Federal court to consider regulation of drone airspace

Posted January 13, 2016

The Federal Aviation Administration has ordered that all drones be registered with the federal government by February of this year and is imposing major fines on operators flying near restricted spaces. In addition, based on a lawsuit filed last week in a Kentucky federal court, the FAA may receive authority to regulate precisely where it is legal to fly a drone, even over one’s own property.

Last July, William Merideth shot neighbor David Boggs’ drone out of the sky as it flew 200 feet above his property. Merideth was cleared of criminal charges for the incident in October, but Boggs is asking the court to make a legal determination as to whether his drone’s July 2015 flight constituted trespass. In the case, plaintiff David Boggs also wants the court to rule that he is entitled to damages of $1,500 for his destroyed drone.

"The United States Government has exclusive sovereignty over airspace of the United States pursuant to 49 U.S.C.A. § 40103," Boggs' lawyer, James Mackler, wrote in the civil complaint. "The airspace, therefore, is not subject to private ownership nor can the flight of an aircraft within the navigable airspace of the United States constitute a trespass."

The shooter, William Merideth, claimed that the drone had flown over his property in July 2015 and he shot it down, saying that he had previously spotted similar drones above or very close to his home in Hillview, Ky.  American law is unclear as to what constitutes aerial trespass or whether such a concept is legally recognized.

Boggs’ lawyer hopes the court rules broadly in this case and finds that Boggs’ flight of his DJI Phantom 3 did not constitute a trespass and that his client is indeed owed money for the destruction of the drone.

For his part, defendant Merideth is unapologetic, marketing T-shirts featuring the hashtag #droneslayer and posting a banner on Facebook reading: “Not only did I do it, but I meant to do it, and I'd do it again.”

A copy of the court filing may be viewed here.

WI Supreme Court Overturned Manure Pollution Ruling

Posted January 6, 2015

The Wisconsin Supreme Court reversed an appeals court ruling that ruled a Washington County farm couple was not responsible for manure run-off, according to a Wisconsin Ag Connection article available here. WHBL also published an article available here and Court Ruling News here.

In 2011, the Department of Natural Resources notified Robert and Jane Falk that manure spread from their fields had contaminated their neighbors’ well water. The Falks filed a claim with Wilson Mutual Insurance, but the company would not cover the damages, because their policy excluded coverage for damage caused by pollutants, such as animal waste.

Falk and the circuit judge agreed the insurance company should cover the damages, but the 2nd District Appeals Court believed otherwise. It said manure is a nutrient when it's spread on fields, and therefore Falk's claim of pollution did not apply, according to WHBL.

Last week the Supreme Court ruled that Wilson Mutual is required to pay up to $500 for each polluted well.

"We hold that the pollution exclusion clause in the farm insurance policy issued to the Falk's unambiguously excludes coverage for well contamination caused by the seepage of cow manure," wrote Justice Michael Gableman. "While when safely and beneficially applied, manure may be universally present, desirable, and generally harmless substance, this ignores the occurrence for which the Falks seek coverage. A reasonable insured would not view manure as universally present and generally harmless when present in a well," according to Wisconsin Ag Connection.

The Falks are responsible for any of the damages exceeding $500 per well.

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

Texas Family Wins $3 Million Verdict for Fracking Damages

Posted April 30, 2014

A Texas family has won a $2.925 million judgment against Aruba Petroleum over damages to their health and property caused by fracking operations near their 40-acre ranch, according to an article by MSNBC available here.

Attorneys for the plaintiffs said the suit was the first fracking trial in the United States.  The jury verdict included “$2 million for physical pain and suffering, plus money for property and market value loss, future pain and suffering and mental anguish,” according to a report by The Hill available here. 

Fracking involves “pumping water, sand and chemicals into the ground at high pressure to break rock formations and release oil and natural gas.”

“I’m really proud of the family that went through what they went through and said, “I’m not going to take it anymore,” attorney David Matthews said.

