Category: Ag Law

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. 

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

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

On June 21, 2024, the United States Supreme Court issued an opinion in the long-running dispute between Texas and New Mexico over the 1938 Rio Grande Compact. The Court, in a 5-4 decision, held that the federal government could block an agreement between Texas and New Mexico to resolve their dispute. Although the compact relates to the river, the dispute centers on groundwater pumping. 

Texas filed suit against New Mexico in 2013, alleging that excessive groundwater pumping in New Mexico deprived Texas of its fair share of Rio Grande water under the compact.  Note that lawsuits between states originate in the United States Supreme Court. The Court appoints a Special Master to hold hearings and make recommendations to the Court, which ultimately decides the issues.

Unlike most compacts, the Rio Grande Compact requires New Mexico to deliver water not to the New Mexico/Texas border, but to Elephant Butte Reservoir, a federal project about 100 miles north of the border. Texas alleged that groundwater pumping along the river between the Elephant Butte Reservoir and the state line took water from the river that rightfully belonged to Texas.  

The federal government filed a motion to intervene in the litigation in 2014, alleging that its interest in the federal project at Elephant Butte allowed intervention to protect the government’s rights and obligations. The federal government, through Downstream Contracts, was required to deliver water to an irrigation district in New Mexico, and one in Texas. The Court allowed the federal government to intervene, a relatively rare occurrence, because of the unique circumstances of the case and the fact that its interests aligned with those of Texas.

Texas’ lawsuit focused on increased groundwater pumping between the Elephant Butte Reservoir and the state line. While the federal government had operated the reservoir based on data from 1951 to 1978 (“D2 data”), a time period where groundwater pumping increased significantly in New Mexico, Texas asked for allocations to be based on 1938 data, when there was much less groundwater pumping in New Mexico. The United States, which had operated based on the later for decades, did not request a change.

After 10 years of hearings and litigation, Texas and New Mexico agreed on a consent decree, settling the issues between the states. The agreement continued water allocations based on the D2 period, which favors New Mexico, but measured the water delivery at El Paso, which favors Texas. Complex accounting measures in the agreement ensured that Texas would receive the state’s fair share of water. 

However, the federal government objected to the agreement, claiming that its interests in administering the water project were threatened. In addition, for the first time, the federal government claimed that the water allocation should be based on 1938 levels of groundwater withdrawals. New Mexico estimates that a forced reduction in groundwater withdrawals to 1938 levels would mean a loss of 50,000 jobs and 10% of the state’s gross domestic product.

Justice Jackson, joined by Chief Justice Roberts and Justices Sotomayor, Kagan, and Kavanaugh wrote the majority opinion. The majority found that the federal government had independent claims that would be resolved by the agreement. Given that the government was now a party, the agreement could not resolve the government’s interests without its consent. Since the government’s interests were aligned with those of Texas, and Texas had requested a 1938 baseline, the government was deemed to make a similar request. Given the close connection between the compact, the federal project and the irrigation contracts, the government must agree to any resolution of the case.

Justice Gorsuch, who also authored the Court’s 2018 unanimous opinion allowing the United States to intervene, wrote the dissenting opinion, and was joined by Justices Thomas, Alito, and Barrett. The dissenters summarized their position as follows:

The Court’s decision … defies 100 years of this Court’s water law jurisprudence. And it represents a serious assault on the power of States to govern, as they always have, the water rights of users in their jurisdictions. The Special Master issued a detailed 115-page report laying all this out. His views were wise, his recommendations sound, and, respectfully, we should have done as he suggested.

The dissenters opine that the Court denied the entry of the consent decree “[b]ecause the federal government demands as much.” In addition, the federal government could not assert these claims alone in the Court but would have to file a lawsuit in the lower court.

Given the number of federal water projects in the United States, and increasing disputes between surface water and groundwater users, this decision could allow the federal government to take control of groundwater allocations in a large number of situations. Groundwater users generally lose these disputes because groundwater withdrawals generally began after surface water withdrawals. Since the surface water users have seniority, surface water withdrawals receive priority. The decision may cause large cuts in groundwater withdrawals in New Mexico, as well as put groundwater users in jeopardy wherever federal water projects exist. As in this case, the competing uses will likely include large agricultural users. New Mexico and Texas will now have to start back at square one.

