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.

AgLaw HotLinks:

• "Iowa Senate Approves Limits on Livestock Nuisance Lawsuits" - AgWeb
• FSMA water-based testing is reconsidered by congressional subcommittee -Capital Press
• "Widow names raw milk creamery in wrongful death lawsuit" -FoodSafetyNews
• "Trump to drop Climate Change from Environmental Reviews" - AgPro
• Beef Products Inc drops Diana Sawyer from litigation against ABC for false reports - Meatingplace
• "Ag Groups Meet with Trump to Discuss Trade Concerns" -Pork Network
• New budget will mean a 21% decrease for USDA - AgWeb
• Four PA counties designated primary natural disaster area due to losses from frost in 2016 - USDA
• Scientific studies to be performed on Kaput, a product used to poison feral hogs -CattleNetwork
• Oregon bill would allow farmers to sue for GMO trespass - East Oregonian
• Genetics could be used to prevent aflatoxin production in corn - NewsWeek 

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Crop Insurance Update: Kentucky Court Rejects Negligent Misrepresentation Claim

Written by M. Sean High – Staff Attorney

On August 3, 2016, the United States District Court Western District of Kentucky issued a ruling rejecting a claim brought against an insurance company for the alleged negligent misrepresentation of a crop insurance policy (Buckman v. Nau Country Insurance, 2016 WL 4154463).

According to the Court, in March 2011, Marion County Kentucky farmer Joseph Buckman applied for a Federal Crop Insurance Act Group Risk Income Protection insurance policy for his 2011 corn crop.  At that time, Buckman was told by his crop insurance agent “that he would be entitled to receive an indemnity payment if Marion County’s 2011 actual corn crop yield was more than ten percent less than the expected yield…and [that] Marion County’s 2011 actual corn crop yield would be based on planted acres” (emphasis added).

The Court stated that on March 8, 2012, the same insurance agent informed Buckman that based on the crop yields for his 2011 planted acres Buckman would be receiving an indemnity payment in the amount of $104,961.  Sometime between March 8, 2012 and April 11, 2012, Buckman “leased his farm, disposed of his farm equipment, and exited farming.”

According to the Court, on April 11, 2012, the same insurance agent informed Buckman that the crop yields had been incorrectly calculated through the use of planted acres and instead should have been based on harvested acres.  As a result of the new calculation, the insurance agent informed Buckman that he would not be entitled to an indemnity payment.  Subsequently, Buckman brought suit against NAU Country Insurance Company alleging that the company’s agent negligently misrepresented the policy terms.

The Court held that “under federal law, Buckman is charged with knowledge of his corn crop policy” and because it is his responsibility to have this knowledge, Buckman “could not have reasonably relied on [the insurance] agent’s erroneous representations.”

Industrial Hemp Update: Kentucky Hemp Blazes Forward

Written by Stephen Kenney

Many Kentucky farmers have been tobacco farmers for all of their lives.  They have seen days when Kentucky’s tobacco crop grossed nearly a billion dollars a year.  Anti-smoking campaigns and high taxes on cigarettes have contributed to a decreased demand for tobacco.  The new hope for these old tobacco farmers is cannabis sativa otherwise known as hemp.  The issue is that at this point hemp is just as illegal as marijuana.

Hemp once dominated the Kentucky landscape when the crop was needed to support the war effort in WWII.  The government temporarily allowed and encouraged farmers to grow hemp to support the military.  Hemp was used for rigging, towing, thread for shoes, and parachute webbing.

The main difference between hemp and marijuana is the amount of tetrahydrocannabinol (THC) present in the plant.  Hemp has a THC level below point-three percent.  Marijuana has THC levels that vary between one-percent and twenty-percent.  Hemp also has valuable industrial potential.  “The fiber can be used in rope, clothing, building materials, even car dashboards,” according to PBS.

The Kentucky State Police are not as excited by the possible industrial use of hemp. The state police say that it is impossible to distinguish between hemp and marijuana with aerial surveillance which is how they discover and destroy most of the marijuana grown in the state.  Their other concern is the unscrupulous farmer.  They say it would be too easy for a farmer to grow a few marijuana plants under the cover of a field of hemp.

James Comer, the Kentucky Agriculture Commissioner, has been leading the movement to change hemp's legal status.  When Comer took office in 2012 he pushed the state legislature to pass a law that would create a framework for a Kentucky hemp industry.  The potential industry still needed federal government support.  Senator Mitch McConnell provided that support by adding a measure to the 2014 Farm Bill that extended the right to grow and study industrial hemp from colleges and universities to state agriculture departments.  The measure has paved the way for states to license individual farmers to grow hemp.  Uncertainty still remains as to the legal status of industrial hemp, but Kentucky is moving forward with licensing farmers.