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:
- Outline for Analyzing Federal Motor Carrier Safety Administration Regulation: Applicability for Agriculture, Tiffany Dowell Lashmet, Texas A&M AgriLife Extension Service & Elizabeth Rumley, National Agricultural Law Center—Agricultural & Food Law Consortium
- Ohio Agricultural Law Blog--The Western Lake Erie Impaired Waters Saga Continues, Ellen Essman, Sr. Research Associate, OSU Agricultural & Resource Law Program
- FDA Maintains Focus on Nutrition to Foster Human Health, Michael J. O'Flaherty, Ag/FDA Blog – Olsson Frank Weeda Terman Matz PC
- FSMA Inflation Adjusted Cut Offs (Updated March 29, 2018)
Pennsylvania Actions and Notices:
Department of Environmental Protection
- Availability of National Pollutant Discharge Elimination System PAG-12 general permit for operation of concentrated animal feeding operations (PAG-12)
State Conservation Commission
- Action on odor management plans for concentrated animal operations and concentrated animal feeding operations and volunteers complying with the Commonwealth's Facility Odor Management Program
- USDA Has No Plans To Regulate CRISPR – Ag Web
- Beef vets release statement on “raised without antibiotics” programs – BEEF
- Hearings set for Shell pipeline project in Pa – Farm and Dairy
- PA has the second highest organic food sales of any state, according to gov. issued report – The Daily Pennsylvanian
- Perdue issues statement on plant breeding – Morning Ag Clips
- Duke Energy using renewable natural gas from North Carolina hog farms – Feedstuffs
- Industrial-scale pork on trial in federal nuisance lawsuits – North Carolina Lawyers Weekly
- Bats Are Migrating Earlier, and It Could Wreak Havoc on Farming – Scientific American
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