Aruba disagreed, saying, “We contend the plaintiffs were neither harmed by the presence of our drilling operations nor was the value of their property diminished because of our natural gas development,” Aruba said in a statement.  “We presented thorough and expert testimony from recognized toxicologists and medical professionals, as well as local real estate professionals, to help the jury make an informed decision.”

CNN Reports that Lisa Parr’s symptoms began with migraine headaches, nausea and dizziness.  “By 2009, I was having a multitude of problems…My central nervous system was messed up.  I couldn't hear and my vision was messed up.  My entire body would shake inside.  I was vomiting white foam in the mornings.”

Bob Parr and the couple’s 11-year-old daughter also became ill and suffered a myriad of symptoms including nosebleeds, vision problems, nausea, rashes, and blood pressure issues.”

The jury found that Aruba’s poorly managed operation and lack of emission controls created a “private nuisance” to the Parrs by producing harmful pollution. 

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

May 16: Mid-South Agricultural & Environmental Law Conference

Posted April 2, 2014

The Arkansas Bar Association, the National Agricultural Law Center, and the National Sea Grant Law Center will host the first annual Mid-South Agricultural & Environmental Law Conference on May 16, 2014.

Come and learn from some of the top agricultural and environmental law experts in the country with a mix of solo speakers and panels. 

The conference offers 6.0 hours of CLE credit, including 1.0 Ethics hour.  The complete schedule is available here.

Location: Harrah’s Casino, 13615 Old Highway North, Tunica, MS.  For hotel reservations, please call 800-223-7277.

Member Cost: Online by 5/9 $270, Mailed/Faxed by 5/9 $290, Onsite after 5/9 $305

Non-Member Cost: $340
Student Cost: $35

Registration information is available here.

Topics and speaker include:

“Litigating Federal Crop Insurance Disputes: Overview and Discussion of Important Practical Pointers and Pitfalls”

J. Grant Ballard, Banks Law Firm PLLC

“Agricultural Leases for Mid-South Farmers, Lenders, and Landlords”

William C. Bridgforth, Ramsey, Bridgforth, Robinson and Raley LLP

James Calman McCastlain, Dover Dixon & Horne PLLC

J. Travis Baxter, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

“The Gulf Dead Zone and Gulf Restoration v. EPA: What it Means for Agriculture in the Mississippi River Basin”

John Milner, Brunini, Grantham, Grower & Hewes, PLLC

“Hot Topics in Invasive Species Management: Lacey Act Reform, Biofuels, and More”

Stephanie Showalter Otts, Director, National Sea Grant Law Center

“Food Security: Technology and Ethics”

Drew L. Kershen, Earl Sneed Centennial Professor of Law, The University of Oklahoma College of Law

“Nuisance Lawsuits and Right-to-Farm Laws for Mid-South Agriculture and Aquaculture”

Rusty Rumley, Senior Staff Attorney, National Agricultural Law Center

KY Bill Would Allow Landowners to Control Crop-Eating Wildlife

Posted March 12, 2014

The Kentucky legislature is considering a bill that would give landowners or their designees the authority to kill or trap any wildlife causing damage to their crops or personal property, according to an article by Kentucky Public Radio available here.

The bill, HB 448, was recently approved by the House Agriculture and Small Business Committee.  The bill also requires on-site disposal and allows the state Department of Fish and Wildlife Resources to promulgate regulations.

Jeff Harper, with the Kentucky Farm Bureau, said, “The one thing that we wanted to be very careful of was not to do anything to harm the sport of hunting or anything to harm wildlife, but at the same time, [the animals] were causing crop loss.”

State Division of Wildlife Director Karen Alexy Waldrop says management of the female deer population is a long term way to help remedy crop loss problems.  She says “her agency wants to work with landowners and show them how to decrease the population on their properties.” 

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

Three Injured in Tractor Crash at Farm’s Fall Festivities

Posted October 18, 2013

Three people were injured after a tractor rolled into at ditch at a Bedford County, Virginia farm, according to an article by The Roanoke Times, available here.

