Thursday, April 19, 2018

Agricultural Law Weekly Review—April 19, 2018


Written by: M. Sean High—Staff Attorney
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Checkoff Programs: Court Rules Beef Checkoff May Conflict with First Amendment
On April 9, 2018, the U.S. Court of Appeals for the Ninth Circuit held that a lower court “did not abuse its discretion” when it determined that the U.S. Department of Agriculture's (USDA) beef checkoff program likely violated the First Amendment rights of the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) (R-CALF USA  v Perdue, No. 17-35669, D.C. No. 4:16-cv-00041-BMM).  As a result, the court upheld a preliminary injunction preventing USDA from collecting USDA’s Beef Checkoff program funds from Montana ranchers without the ranchers’ consent.  The court’s ruling only applies to Montana ranchers.

Biosecurity: USDA Proposes Changes to National Poultry Improvement Plan and Auxiliary Provisions
On April 9, 2018, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published notice of a proposed rule amending regulations regarding the National Poultry Improvement Plan (NPIP) (83 FR 15082). According to APHIS, the purpose of NPIP is to prevent and control poultry diseases through a variety of voluntary programs.  To further this purpose, the proposed rule would provide updates and clarification to several program provisions including “those concerning NPIP participation, voting requirements, testing procedures, and standards.” Comments on the proposed rule must be submitted by May 9, 2018.

Organic Agriculture: USDA Reopens Comment Period for Proposed Changes to the National List of Allowed and Prohibited Substances
On April 13, 2018, the U.S. Department of Agriculture Agriculture Marketing Service published notice that the agency is reopening the comment period for proposed changes to the National List of Allowed and Prohibited Substances (83 FR 16010).  Under the proposed rule, the agency would: (1) alter use restrictions for seventeen substances currently allowed for organic production or handling on the National List; (2) add sixteen new substances on the National List to be allowed in organic production or handling; and (3) remove ivermectin as an allowed parasiticide for use in organic livestock production.  Initially, the comment period on the proposed changes closed on March 19, 2018.  The new comment period, which is intended to provide more time to develop comments on the proposed rule, is scheduled to close May 14, 2018.

Food Safety: E. coli Outbreak Linked to Chopped Romaine Lettuce
On April 13, 2018, the U.S. Food and Drug Administration (FDA)  and the Centers for Disease Control and Prevention (CDC) announced that chopped romaine lettuce sourced in Yuma, Arizona may be the cause of a multistate outbreak of E. coli O157:H7.  According to CDC, while 35 people in 11 states have become ill from chopped romaine, no illnesses have been reported from consumption of whole heads or hearts of romaine.  Traceback investigations are currently being conducted to determine the source of the contamination.

International Trade: U.S. Pork Permitted into Argentina
On April 13, 2018, the U.S. Department of Agriculture (USDA) and the Office of the U.S. Trade Representative (USTR) announced that requirements have been finalized to allow U.S. pork to enter Argentina for the first time since 1992.  The announcement follows terms originally negotiated between the White House and Argentina in August 2017.  As a result of the finalization of the technical requirements, U.S. exports of pork to Argentina may once again resume.  USDA and USTR anticipate that the reopening of Argentina will result in an additional $10-million annual market for U.S. pork producers.

Farmland Preservation: Pennsylvania Adds 27 Farms to Farmland Preservation Program
On April 16, 2018, the Pennsylvania Department of Agriculture (PDA) announced that an additional 27 farms, totaling 2,793 acres, have been preserved under the Commonwealth’s Farmland Preservation Program.  The farms are located in the following counties: Berks, Bucks, Centre, Chester, Erie, Juniata, Lancaster, Lawrence, Lebanon, Lehigh, Luzerne, Mercer, Northampton, Susquehanna, and York.  According to PDA, with the addition of the 27 recently preserved farms, Pennsylvania’s Farmland Preservation Program has purchased permanent easements on 5,297 farms totaling 549,728 acres.

