Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22

Posted February 18, 2016

Agriculture in the Mid-South is uniquely impacted by changes and developments in state, federal, and international laws and policies. Hosted by the Agricultural & Food Law Consortium, the Third Annual Mid-South Agricultural and Environmental Law Conference, April 21-22 in Memphis, TN, is part of a long-term effort to provide relevant and timely agricultural and environmental legal research and information to attorneys, lenders, accountants, tax consultants, students and other agricultural professionals involved in the agriculture and aquaculture industries in the southern U.S.   

Conference highlights and panel discussions include:

- Agricultural & Environmental Law Updates

- Managing Risk in a Faltering Ag Economy

- Handling an Ag Bankruptcy

- Navigating Wetlands Issues

- Legal Issues & Liability in Agricultural Nutrient Management

This year's program is approved for six hours of CLE credit in Alabama, Mississippi, and Tennessee, including one hour of ethics. Further, it has been submitted for CLE credit in Arkansas and for real estate continuing education in Arkansas.

The conference kicks off Thursday, April 21, with a “BBQ & Beer” reception at Memphis' famous Rendezvous barbecue restaurant. 

To register for the conference, please click here. 

Court rules on agency interpretation of statutes regarding incidental take

Posted February 16, 2016

 

A U.S. District Court in Puerto Rico has determined that the Endangered Species Act does not require agencies to monitor incidental take in every location where take occurs. Critically, the court concluded that it can only interfere with an agency’s interpretation of a statute if that interpretation is unreasonable.

In Center for Biological Diversity v. National Marine Fisheries Service (NFMS), plaintiffs challenged a recent NFMS Biological Opinion concluding that the incidental take on elkhorn and staghorn coral, resulting from continued fishing levels for parrotfish and surgeonfish, would not jeopardize their existence or impact their habitat in the U.S. Caribbean. The coral are a “threatened species” under the Endangered Species Act (ESA).

The U.S. Fish & Wildlife Service issues incidental take permits to private, non-federal entities undertaking projects that might result in the take of an endangered or threatened species. Per the ESA, 'take' means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Application for incidental take permits is subject to certain requirements, including preparation of a conservation plan by permit applicants.

In this case, NMFS argued that it could use its monitoring results in St. Croix as a proxy for its take requirements in Puerto Rico and St. Thomas/St. John. Plaintiffs argued, on the other hand, that the Revised Incidental Take Statement omitting monitoring requirements in St. Thomas/St. Johns and Puerto Rico violated the Endangered Species Act.

The court found that NMFS's use of St. Croix as a proxy for the Puerto Rico and St. Thomas/St. John areas was reasonable despite plaintiffs’ contention that their method was not representative of coral populations elsewhere. The court determined that although NFMS’s decision to use St. Croix as a proxy was arbitrary, plaintiffs were unable to prove that St. Croix was an inadequate proxy for the rest of the U.S. Caribbean. Furthermore, the court found that plaintiffs did not offer legal authority supporting their theory that the Endangered Species Act requires monitoring incidental take “in every location where take occurs.”

The court also concluded that given the statutory and regulatory silence regarding the monitoring required of locations where incidental take occurs, they must defer to the agency's interpretation and may only interfere when it is unreasonable. In reaching this conclusion, the court cited Biodiversity Legal Found.v. Babbitt, 146 F.3d 1249, 1253 (10th Cir. 1998) which stated, “A challenge to an agency construction of a statutory provision must fail if, in light of Congress' ambiguity or silence, the agency's action ‘is a reasonable choice.’” 

(Image courtesy pixabay.com)

Lawmakers want to make poultry companies responsible for chicken manure in Maryland

Posted February 4, 2016

The Baltimore Sun reports that some Maryland lawmakers want to make large poultry processors responsible for the manure generated by their chickens on contract farms.

The bill, known as the Poultry Litter Requirement Act, would hold poultry companies responsible for the manure from their birds and require them to remove excess manure from their contracted farms.