Layman Family Farms opened its facilities to the public as part of its fall festivities in which visitors can pick pumpkins, go on hayrides, and explore a corn maze. 

The injuries occurred when six people were on a flatbed trailer hitched to a tractor which rolled down a hill into a creek on the farm.  Rescue crews were called to the farm around 10:30 p.m. on Friday. Montvale fire chief, Scott Hawkins, said two people fell off the trailer and were pinned underneath it in the water.  Two people were airlifted to a trauma center at a nearby hospital and one person was transported by ambulance, according to a WSET article, available here.  WSLS 10 reports that the farm reopened on Saturday.

Agritourism is a field that is growing in popularity as producers try to diversify and increase profits.  By combining agriculture and tourism, new sources of revenue are available, but the potential for problems and legal complications can arise.  A webinar presentation on “Landowners’ Legal Liability Concerns” by Rusty Rumley, National Agricultural Law Center Staff Attorney, is available here.

U.S. Supreme Court Holds Farmer's Effort to Replicate Roundup Ready Soybeans is Patent Infrigement

Posted:  May 13, 2013

On Monday, May 13, the United States Supreme Court issued its ruling in Bowman v. Monsanto Co., et al., decision that will reverberate throughout the continued debate over the role of genetically modified organisms in agriculture.  The Court ruled unanimously in favor of Monsanto Company, holding that patent exhaustion does not permit Indiana farmer Vernon Bowman and other farmers to reproduce patented seeds through planting and harvesting without the patent holder’s permission. A copy of the ten page slip opinion is available here.

According to a USA Today article covering this story, "[t]he court ruled unanimously that an Indiana farmer violated Monsanto's patent on genetically modified soybeans when he culled some from a grain elevator and used them to replant his own crop in future years."

In its decision, Justice Elena Kegan wrote that:

. . . [I]f simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention. The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted. Hence our repeated insistence that exhaustion applies only to the particular item sold, and not to reproductions.

While the decision will have far-reaching implications, Justice Kegan indicated that the decision was limited and not intended to address every situation that involves a self-replicating product.  Along these lines, the decision concludes with the following:

Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product. We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose. . . . .We need not address here whether or how the doctrine of patent exhaustion would apply in such circumstances. In the case at hand, Bowman planted Monsanto’s patented soybeans solely to make and market replicas of them, thus depriving the company of the reward patent law provides for the sale of each article. Patent exhaustion provides no haven for that conduct. We accordingly affirm the judgment of the Court of Appeals for the Federal Circuit.

Three States Pass New "Agritourism" Liability Protection Laws

As the legislative sessions for many states are wrapping up, three states have recently passed agritourism statutes designed to reduce help reduce some of the legal liability surrounding so-called “inherent risks” of agritourism operations.  Oklahoma, Idaho and Florida have each passed laws that will come in to effect in the coming months.  The Florida and Ohio laws are set to become law on July 1, 2013.  The Oklahoma law is set to be effective on November 1.  Inherent risks are typically defined to include natural conditions of the land, water, wild and domestic animals, farm buildings, equipment, and other risks associated with farming, ranching or forestry.  Both statutes are written to cover negligent acts by other participants on the farm.

One interesting difference between the three new agritourism laws is found in their exceptions to the liability protection.  The Florida statute states that gross negligence on the part of the agritourism operators will disallow any protection under the new law.  However, the Idaho and Oklahoma statutes will disallow protection if the operator or their employees commit any negligent act or omission. 

Many states have enacted similar legislation, and there are a number of legal issues associated with agritourism.  For a recently updated list of states' agritourism laws, visit the National Agricultural Law Center's  State Compilation of Agritourism Statutes. In addition, more legal research and information pertaining to Agritourism is available on the National Agricultural Law Center Agritourism Reading Room.   

For questions regarding the legal issues in agritourism, please contact Staff Attorney Rusty Rumley at rrumley@uark.edu.  