National Ag Law Experts:


Pennsylvania Case Law:


Pennsylvania Legislation:
Agricultural and Rural Affairs (S)
  • HB 2034 Legislation to include the chemical element molybdenum in the labeling requirements for agricultural liming materials (referred to committee April 11, 2018) 


Pennsylvania Actions and Notices:
Department of Environmental Protection


AgLaw HotLinks:


Stay Informed:


Thursday, April 12, 2018

Agricultural Law Weekly Review—April 12, 2018


Written by: M. Sean High—Staff Attorney
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Antitrust: U.S. Approves Bayer Monsanto Merger
On April 11, 2018, Fortune reported that the U.S. Justice Department has approved Bayer AG’s $62.5 billion acquisition of Monsanto Co.  The anticipated merger will result in a company that controls over one quarter of the world’s seed and pesticide market.  To gain U.S. approval, Fortune stated that Bayer will sell certain assets to its German competitor BASF.  These assets “include the company’s soybean and cottonseed businesses as well as its glufosinate weedkiller, which is a direct competitor to Roundup, a central element of Monsanto’s business.”

Right to Farm Laws: Alaska Supreme Court Rules Storage Lagoons not protected Under Right to Farm Law
On April 6, 2018, the Supreme Court of Alaska held that a farmer’s septage storage lagoons were not protected by the state’s Right to Farm Act (RTFA) (Riddle v. Lanser, Supreme Court No. 7235 – April 6, 2018).  Under Alaska’s RTFA, “an agricultural facility or an agricultural operation at an agricultural facility used for commercial purposes cannot become a nuisance based on changes in surroundings if it was not a nuisance when it started” (AS 09.45.235(a)).  The court held that the RTFA did not apply because the farmer’s septage lagoons were not used as part of the farmer’s agricultural operation.  Instead, the lagoons were used to store septage from the farmer’s separate septic pumping and storing business.  The court held that even if the storage lagoons eventually became part of the agricultural operation, the lagoons were not used, or intended to be used, “in any farming capacity until after the lagoons had already become a nuisance.”

Agricultural Labor: ICE Raids Tennessee Meat-Processing Facility
On April 6, 2018, the Washington Post reported that Immigration and Customs Enforcement (ICE) officials arrested 97 immigrants at a meat-processing facility in Tennessee.  According to an ICE spokesperson, all 97 immigrants were arrested under suspicion of being in the country illegally.  The report stated that federal agents began investigating the meat-processing facility after bank employees noticed the company making large weekly withdraws of cash.  Accordingly, since 2008, the meat-processing facility’s total weekly cash withdraws have exceeded $25 million.  

Dairy Policy: Agriculture Department Asks Pennsylvania Milk Marketing Board to Consider Reforms
On April 5, 2018, the Pennsylvania Department of Agriculture (PDA) announced it has requested that the Pennsylvania Milk Marketing Board consider solutions to challenges currently faced by the Commonwealth’s dairy industry.  According to PDA, over the last two years, Pennsylvania dairy producers have experienced declining milk prices due to “sustained pressures on domestic and international markets, declining fluid milk consumption, and growing production levels.” In an effort to help these struggling producers, PDA stated that a formal petition has been submitted to the Milk Marketing Board requesting a hearing to consider potential reforms.

Farmland Preservation: Rhode Island Announces Farmland Purchase Program
On April 4, 2018, the Associated Press reported that Rhode Island will begin a program designed to help new farmers purchase farmland.  According to the report, the state will use farmland preservation funds to purchase farms at full appraised value; taking into consideration the land’s value if developed.  Following purchase, Rhode Island will then sell the land to new farmers at a price based on the land’s appraised agricultural value.  Land purchased through the program must remain in farming.    

National Ag Law Experts:

 Pennsylvania Case Law:

Pennsylvania Legislation:
Agriculture and Rural Affairs (S)
  • SB 1076  Legislation to expand and increase the Farmers’ Market Development Program (referred to committee April 6, 2018)

 Pennsylvania Actions and Notices:
Independent Regulatory Review Commission

 AgLaw HotLinks:

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Thursday, April 5, 2018

Agricultural Law Weekly Review—April 5, 2018


Written by: M. Sean High—Staff Attorney
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Right to Farm Laws: Nuisance Suit against Swine Operation Dismissed Under Pennsylvania Right to Farm Law
On March 29, 2018, the Superior Court of Pennsylvania barred a nuisance suit against a swine operation due to Pennsylvania’s right-to-farm law (RTF) (Burlingame, J. v. Dagostin, P., No. 799 MDA 2017).  The case involved a former dairy and beef cattle operation which had been converted into a concentrated animal feeding operation (CAFO) for the production of swine.

