existing stocks of post-emergent dicamba could be used in 2024, all eyes promptly turned to what would be available in 2025.

The court opinion noted that the EPA failed in its 2020 registrations of post-emergent dicamba to provide a public notice and comment period.  To avoid a third potential vacatur of registrations, the EPA required a public notice and comment period, which in prior registration efforts signaled the start of a 17-month countdown to approval.  

However, there has been a growing trend of courts scrutinizing and even vacating other pesticide registrations when the EPA failed to comply with requirements associated with the Endangered Species Act (ESA) in addition to requirements associated with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Combining the potential need for an ESA consultation with the United States Fish and Wildlife Service (USFWS) with agency funding issues, it is ambitious to hope that the EPA will meet the 17-month approval timeframe on the undergoing post-emergent dicamba registrations before the 2025 planting and growing seasons.

Commentators on both sides of the dicamba debate have already started making their voices heard.  The public comment period for Bayer’s XtendiMax, BASF’s Engenia, and Syngenta’s Tavium generated over 27,000 comments in total.

Advocates of post-emergent dicamba products were dismayed by the XtendiMax label not having any on-label uses for post-emergent soybeans.  XtendiMax for cotton allowed applications through June 30.  There was also concern that the labels for Tavium and Engenia only permitted over-the-top (OTT) applications through June 12 or until the crop reaches the V2 growth stage, with comments noting that the plants are still very small at that stage.  

It is worth noting that, though the 2020 registrations of post-emergent dicamba products were vacated, the EPA’s new position that precludes state agency restrictions on pesticides through Section 24(c) of FIFRA is still maintained on the EPA’s website.  In other words, barring state action through Section 24(a), the EPA will still be the entity responsible for setting restrictions such as application cutoff dates.

Critics of post-emergent dicamba once again expressed their frustration that the EPA was in the process of re-registering the herbicide.  These individuals and groups have repeated their calls that the product was inherently dangerous and stated that the new formulations were no different than previous products that had been taken off the market.  

If post-emergent dicamba is not approved for use by the 2025 growing season, there is also a fear that a repeat of the 2015 and 2016 growing seasons will occur.  In 2015 and 2016, the USDA had approved dicamba-tolerant seeds but the EPA was still undergoing the registration process for post-emergent versions of dicamba.  Despite this, dicamba drift symptoms started to occur throughout the nation, leading many to speculate that some producers had used pre-emergent dicamba in an off-label use for post-emergent applications.  

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Brown, Nicholas. “Post-Emergent Dicamba Likely Unavailable in 2025, Controversial Beyond Then.” Southern Ag Today 4(42.5). October 18, 2024. Permalink

Postscript:  After this article was completed and while waiting to be published, the Ninth Circuit Court of Appeals rendered a decision on October 2, 2024, upholding the EPA’s decision to deny the plaintiff environmental groups’ petition to compel revised CAFO regulations. A request for the granting of an appeal to the U.S. Supreme Court must be filed within 90 days of October 2, 2024.

Note: This article is a continuation of a topic first discussed in an article published on March 15, 2024, titled, “EPA Made Commitment to CAFO Permitting Reform But No Action Evident to Date.” 

There have been significant developments in the last six months since Southern Ag Today first published an article outlining: 

1. the United States Environmental Protection Agency’s (“EPA”) announcement of an internal “comprehensive evaluation” of its Clean Water Act (“CWA”) NPDES permit regulations for confined animal feeding operations (“CAFO”) for potential agency initiation of reforms; and 
2. a lawsuit captioned, Food & Water Watch, et al. v. EPA, No. 23-2146, pending in the U.S. Court of Appeals for the Ninth Circuit, seeking NPDES CAFO permit reform through court intervention and order. 

At issue is EPA’s continued use and implementation of a regulatory scheme defining NPDES permit obligations by reference to species-specific animal equivalency units (“AEU”) housed on site—resulting in the now familiar CAFO classifications as Large, Medium and Small, each carrying varying obligations, or none at all. Notably, the CWA contains no definition of a CAFO, which statutorily must be regulated as a point source discharge under the NPDES permit system. EPA uses those classifications to implement and enforce the law in substitution for measurement or monitoring of discharges. EPA’s regulatory scheme is based entirely upon an agency interpretation, not one found in the law. 

1. EPA internal CAFO Permitting Reform Process

EPA has begun its internal assessment of NPDES CAFO permitting reform in earnest with:

• April 30, 2024: EPA appointments to the advisory Animal Agriculture and Water Quality Subcommittee “(AAWQ”), charged with making reform recommendations to EPA; 
• May 30-31, 2024: First AAWQ meeting (Washington, D.C.) 
• August 8-9, 2024: Second AAWQ meeting (Lancaster, PA)

It has been slightly more than one year since EPA announced its internal CAFO Reform effort, and its parameters. EPA included its plan within two August 15, 2023, agency adjudications denying administrative petitions filed by Food & Water Watch and others challenging the continued legal efficacy of the current NPDES CAFO permit regulations. Despite fifteen years of use (last revised in 2008) the petitioners argue that the regulations fail to conform to CWA statutory authority and purposes. It is a relatively safe assumption that this process will likely continue at a slow pace. 

1. Litigation on its way to the U.S. Supreme Court?  

Meanwhile, Food & Water Watch, and the other petitioners, appealed the August 15, 2023, denial of those two petitions to the Ninth Circuit Court of Appeals in Food & Water Watch, et al. v. EPA, No. 23-2146.  That case has now completed:

• All Briefs have been filed by the parties. 
• September 12, 2024: Oral argument conducted (view recording). 