U.S. Agritourism Statutes

Agritourism is one of the fastest growing agricultural endeavors in the country.  As part of an ongoing focus on agritourism operations the Center has updated their collection of state agritourism statutes.  This includes adding states that have recently passed these statutes and revising states that have amended their statutes during the past couple of years.  

Like many state laws, these statutes tend to vary from state to state which makes it important to review each statute individually.  Typically, these statutes reduce the legal duty of agritourism operators to participants that are injured by some "inherent risk" associated with the agricultural operation. The effectiveness of these statutes vary considerably and so do the topics that the statutes address.  For more information please visit our Agritourism Reading Room or our revised Agritourism State Compilation.

For questions on legal issues involving agritourism please contact Staff Attorney Rusty Rumley at rrumley@uark.edu.

Center Hosting Free Webinar July 24, "The Clean Water, EPA Regulation, and the Future of Farming"

On July 24, 2012 from 12-1 Eastern, the National Agricultural Law Center, a unit of the University of Arkansas System Division of Agriculture, will provide a free webinar titled, "The Clean Water Act, EPA Regulation, and the Future of Farming."  Full details, including sign-on instructions are available on the Center website here.  The presentation will focus on Gulf Restoration Network, et al. v. Jackson, et al., a lawsuit filed to force the Environmental Protection Agency to establish numeric nutrient criteria in the Mississippi River Basin. 

Gulf Restoration was filed on March 13, 2012 by Sierra Club and other groups against the EPA.  The outcome of the case is significant for many stakeholders, specifically including farmers, municipalities, and others that operate in throughout the Mississippi River Basin and beyond.  In May of 2012, the American Farm Bureau Federation, the National Pork Producers Council, more than a dozen state farm bureaus, and other agricultural advocacy organizations filed a motion seeking to intervene in the lawsuit.  For a news item about the lawsuit and subsequent motions to intervene, click here.

The webinar is provided as part of a legal education series made by possible by a private gift provided by the Banks Law Firm, PLLC, a Little Rock, Arkansas-based firm that represents agricultural producers.  The gift was provided to support the educational series and to help publicize the 25th Anniversary of the National Agricultural Law Center, the nation's leading source of agricultural and food law research and information. 

While the webinar will focus on the Gulf Restoration Network case and its importance to farmers and others in the Mississippi River Basin and beyond, it will also briefly touch on related recent issues such as EPA fly overs. 

For questions regarding the webinar, please contact Center Director Harrison Pittman at hmpittm@uark.edu. 

This article originally posted on July 11, 2012 and updated July 21.

Wind Energy Leasing Workshop To be Held for Oklahoma Landowners

The Oklahoma State UniversityCooperative Extension Service and the National Agricultural Law
Center at the University of Arkansas System Division of Agriculture are hosting a Wind Energy Leasing Program Workshop on July 14.  The workshop will be held the High Plains Technology Center in Woodward, Oklahoma.    

The workshop is free, and participants are encouraged to pre-register before July 6 by calling the OSU Cooperative Extension office in Woodward at 580-254-3391.  Registration begins at 8 a.m. and the workshop will conclude at 4:30 p.m.  Lunch will be provided to workshop participants by the Oklahoma Gas & Electric Corporation. 

For additional information about the workshop, click here. 

The workshop is provided with grant funds provided through the Southern Risk Management Education Center under a grant titled, “Wind Leasing:  Understanding and Limiting Legal Liability.”

The workshop will be held the High Plains Technology Center in Woodward, Oklahoma.   The workshop is geared toward landowners who may be approached for wind energy development, said Shannon Ferrell, assistant professor of agricultural law at Oklahoma State University.

"We want to provide landowners an opportunity to learn the basics of the electrical industry and how wind energy fits into that,” Ferrell said. “We also want them to learn what it takes for the landowners and the developers to have a successful wind energy project and to help landowners make informed decisions when entering into a wind energy lease.”