Large chicken companies provide food and medication for the birds they own, but chickens are raised at contracted farms. Once the contract growers return the birds to the chicken companies, they are left with manure and bedding material they can use as fertilizer or sell.

Environmentalists contend these practices place an undue burden on farmers. Per the Star Democrat, farmers on the Eastern Shore of Maryland historically use poultry manure as fertilizer for crops, which results in excess phosphorus saturating farm lands and leeching into and running off into Chesapeake Bay waters. This contributes heavily to the estuary’s pollution problems. 

House sponsor Clarence Lam told the Star Democrat that he wanted to make sure the cleanup burden isn’t placed on small chicken growers, as “they’re often the ones being squeezed by the large integrators.”

Spokesperson Julie DeYoung of Perdue Farms, one of the state’s largest poultry integrators, told the Star Democrat,“Through our Perdue AgriRecycle organic fertilizer facility, for nearly 15 years we have been the only poultry company in the Chesapeake Bay region that provides an environmentally responsible alternative to land application. Those who claim we are putting the responsibility for poultry litter on our farmers are choosing to ignore this fact.”

The bill is backed by some Democrats in the General Assembly, but will likely be opposed by the poultry industry, which, according to the Baltimore Sun, has a powerful voice in Annapolis.  Poultry is the largest agricultural industry on the Eastern Shore, and a large part of Maryland’s economy. 

Additional info on the bill may be found here.

(photo courtesy pixabay.com)

Monsanto sues to keep glyphosate off list of carcinogens

Posted January 26, 2016

Monsanto filed a lawsuit against California's Office of Environmental Health Hazard Assessment seeking to keep a main ingredient in its Roundup herbicide off the state's list of cancer-causing chemicals.

The company filed suit last week in California's Superior Court in Fresno, attempting to prevent the state agency from adding glyphosate to a list the state keeps in accordance with state law. The lawsuit also names OEHHA's acting director, Lauren Zeise, as a defendant.

The lawsuit is the most recent effort by Monsanto to defend glyphosate and its Roundup product against claims the herbicide causes cancer.

Last September, the state agency planned to list glyphosate under Proposition 65, a state initiative enacted in 1986 to notify residents about cancer-causing chemicals. The agency says the notice is required after a World Health Organization research committee classified glyphosate as a probable human carcinogen.

In its suit, Monsanto said that numerous regulatory agencies and independent scientists have evaluated glyphosate over more than forty years of use and concluded that glyphosate does not present a carcinogenic risk to humans.

The OEHHA included glyphosate on its list of carcinogens, stating that state law requires certain substances identified by the International Agency for Research on Cancer (IARC) to be listed as cancer-causing.

Monsanto, on the other hand, claims that OEHHA previously concluded in 2007 that glyphosate is unlikely to pose a cancer hazard to humans.

A copy of the court filing can be viewed here. 

Agribusiness conference at Arkansas State University February 10

Posted January 21, 2016

Arkansas State University’s 22nd annual Agribusiness Conference will be held Wednesday, February  10. 

The conference provides information and education outreach to farmers, agribusiness professionals and educators across the Mid-South. This year’s conference focuses on the agricultural economy, environmental law and regulation, business transition planning, trade policy and the commodity market outlook. On-site registration begins at 7:45 a.m. in the Fowler Center at Arkansas State. Lunch will be served in the Convocation Center at noon. Afternoon sessions will follow and the conference concludes at 4 p.m.

The morning general session features five speakers and a panel discussion:

- Stan Miller, an attorney and partner with ILP+McChain, Miller and Nissman, will discuss succession and estate-planning issues for agribusiness owners.

- Harrison Pittman, director of the National Agricultural Law Center, will describe how the regulation of crop agriculture is evolving and discuss other environmental law issues.

- Bob Cummings, COO of the USA Rice Federation, will give an update on agricultural and trade policy and how it is impacting the rice industry.