Prior to commencing the swine operation, the farm’s owners obtained state approval of a nutrient management plan for the CAFO.  Subsequently, in January 2013, the CAFO received its first shipment of swine.  In May 2014 and in April 2015, neighbors brought separate nuisance suits against the swine operation regarding its application of liquid swine manure (LSM).  The neighbors alleged the LSM application began in April 2014 while the farm’s owners asserted the application began in June 2013.

Under Pennsylvania’s RTF, a nuisance suit may not be brought against an agricultural operation that has been substantially altered or expanded if the following are met: (1) the agricultural operation has been lawfully operating for one year prior to the filing of a complaint; (2) the basis of the complaint involves a normal agricultural operation; and (3) the altered facility has been in operation for one year prior to the filing of a complaint OR the basis of the complaint has been addressed in a nutrient management plan (3 P.S. § 954).

The court held that the neighbors’ suits were barred under RTF because the agricultural operation satisfied all of the law’s requirements.

First, the agricultural operation had been operating as a farm since it was originally established in 1955.  Second, the application of LSM is a normal agricultural operation.  Finally, though the application of LSM had not existed since the establishment of the farm in 1955, or since the CAFO began operation in January 2013, the alteration to the farm had been addressed in an approved nutrient management plan.  Accordingly, because the agricultural operation had been compliant with its nutrient management plan, the nuisance suits were dismissed regardless of which date application of the LSM began.

Dairy Policy: AMS Proposes Establishment of California Federal Milk Marketing Order
On April 2, 2018, the U.S. Department of Agriculture’s Agricultural Marketing Service (AMS) published notice in the Federal Register proposing the establishment of a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California (7 CFR 1051).  According to AMS, if adopted, the proposed California FMMO would: (1) promote more orderly marketing of milk in interstate commerce, (2) reflect national prices for manufactured products and local prices for fluid milk products, and (3) foster greater equality for California producers and handlers in the markets where they compete. The proposed California FMMO now awaits producer approval by referendum.

Pesticides: Judge Permits Dicamba Use for Six Arkansas Farmers
On April 2, 2018 Reuters reported that Arkansas, County Circuit Judge Tim Fox has granted six Arkansas farmers permission to spray the herbicide dicamba after the state’s April 15 application cut-off date.  Previously, the farmers had brought suit against the Arkansas State Plant Board in an effort to overturn the application rule.  Subsequently, the Arkansas Supreme Court rejected the farmers’ claims stating “that the state cannot be a defendant in court.” As a result of the court’s decision, Judge Fox held that the farmers were exempt from Arkansas’ application cut-off date “because the inability to sue violated their due process rights.”

Biosecurity: APHIS Announces Proposed Changes to the Chronic Wasting Disease Herd Certification Program Standards
On March 29, 2018, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register of proposed changes of the Chronic Wasting Disease Herd Certification Program Standards (83 FR 13469).  APHIS’s proposed changes include, but are not limited to, revising the program’s goal statement, clarifying program standards, and making the program’s definitions of terms consistent with the regulatory definitions.  All comments on the proposed changes must be received by APHIS on or before April 30, 2018.