On June 28, 2024, the United States Supreme Court issued its highly anticipated decision in Loper Bright Enters. v. Raimondo, No. 22-451 (2024). The case focused on the question of federal agency authority, and asked the Court to revisit its decision in the 40-year-old Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) which famously established a legal test for judges to use when deciding whether a federal agency had acted outside its statutory authority. In a 6-3 decision, the Supreme Court officially overturned Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., ruling that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]”

Chevron deference is a legal doctrine established by the Supreme Court to help courts determine when a judge should defer to a federal agency’s statutory interpretation. To apply Chevron deference, courts follow a two-step framework. First, the court should consider “whether Congress has directly spoken to the precise question at issue.” To make that determination, the court will review the relevant statute to see whether the language clearly addresses the issue targeted by the agency’s regulation or whether the statutory language is “ambiguous.” 

If a court finds that the language is ambiguous, it will proceed to step two which requires the court to determine whether the agency’s statutory interpretation is “reasonable.” If the court finds that the interpretation is reasonable, then it must defer to the agency even if the court would have adopted a different interpretation. If the court concludes that the agency’s interpretation is not reasonable, then it may overturn the agency’s regulation. 

In the decades since Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. was first decided, it has become highly controversial. While some view Chevron deference as another tool of judicial interpretation, others regard it as a limitation on judicial authority.  

At the Supreme Court, the plaintiffs in Loper Bright Enters. v. Raimondo challenged the doctrine of Chevron deference, specifically asking the Court to either overrule the doctrine or clarify its scope. In a majority ruling authored by Chief Justice Roberts, the Supreme Court overruled the doctrine, finding that the Administrative Procedure Act (“APA”) requires courts to “exercise their independent judgment” when determining whether an agency has acted outside of its statutory authority, and that “courts may not defer to an agency interpretation of the law simply because a statute is ambiguous[.]” The majority relied on past Supreme Court cases that address the role of courts and federal agencies in statutory interpretation, and the APA to reach its conclusion.

In overturning Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court began by noting that Article III of the United States Constitution assigns to the federal judiciary the responsibility to hear and decide all “cases” and “controversies.” The Court then cited the foundational Supreme Court opinion, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). In that early case, which is regarded as establishing the scope of judicial review, the Supreme Court held that it is “the province and duty of the judicial department to say what the law is.” 

 Next, the Court reviewed its pre-Chevron case law on agency deference. The Supreme Court cited United States v. Moore, 95 U.S. 760 (1878) which explains that courts should give “the most respectful consideration” to federal agency interpretations of statutes they are tasked with administering because employees of such agencies are considered “masters of the subject[.]” The Court also cited Skidmore v. Swift & Co., 323 U.S. 134 (1944), where the Supreme Court held that a federal agency’s statutory interpretations “constitute a body of experience and informed judgement to which courts and litigants [could] properly resort for guidance,” but that such interpretations would not control a reviewing court’s own statutory interpretations.  After reviewing these cases, the majority concluded that prior to its ruling in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court had consistently held that while a federal agency’s statutory interpretations could be given due respect by a reviewing court, it was ultimately up to the judiciary to determine the proper meaning of the law.

Along with reviewing its own case law, the Supreme Court also examined the text of the APA. The APA is the federal law that governs the way federal administrative agencies develop regulations, and  establishes standards for judicial review of agency actions.  The law states that “[t]o the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action.” 5 U.S.C. § 706. According to the Court, that statutory language represents Congress’s intent to have reviewing courts, not agencies, “decide all relevant questions of law” and “interpret […] statutory provisions.” The Court concluded that the Chevron doctrine cannot be reconciled with the APA because Chevron deference requires courts to adopt reasonable agency interpretations of statutory language, even if the court would have reached a different interpretation. According to the majority, this does not comply with the APA’s requirement that courts “shall decide all relevant questions of law.”

Based on its review of both previous Supreme Court decisions, and the text of the APA, the majority in Loper Bright Enters. v. Raimondo concluded that “[i]n an agency case as in any other […] there is a best reading [of the law] all the same – ‘the reading the court would have reached’ if no agency were involved.” Following this ruling, when a court is presented with a case that involves statutory interpretation, it may not “defer to an agency interpretation of the law simply because a statute is ambiguous.” Instead, it is the role of the court to apply its own judgement to determine what the law says.

Rollins, Bridgit. “In Landmark Ruling SCOTUS Overturns ‘Chevron’ Deference.” Southern Ag Today 4(30.5). July 26, 2024. Permalink