- David Schweikhardt from Michigan State University will explain the economics and politics of the Trans-Pacific Partnership and how it will impact U.S. agriculture.

- Jason Henderson, director of Extension at Purdue University, will review the agricultural finance situation and the outlook for the farm economy.

Luncheon speaker John Phipps is a farmer and commentator on the U.S. Farm Report, America's longest-running farm television program.

Afternoon special-interest sessions include an update on Arkansas Department of Agriculture programs by the state’s Agriculture Secretary Wes Ward, three speakers on commodity market trends, and three presentations on poultry and beef industry issues.

Admission to the conference and luncheon is free, but pre-registration is encouraged. Detailed conference information and online registration is available here.

Court places hold on water rule nationwide

Posted October 12,2015

A U.S. court on Friday issued an order temporarily blocking the implementation of a federal water rule across the country, according to a Reuters article available here. The Wall Street Journal also published an article available here and The Washington Times here.

The U.S. Court of Appeals for the 6th Circuit granted a nationwide stay against the Waters of the United States (WOTUS) rule, which is intended to clarify which bodies of water are covered by the Clean Water Act. The rule was finalized by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers in May but still faces political and legal opposition.

The appellate court said that the 18 states challenging the new standards were unlikely to face immediate irreparable harm from the rule, but there was also no evidence that the nation's waters would suffer "imminent injury" if the regulation was put on hold.

The rule aims to bring smaller bodies of water at the outer edges of watersheds under the Clean Water Act and was issued jointly with the U.S. Army Corps of Engineers, according to The Wall Street Journal.

“A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing,” said the majority on a three-judge appeals court panel.

In a statement, the EPA said it respected the court’s call “for more deliberate consideration of the issues in the case”, according to The Washington Times.

“The court acknowledges that clarification of the Clean Water Act is needed and that ‘agencies conscientiously endeavored, within their technical expertise and experience, and based on reliable peer-reviewed science, to promulgate new standards to protect water quality that conform to the Supreme Court’s guidance,’ ” the EPA said.

For now, the former rules go back into effect.

Opponents welcomed the decision and said it represents a win for a variety of stakeholders who would have faced harsh new federal mandates.

“The Sixth Circuit’s order to suspend nationwide the implementation of the final WOTUS rule is a victory for all states, local governments, farmers, ranchers, and landowners,” Sen. James Inhofe, Oklahoma Republican and chairman of the Senate Environment and Public Works Committee, said in a statement.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Federal judge halts EPA's clean water rule

Posted August 28, 2015

A federal judge in North Dakota blocked the Obama administration’s waters of the U.S. (WOTUS)” rule hours before it was set to go into effect, according to a U.S. News and World Report article available here. The Wall Street Journal also published an article available here and Reuters here.

U.S. District Judge Ralph Erickson in Fargo issued a temporary injunction requested by North Dakota and 12 other states halting the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers from regulating some small streams, tributaries and wetlands under the Clean Water Act. The rule, which has prompted fierce criticism from farmers among others, was scheduled to take effect Friday.

North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, said his reading of the ruling was that it applied to all 50 states, not just the 13 that sued. However, the EPA said in a statement that it applied only to the 13 and it would be enforced beginning Friday in all other states.

The 13 states exempted for now are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The North Dakota ruling follows a separate decision on Thursday in Georgia, where a federal judge rejected a similar request by a different group of 11 states seeking to stop the EPA rule, according to The Wall Street Journal.

The EPA spokeswoman said the Army Corps and the EPA are “evaluating these orders and considering next steps in the litigation.” The agency has the option to ask a higher court to throw out the judge’s injunction.

The EPA has said the rule is necessary to clarify which waters should fall under the protection of the federal Clean Water Act of 1972 after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially streams and wetlands, should fall under federal jurisdiction.

The WOTUS rule has faced intense opposition from Republicans in Congress, farmers and energy companies. Critics claim the rule vastly expands the federal government's authority and could apply to ditches and small isolated bodies of water, according to Reuters.