Other industry professionals will be on hand at the workshop to cover topics such as the impact of wind energy farms on wildlife; how wind farms affect the community in the areas of aesthetics, noise, tax revenue and impact on roads and highways; and the basics of wind energy and the grid.

This article posted July 5, 2012.

Upcoming Workshop on Legal Issues in Forestry

The National Agricultural Law Center, along with the University of Arkansas Division of Agriculture Cooperative Extension Service and the LSU AgCenter are hosting a series of three workshops dealing with legal, marketing, and business issues that affect forest landowners. Topics discussed at the conference will include wildlife management, insurance, leasing contracts, landowner liability, and agritourism.

The third and final workshop will be held in Monticello, Arkansas on April 13 at the Drew County Farm Bureau Building (656 Barkada Road). The April 13 workshop qualifies for Continuing Education for Foresters and Loggers.

Workshop presenters will include:

• Dr. Tamara Walkingstick, Arkansas Forest Resources Center Associate Center Director;
• Dr. Becky McPeake, Associate Professor and Extension Specialist, Arkansas Cooperative Extension Service;
• Dora Ann Hatch, State-wide Coordinator for Agritourism, LSU AgCenter;
• Rusty Rumley, Staff Attorney, National Agricultural Law Center; and
• Elizabeth Rumley, Staff Attorney, National Agricultural Law Center.

The workshops will be held from 9am – 4pm, with registration beginning at 8:30am. A registration fee of $20 per person/ $30 per couple will cover lunch. Payment is not due until the morning of the workshop.

For more information on any aspect of the conference or to pre-register, contact Rusty Rumley at (479) 575-2636, or via email at rrumley@uark.edu.

The workshops are conducted pursuant to a grant titled, “Managing Legal Risk for Alternative Uses of Forestland”, awarded through the Southern Risk Management Education Center.

Upcoming March 16 Workshop for Foresters and Loggers

The National Agricultural Law Center, along with the University of Arkansas Division of Agriculture Cooperative Extension Service and the LSU AgCenter are hosting a series of three workshops dealing with legal, marketing, and business issues that affect forest landowners. Topics discussed at the conference will include wildlife management, insurance, leasing contracts, landowner liability, and agritourism.

The next workshop will be held in Shreveport, Louisiana on Friday, March 16, 2012. The third and final workshop will be held in Monticello, Arkansas on April 13.

The March 16 workshop qualifies for Continuing Education for Foresters and Loggers.

Workshop presenters will include:

• Dr. Tamara Walkingstick, Arkansas Forest Resources Center Associate Center
Director;
• Dr. Becky McPeake, Associate Professor and Extension Specialist, Arkansas
Cooperative Extension Service;
• Dora Ann Hatch, State-wide Coordinator for Agritourism, LSU AgCenter;
• Rusty Rumley, Staff Attorney, National Agricultural Law Center; and
• Elizabeth Rumley, Staff Attorney, National Agricultural Law Center.
The workshops will be held from 9am – 4pm, with registration beginning at 8:30am. A registration fee of $20 per person/ $30 per couple will cover lunch. Payment is not due until the morning of the
workshop.

For more information on any aspect of the conference or to pre-register, contact Rusty Rumley at (479) 575-2636, or via email at rrumley@uark.edu.

The workshops are conducted pursuant to a grant titled, “Managing Legal Risk for Alternative Uses of Forestland”, awarded through the Southern Risk Management Education Center.

Upcoming Webinars on Legal Issues in Recreational Land Use

On Thursday, March 1, 2012 at 11:30 a.m. (Central) a free, producer-oriented webinar will be offered that focuses on landowner liability issues associated with the recreational use of land. The webinar is part of a multi-workshop series of online workshops conducted under the Southern Risk Management Education Center project titled “Using Alternative Enterprises and Recreational Development to Bolster Farm Incomes.” The workshops are conducted under the leadership of the Natural Resource Enterprises Program at Mississippi State University in partnership with the National Agricultural Law Center at the University of Arkansas System Division of Agriculture.

In addition, other partners are Auburn University, Clemson University, and the the University of Tennessee.