Oral argument is a difficult predictor of an outcome, but questioning during oral argument by the Ninth Circuit panel of 3 judges appeared to be more sympathetic to EPA’s arguments. That is not surprising based upon the heretofore poor track record of success of administrative petitions seeking to force regulation changes.  

Nevertheless, the most important thing about the pending appeal is that the U.S. Supreme Court is the next available appeal. Whichever party receives an adverse ruling, in whole or in part, the outcome at the Ninth Circuit will almost certainly result in a request to the U.S. Supreme Court to grant an appeal and review the legal issue of whether current EPA NPDES CAFO permit regulations should stand as-is, be declared invalid and remanded to EPA for further action, or some permutation of those outcomes as applied to individual provisions.  

The current U.S. Supreme Court has illustrated its interest in becoming involved in cases where it perceives an administrative agency has overstepped its statutory bounds in promulgating regulations and/or has made interpretations not directly supported by the statute on how to fulfill its statutory duties to implement and enforce a statute.

That willingness has been illustrated in full flower in the well-known recent decisions in both Sackett et ux. v. EPA et al., No. 21-454 (reversing EPA’s regulatory scheme for interpreting the statutory term “waters of the United States” (“WOTUS”) under the Clean Water Act) and Loper Bright, et al., v. Raimondo, et.al, No. 22-451 (no longer granting any deference to administrative agency interpretation of how to implement and enforce a regulation when faced with a statute containing an ambiguity).    

Before the U.S. Supreme Court granted an appeal of the Circuit Court of Appeals outcome in the Sackett case in 2022, few, if any, legal observers would have pegged that relatively obscure litigation as the future vehicle for a monumental overhaul of the WOTUS definition in federal law. 

Will this case be the next unlikely vehicle for groundbreaking U.S. Supreme Court intervention in administrative agency regulatory practice?  

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Duer, Brook, and Paul Goeringer. “Will the U.S. Supreme Court Be Asked to Send EPA Back to the Drawing Board on CAFO Permits?” Southern Ag Today 4(41.5). October 11, 2024. Permalink

In their most recent legislative sessions, nine states – Alabama, Arizona, Florida, Kentucky, Michigan, New York, Pennsylvania, Tennessee, and Texas – considered legislation banning the manufacture, sale, or distribution of cell-cultured meat. Florida and Alabama both passed the legislation, and their governors signed it into law. In Kentucky, New York, Tennessee, and Texas the proposed bills did not make it out of committee before the session ended. Arizona’s bill made it further with HB2121 passing in the House of Representatives but failing in the Senate. The Pennsylvania and Michigan bills, whose legislative sessions are ongoing, were introduced following the passage of the Alabama and Florida bills and are each being considered in committee. 

Florida 

On May 1, 2024, Florida became the first state in the U.S. to ban cell-cultured meat. SB1084, an appropriations bill with a number of agriculture-related measures, included a provision outlawing the manufacturing for sale, selling, holding or offering for sale, or distribution of “cultivated meat.” The Florida law defines cultivated meat as “any meat or food product produced from cultured animal cells.” The violation of this law is deemed a misdemeanor of the second degree and a food establishment which violates the law will be subject to disciplinary actions. Additionally, a restaurant, store, or other business may have its license suspended if the owner or an employee is convicted of violating this law in connection with that business. The law does not ban research conducted on the production of cultivated meat. The law went into effect on July 1, 2024.

Alabama 

Similarly, on May 7, 2024, Alabama Governor Kay Ivey signed SB23 into law. This law prohibits the manufacturing, selling, holding or offering for sale, or distribution of any cultivated food product in Alabama. The law defines a cultivated food product as any food product produced from cultured animal cells. A violation of this law is considered a Class C misdemeanor, and establishments found to be in violation could have its food safety permit suspended. The law does not prohibit research of cultivated food products by a “federal, state, or local governmental entity or institution of higher education, or a person that is partnered with a governmental entity or institution of higher education.” SB23 goes into effect on October 1, 2024. 

Lawsuit against Florida  

On August 12, 2024, UPSIDE Foods, Inc. filed a complaint in the U.S. District Court for the Northern District of Florida challenging Florida’s ban on cell-cultured meat. UPSIDE is a California company that produces cultivated meat products grown from animal cells. UPSIDE was the first manufacturer of cell-cultured meat or poultry authorized by the U.S. Department of Agriculture (USDA) and the Food and Drug Administration (FDA), who share the regulatory authority over cell-cultured meat, to sell its product in the U.S. 

In this complaint, UPSIDE argues that Florida’s cell-cultured meat ban is unconstitutional because it violates both the Supremacy Clause and the Commerce Clause of the U.S. Constitution. The complaint alleges that the Supremacy Clause, which gives priority to the Constitution and federal laws over any conflicting state laws, is violated because Florida’s ban is preempted by federal laws regulating meat and poultry products. Further, UPSIDE argues that the Commerce Clause, which grants Congress the authority to regulate commerce among the states, is violated by Florida’s ban because it discriminates against out-of-state producers of cultivated meat and benefits the interests of Florida’s agricultural industry. So far this is the only legal challenge brought against Florida’s cell-cultured meat ban, and no challenge has been made against Alabama’s. However, that might change when the Alabama law goes into effect on October 1, 2024. 

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Stone, Emily. “Cell Cultured Meat.” Southern Ag Today 4(37.5). September 13, 2024. Permalink