Thursday, March 23, 2017

Agricultural Law Weekly Review—March 23, 2017

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:

Water Law: Court Dismisses Des Moines Water Works Case
On March 17, 2017, the U.S. District Court, N.D. Iowa, Western Division dismissed a lawsuit brought by a municipal water utility against various water drainage districts organized under Iowa law (Board of Water Works Trustees of the City of Des Moines, Iowa v. SCA County Board of Supervisors, 2017 WL 1042072).  The municipal water utility alleged that due to the actions of the water drainage districts, additional costs were necessary to “cover the costs of complying with federal and state clean water regulations” The court disagreed and held that while a municipal water utility may have suffered an injury, under current Iowa law, “drainage districts lack the ability to redress that injury.”

Ag-Gag: “Unauthorized Access” Bill Heads to Arkansas Governor
On March 17, 2017, the Arkansas House passed HB1665 entitled: To Create Cause of Action for Unauthorized Access to Another Person's Property.  The legislation would create a civil cause of action for unauthorized access to agricultural property and covers an employee that “[r]ecords images or sound occurring within an employer's commercial property and uses the recording in a manner that damages the employer.”  Currently, HB 1665 awaits action by Arkansas Governor Asa Hutchinson. 

Avian Influenza: Recent Detection and State Action
Recently, Tennessee, Kentucky, and Alabama have released statements regarding the detection of avian influenza:
·         Tennessee: On March 17, 2017, the Tennessee Department of Agriculture (TDA) announced that depopulation was completed on the second confirmed HPAI location in Lincoln County, TN.  On March 20, 2017, TDA stated that “[a]ll samples from poultry within the surveillance zones continue to test negative for avian influenza.
·         Kentucky:  On March 20, 2017, the Kentucky Department of Agriculture announced that federal and state authorities have confirmed the presence of H7N9 low pathogenic avian influenza in samples taken from a commercial poultry flock in western Kentucky.
·         Alabama: On March 16, 2017, the Alabama Department of Agriculture and Industries (ADAI) announced confirmation that “the sample collected from a guinea fowl at the TaCo-Bet Trade Day flea market in Scottsboro, located in Jackson County, Alabama…[has] tested positive for low pathogenic H7N9 avian influenza (LPAI).” On March 21, 2017, (ADAI) announced confirmation "that a flock of chickens at a commercial poultry breeding operation...and a backyard flock...have both tested positive for low pathogenic avian influenza (LPAI)." 

Industrial Hemp: Pennsylvania Authorizes 16 Research Projects
On March 16, 2017, the Pennsylvania Department of Agriculture (PDA) announced the approval of “16 research proposals that seek to demonstrate the value and viability of industrial hemp cultivation in the state.” According to PDA, “[t]he projects were approved under the new Industrial Hemp Research Pilot Program, which the department launched in December after Governor Tom Wolf and the General Assembly enacted Act 92 of 2016.” Included among the approved projects was Penn State University’s proposal “to compare six varieties under different growing conditions (planting dates, seed densities, tillage regimens and nitrogen levels); track plant height, yield, disease and insect impact to develop draft production recommendations for PA.”

Pesticides: FIFRA Scientific Advisory Panel Issues Report Regarding Carcinogenic Potential of Glyphosate
On March 16, 2017, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) issued a final report regarding FIFRA SAP’s open public meeting held from December 13, 2016, to December 16, 2016.  The “meeting [was] held to consider and review scientific issues associated with EPA's evaluation of the carcinogenic potential of glyphosate.” According to the report, Panel members disagreed over the conclusion that “glyphosate is ‘not likely to be carcinogenic to humans,’ especially at reasonably foreseeable dose-rates.” The report stated that “[s]ome Panel members agreed with this characterization, while other Panel members felt that the better descriptor for glyphosate is ‘suggestive evidence of carcinogenic potential.’”

PA Legislation: Bills Referred to House Agricultural and Rural Affairs Committee
During the current Pennsylvania Regular Session 2017-2018, four bills have been referred to the House Agricultural and Rural Affairs Committee:
·         HB 187: Amending the Agricultural Security Area law to allow for wind energy on certain preserved farms
·         HB 790: Repealing the Noxious Weed Control Law (Act 74 of 1982) and replacing it with the Controlled Plant and Noxious Weed Act.
·         HB 872: Requiring food service employees of retail food establishments to obtain first aid training in CPR and the Heimlich maneuver.
·         HB 885: Allowing farmers who have placed their land under an agricultural conservation easement with the state the ability to permit a trail easement through their property.

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