The March 1 workshop will overview the basics of premises liability issues as well as address the application of recreational use statutes and the agritourism liability laws. The next webinar, which will address business organization issues, will be held on March 8 at 11:30 a.m.

The broadcast will begin at 11:30 a.m. (Central). To join the webinar, simply click on the following link and follow the user-friendly instructions, http://msues.adobeconnect.com/wildlife.

It is recommended that participants sign on 15 minutes prior to the beginning of the webinar.

Texas Senate Addresses Water Rights Bill

The Texas Senate Natural Resources Committee has authorized a measure to recognize groundwater ownership interest for a landowner in the water beneath his property.

The bill sets forth a vested ownership interest that will allow a landowner to produce groundwater from below the surface but does not entitle him or her to capture a specific amount of that groundwater. New language in the bill clarifies that state law still affords groundwater conservation districts the authority to regulate groundwater.

Senators worked with the Texas Southwestern Cattle Raisers Association, the Texas Farm Bureau, and other interested organizations throughout the state. The proposed bill, having been approved by the committee, will now be introduced to the full Senate for their deliberation.

To read TX SB 332, click here.

USDA Announces Grants for Voluntary Public Access and Habitat Incentive Program

USDA announced yesterday that "17 state public access programs will receive grants totaling $11.76 million through the Voluntary Public Access and Habitat Incentive Program (VPA-HIP)" according to a news release.

The Voluntary Public Access and Habitat Incentive Program "incentivizes owners and operators of privately held farm, ranch, and forest land to voluntarily give hunters, fishermen, hikers, bird watchers and other recreational outdoor enthusiasts access to land for their enjoyment."  Funding was issued through a competitive process and states may use the funding for "existing public access programs, to create new public access programs, or to provide incentives to improve wildlife habitat on enrolled lands."  Additionally, the funds may be used "to provide rental payments and other incentives, such as technical or conservation services to landowners who, in return, provide the public access to their land."

"FSA will open the grant application period for fiscal year 2011 funding after publication of a final rule."

This program may raise liability issues for those farmers and ranchers who apply to participate in the program and allow the public on their lands.  Recreation use statutes in some states may protect landowners from liability when payment is received, but others may not.  Some states distinguish between the type of payment or amount of payment received.  Some states may also apply their recreational use statutes to agritourism activities.

For more information, a collection of states' recreational use statutes is available here.  A collection of states' agritourism statutes is available here.

To read the USDA News Release, click here.

Posted: 10/05/2010

Russian farmer plants landmines to fend off trespassers

It’s not every day that you see a story like this. BBC News online is reporting that a Russian farmer has been convicted for “the unlawful construction and storage of weapons [.]” The weapons in question were homemade land mines put in a private garden to protect a potato crop from vandals and “thieves”. For this crime the potato farmer, Alexander Skopintsev, 73, “from the eastern region of Primorye near China’s border” received a two-and-a-half year suspended sentence.

The BBC reports that ‘“Skopintsev testified that he had prepared the explosive devices to protect his garden against thieves,’ regional prosecutors said in a statement reported by RIA-Novosti news agency.” According to RIA-Novosti, Skopintsev made three trip-wire mines “armed with gunpowder and salt to protect his crop (while the BBC described Skopintsev as having a garden, USA Today describes Skopintsev as having a farm—neither published pictures of his property).

Neighbor Stanislav Manoilenko “injured his lip from a blast of salt in the face [according to RIA-Novosti] while walking down a path between adjoining fields [,]” reports the USA Today.

To read the BBC report, click here.

To read the USA Today report, click here.

Posted: 02/12/10

Update: Farmer recovers legal fees

This blog has said it, the New York Times has said it, and now the New York State government really knows it . . . you just don’t mess with Salim “Sandy” Lewis and his farm.

According to Danny Hakim’s article for the New York Times online, yesterday a state judge ruled that the Adirondack Park Agency (APA) will have to pay the legal fees and expenses of Mr. Lewis, a former Wall Street executive who currently operates the one of the largest organic farms in New York State.

Mr. Lewis claims the case against him cost over $200,000 in legal fees and expenses to defend his right to build farm worker houses on his property, which is located in the Adirondack Park. Mr. Lewis built the houses without obtaining a permit from the APA, which he argued, successfully, that he didn’t need. Mr. Lewis did have a permit from the town of Essex to build the houses.

In July a state appellate court affirmed a lower court’s ruling in favor of the Lewis farm, essentially rejecting the argument that the APA had jurisdiction over the housing. The ruling was 5-0. As Hakim report’s, acting state Supreme Court Justice Richard B. Meyer set the hearing date on the legal fees for February 26, 2010.

To read the Hakim article click here.
To read an August National Agricultural & Food Law and Policy Blog Post on the case click here.
To read a July post on the case by this blog click here.

Posted: 02/04/10

Eminent Domain Case Goes to High Court

Steven Geoffrey Gieseler is reporting today for the American Thinker online that the United States Supreme Court has granted certiorari to a case coming from the 11th Circuit Court of Appeals that deals with the nation’s eminent domain laws.

The Fifth Amendment to the United States Constitution says, in part, “nor shall private property be taken for public use, without just compensation.” (U.S.Const. amend. V.) Simply explained, the government cannot take your property for public use without compensating you for the property’s value. Of course, ever since the Kelo v. City of New London decision, the definition of “public use” is, in the opinion of some, broad in that increases in public revenues from a private “taking” project can be consider “for public use.” (545 U.S. 469 (2205)).

Now the United States Supreme Court has granted certiorari to the appeal of the 11th Circuit Court of Appeals decision that holds that a government regulation devaluing a property that would affect the “just compensation” of the property is allowable so long as the specific purpose of the regulation was not to depress the property’s value or cause it to be condemned. In upholding the district court opinion, the court held that if the court determines the regulation was not used improperly then there is no reason to present evidence of the contrary to whoever is determining the “just compensation.”

The makeup of the Supreme Court has changed since the Kelo decision, so how the Court comes down in this case may be an indicator of how it will approach similar property cases in the future.

To read the 11th Circuit Court of Appeals opinion click here.
For background on the case provided by the American Thinker, click here.

Posted: 12/28/09

Farmers Lose Hemp Farm Appeal

Two North Dakota farmers desired to grow hemp within the state without having to worry about federal prosecution. On Tuesday a federal appeals court upheld a district court decision to throw out the farmers’ lawsuit in which they sought to have the Drug Enforcement Administration grant permission to grow the crop.

The two farmers, Wayne Hauge and David Monson, received North Dakota’s first state licenses to grow industrial hemp in 2007; however, the farmers still needed federal permission to avoid arrest. The two never received Drug Enforcement Administration (DEA) approval, so the farmers sued the DEA for a little piece of mind—to know they can farm the hemp without getting arrested by federal officials.

As James MacPherson reports for the Associated Press, the case has been ongoing before the 8th U.S. Circuit Court of Appeals for over a year since U.S. District Court Judge Daniel Hovland dismissed the suit.

What to do next has the farmers at a bit of a conundrum. Judge Hovland suggested the farmers lobby Congress to change the federal drug laws so that hemp is not considered a controlled substance though it contains trace amounts of tetrahydrocannabinol (THC), which is the chemical found in marijuana. The farmers, one of whom is a Republican state legislature, can read the tea leaves in Washington and know that it is unlikely Congress would review hemp’s status as a controlled substance any time soon. So, they are also hopeful that the Justice Department will somehow intervene in the issue.

As the AP reports, hemp can be used to make paper, lotions, rope, clothes, and other fibrous-dependent products. It’s considered both a strong and durable fiber. North Dakota was the first state to issue licenses for farmers to grow industrial hemp.

Hemp is grown legally just north of North Dakota, in Canada.

To read the Associated Press article click here.

Posted: 12/23/09