The EPA and Army Corps have argued that the rule does not create new permitting requirements and only seeks to make jurisdictional determinations more predictable.

At least 10 lawsuits have been filed in federal district courts challenging the rule, with at least 27 states joining in the lawsuits. Several petitions for review have also been filed with U.S. federal appellate courts.

"This is a victory in the first skirmish, but it is only the first," North Dakota Attorney General Wayne Stenehjem in a statement. "I remain confident that the rule will be declared unlawful once all the issues have been presented."

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Ruling mandates stricter ag runoff limits

Posted August 24, 2015

A Sacramento Superior Court judge has ordered the state to write stricter controls for agriculture water runoff in Monterey, San Luis Obispo and Santa Barbara Counties, according to The Californian article available here. KCBX also published an article available here and Monterey County Weekly here.

Judge Timothy Frawley issued his decision on Aug. 10, following a May 15 hearing, resulting from 2013 lawsuit filed against the California Water Resources Control Board by five nonprofit groups and a Gonzales woman whose tap water is contaminated with ag waste.

Their concern is that pesticides were polluting water supplies. Specifically, the group contended a conditional waiver from the Central Coast Regional Water Quality Control Board didn't provide enough environmental protections, according to KCBX.

The judge in this case agrees and said new rules need to be developed to protect both surface and groundwater supplies.

Current research contends that nitrates and phosphates present in ag runoff promote the growth of blooms in the ocean that produce toxics capable of poisoning marine mammals and birds, according to The Californian.

Judge Frawley issued a peremptory writ of mandate, ordering the State Water Resources Control Board to set aside its Ag Order and reconsider the conditional waiver of waste discharge requirements and its monitoring and reporting program.

He agreed with the environmental groups that the state board’s modified waiver is “not in the public interest because there is no evidence it will lead to quantifiable improvements in water quality or arrest the continued degradation of the Central Coast region’s water.”

The state water board is still reviewing the court's decision and considering an appeal, according to spokesman Tim Moran, as stated in the Monterey County Weekly. 

Sacramento-based attorney Tess Dunham representing Western Growers and the Grower-Shipper Association on the ag waiver says an appeal is definitely on the table.

"We are disappointed with the decision," she says. "We don't believe that the judge was correct in this case. We think he got it wrong." 

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

U.S. Fish and Wildlife Service announce discontinuation of preparation of the PEA

Posted July 14, 2015

Pursuant to the National Environmental Policy Act (NEPA) and in accordance with the negotiated settlement of a lawsuit, the U.S. Fish and Wildlife Service has published a notice in the Federal Register on April 30, 2013, announcing and inviting comments on their intention to develop a draft programmatic environmental assessment (PEA) of the effects of the cultivation and use of genetically modified crops (GMCs) on certain refuges in the Southeast Region to meet wildlife management objectives.

As part of the settlement agreement, they have also agreed to discontinue cultivating and using the GMCs in the Southeast Region after the 2012 crop year and to refrain from such activities until 90 days after completion of an appropriate NEPA analysis of such activities.

On July 17, 2014, the Chief of the Service's National Wildlife Refuge System issued a memorandum announcing that the use of GMCs to meet wildlife management objectives within the National Wildlife Refuge System would be phased out and discontinued by January 2016. Accordingly, they have concluded that their NEPA process is no longer necessary and notifying the public that they are discontinuing preparation of the PEA.

For more information, the Federal Register is available here.

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

Vilsack announces $150M for drought relief in California

Posted July, 1 2015

U.S. Agriculture Secretary Tom Vilsack has announced another $150 million for California drought relief, according to a Western Farm Press article available here. Capital Press also published an article available here and San Francisco Chronicle here.

In the next two years, the USDA's Forest Service and Natural Resources Conservation Service (NRCS) along with the Interior Department, the State of California, non-profits, and private landowners will invest $130 million in the partnership, totaling a minimum investment of $210 million.

The $150 million is in addition to the $110 million in drought relief for the West that officials announced on June 12 and the $190 million the federal government had already devoted to drought relief earlier this year. This investment includes $130 million for forest thinning and other projects in the woods and $13.7 million for struggling ranchers, according to Capital Press.

The money for livestock producers is available through NRCS’ Environmental Quality Incentives Program and includes short-term assistance as well as help with long-term solutions such as improving irrigation systems, Vilsack said.

“I think producers want to know that someone’s paying attention and understands the hurt that’s being felt throughout the countryside” because of the drought, said Vilsack. “I think they appreciate the fact that we know the link between our forests and water quality and conservation.”

The headwaters help provide drinking water to 25 million Californians and irrigate farms in the Sacramento and San Joaquin valleys, according to the SF Chronicle.

Vilsack told reporters on a conference call that protecting national forests are key to preserving water resources. Expanding meadows and cutting down trees helps clear the path for snow to melt into streams and rivers, eventually making its way into farmland and reservoirs. Restoration can also ensure enough space for snow to stay on trees and meadows to also melt slowly into groundwater basins.

Approximately $14 million will help ranchers get water for cattle providing access to more water-efficient wells and pipelines, and $6 million for programs helping rural communities gain access to drinking water.

For more information on conservation programs, please visit the National Agricultural Law Center’s website here.

Sixteen states sue the EPA

Posted June 30, 2014

Sixteen states have filed lawsuits against the U.S. Environmental Protection Agency (EPA), contesting a rule that expands the definition of bodies of water subject to federal pollution controls, according to a Reuters article available here. Feedstuffs also published an article available here and Brownfield Ag News here.

The actions are a coordinated challenge to an EPA rule issued on May 27 that defines the jurisdiction of the EPA and the U.S. Army Corps of Engineers over rivers, streams, lakes or marshes, which was meant to clarify the waters protected by the anti-pollution provisions of the 1972 Clean Water Act (CWA).

There are two lawsuits, one was filed in the United States District Court for the District of North Dakota and the other in Texas. The states joining the lawsuit are Alaska, Arizona, Arkansas, Colorado, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Texas and Wyoming, according to Feedstuffs.

In the lawsuit, the states contend the new definition of "Waters of the United States" violates provisions of the CWA, the National Environmental Policy Act, and the United States Constitution. Missouri attorney general Chris Koster said that without such a ruling, the law would take effect 60 days after the rule was published.   

The states assert that the EPA's rule wrongly broadens federal authority by placing a majority of water and land resources management in the hands of the federal government.

Missouri Attorney General Chris Koster, who joined the suit, says the official definition by EPA “extends the agencies’ regulation far beyond what a reasonable person considers to be a waterway,” according to Brownfield Ag News,

Missouri Farm Bureau President Blake Hurst says he’s pleased Missouri’s and other Attorney’s General have taken this action, ”Which is a pretty good indication of how upset people are about the rule. There is a great deal of hope out in farm country that he’ll be successful with this court case.”

Congress and the courts have repeatedly affirmed the states have primary responsibility for the protection of intrastate waters and land management, according to Koster. In the lawsuit, the states argue that the burdens created by the new EPA requirements on waters and lands are harmful to the states and will negatively affect farmers, developers and landowners, according to Feedstuffs.

The new EPA rule would extend federal jurisdiction over tributaries that may be natural, man-altered or man-made, including canals and ditches, said the complaint filed in Texas, according to Reuters.

The rule fails to account for duration of water flow, suggesting federal agencies can assert jurisdiction over “dry ponds, ephemeral streams, intermittent channels and even ditches,” the Texas lawsuit stated.

One case is State of Texas v. U.S. Environmental Protection Agency, in U.S. Southern District of Texas, No. 15-cv-162. The other is North Dakota v. U.S. EPA, No. 15-59 in Federal District of North Dakota.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.