National Ag Law Experts:


FSMA:


Pennsylvania Actions and Notices:
Department of Environmental Protection

State Conservation Commission


AgLaw HotLinks:


Stay Informed:


Thursday, March 29, 2018

Agricultural Law Weekly Review—March 29, 2018


Written by: M. Sean High—Staff Attorney
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Air Quality: Omnibus Bill Exempts Farms from CERCLA Air Emission Reporting
On March 23, 2018, President Donald Trump signed into law the Consolidated Appropriations Act, 2018 (Omnibus Bill) which contained language exempting farms from air emission reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (Public Law No: 115-141).  Accordingly, under Title XI of the legislation, entitled the Fair Agricultural Reporting Method Act or the FARM Act, “air emissions from animal waste at a farm” are now exempt from CERCLA reporting requirements (Sec. 1102).  Previously, on December 18, 2008, the U.S. Environmental Protection Agency (EPA) published a final rule that provided agricultural operations a complete exemption from CERCLA reporting requirements.  Subsequently, on April 11, 2017, the U.S. Court of Appeals for the DC Circuit vacated the 2008 final rule.  Following the decision, the court allowed that farms affected by the April 11, 2017, decision would not be required to submit their initial reports until the court orders its mandate enforcing the decision.  EPA anticipates that the mandate will be issued on May 1, 2018.  Significantly, as a result of the enacted Omnibus Bill, farms will remain exempt from CERCLA reporting requirements even after the court issues its mandate vacating the 2008 final rule.

Dairy Policy: Presiding Official Ratifies Proposed California Federal Milk Marketing Order Evidentiary Record
On March 19, 2018, the U.S. Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register that the evidentiary record of USDA’s California Federal Milk Marketing Order (FMMO) rulemaking proceeding has been ratified by a Judicial Officer (JO) (83 FR 11903).  Previously, on December 1, 2017, AMS amended the marketing order formulation procedures to include a presiding official appointed by the Secretary under the definition of a “judge” (82 FR 58097).  Subsequently, on February 14, 2018, the Secretary of Agriculture appointed a JO to conduct an independent de novo review of the California FMMO hearing record formerly presided over by an Administrative Law Judge (ALJ).  On March 9, 2018, the JO ratified all of the presiding ALJ’s actions.  As a result, USDA announced its intention to move forward with the California FMMO rulemaking proceeding.

Animal Welfare: Kansas Law Permits Larger Poultry Facilities
On March 20, 2018, the Lawrence Journal-World reported that Kansas Governor Jeff Colyer has signed legislation that expands the number of birds that may be housed in a poultry facility.  According to the report, the new law allows poultry producers that utilize “a dry manure processing system” the ability to house up to one-third of a million birds at a single location before a permit is required by state health and environment officials.  The report stated that when applicable, the state’s permitting requirements subject producers to minimum set-back distances between buildings and/or property lines.

Antitrust: EU Approves Bayer Monsanto Merger
On March 21, 2018, Reuters reported that the European Union has approved Bayer’s $62.5 billion purchase of Monsanto.  According to Reuters, the proposed merger would create a company that potentially controls over one quarter of the world’s seed and pesticide markets.  Reuters stated that EU officials approved the merger only after the companies secured continued market competition by offering to sell-off select assets.  The proposed merger still awaits approval by the U.S. Justice Department.

Animal Welfare: McDonald’s announces Chicken Welfare and Sustainability Policy
On March 26, 2018, McDonald’s announced plans regarding the company’s chicken sustainability strategy and global chicken welfare commitments. Accordingly, McDonald’s asserted plans to form a Chicken Sustainability Advisory Council made-up “of key suppliers and genetics experts.”  McDonald’s stated that the Council will advise the company on how to implement a program that takes a holistic approach to chicken sustainability and welfare.  Council member, and noted animal welfare expert Dr. Temple Grandin asserted that she thought McDonald’s efforts represented “one of the most comprehensive corporate programs that I’ve seen for chickens.”

National Ag Law Experts:

Pennsylvania Legislation:
Agriculture and Rural Affairs (H)
  • HB 2164 Legislation providing for the adoption of retired research animals (referred to Committee March 26, 2018)
  • SB 792 Legislation providing labeling requirements for lawn fertilizer (referred to Committee March 26, 2018)

Environmental Resources and Energy (S)
  • HB 544 Legislation to amend Pennsylvania’s Recreational Use of Land and Water Act (legislation reported as amended, presented to Senate for first consideration March 27, 2018) 

Pennsylvania Actions and Notices:
Department of Agriculture

Department of Environmental Protection

Department of Health

AgLaw HotLinks:

Stay Informed:


Thursday, March 22, 2018

Agricultural Law Weekly Review—March 22, 2018


Written by: M. Sean High—Staff Attorney
Contributor: Errin McCaulley—Research Assistant
                 
The following information is an update of recent local, state, national, and international legal developments relevant to agriculture:

Dairy Policy: Pennsylvania Secretary of Agriculture Asks Dean Foods to Extend Dairy Agreements
On March 20, 2018, Pennsylvania Secretary of Agriculture Russel Redding announced that he has contacted Dean Dairy Holdings LLC (Dean Foods) requesting that the company extend the agreement termination date for 42 Pennsylvania dairy farmers.  Recently, Dean Foods sent notice stating that, effective May 31, 2018, the company will no longer be purchasing milk from 42 specific Pennsylvania dairy farmers.  Secretary Redding asserted that “[e]xpecting farmers to make life-changing decisions in the span of 90 days is difficult enough without all of the complexities associated with a business.” As a result, the Secretary has requested that Dean Foods extend the agreement termination date so that the affected farmers will have time to secure alternative plans.

Local Food: Investigation Finds “Local” Food May Not Be Local
Recently, the USA Today Network reported that some food products branded as “local” under various state branding programs may not necessarily be locally sourced.  According to the report, 18 of the state branding programs do not require that a minimum percentage of product ingredients come from that state.  Additionally, 20 of the state branding programs allow the use of the term “local” if a company is merely headquartered in that state.  Also, 36 of the state branding programs do not provide for a review process to determine if a product is local.  Finally, 40 state branding programs have no record of enforcing program requirements.  The report asserted that while the state branding programs are not seeking to deceive consumers, some state officials have admitted that the focus of these programs is on “marketing efforts to promote the local economy and create jobs.”

International Trade: USDA Announces Agreement with South Korea Regarding HPAI Detection
On March 15, 2018, the U.S. Department of Agriculture (USDA) announced an agreement has been reached with South Korea to allow the importation of U.S. poultry in the event highly pathogenic avian influenza (HPAI) is detected in the United States.  According to USDA, the agreement will allow South Korea to place import restrictions on poultry products from a specific U.S. state where an outbreak of HPAI has been detected.  Importantly, however, South Korea will only place restrictions on poultry products from those specifically affected U.S. states, and not on poultry products from the entire United States. 

Water Quality: USDA Lauds Pennsylvania Farmers for Water Quality Efforts
On March 16, 2018, the U.S. Department of Agriculture (USDA) reported that conservation efforts by farmers in Kutztown, Pennsylvania have greatly improved the town’s water supply.  According to the report, in the early 2000s, the nitrate levels in the Kutztown water supply were nearing the maximum safe levels for drinking water.  USDA asserted that the high nitrate levels were due in large part to the town’s surrounding farms.  Subsequently, many of the area’s farmers began to implement voluntary conservation practices such as: developing nutrient management plans, installing manure storage tanks, installing streambank fencing, and utilizing no-till methods.  The report stated that as a result of these efforts, in the last two years, nitrate levels at the town’s water treatment plant have been cut in half.

Animal Welfare: USDA Rejects Petition to Include Poultry under Humane Slaughter Act
On March 16, 2018, the Associated Press reported that the U.S. Department of Agriculture (USDA) turned down a request by the advocacy group Mercy for Animals to have poultry included under the Humane Methods of Slaughter Act (the Act).  Under the Act, all food animals slaughtered in USDA inspected slaughter facilities must receive proper treatment and humane handling.  The Act, however, does not apply to chickens or other types of birds.  According to the report, USDA stated that the petition was denied because there are other regulations in place that already ensure the humane treatment of poultry.

National Ag Law Experts:

National Case Law:
  • Ideker Farms et al. vs. United States of America, U.S. Court of Federal Claims, No. 14-183L 2018 (U.S. Army Corps of Engineers must compensate farmers in Missouri for repeated flooding caused by the Corps’ activities relating to the Missouri River) 

FDA Food Safety Modernization Act:

Pennsylvania Actions and Notices:
Department of Conservation and Natural Resources

Game Commission

AgLaw HotLinks:

Stay Informed: