The U.S. Court of Appeals  for the Fourth Circuit (“4th Circuit”) recently decided <a href="https://fingfx.thomsonreuters.com/gfx/legaldocs/jnpwyakwnpw/GRUYERE%20TRADEMARKS%20opinion.pdf">InterProfession Du Gruyere vs. U.S. Dairy Export Council</a>, which considered whether a geographic indication was essential to the use of the label “gruyère.”  The 4th Circuit decided that it was not, finding that using that term on labels in the United States does not depend on where the cheese was produced (often referred to as a geographical indication), but merely on whether it meets Food and Drug Administration’s (FDA) standard of identity.



FDA is responsible for the labeling of dairy products, among other things.  It partially regulates labels by creating “standards of identity,” outlining how specific words may be used.  FDA has created a <a href="https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/CFRSearch.cfm?fr=133.149">standard of identity for gruyère cheese</a>, defining it by the process needed to create the cheese, not by the location where the cheese is made.  



In Europe, however, the label can only be used on cheese produced in the Alps region, near the Swiss/French border.&nbsp;&nbsp;As a result, a group of Swiss and French cheese producers brought the lawsuit at issue today.&nbsp;&nbsp;Ultimately, the court decided that FDA- and ultimately American consumers- saw gruyère as a type of cheese (similar to a label of “mozzarella” or “cheddar”) rather than one produced in a specific place.&nbsp;&nbsp;



Geographical indications are used worldwide, helping protect producers&#8217; market share in specific regions.  Whether you’re interested in “Idaho Potatoes” or “Parmigiano-Reggiano,” a part of the label’s meaning includes an indication of the area where the product originated.  This case illustrates a trend that international food and beverage manufacturers are becoming more proactive in protecting names with a regional geographical significance.  This is an important international trade issue because we expect similar litigation from other affected producers. On a larger scale, the European Union focuses on including geographical indicators as a critical part of trade deals and we expect this trend to continue.  To learn more about geographical indications and international trade, click <a href="https://nationalaglawcenter.org/webinars-3/geographicindications/">here</a> for a National Agricultural Law Center webinar.



<hr class="wp-block-separator has-alpha-channel-opacity"/>



Rumley, Rusty. &#8220;<a href="https://southernagtoday.org/2023/03/24/a-cheese-by-any-other-name/">A Cheese by Any Other Name.</a>&#8221; Southern Ag Today 3(12.5). March 24, 2023. <a href="http://a-cheese-by-any-other-name">Permalink</a>

A Cheese by Any Other Name

In January 2023, the United States Department of Agriculture (USDA”) published its&nbsp;<a href="https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/EPAS/PDF/2021_afida_annual_report_through_12_31_2021.pdf">latest report</a>&nbsp;of information collected under the Agricultural Foreign Investment Disclosure Act (AFIDA) of 1978, which provides data on foreign U.S. landholdings through December 31, 2021. Under AFIDA, certain foreign persons are required to disclose their ownership interests and investments in farm, ranch, and forestland to USDA. According to the report, foreign persons hold an interest in over 40 million acres of private U.S. agricultural land, an increase of 2.4 million acres from 2020. From 2011 through 2021, foreign ownership in private U.S. farmland has increased 35.7%.



This increase of foreign agricultural landholdings has become a growing concern for the majority of state legislatures. In the past two years or so, the issue of restricting foreign ownership and investments in privately held agricultural land emerged or reemerged in at least twenty-six states. Currently, there are approximately&nbsp;<a href="https://nationalaglawcenter.org/state-compilations/aglandownership/">fourteen states</a>&nbsp;that specifically forbid or limit nonresident aliens, foreign business entities, and/or foreign governments from acquiring or owning an interest in farmland within their state.


<div class="wp-block-image">
<figure class="aligncenter size-full"><img decoding="async" src="https://ageconafpc.wpengine.com/wp-content/uploads/2023/02/3.08.5.png" alt="" class="wp-image-38021"/></figure></div>


Additionally, several other states have introduced bills that take their own approach to restricting foreign acquisitions of farmland and real property. Some states have proposed measures that would restrict foreign ownership in not only agricultural land, but all real property located within their state. Of the states that have considered restrictions within the previous two years, Indiana is currently the only state to enact a foreign ownership law during that time period. With the majority of states considering proposals that seek to restrict foreign interests in farmland, other states may begin to consider the issue of prohibiting or limiting foreign purchases and ownership of land within their state.



<hr class="wp-block-separator has-alpha-channel-opacity"/>



Brown, Micah. &#8220;<a href="https://southernagtoday.org/2023/02/state-foreign-ownership-proposals/">State Foreign Ownership Proposals</a>.&#8221; Southern Ag Today 3(8.5). February 24, 2023. Permalink

State Foreign Ownership Proposals

On January 18, 2023, the United States District Court for the Northern District of Oklahoma ruled on a lawsuit filed by the State of Oklahoma against 11 poultry producers. The lawsuit alleged that the poultry producers polluted and continue to pollute the Illinois River with phosphorus and bacteria from poultry litter applied to lands in the Illinois River watershed.



The original lawsuit included 11 causes of action. The court dismissed six causes of action before trial: cost recovery under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA); natural resource damages under CERCLA; a Solid Waste Disposal Act (SWDA) citizen suit; unjust enrichment/restitution/disgorgement; and two claims under Oklahoma state statutes and regulations. A trial was held on the following five causes of action:&nbsp;&nbsp;violation of Resource Conservation and Recovery Act (RCRA) 42 U.S.C. § 6972; state law public nuisance and state law nuisance per se;&nbsp;&nbsp;federal common law nuisance; trespass; and two claims under Oklahoma state law.



The court granted two posttrial motions, dismissing the RCRA claim, the per se nuisance claim, and one of the state law claims because poultry litter can have a beneficial use and was not being disposed of on the fields. On the merits, the court found that the poultry growers were liable for state law nuisance, federal common law nuisance, trespass, and one state law claim.



Oklahoma proved that each poultry grower contributed significantly to the phosphorus loading of the river and that the state need not trace the exact contribution of each. State-approved permits to apply poultry litter needed to be more specific to immunize the poultry growers from liability. In addition, Oklahoma statute prohibits the creation of an environmental or public health hazard or contamination of waterways from poultry waste handling.



Since activities in Arkansas caused damages in Oklahoma, the interstate nature of the activities implicates federal nuisance law. The court found that the Clean Water Act did not displace federal nuisance law in this instance. Further, the court found that the poultry growers have unreasonably interfered with the public’s use of the Illinois River in Oklahoma and are liable under state nuisance law and federal nuisance law.



As to trespass, the activities of the poultry growers resulted in runoff containing phosphorus entering the waters of the Illinois River, constituting a physical invasion. But, again, the state-issued permits did not immunize the poultry growers against the trespass claim. Likening the alleged violation of state law prohibiting waterway pollution to trespass, the court also found the poultry growers liable on those grounds.



The court ordered the parties to attempt to reach an agreement on the remedies and present the agreement to the court for approval on March 17, 2023. If no agreement is reached, the court will rule on the remedies.



<hr class="wp-block-separator has-alpha-channel-opacity"/>



Richardson, Jesse. &#8220;<a href="https://southernagtoday.org/2023/02/oklahoma-prevails-in-lawsuit-against-poultry-growers-for-pollution-of-illinois-river/">Oklahoma Prevails in Lawsuit Against Poultry Growers for Pollution of Illinois River.</a>&#8221; Southern Ag Today 3(7.5). February 17, 2023. <a href="http://oklahoma-prevails-in-lawsuit-against-poultry-growers-for-pollution-of-illinois-river">Permalink</a>



<hr class="wp-block-separator has-alpha-channel-opacity"/>

Oklahoma Prevails in Lawsuit Against Poultry Growers for Pollution of Illinois River

For well more than a decade, every year has brought a new wave of WOTUS uncertainty. At all but the stroke of midnight to close out 2022, the EPA announced the final revised WOTUS rule which is set to take effect this spring, 60 days after publication in the Federal Register. If headlines about WOTUS over the past decade have confused you, fear not. You’re not alone. The two steps forward – one step back progression of the hunt for WOTUS clarity follows a switchback trail of previous and current administrations. Despite this brand-new rule, the uncertainly might not be over just yet.



Since the inception of the modern-day Clean Water Act (“CWA”), enforcement agencies and citizens alike have been seeking to define “water of the United States” in an effort to determine where federal jurisdiction of a body of water begins and ends under the CWA. Sparing the dirty details, there have been four WOTUS eras worthy of mention here.



First, commonly referred to as the “Pre-2015 Rule,” the WOTUS rule in place since the 1980s was constructed through regulation and the implementation of key agency memoranda shaped by seminal judicial opinions.<a href="//5A2D7BD5-F821-4769-9A90-0DAC34229B48#_ftn1">[1]</a>&nbsp;The second era of mention began in 2015, when the EPA and Army Corps of Engineers (the “Corps”) issued a new rule, also known as the “Clean Water Rule” which was broader in application and was simultaneously praised as a long-overdue revision of the WOTUS rule, and also criticized as a gross overreach of authority. Due in part to legal challenges, the EPA and the Corps delayed implementation of the 2015 Clean Water Rule until 2020. Meanwhile, in 2019, the Trump administration repealed the 2015 Clean Water Rule and in 2020, proposed yet another new WOTUS rule, the “Navigable Waters Protection Rule,” or “NWPR,” the third mentionable WOTUS era.



The NWPR reversed course from the 2015 Rule, narrowing the scope of WOTUS and federal jurisdiction under the CWA by setting forth four categories of waters falling under CWA jurisdiction which included territorial seas, traditionally navigable waters and interstate waters; tributaries and lakes, ponds, impoundments directly or indirectly contributing surface water to traditionally navigable waters; and wetlands adjacent to these. Once again, litigation quickly took center stage. The NWPR was short-lived as President Biden’s administration sought to provide a workable, more stable definition of WOTUS and nix the never-ending uncertainty that has plagued the CWA since its inception.



The fourth and current era officially began on December 30, 2022, when the EPA and the Corps finalized the latest WOTUS rule. Under the new final rule, using the Pre-2015 Rule as a foundation, tributaries and impoundments as well as wetlands adjacent to traditionally navigable water that are either “relatively permanent” or have a “significant nexus” to traditionally navigable waters will fall under the CWA’s jurisdiction. The new rule sets forth that its “relatively permanent standard” refers to “relatively permanent, standing or continuously flowing waters” connected to traditionally navigable waters or waters with a “continuous surface connection to such relatively permanent waters.” The rule also defines a “significant nexus” as where waters “either alone or in combination with similarly situated waters in the region, significantly affect the chemical, physical, or biological integrity of traditional navigable waters, the territorial seas, or interstate waters.” Finally, the new rule states that “adjacent wetlands” are those which have a “continuous surface connection to a relatively permanent, standing or continuously flowing water” connected to traditionally navigable waters “or&nbsp;must either alone or in combination with similarly situated waters significantly affect the chemical, physical, or biological integrity” of traditionally navigable waters, territorial seas or interstate waters.<a href="//5A2D7BD5-F821-4769-9A90-0DAC34229B48#_ftn2">[2]</a>WOTUS clarity, in large part, hinges on these defined terms and the ability of these terms to be readily identified and applied.&nbsp;



In its release of the new rule, the EPA also published a “<a href="/www.epa.gov/system/files/documents/2022-12/Agricultural%20Community%20Fact%20Sheet.pdf">Fact Sheet for the Agricultural Community</a>” which sets forth the agricultural exemptions from CWA jurisdiction and specific exclusions in the final rule. Among the exemptions are “normal farming, silviculture, and ranching activities” with examples listed; construction of farm or stock ponds or irrigation ditches and maintenance of drainage ditches; and construction or maintenance of farm roads in accordance with best management practices. Prior converted cropland also remains excluded from the final rule so long as it is available for agricultural commodity production, such as crop production, haying, grazing, agroforestry, or idling land for conservation uses.<a href="//5A2D7BD5-F821-4769-9A90-0DAC34229B48#_ftn3">[3]</a>



Currently, the nation awaits the Supreme Court’s decision&nbsp;in Sackett v. EPA, wherein the Supreme Court is asked to determine the proper test for determining which wetlands constitute WOTUS. The Supreme Court is expected to announce its decision early this spring. The anticipated ruling has the potential to affect the latest WOTUS final rule and send the EPA and Corps back to the writing room or alternatively, to affirm the appropriateness of the new rule as written.&nbsp;For today, a new WOTUS rule reigns. Time will tell whether the hunt for WOTUS clarity is over or whether litigation, both new and old, will keep WOTUS in the trenches



<hr class="wp-block-separator has-alpha-channel-opacity" />



<a href="//5A2D7BD5-F821-4769-9A90-0DAC34229B48#_ftnref1">[1]</a>&nbsp;See&nbsp;SWANCC v. U.S. Army Corps of Engineers, 531 US 159 (2001), and&nbsp;Rapanos v. U.S., 547 US 715 (2006).



<a href="//5A2D7BD5-F821-4769-9A90-0DAC34229B48#_ftnref2">[2]</a>&nbsp;EPA, Pre-Publication Final Rule Notice: Revised Definition of ‘Waters of the United States.’” 6560-50-P (December 2022) pp. 9-10.&nbsp;



<a href="//5A2D7BD5-F821-4769-9A90-0DAC34229B48#_ftnref3">[3]</a>&nbsp;EPA, “Final Rule: Revised Definition of ‘Waters of the United States’ Fact Sheet for the Agricultural Community December 2022.”



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="468" height="52" src="https://ageconafpc.wpengine.com/wp-content/uploads/2023/01/VT.png" alt="" class="wp-image-37756" /></figure>



Author:&nbsp;Jennifer Shaver Friedel, J.D.



Director, Land Use-Value Assessment Program



Professor of Practice



Virginia Tech



<hr class="wp-block-separator has-alpha-channel-opacity" />



Friedel, Jennifer. &#8220;<a href="https://southernagtoday.org/2023/01/southernagtoday.org/2023/01/the-navigability-of-wotus/">The Navigability of WOTUS</a>.&#8221; Southern Ag Today 3(2.5). January 13, 2023. <a href="http://the-navigability-of-wotus">Permalink</a>



Photo by Max Parada: https://www.pexels.com/photo/stones-on-the-river-13932592/

The Navigability of WOTUS

When one thinks of crops, insurance, and risk, one may think of traditional crop insurance. The case of&nbsp;Three Rivers Hydroponics, LLC v. Florists’ Mutual Insurance Company,<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn1">[1]</a>&nbsp;decided by the United States District Court of the Western District of Pennsylvania in 2021, illustrates a “business package” insurance policy application to a fast-growing area of agriculture: hydroponic agriculture.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn2">[2]</a>



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;In the&nbsp;Three Rivers Hydroponics&nbsp;case, the insured was engaged in the business of growing organic basil through a hydroponic ozone system.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn3">[3]</a>&nbsp;The ozone system treated and disinfected water utilized for crop production.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn4">[4]</a>&nbsp;On June 30, 2014, the ozone system caught fire, and the crop soon failed thereafter.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn5">[5]</a>&nbsp;Eventually, the insured lost its business.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn6">[6]</a>



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The insured’s business package insurance policy in the case included an Equipment Breakdown Boiler and Machinery Coverage endorsement, in which the insurer agreed to pay for a loss caused by an “Accident” to “covered equipment.”<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn7">[7]</a>&nbsp;An “Accident” was defined in the policy as a “mechanical breakdown.”<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn8">[8]</a>&nbsp;Thus, the insured could only recover under the policy if the ozone system had a mechanical breakdown.



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The insured contended that the ozone system failed due to an issue with the ORP controller.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn9">[9]</a>&nbsp;Two engineering experts of the Defendant concluded that only the ozone generator sustained damage in the fire and that complete replacement of the system was unnecessary.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn10">[10]</a>&nbsp;The insurer issued a payment for replacement of the ozone generator but denied the claim for mechanical breakdown.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn11">[11]</a>



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The insured filed a breach of contract claim as well as bad faith claim against the insurer.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn12">[12]</a>&nbsp;In examining these claims, the Court noted that whether mechanical breakdown of the ozone system occurred is a “highly technical” matter.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn13">[13]</a>&nbsp;However, the insured did not produce any expert testimony of an engineer who opined on whether a mechanical breakdown of the system occurred.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn14">[14]</a>&nbsp;Thus, the Court found that the insured did not meet its burden to produce admissible evidence to establish a prima facie case that coverage existed and granted summary judgment to the insurer on the insured’s breach of contract claim.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn15">[15]</a>&nbsp;In addition, the Court also granted summary judgment to the insurer on the insured’s bad faith claim as the Court found that the insurer “conducted a substantial, thorough, and timely investigation” as a matter of law.<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftn16">[16]</a>



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The&nbsp;Three Rivers Hydroponics&nbsp;case exemplifies a sometimes overlooked area in agricultural law – the significance of expert testimony in cases involving more technical matters.



Nothing in this article is intended to create an attorney-client relationship and does not constitute legal advice.



<hr class="wp-block-separator has-alpha-channel-opacity" />



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref1">[1]</a>&nbsp;See&nbsp;Three Rivers Hydroponics, LLC v. Florists’ Mutual Insurance Company, No. 2:15-cv-00809, 2021 WL 6133304 (W.D. Pa. Dec. 29, 2021).



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref2">[2]</a>&nbsp;See Hydroponics, United States Department of Agriculture National Agriculture Library (2022), available at:&nbsp;<a href="blank">https://www.nal.usda.gov/farms-and-agricultural-production-systems/hydroponics</a>



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref3">[3]</a>&nbsp;See&nbsp;Three Rivers Hydroponics, LLC V. Florists’ Mutual Insurance Company, 2021 WL 6133304 at *1.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref4">[4]</a>&nbsp;Id.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref5">[5]</a>&nbsp;Id.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref6">[6]</a>&nbsp;Id.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref7">[7]</a>&nbsp;Id.&nbsp;at *2.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref8">[8]</a>&nbsp;Id.&nbsp;at *2.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref9">[9]</a>&nbsp;Id.&nbsp;at *3.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref10">[10]</a>&nbsp;Id.&nbsp;at *3-7.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref11">[11]</a>&nbsp;Id.&nbsp;at *7.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref12">[12]</a>&nbsp;Id.&nbsp;at *1.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref13">[13]</a>&nbsp;Id.&nbsp;at *10.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref14">[14]</a>&nbsp;Id.&nbsp;at *10.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref15">[15]</a>&nbsp;Id.&nbsp;at *15.



<a href="//41089E14-2AF7-442D-96F6-C9B4848844D5#_ftnref16">[16]</a>&nbsp;Id.&nbsp;at *16.



<hr class="wp-block-separator has-alpha-channel-opacity" />



<figure class="wp-block-image size-full is-resized"><img decoding="async" loading="lazy" src="https://ageconafpc.wpengine.com/wp-content/uploads/2023/01/florida-state-university-college-of-business-logo-0F451DD1AE-seeklogo.com_.png" alt="" class="wp-image-37713" width="98" height="93" /></figure>



Chad Marzen, Florida State University



American General Insurance Associate Professor of Insurance Law



cmarzen@fsu.edu



<hr class="wp-block-separator has-alpha-channel-opacity" />



Marzen, Chad. &#8220;<a href="https://southernagtoday.org/2023/01/hydroponic-agriculture-and-insurance-coverage/">Hydroponic Agriculture and Insurance Coverage.</a>&#8221; Southern Ag Today 3(1.5). January 6, 2023. <a href="http://hydroponic-agriculture-and-insurance-coverage">Permalink</a>

Hydroponic Agriculture and Insurance Coverage

The Supreme Court of the United States (“SCOTUS”) has recently had a significant docket of cases with an impact on agriculture.&nbsp; Two cases have been heard this fall, with another hearing set for next spring.



In&nbsp;Sackett v. EPA, the Supreme Court once again considered the scope of wetlands jurisdiction under the Clean Water Act (“CWA”). Specifically, the Court was asked to revisit its landmark&nbsp;Rapanos&nbsp;ruling which resulted in two tests to establish when a wetland should receive CWA protection.&nbsp; However, the Court rules are sure to impact the scope of CWA jurisdiction, and potentially impact EPA’s ongoing attempt to redefine the key CWA term “waters of the United States.” To learn more about the case, click&nbsp;<a href="https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fnationalaglawcenter.org%2Ftreading-water-wotus-once-again-before-supreme-court%2F&amp;data=05%7C01%7Crrumley%40uark.edu%7Cf2edbbc8a7634434822808dade0baf32%7C79c742c4e61c4fa5be89a3cb566a80d1%7C0%7C0%7C638066439003279245%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&amp;sdata=qhAhutA1ClO0E6ITeoxUYfeRKtCORUkGtmK%2BGTRM0QY%3D&amp;reserved=0">here</a>.



In&nbsp;National Pork Producers Council v. Ross,&nbsp;SCOTUS considered&nbsp;the constitutionality of “Prop 12,” a California law regulating space requirements for farm animals.&nbsp; Specifically, the court heard arguments about the circumstances under which a state government can pass laws that primarily affect the actions of people in other states.&nbsp; To learn more about this and other similar challenges to Prop 12, click&nbsp;<a href="https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fnationalaglawcenter.org%2Fwhats-cooking-with-prop-12-an-update%2F&amp;data=05%7C01%7Crrumley%40uark.edu%7Cf2edbbc8a7634434822808dade0baf32%7C79c742c4e61c4fa5be89a3cb566a80d1%7C0%7C0%7C638066439003279245%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&amp;sdata=wVuxAYoekH3PH67pTXqfDqiPJToG0XqUfP7gYrbRBV8%3D&amp;reserved=0">here</a>.&nbsp;



The upcoming case involves water rights in the Colorado River basin, an area where drought conditions are already causing existing water allocations to be substantially reduced. In November, SCOTUS agreed to hear two cases involving the Navajo Nation’s potential rights to Colorado River water.&nbsp; These cases have been consolidated so that there will be only one hearing, which is expected to be in early 2023. To read more, click&nbsp;<a href="https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.supremecourt.gov%2Fdocket%2Fdocketfiles%2Fhtml%2Fpublic%2F21-1484.html&amp;data=05%7C01%7Crrumley%40uark.edu%7Cf2edbbc8a7634434822808dade0baf32%7C79c742c4e61c4fa5be89a3cb566a80d1%7C0%7C0%7C638066439003279245%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&amp;sdata=Hsj4qRnEVBpJoKk47L8ldRk%2BpHYJzgJWPyvqkotTv8c%3D&amp;reserved=0">here</a>.&nbsp;



In all three cases, a decision is expected by June 2023.



<figure class="wp-block-image size-full"><img decoding="async" src="https://southernagtoday.org/wp-content/uploads/2022/05/National-Ag-Law-Center-Logo-Southern-Ag-Today.png" alt="" class="wp-image-35215" /></figure>



Author: Elizabeth Rumley 



Senior Staff Attorney



erumley@uark.edu



<hr class="wp-block-separator has-alpha-channel-opacity" />



Rumley, Beth. &#8220;<a href="https://southernagtoday.org/2022/12/the-supreme-court-and-agriculture/">The Supreme Court and Agriculture.</a>&#8221; Southern Ag Today 2(53.5). December 30, 2022. <a href="http://the-supreme-court-and-agriculture">Permalink</a>

The Supreme Court and Agriculture

Maryland has the most significant solar, specific carve-out of any state at 14.5% energy generation sales by 2028 (1) &#8211; the majority of which will be produced through utility-scale solar operations. Utility-scale solar is a solar energy generating system that sells electricity through power purchase agreements or into the wholesale electricity market (2). Utility-scale solar facilities are usually owned by a generation company and require a Certificate of Public Convenience and Necessity (CPCN) to be developed and connected to the grid (2).&nbsp;



Although there are mandatory considerations and research-based claims to prioritize solar development on non-farmland, that has not been the case in Maryland and other states. In Maryland, only one of the currently built utility-scale solar projects is not on “Prime Farmland” or “Farmland of Statewide Importance,” as defined by the Natural Resources Conservation Service (NRCS). More specifically, 44% of utility-scale solar acres developed are on “Prime farmland,” 48% on “Farmland of statewide importance,” and 8% on “Not prime farmland.”



Producers who own land are acting as rational economic agents, given the estimated additional gross revenue utility-scale solar can generate for the landowner compared to traditional crop rotation gross annual farm profits. In the lefthand column of the following table is the range of annual gross rental rates, less the land payment or land cost<a href="//F9BC8A0B-7085-4D3B-BAC4-C27456BFBF27#_ftn1">[1]</a>, a commercial corn-soybean field rotation receives per acre in Maryland<a href="//F9BC8A0B-7085-4D3B-BAC4-C27456BFBF27#_ftn2">[2]</a>. The first row shows the range of utility-scale solar rental payments collected from focus groups and leases. The most likely outcome amongst the ranges of annual gross revenues for a farmer who transitions land from farmland to solar generation in Maryland would be a ~350% increase in gross revenue per acre. 


<div class="wp-block-image">
<figure class="aligncenter size-full is-resized"><img decoding="async" loading="lazy" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/11/solar_payment_table.png" alt="" class="wp-image-37496" width="784" height="243" /></figure></div>


<hr class="wp-block-separator has-alpha-channel-opacity" />



<hr class="wp-block-separator has-alpha-channel-opacity" />



The ambitious renewable energy generation goals of Maryland, paired with the financially attractive offers landowners are receiving, have and look to continue to result in the development of utility-scale solar generation facilities on farmland. The continuing increase in renewable energy generation, like large-scale solar generation, will likely result in the loss of farmland nationwide. It would be advantageous for the Southern region to conduct outreach and research to determine the impacts of farmland loss on renewable energy generation.&nbsp;&nbsp;



This work is supported by the Agriculture and Food Research Initiative (AFRI) program, grant no. 2020-68006-31182/project accession no. 1022637, from the U.S. Department of Agriculture, National Institute of Food and Agriculture.



Any opinions, findings, conclusions, or recommendations expressed in this publication are those of the author(s) and should not be construed to represent any official USDA or U.S. Government determination or policy.



<ol type="1" start="1">
<li>Renewable Energy Development and Siting, (2020, August 14). Governor’s Task Force on REDS –Final Report. Retrieved November 18, 2022, from&nbsp;<a href="https://docs.google.com/presentation/d/1F4wXH9XD9Tbozab6gpuhLg4tmuGJSw52/edit#slide=id.p13">https://docs.google.com/presentation/d/1F4wXH9XD9Tbozab6gpuhLg4tmuGJSw52/edit#slide=id.p13</a></li>



<li>Maryland Public Service Commission. (2022, October 7). Solar in Maryland &#8211; Maryland Policies. Electricity &#8211; Renewable Energy. Retrieved November 18, 2022, from https://www.psc.state.md.us/electricity/renewable-energy/solar-in-maryland/ </li>
</ol>



<hr class="wp-block-separator has-alpha-channel-opacity" />



<a href="//F9BC8A0B-7085-4D3B-BAC4-C27456BFBF27#_ftnref1">[1]</a>&nbsp;The land payment or cost is assumed to be the same per acre between farmland and land developed into solar fields



<a href="//F9BC8A0B-7085-4D3B-BAC4-C27456BFBF27#_ftnref2">[2]</a>&nbsp;Derived from University of Maryland Extension Enterprise Budgets (https://extension.umd.edu/programs/agriculture-food-systems/program-areas/farm-and-agribusiness-management/grain-marketing/crop-budgets)



<hr class="wp-block-separator has-alpha-channel-opacity" />



<figure class="wp-block-image size-full"><img decoding="async" src="https://southernagtoday.org/wp-content/uploads/2022/05/Maryland-Logo-Southern-Ag-Today.png" alt="" class="wp-image-35207" /></figure>



Author: Elizabeth Thilmany



Faculty Specialist 



<a href="mailto:thilmany@umd.edu">thilmany@umd.edu</a>



<hr class="wp-block-separator has-alpha-channel-opacity" />



Thilmany, Elizabeth. &#8220;<a href="https://southernagtoday.org/2022/12/the-potential-implications-of-large-scale-solar-development-a-case-study-on-marylands-agricultural-industry/">The Potential Implications of Large-Scale Solar Development: A Case Study on Maryland’s Agricultural Industry.&#8221;</a> Southern Ag Today 2(49.5). December 2, 2022. <a href="http://the-potential-implications-of-large-scale-solar-development-a-case-study-on-marylands-agricultural-industry">Permalink</a>

The Potential Implications of Large-Scale Solar Development: A Case Study on Maryland’s Agricultural Industry

Agricultural conservation easements (ACES) &#8211; given their perpetual and restrictive nature &#8211; are considered the best tool for protecting valuable agricultural soils from non-farm residential and commercial development. While ACES are also considered helpful in farm succession planning due to cash and tax &#8211; and often emotional &#8211; benefits, their principal feature &#8211; a restriction of future subdivision &#8211; may have frustrating consequences on an equal division of estate value and desired future development. While the outright restriction on subdivision is the default position in most ACE deeds, pathways exist in federal and state policy to preplan subdivision for the distribution of family lands to heirs to avoid co-tenancy while ensuring the resulting parcels are protected. Once a blanket restriction on subdivision is granted, however, it is tough &#8211; if at all &#8211; to undo.



Given the need for consolidation of management over tracts used in farming and forestry, it is generally undesirable to have multiple co-tenants on a single parcel, mainly when one “heir” is farming and one or more (usually siblings) are not, which can frustrate long-term decision-making and use of the land as collateral for loans. While parcel partition usually is available to a real property co-tenant under a state law proceeding, the conservation easement likely frustrates any judicial order of partition “in kind” (i.e., physical subdivision), resulting in a sale of the parcel as a whole.



Most agricultural conservation easement deeds receiving federal monies are based on a common template language provided by NRCS, which must include specific language to conform to public policy goals associated with the monies and tax benefits (among these being a blanket prescription against subdivision). However, the&nbsp;<a href="///Users/rabrana2/Downloads/2020%20Minimum%20Deed%20Terms%20(2).pdf">NRCS deed guidance</a>&nbsp;provides sample language to contemplate the present or future subdivision of a parcel, and it is critical to ensure this option remains open from the outset of the application process (the&nbsp;<a href="https://directives.sc.egov.usda.gov/OpenNonWebContent.aspx?content=44646.wba">NRCS manual</a>&nbsp;provides criteria for consideration and acceptance of future subdivisions, including allocation of impervious surface ratios among subdivided parcels). Additionally, state laws and funding policies may contemplate future subdivisions. For example, North Carolina’s state ACE purchase fund &#8211; the NC Agricultural Development and Farmland Preservation Trust Fund &#8211; allows future subdivision provided no parcel is less than 20 acres, and North Carolina’s ACE authorization statute restricts such subdivisions to no more than three parcels).



How a request for future subdivisions impacts a particular project application&#8217;s ranking is unclear. Still, pre-planning is critical for those wishing to protect a large parcel while allowing a future subdivision among family members. For more detailed information on this topic, a&nbsp;<a href="https://docs.google.com/document/d/1K2Fva5TMDDbGf2vGZY7JuFCQdxYL4GCaYa3vdVvWheo/edit?usp=share_link">draft paper</a>&nbsp;is in development.



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="220" height="100" src="https://southernagtoday.org/wp-content/uploads/2022/05/NC-State-Extension-Logo-Southern-Ag-Today.png" alt="" class="wp-image-35210" /></figure>



Author: Robert Andrew Branan, JD



Assistant Extension Professor, Agricultural and Resource Economics



<a href="mailto:rabrana2@ncsu.edu">rabrana2@ncsu.edu</a>farmlaw.ces.ncsu.edu



<hr class="wp-block-separator has-alpha-channel-opacity" />



Brannon, Robert Andrew. &#8220;<a href="https://southernagtoday.org/2022/11/conservation-easements-subdivision-considerations-in-farm-succession-planning/">Conservation Easements: Subdivision Considerations in Farm Succession Planning</a>.&#8221; Southern Ag Today 2(48.5). November 25, 2022. <a href="http://conservation-easements-subdivision-considerations-in-farm-succession-planning">Permalink</a>

Conservation Easements: Subdivision Considerations in Farm Succession Planning

Over the past few months, two potential class action lawsuits have been filed in South Carolina and Georgia by former poultry growers for Amick Farms and Perdue Farms, claiming that growers are not independent contractors as stated in their contracts but employees.&nbsp;&nbsp;In the lawsuits, the former growers claim that both companies miscategorized growers and failed to pay growers a minimum wage and overtime.&nbsp;&nbsp;The cases are&nbsp;Diaz v. Amick Farms, LLC, No. 5:22-CV-01246,&nbsp;and&nbsp;Parker v. Perdue Farms, Inc., No. 5:22-cv-00268-TES.



Class action lawsuits allow the judicial system to manage lawsuits that could potentially be unmanageable. Cases would become unwieldy if each potential class member were to bring a lawsuit.&nbsp;&nbsp;In class actions, the class members must share common questions of law or fact, with proposed claims or defenses typical for each member.&nbsp;&nbsp;At the same time, class actions require that the size of the potential class makes it impractical for all the members to join in and that the class representatives can adequately protect the interests of the entire class.



In both lawsuits, the former growers claim that the poultry companies miscategorized the growers as independent contractors and that growers should be treated as employees.&nbsp;&nbsp;As employees, the growers are entitled to be paid the minimum wage required under federal law.&nbsp;&nbsp;At the same time, one of the lawsuits argues that the growers are entitled to overtime pay for all work over 40 hours per week.&nbsp;&nbsp;The growers claim that the tournament system used to compensate growers did not provide a wage above the minimum wage for hours worked by the growers.&nbsp;&nbsp;Additional claims were filed, but for now, these are the ones we are focusing on.



It will be interesting to watch if these lawsuits are certified as a class action lawsuit and which federal district court will be given jurisdiction over the class action suit.&nbsp;&nbsp;All this could happen in 2023, and poultry growers should continue to keep an eye on this litigation.



<figure class="wp-block-image size-full"><img decoding="async" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/05/Maryland-Logo-Southern-Ag-Today-1.png" alt="" class="wp-image-35207"/></figure>



Author: Paul Goeringer 



Senior Faculty Specialist



lgoering@umd.edu

Potential Class Action Filed Claiming Poultry Growers are Employees

On&nbsp;August 16, 2022, President Biden signed the Inflation Reduction Act of 2022 (IRA).&nbsp;The IRA will provide USDA assistance and support for underserved farmers, ranchers, and foresters by amending section 1005 of the American Rescue Plan Act of 2021. This will provide $125,000,000 for USDA assistance and support for underserved farmers, ranchers, and foresters through technical assistance, $250,000,000 in land loss assistance, $10,000,000 in funding for equity commissions addressing racial equity issues with USDA, $250,000,000 in funding for research education and extension, $2,200,000,000 for discrimination financial assistance, and $3,100,000,000 to provide payments for the cost of loans or loan modifications with respect to distressed borrowers&nbsp;of direct or guaranteed loans administered by FSA.&nbsp;Additionally, the IRA addresses environmental concerns in agriculture and conservation by including $20,000,000,000 for climate-smart agriculture practices, $5,000,000,000 for fire resilient forests and forest conservation, and $2,600,000,000 for coastal habitat conservation and restoration.<a href="//426EFE18-5566-47DB-8A26-AEE0556FF70B#_ftn1">[1]</a>



The Inflation Reduction Act repealed section 1005 of the American Rescue Plan, allowing funding originally intended for debt relief (but stuck in litigation) to be reallocated. The ability to receive an individual payment due to discrimination may be better for farmers who would not have benefited from debt relief provided in section 1005 of the American Rescue Plan.&nbsp;



Research conducted by the Federation of Southern Cooperatives for the Socially Disadvantaged Farmers and Ranchers Policy Research Center (The Policy Center) has found that one of the identified challenges that Heirs’ property participants face was a lack of information or assistance making productive use of their land. In 2014, a research study conducted by Prairie View A&amp;M University, on behalf of The Policy Center, found that SDFRs needed to be further educated on USDA programs to increase their applications. Heirs property continues to be an issue, and Policy Center research conducted by Auburn University conservatively estimated that there are 579k heirs’&nbsp;properties with a combined total acreage of 6.8m valued at $47.3b across the 14 states they studied.&nbsp;



Institutions that serve, work with, and educate historically marginalized communities play a vital role in all of these areas that will be impacted by the IRA. These institutions provide the necessary technical support and outreach needed for most farmers to run a successful operation. These institutions also aid in creating the next generation of those who will work with these farmers, and the IRA ensures that there is funding to do that.&nbsp;



The Inflation Reduction Act is crucial to the survival of Socially Disadvantaged Farmers and Ranchers, and it is clear that change will come with its implementation. The only question is how much change will it truly bring?&nbsp;


<div class="wp-block-image">
<figure class="aligncenter size-full"><img decoding="async" loading="lazy" width="828" height="618" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/10/64F34F30-0A52-4010-B776-43F0F26819C8-1.jpeg" alt="" class="wp-image-37231" srcset="https://ageconafpc.wpengine.com/wp-content/uploads/2022/10/64F34F30-0A52-4010-B776-43F0F26819C8-1.jpeg 828w, https://ageconafpc.wpengine.com/wp-content/uploads/2022/10/64F34F30-0A52-4010-B776-43F0F26819C8-1-768x573.jpeg 768w" sizes="(max-width: 828px) 100vw, 828px" /></figure></div>

<div class="wp-block-image">
<figure class="aligncenter size-full"><img decoding="async" loading="lazy" width="776" height="1008" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/10/A6AF3043-A54C-4FAB-9448-6396606E6BB1-1.jpeg" alt="" class="wp-image-37232" srcset="https://ageconafpc.wpengine.com/wp-content/uploads/2022/10/A6AF3043-A54C-4FAB-9448-6396606E6BB1-1.jpeg 776w, https://ageconafpc.wpengine.com/wp-content/uploads/2022/10/A6AF3043-A54C-4FAB-9448-6396606E6BB1-1-768x998.jpeg 768w" sizes="(max-width: 776px) 100vw, 776px" /></figure></div>

<div class="wp-block-image">
<figure class="aligncenter size-large"><img decoding="async" src="https://southernagtoday.org/wp-content/uploads/2022/10/PrairieView-2-789x1024.jpg" alt="" class="wp-image-37233" /></figure></div>


<hr class="wp-block-separator has-alpha-channel-opacity" />



<a href="//426EFE18-5566-47DB-8A26-AEE0556FF70B#_ftnref1">[1]</a>&nbsp;For additional information, see previous Southern Ag Today articles on the&nbsp;<a href="https://southernagtoday.org/2022/08/debt-relief-for-certain-farmers-ranchers/">history of debt relief</a>, the&nbsp;<a href="https://southernagtoday.org/2022/09/agricultural-provisions-in-the-reduction-act-of-2022/">IRA</a>, and&nbsp;<a href="https://southernagtoday.org/2022/09/heirs-property-and-agriculture/">heirs property</a>.

Changes May Come to Socially Disadvantaged Farmers and Ranchers with the Inflation Reduction Act

As of January 1, 2022, most foods that contain bioengineered ingredients—some of which are grown or processed in the southern United States—are required to carry a disclosure that informs consumers that the food contains bioengineered ingredients. According to USDA’s regulations, food manufacturers and producers can make this disclosure by either (1) including a statement on the package, (2) including USDA’s bioengineered symbol on the package, (3) including an electronic or digital link on the package that allows consumers to read the disclosure online, or (4) including a number on the package that when texted provides consumers with the disclosure via text message. To learn more about the Bioengineered Food Disclosure Standard, click&nbsp;<a href="https://nationalaglawcenter.org/wp-content/uploads/assets/articles/NBFDS-factsheet.pdf">here</a>.



When directing USDA to create these regulations, Congress required USDA to “provide additional and comparable options to access the bioengineering disclosure” if USDA determines “that consumers, while shopping, would not have sufficient access to the bioengineering disclosure through electronic or digital disclosure methods.” 7 U.S.C. § 1639(c)(4). Because of this provision, USDA conducted a study that found that many consumers, while shopping, would have difficulty accessing the internet. Therefore, USDA included the fourth text message disclosure option as the additional and comparable option to the third electronic disclosure option.&nbsp;



Among other things, the plaintiffs in&nbsp;Natural Grocers v. Vilsack, 3:20-cv-05151-JD (N.D. Cal. 2022), argued that USDA acted arbitrarily and capriciously in deciding to include the fourth text message option as the additional and comparable option. The court agreed and found that the “text message option merely provided a fourth disclosure option that regulated entities can select instead of the electronic disclosure method.” As a result, the court remanded the text message disclosure regulation, but without vacatur. This means that until USDA updates the regulations, food manufacturers and producers can still choose to include the electronic or text message disclosures as a method to disclose bioengineered ingredients.&nbsp;







Caracciolo, Jana. &#8220;USDA’s Text Message Bioengineered Food Disclosure Regulation Determined Unlawful&#8221;. Southern Ag Today 2(41.5). October 7, 2022.

USDA’s Text Message Bioengineered Food Disclosure Regulation Determined Unlawful

Poultry growers may have started to receive settlement forms recently for a broiler grower class action lawsuit settlement.&nbsp;&nbsp;Defendants involved in the lawsuit include Koch Poultry, Pilgrim’s Pride, Sanderson Farms, Tysons, and Perdue, and several co-conspirators, including Agri Stats, Foster Farms, Mountaire Farms, Wayne Farms, George’s, Inc., Peco Foods, Inc., House of Raeford Farms, Simmons Foods, Keystone Foods, Fieldale Farms Corp., O.K. Industries, Case Foods, Marshall Durbin Companies, Amick Farms, Inc., Mar-Jac Poultry, Inc., Harrison Poultry, Inc., and Claxton Poultry Farms.&nbsp;&nbsp;At this point, Perdue and Tyson have not agreed to the settlement, but their growers are still included in the settlement process.&nbsp;&nbsp;Growers might be surprised to receive this form in the mail and may have questions about the case and settlement.&nbsp;&nbsp;There is a website designed to answer questions about the settlement process (https://www.broilergrowersantitrustsettlement.com/koch-settlement/), which includes many important deadlines for broiler growers.&nbsp;&nbsp;Answers to many of the important questions growers may have, including how much money each grower will receive and whether additional integrators will, are currently unknown.&nbsp;&nbsp;



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Originally filed in 2017 in the federal district court for the Eastern District of Oklahoma, the lawsuit alleges that several integrators colluded in the broiler market.&nbsp;&nbsp;According to the court filings, the plaintiffs alleged that the integrators agreed not to poach growers.&nbsp;&nbsp;In addition to the no-poaching agreement, the integrators also allegedly used Agri Stats to share detailed data about their operations.&nbsp;&nbsp;Although this data shared through Agri Stats is anonymous, it is highly detailed, making it possible for companies to distinguish various operations.&nbsp;&nbsp;This data is also non-public &#8212; private data only available to the integrators, according to the court filings.&nbsp;&nbsp;By sharing this detailed data with Agri Stats, the integrators could collude to lower grower compensation.



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Growers for all these companies will receive settlement forms as potential class members impacted by the lower grower compensation amount due to the alleged collusion.&nbsp;&nbsp;Growers receiving settlement forms will need to pay attention to certain dates.&nbsp;&nbsp;The first important date is&nbsp;Sept. 23, 2022, for postmarking requests to be excluded from the settlement.&nbsp;A party always has the right to be excluded from a settlement.&nbsp;&nbsp;When a party elects, they often have the right to sue for similar claims on their own or do nothing.&nbsp;&nbsp;To have that opportunity, a grower&nbsp;must opt out&nbsp;by the September 23 deadline.&nbsp;&nbsp;Second, all claims’ forms must be submitted online or be postmarked by&nbsp;February 6, 2023.&nbsp;&nbsp;Please check the website at https://www.broilergrowersantitrustsettlement.com/koch-settlement/ for additional information to determine if a grower wants to be part of the settlement or if a grower notice mistakes on the settlement form.&nbsp;&nbsp;



Goeringer, Paul. &#8220;<a href="https://southernagtoday.org/2022/09/broiler-grower-settlement-forms-arriving-to-growers-background-on-the-class-action/">Broiler Grower Settlement Forms Arriving to Growers: Background on the Class Action</a>&#8220;. Southern Ag Today 2(38.5). September 16, 2022. <a href="http://broiler-grower-settlement-forms-arriving-to-growers-background-on-the-class-action">Permalink</a>

Broiler Grower Settlement Forms Arriving to Growers: Background on the Class Action

In June, the Federal Crop Insurance Corporation (“FCIC”) published a final rule amending the basic policy provisions of the federal crop insurance program.&nbsp;See&nbsp;87 Fed. Reg. 38883 (June 30, 2022). Specifically, the rule brings more flexible production record requirements for producers obtaining crop insurance. Before this rule, producers were generally required to provide production records from disinterested third parties—such as sales receipts, storage records, or settlement sheets—or obtain a pre-harvest appraisal to verify their actual crop production to support their production report. The reports are submitted to an insurance provider to obtain insurance coverage, report annual production, and file loss claims.



However, not all producers have third-party records. For example, producers that are vertically integrated or market their insured crop directly to consumers do not use an intermediate party to store or sell their crop, eliminating access to these types of records.



In response, the rule incorporates new recording procedures, allowing producers to support their production report with farm management records; or records documenting the actual production “at the time of harvest, storing of the crop, or use of the crop for feed.” 7 C.F.R. § 457.8, Section 1. In other words, producers may be permitted to use some of their own records when generating required reports.



Further, the rule adopts a new section addressing situations for producers without either third-party production records or an intention to direct market their crop. These producers must notify their insurance provider or FCIC and complete a marketing certification form.&nbsp;Id.&nbsp;at Section 38(a). The goal of this section is to encourage producers without verifiable records to discuss available records with their insurance provider in advance, with the goal of decreasing pre-harvest appraisals.



This amendment is applicable for the 2023 and subsequent crop years for crop insurance policies with a change date on or after June 30, 2022. For all other crops, the final rule revisions are applicable for the 2024 and subsequent crop years.



Brown, Micah. &#8220;<a href="https://southernagtoday.org/2022/09/amendments-to-the-federal-crop-insurance-basic-provisions/">Amendments to the Federal Crop Insurance Basic Provisions</a>&#8220;. Southern Ag Today 2(37.5). September 9, 2022. <a href="http://amendments-to-the-federal-crop-insurance-basic-provisions">Permalink</a>

Amendments to the Federal Crop Insurance Basic Provisions

Heirs property has become an important topic in agriculture. The term “heirs property,” describes a form of ownership where at least some of the owners have acquired the property through inheritance. As the property passes down through the generations, more and more people are co-owners, making the property unmanageable. As time passes, some owners may not be able to be found or may not be known.&nbsp;



In most states all owners would have to agree to, for example, farm the property. If consensus among heirs is not reached, the on-farm heirs may not be able to obtain a farm number to participate in United States Department of Agriculture programs. When a disaster strikes and landowners seek federal or state government assistance, the inability to prove ownership or have all owners sign can bar any assistance.



If the land is already classified as heirs property, the first task is to identify and locate all persons with an ownership interest, which can be very time-consuming and expensive. Once all owners are identified and located, the farm can be placed in a business entity like a limited liability company, or a co-tenancy agreement can be entered into for easier management. However, all owners need to agree, which can be problematic.&nbsp;



If all owners cannot be identified or located, title must be “cleared”- the proper owners must be determined. In most cases, this process involves a court case. The process of clearing title can be extremely expensive and take years to accomplish.



Any owner of the property can also file a partition suit to have the land either physically divided among the heirs, or sold and the proceeds, after costs, divided among the heirs. As a practical matter, a partition suit most often results in sale of the property.&nbsp;



The latest Farm Bill contains two provisions to attempt to address these issues. First, the bill provides alternative ways for owners of heirs property to obtain a farm number. Second, the Farm Bill provides for a relending program where owners of heirs property can borrow money to clear title and develop business entities or other documents to manage the farm.&nbsp;



Careful estate planning can prevent your property from becoming heirs property. If you own land, consult an attorney to prevent and/or address heirs property issues.



For more information see:



<a href="https://www.calt.iastate.edu/article/problem-heirs-property">https://www.calt.iastate.edu/article/problem-heirs-property</a>



<a href="https://wvleap.wvu.edu/additional-tools/highlight-heirs-property">https://wvleap.wvu.edu/additional-tools/highlight-heirs-property</a>



Richardson, Jesse. &#8220;<a href="https://southernagtoday.org/2022/08/heirs-property-and-agriculture/">Heirs Property and Agriculture</a>&#8220;. Southern Ag Today 2(36.5). September 2, 2022. <a href="http://heirs-property-and-agriculture">Permalink</a>

Heirs Property and Agriculture

Estate planning is not a topic most people are excited to consider.  However, having certain key documents in place can help ensure that one’s wishes are followed and help ease the legal burden on family members left behind. Many states, like Texas, for example, offer statutory forms for certain documents such as powers of attorney and advanced directives, making it easy for residents to prepare and execute these documents.  



There are five key documents for everyone to have in place:



<ol><li>Will</li></ol>



A will is simply a document providing how certain assets will be handled upon a person’s death and often appoints an executor to act on behalf of the estate.&nbsp;&nbsp;The specific rules for executing a will differ by state and may require signatures before witnesses or a notary on the particular state law.&nbsp;&nbsp;It is highly recommended to have an attorney help draft a will, particularly if an estate includes minor children, adults with special needs, or significant assets such as a farm or ranch.



 2. Advanced Directive



An Advanced Directive is a document instructing a physician of the patient’s wishes regarding life-sustaining treatment in the event they are diagnosed as terminal or irreversible.&nbsp;&nbsp;This document clarifies how the patient wants to be treated in this scenario and is designed to avoid devastating family conflicts when wishes are unknown.&nbsp;



 3. Medical Power of Attorney 



A Medical Power of Attorney allows the person executing the document to appoint an agent to make medical decisions on they behalf in the event the signor is incapacitated.&nbsp;&nbsp;For example, if a patient is unconscious during a surgical procedure and a decision must be made, the medical power of attorney would allow the agent to make that decision legally.&nbsp;&nbsp;



 4. HIPAA Release



The “Healthcare Insurance Portability and Accountability Act” protects a person’s private healthcare information from disclosure. &nbsp;Generally, this is a positive, but it can be if a person is incapacitated, and family members are unable to obtain information about the care or condition of their loved one. &nbsp;A simple form can help alleviate this issue and ensure a selected representative can obtain medical information.&nbsp;



 5. Durable Power of Attorney



A power of attorney allows the signor&nbsp;to appoint an agent to act on their behalf to handle financial affairs. &nbsp;The power of attorney may be general (meaning the POA becomes effective immediately upon signing) or springing (which means the POA is not effective until a future event or date–usually the signor being declared incapacitated by a doctor). &nbsp;This document allows an appointed agent to do things like pay bills, manage bank accounts, and deal with real estate issues.



Lashmet, Tiffany. &#8220;<a href="https://southernagtoday.org/2022/08/key-estate-planning-documents/">Key Estate Planning Documents</a>&#8220;. Southern Ag Today 2(35.5). August 26, 2022. <a href="http://key-estate-planning-documents">Permalink</a>

Key Estate Planning Documents

In 2019, a series of class-action lawsuits were filed against JBS, National Beef Packing, Tyson, and Cargill, commonly known as “The Big Four” packers on behalf of direct purchasers, producers, and indirect purchasers as separate classes seeking class certification. These suits allege that The Big Four violated the Sherman Act, the main federal law protecting free market competition and prohibiting restraint on interstate commerce. In addition, these suits alleged violations of 25 different states’ antitrust laws and 21 states’ consumer protection laws totaling 48 claims in a single suit. The suits alleged that The Big Four have a tight oligarchy for both slaughter capacity and processed beef sales and that The Big Four conspired to artificially deflate the beef supply and drive up the cost of boxed beef. The suits also name a market forecasting service, Agri Stats, as a defendant. In 2021, JBS settled with the direct purchaser class only, for $52.5M, agreeing to provide “extensive cooperation” to plaintiffs in proving their claims against the other defendants.&nbsp;



In June and July of 2022, Sysco Corporation, along with other grocers and food distributors, filed similar lawsuits against The Big Four, alleging violations of the Sherman Act and conspiracy to artificially deflate cattle market prices while simultaneously causing boxed beef prices to soar. Sysco’s complaints quote a former employee witness who purported to have first-hand knowledge of the alleged conspiracies.&nbsp;



A search of public access court records shows 11 associated cases to Sysco’s suit against The Big Four. Two of the cases have already consolidated multiple suits with similar claims. As the U.S. Department of Justice continues its investigation of these allegations quietly, the litigation is heating up. The Defendants publicly and vigorously deny the allegations, and all testified before Congress in April of 2022, unequivocally denying any conspiracy as alleged between them. There’s a lot of smoke around this issue, and time will tell if it’s a smoke screen or an inferno. For now, the larger agriculture community is following closely as the poultry and swine industries wait in the wings.&nbsp;



Friedel, Jennifer. &#8220;<a href="https://southernagtoday.org/2022/07/sysco-becomes-latest-beef-packer-antitrust-claimant/">Sysco Becomes Latest Beef Packer Antitrust Claimant</a>&#8220;. Southern Ag Today 2(31.5). July 29, 2022. <a href="http://sysco-becomes-latest-beef-packer-antitrust-claimant">Permalink</a>

Sysco Becomes Latest Beef Packer Antitrust Claimant

Farm tenants often make improvements to the farm they are leasing. Building or repairing sheds or barns are an example, as is a tenant purchasing and installing irrigation equipment. However, before doing so, tenants should consider the legal status of these investments.&nbsp;&nbsp;This issue is important as almost 40% of U.S. farmland is rented/leased (Figure 1).



Legally, property comes in two forms, real and personal. Real property is land and everything growing upon or attached to it. Personal property is essentially everything else. A fixture, however, is personal property that becomes real property by being&nbsp;incorporated into or attached to&nbsp;real property.&nbsp;&nbsp;Figure 2 provides an illustration of these concepts.&nbsp;



Whether an improvement qualifies as a fixture is important because fixtures are owned by the owner of the real property to which they become attached,&nbsp;regardless of who owned them before they were attached. Absent an agreement to the contrary, a landowner is entitled to keep fixtures at the end of a lease. Further, a tenant’s insurance may not cover a fixture, and if the landowner has a mortgage, the landlord’s lender may have a security interest in it, while the tenant’s lender may not.&nbsp;&nbsp;



Courts typically consider three factors when determining whether personal property has become a fixture. The first is whether the object is physically or&nbsp;constructively&nbsp;attached to real property. Constructive attachment occurs when the object comprises a necessary, integral, or working part of another object that is physically attached to real property. The second factor is whether the object is adapted to the use of real property. Thus, the more useful an article is to normal operations conducted on the property, the more likely it is to be considered a fixture. However, the most important of the three factors is whether there is evidence that the tenant intended to&nbsp;attach the object&nbsp;permanently. Courts are likely to presume such intent if removing the object would cause material injury to the real property or other fixtures. However, the best evidence of the parties’ intent is a provision in a written lease specifically stating who owns the improvement and what is to happen to it at the end of the lease. Tenants who make improvements without such language risk losing ownership and control of those improvements.


<div class="wp-block-image">
<figure class="aligncenter size-large"><img decoding="async" loading="lazy" width="1024" height="817" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/07/2.30.5-1-1024x817.png" alt="" class="wp-image-36536" srcset="https://ageconafpc.wpengine.com/wp-content/uploads/2022/07/2.30.5-1-1024x817.png 1024w, https://ageconafpc.wpengine.com/wp-content/uploads/2022/07/2.30.5-1-768x613.png 768w, https://ageconafpc.wpengine.com/wp-content/uploads/2022/07/2.30.5-1-1536x1226.png 1536w, https://ageconafpc.wpengine.com/wp-content/uploads/2022/07/2.30.5-1-2048x1634.png 2048w" sizes="(max-width: 1024px) 100vw, 1024px" /></figure></div>

<div class="wp-block-image">
<figure class="aligncenter size-full"><img decoding="async" loading="lazy" width="624" height="460" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/07/2.30.5-2-1.png" alt="" class="wp-image-36537" /></figure></div>

Fixtures and Farm Leases

In the past 15 years, several states have passed laws regarding the amount of space that specific types of farm animals- pregnant sows, veal calves and laying hens- must be given.&nbsp;&nbsp;The constitutionality of one of these laws, passed as a ballot proposal in California, will be considered in October by the Supreme Court of the United States (“SCOTUS”).&nbsp;



“Prop 12” was passed in 2018 and required that eggs produced and sold in California be from cage-free hens.&nbsp;&nbsp;Additionally, it required that pork and veal sold in California come from farms without veal crates or gestation crates.&nbsp;&nbsp;These requirements apply not only to California producers, but also to producers across the country (and the world) selling products into the large California market.&nbsp;&nbsp;While Prop 12 took effect in January 2022, a California state court has prevented its enforcement until six months after the regulations outlining its administration are finalized.&nbsp;&nbsp;



Prop 12 was also challenged in federal court.&nbsp;&nbsp;In one case, the National Pork Producers Council and American Farm Bureau Federation (“NPPC/AFBF”) argued that it violates the “commerce clause” to the United States Constitution.&nbsp;&nbsp;The commerce clause gives Congress the right to pass laws affecting multiple states.&nbsp;&nbsp;On the flip side, the “dormant commerce clause” limits state legislatures, with some exceptions, to only passing laws affecting people located in that specific state.&nbsp;&nbsp;The NPPC/AFBF case argued that Prop 12 acted as a barrier to trade between states by imposing obligations on out-of-state competitors in order to assist local producers.



The plaintiffs lost at both the federal district court and the Ninth Circuit Court of Appeals.&nbsp;&nbsp;However, NPPC/AFBF requested that SCOTUS hear the appeal and that request was accepted.&nbsp;&nbsp;It will be heard at SCOTUS on October 11th.&nbsp;&nbsp;To see other states with similar statutes, click&nbsp;<a href="https://nationalaglawcenter.org/state-compilations/farm-animal-welfare/">here</a>.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;



Rumley, Elizabeth. &#8220;<a href="https://southernagtoday.org/2022/07/u-s-supreme-court-to-hear-proposition-12-case/">U.S. Supreme Court to Hear Proposition 12 Case</a>&#8220;. Southern Ag Today 2(29.5). July 15, 2022. <a href="http://u-s-supreme-court-to-hear-proposition-12-case">Permalink</a>

U.S. Supreme Court to Hear Proposition 12 Case

Right-to-farm laws provide agricultural producers, forestry operations, and aquaculture producers a defense in a nuisance lawsuit under certain circumstances.&nbsp;&nbsp;A 2022 Supreme Court of Mississippi decision highlights how the right-to-farm defense can protect agricultural operations.&nbsp;&nbsp;In this case, two producers began using propane cannon scare guns to prevent deer from eating their cotton and soybean crops during summer. The propane cannons created loud noises, and the neighbors’ ensuing nuisance lawsuit tried to prevent the two producers from using the guns. The trial court agreed with the two producers that the state’s right-to-farm law barred the nuisance claim, and the Supreme Court of Mississippi recently upheld the trial court’s ruling in&nbsp;Briggs v. Hughes.



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;On appeal, the neighbors argued that the Mississippi legislature did not create blanket protection for operations adding new practices on a farm, and the Court should look at when the practice began to be used.&nbsp;&nbsp;The Court disagreed with this view of the state’s right-to-farm law.&nbsp;&nbsp;The Court must only determine if an agricultural operation complies with all applicable state and federal permits and not when a new practice, such as a scare gun, was first used.&nbsp;



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;The Court then turned to the neighbors&#8217; argument that using propane cannons was not a best management practice.&nbsp;&nbsp;The neighbors argued that expert testimony demonstrated&nbsp;&nbsp;propane cannons would become less effective over time and that propane cannons could not be a best practice because they are not always practical.&nbsp;&nbsp;The court disagreed, relying on expert testimony showed the propane cannons were used appropriately for pest control, and the Court upheld the lower court’s finding.



&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Importantly, each state’s right-to-farm statute is different in certain details.&nbsp;&nbsp;With Mississippi’s law, the farm only needed to demonstrate that the operation complied with federal and state permits and that the practice was a best management practice. Here the producers’ use of scare guns adhered to the Mississippi law.&nbsp;&nbsp;The analysis would have been different in states with different statutory provisions. Operations should pay attention to the language used in right-to-farm laws to ensure they can maintain the defense.



Goeringer, Paul. &#8220;<a href="https://southernagtoday.org/2022/06/how-right-to-farm-laws-operate-to-protect-ag-practices-used-by-producers/">How Right-to-Farm Laws Operate to Protect Ag Practices Used by Producers</a>&#8220;. Southern Ag Today 2(25.5). June 17, 2022. <a href="http://how-right-to-farm-laws-operate-to-protect-ag-practices-used-by-producers">Permalink</a>

How Right-to-Farm Laws Operate to Protect Ag Practices Used by Producers

Questions regarding fence disputes are a regular inquiry at the&nbsp;<a href="https://nationalaglawcenter.org/">National Agricultural Law Center</a>.&nbsp;&nbsp;For such a common issue, one would assume that this area of the law is relatively straightforward, but that is not always the case!&nbsp;&nbsp;&nbsp;All fifty states have passed laws relating to fences and livestock running at large, but there are significant differences between the states and sometimes even within the same state.&nbsp;&nbsp;For example, Texas is an “open range” state which means that livestock owners are not required to fence in their livestock; however, counties can, and have, adopted local stock laws that effectively close the range in those counties.&nbsp;&nbsp;It can be very difficult to determine whether a Texas county has adopted a local stock law closing the open range in that county because older records are often hard to find and may not be found online.&nbsp;



The confusing nature of fence laws causes numerous problems across the country, but a few general rules apply to most of the southern states.&nbsp;&nbsp;If you have livestock, you typically have a duty to keep them on your property (except for some counties in Texas.)&nbsp;&nbsp;What constitutes a legal fence is typically found in your state law, but the fence must be sufficient to keep your livestock on your own property.&nbsp;&nbsp;The last area where significant questions arise covers maintaining and paying for the boundary fences between neighbors.&nbsp;&nbsp;Once again, this area of the law is highly dependent on where your property is located.&nbsp;&nbsp;It is dependent on the state, but some states have antiquated fence laws which further complicates the problem.&nbsp;&nbsp;To read your state fence law, click&nbsp;<a href="https://nationalaglawcenter.org/state-compilations/fence-laws/">here</a>.&nbsp;&nbsp;



If you do have a fence issue with your neighbor, the cheapest way for both parties to resolve the dispute is to come to an agreement that everyone can accept.&nbsp;&nbsp;Fences are not cheap, but lawsuits will typically cost more in the long run.&nbsp;&nbsp;



Source – the&nbsp;<a href="https://nationalaglawcenter.org/">National Agricultural Law Center</a>







Rumley, Rusty. &#8220;<a href="https://southernagtoday.org/2022/06/fence-laws-for-rural-landowners/">Fence Laws for Rural Landowners</a>&#8220;. Southern Ag Today 2(24.5). June 10, 2022. <a href="http://fence-laws-for-rural-landowners">Permalink</a>

Fence Laws for Rural Landowners

When one inherits or purchases an interest in open farmland &#8211; particularly between March and November in the South &#8211; chances are someone is growing crops or pasturing livestock on it. Often, there is no written agreement between landowner and farmer. Statistically we know that the majority of farm tenancies renew annually (<a href="https://www.ers.usda.gov/webdocs/publications/74672/eib-161.pdf">ERS, 2016</a>), which may support anecdotal observations that verbal farm tenancies are common. Such “handshake” agreements provide no written record of the bargain struck between landowner and farmer as to rent and term. For farmers working multiple parcels with different owners, keeping the bargains straight may pose a challenge. As land changes hands between owners due to inheritance or sale, questions emerge including the farmer’s rights to crops and fixtures, the apportionment of rent between successive owners, and circumstances of renewal.&nbsp;



Given the relative vulnerability of the farmer in this equation, states’ landlord-tenant policies have evolved to provide farmer access rights through the harvesting and sale of their crop and its profits &#8211; known as&nbsp;emblements&nbsp;&#8211; in the event a landowner or successor tries to move them off and bar access. All southern states have some form of farm tenancy laws, varying in their specificity and determination of tenant rights. Such statutes may supply length of term (e.g.&nbsp;<a href="https://law.justia.com/codes/south-carolina/2015/title-27/chapter-35/section-27-35-10/">South Carolina</a>) and prescribe termination notice periods required to prevent automatic renewals, often of one month or greater (e.g.&nbsp;<a href="https://law.justia.com/codes/mississippi/2013/title-89/chapter-7/section-89-7-23/">Mississipp</a>i). Some laws allow a landowner to terminate a tenancy before planting, as in&nbsp;<a href="https://law.justia.com/codes/alabama/2009/Title35/Chapter9/35-9-38.html">Alabama</a>. The status of improvements &#8211; called trade fixtures &#8211; placed by the farmer can also come into question, and&nbsp;<a href="https://law.justia.com/codes/georgia/2020/title-44/chapter-7/article-1/section-44-7-12/">Georgia</a>provides that any items on the parcel at the close of term become property of the landowner. Most such laws ensure payment of rent with a priority lien on crops in favor of the landowner. At the moment, there is no comprehensive source locating and describing farm tenancy laws for the southern states, however,&nbsp;<a href="https://nam10.safelinks.protection.outlook.com/?url=https%3A%2F%2Fcontent.ces.ncsu.edu%2Fthe-verbal-statutory-farm-tenancy&amp;data=05%7C01%7CCandice.Foster%40ag.tamu.edu%7C7dd140cee231464c67a008da43386990%7C9fd7580a64724d9ca142d131d3a7a116%7C0%7C0%7C637896206812962180%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&amp;sdata=16gjb9Pe2LlO8eXxUj2Ogt6e8VbIWsbT3XA2ATXM4io%3D&amp;reserved=0">this article</a>&nbsp;serves as a summary of issues such laws might address,&nbsp;using North Carolina as an example. To locate your state&#8217;s farm tenancy law, try the search terms &#8220;farm&#8221; or &#8220;agriculture&#8221;, &#8220;tenant&#8221; or &#8220;tenancy&#8221;, and &#8220;[state] Code.&#8221;



Regardless of statutory protections, farm tenancy disputes require verbal sworn testimony in court to resolve, and otherwise require judicial interpretation of vague statutory language, so resolving disputes can be costly. Better practice dictates some form of writing to clarify the issues described above. Though farm leases can be a lengthy treatment of rights and responsibilities, or very short statement of place, rent and term, they serve as the clarifying record of the bargain which likely reduces disputes and expense to both landlords and farm tenants.



Brannon, Robert Andrew. &#8220;<a href="https://southernagtoday.org/2022/06/verbal-farm-tenancy-protection-in-the-south/">Verbal Farm Tenancy Protections in the South</a>&#8220;. Southern Ag Today 2(23.5). June 3, 2022. <a href="http://verbal-farm-tenancy-protection-in-the-south">Permalink</a>

Verbal Farm Tenancy Protection in the South

A judge on the United States District Court for the Western District of Texas has held that the “Use of Unmanned Aircraft” statute violates the First Amendment.&nbsp;&nbsp;View Order&nbsp;<a href="https://agrilife.org/texasaglaw/files/2022/04/Order-here.pdf">here</a>. The lawsuit,&nbsp;National Press Photographers Association v. McCraw, was filed by two media organizations and an individual journalist who claimed that provisions in this 2013 Texas statute violate their First Amendment rights.&nbsp;&nbsp;In particular, the plaintiffs challenged two statutory concepts.&nbsp;&nbsp;The first prohibits a drone from capturing an image of an individual or privately owned real property with the intent to conduct surveillance.&nbsp;&nbsp;Numerous exceptions exist for a variety of uses including real estate agents, aerial mapping, and professional or scholarly research.&nbsp;&nbsp;Second, they challenge a provision essentially prohibiting operating a drone over a correctional facility, detention facility, critical infrastructure facility, or sports venue.&nbsp;&nbsp;Again, there are exceptions to the statute, allowing drones to fly over these facilities for “commercial purposes.”&nbsp;&nbsp;Neither provision contains a newsgathering exception.&nbsp;&nbsp;



Judge Pitman found the statute to violate the First Amendment as it is not narrowly tailored to serve a compelling state interest and is also unconstitutionally vague. To read more about this decision,&nbsp;<a href="https://agrilife.org/texasaglaw/2022/04/11/federal-court-strikes-down-texas-drone-law/">click here</a>.



Several other states have drone statutes as well, including several Southern states.&nbsp;&nbsp;To view a compilation of those state laws from the National Agricultural Law Center,&nbsp;<a href="https://nationalaglawcenter.org/state-compilations/uav/">click here</a>.



Lashmet, Tiffany. &#8220;<a href="https://southernagtoday.org/2022/04/federal-judge-strikes-down-texas-drone-law-as-unconstitutional/">Federal Judge Strikes Down Texas Drone Law as Unconstitutional</a>&#8220;. Southern Ag Today 2(17.5). April 22, 2022. <a href="http://federal-judge-strikes-down-texas-drone-law-as-unconstitutional">Permalink</a>

Federal Judge Strikes Down Texas Drone Law as Unconstitutional

The&nbsp;<a href="https://uscode.house.gov/view.xhtml?edition=prelim&amp;path=%2Fprelim%40title29%2Fchapter8&amp;req=granuleid%3AUSC-prelim-title29-chapter8&amp;num=0&amp;hl=false">Fair Labor Standards Act (“FLSA”)</a>&nbsp;does not require that employees who are employed in agriculture receive the federal overtime payment of time and one-half their regular rates for hours worked more than 40 hours per week. However, states are free to enact their own regulations that mandate overtime requirements for agricultural workers. So far six states have taken that step and implemented their own requirements. The majority of the states mandating overtime for farmworkers are doing so on a schedule to build up to the final hours’ requirement.&nbsp;



For example, California started to phase in an overtime requirement for agricultural workers in 2019. In 2019, California required that people employed in an agricultural occupation could not be employed more than nine and one-half hours or work more than 55 hours in a workweek without receiving overtime compensation. In 2020, the hours in a day decreased to 9, and the hours in a week were reduced to 50 for overtime compensation. Each year the hours decrease until the final overtime requirements are in place. As of January 1, 2022, in California, it is required that any agricultural employee working more than 8 hours a day or more than 40 hours a week receive overtime compensation. Additionally, like several other states, California has a slightly different schedule for small employers (25 or fewer employees), giving them more time to implement these changes.



Most recently, the&nbsp;<a href="https://dol.ny.gov/farm-laborers-wage-board-hearings">New York Farm Laborers Wage Board</a>&nbsp;voted to decrease the overtime threshold for agricultural workers from 60 to 40 hours. This change will be phased-in over a ten-year period, reducing by four hours on a biannual basis. Oregon is also in the process of passing a bill into law that would also require agricultural workers to receive overtime.&nbsp;<a href="https://olis.oregonlegislature.gov/liz/2022R1/Downloads/MeasureDocument/HB4002/Enrolled">House Bill 4002</a>&nbsp;passed both the Oregon House and Senate in early March of 2022 and is awaiting the governor’s signature. This would make Oregon the seventh state to require agricultural workers to receive overtime compensation.



Mikolajczyk, Samantha. &#8220;<a href="https://southernagtoday.org/2202/04/overtime-for-the-agricultural-industry/">Overtime for the Agricultural Industry</a>&#8220;. Southern Ag Today 2(16.5). April 15, 2022. <a href="http://overtime-for-the-agricultural-industry">Permalink</a>

Overtime for the Agricultural Industry

Agricultural operations often cause dust and odors which could impact neighbors and bring nuisance claims.&nbsp;&nbsp;All 50 states have a right-to-farm law on the books, providing a nuisance defense for agricultural operations.&nbsp;&nbsp;This defense varies from state to state, but each state’s law operates to provide a defense in situations when a party is claiming the farm is a nuisance.



What is a nuisance? A nuisance is a condition or situation impacting another person’s use and enjoyment of property. Let’s say, for example, that a grain producer applies nutrients to a field neighboring a residence. The neighbors might not be able to use their property immediately after the producer applies the nutrients due to the smell. This could be a potential nuisance because the neighbors have lost the use and enjoyment of their property.



A right-to-farm law operates to provide a defense to the agricultural operation when facing nuisance lawsuits.&nbsp;&nbsp;To use the defense, the agricultural operation must meet their state’s statutory requirements, which vary from state to state.&nbsp;&nbsp;In several states, for example, the farming operation would need to either preexist the non-agricultural uses in the area or at least be in operation for a set period. In many states, the operation must also comply with other federal, state, or even local laws, such as environmental laws or local zoning ordinances.



The right-to-farm law defense can be a powerful tool to protect a farming operation, but an operation needs to qualify for the defense.  The National Ag Law Center has compiled all of the state right-to-farm laws: <a href="https://nationalaglawcenter.org/state-compilations/right-to-farm/">https://nationalaglawcenter.org/state-compilations/right-to-farm/</a>.



Goeringer, Paul. &#8220;<a href="https://southernagtoday.org/2022/04/what-are-right-to-farm-laws/">What Are Right-to-Farm Laws</a>?&#8221;. Southern Ag Today 2(15.5). April 8, 2022. <a href="http://what-are-right-to-farm-laws">Permalink</a>

What Are Right-to-Farm Laws?

On March 11, 2022, the United States Court of Appeals for the Tenth Circuit dismissed a case holding that beef products labeled as “Product of the U.S.A” are not misleading.&nbsp;Thornton v. Tyson Foods, Inc., — F.4th&nbsp;—, No. 20-cv-2124, 2022 WL 727628 (10th Cir. 2022). Robin Thornton, one of the plaintiffs, is a beef consumer and claimed that “Product of the U.S.A.” labels deceived her into thinking the labeled beef originated from cattle born, raised, and slaughtered in the United States. The other plaintiff, Michael Lucero, is a beef producer who claimed he was paid less for his domestic cattle as a result of Defendant’s labeling practices. Both plaintiffs claimed that “Product of the U.S.A.” labels are misleading when the beef is derived from cattle either imported live or imported post-slaughter. Both plaintiffs brought their claims under New Mexico state law, not under the Federal Meat Inspection Act (FMIA). However, the main issue in the case was whether the FMIA preempts such state law claims.



This case dealt with two provisions of the FMIA. Under the first provision, meat labels must not be “false or misleading” and must be “approved by the Secretary” of Agriculture. 21 U.S.C. § 607(d). Secondly, the FMIA prohibits states from imposing any additional requirements which are “in addition to, or different than” the requirements imposed by the FMIA. 21 U.S.C. § 678.



The court reasoned that there is a presumption that labels are not false or misleading if the Secretary of Agriculture, through the Food Safety and Inspection Service (FSIS), approves the labels. Because FSIS approved Defendant’s labels, the court found that the labels were not misleading. Therefore, the court held that the plaintiffs failed to state a false advertising claim.



Additionally, the court found that the plaintiffs’ state law claims are expressly preempted by the FMIA. The court explained that if a federal statute expressly preempts state laws, then the corresponding state law must be interpreted and applied the same way as the federal law. Therefore, the court held that the FMIA expressly preempts state laws, and therefore, New Mexico state law must be interpreted and applied exactly as the FMIA.&nbsp;&nbsp;



However, not all of the Circuit Court judges who heard this case agreed. One dissenting judge disagreed with the majority opinion, and argued that just because FSIS approved a label does not mean that the label is not false or misleading. The dissent focused on the language of the FMIA, which states meat labels must “not [be] false or misleading&nbsp;and&nbsp;… [must be] approved by the Secretary.”&nbsp;Thornton v. Tyson, (quoting 21 U.S.C. § 607(d)). The dissent argued that the use of “and” to connect these two requirements suggests the FMIA “contemplates the existence of—and indeed proscribes—labels that are both misleading and approved by the Secretary.”&nbsp;&nbsp;&nbsp;



If the plaintiffs choose to, they can appeal the 10th Circuit’s opinion to the Supreme Court of the United States. However, the Supreme Court only hears a fraction of the cases appealed to them. Also, regarding “Product of the U.S.A” labeling, FSIS currently has an information collection request awaiting approval from the Office of Management and Budget (OMB). FSIS is seeking approval to conduct a “web-based survey/experiment to help gauge consumer awareness and understanding of current ‘Product of USA’ labeling claims on meat (beef and pork) products and consumer willingness to pay”.



Caracciolo, Jana. &#8220;<a href="https://southernagtoday.org/2022/04/the-10th-circuit-dismisses-product-of-the-u-s-a-mislabeling-claims/">The 10th Circuit Dismisses “Product of the U.S.A.” Mislabeling Claims</a>&#8220;. Southern Ag Today 2(14.5). April 1, 2022. <a href="http://the-10th-circuit-dismisses-product-of-the-u-s-a-mislabeling-claims">Permalink</a>

The 10th Circuit Dismisses “Product of the U.S.A.” Mislabeling Claims

Congress enacted the Agricultural Foreign Investment Disclosure Act of 1978 (AFIDA) to establish a nationwide scheme for collecting information on foreign investments in U.S. agricultural land. Under AFIDA, certain foreign investors are required to disclose their acquisitions and holdings in farm, ranch, and forestland to the United States Department of Agriculture (USDA). This data collected by USDA is compiled into an annual report to demonstrate the effect foreign holdings have on family farms and rural communities.



Recently, USDA published its <a href="https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/EPAS/PDF/2020_afida_annual_report.pdf">latest AFIDA report</a>, which provides data on foreign landholdings through December 31, 2020. According to the report, foreign persons hold an interest in almost 37.6 million acres of private U.S. agricultural land, an increase of 2.4 million acres from 2019. Since 2015, foreign investments have increased an average of 2.2 million acres per year.


<div class="wp-block-image">
<figure class="aligncenter size-full"><img decoding="async" loading="lazy" width="831" height="580" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/06/2.8.5.1-1.png" alt="" class="wp-image-36105" srcset="https://ageconafpc.wpengine.com/wp-content/uploads/2022/06/2.8.5.1-1.png 831w, https://ageconafpc.wpengine.com/wp-content/uploads/2022/06/2.8.5.1-1-768x536.png 768w" sizes="(max-width: 831px) 100vw, 831px" /></figure></div>


The increased agricultural landholdings of foreign investors has become a growing concern for a few state legislatures. Over the past year, states such as Missouri, Indiana, Texas, and Alabama have considered legislation that would restrict foreign investments and ownership of agricultural land within the boundaries of their state. This is not a new concept, however, as ownership of agricultural land by foreign persons or entities has been an issue that traces to the origins of the U.S.



Today, approximately thirteen states specifically forbid or limit nonresident aliens foreign business and corporations, and foreign governments form acquiring or owning an interest in agricultural land within their state. However, state laws vary widely, and some states restrict only certain purchases while allowing for at least some level of foreign ownership of agricultural land. In response to the recently reported AFIDA data, more states may begin considering legislation aimed at limiting or restricting foreign investments in their states’ agricultural land.


<div class="wp-block-image">
<figure class="aligncenter size-full"><img decoding="async" loading="lazy" width="538" height="668" src="https://ageconafpc.wpengine.com/wp-content/uploads/2022/06/2.8.5-2-1.jpg" alt="" class="wp-image-36108" /></figure></div>


Citations:



U.S. Department of Agriculture, Farm Service Agency. Foreign Holdings of U.S. Agricultural Land. Accessed February 10, 2022. <a href="https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/EPAS/PDF/2020_afida_annual_report.pdf">https://www.fsa.usda.gov/Assets/USDA-FSA-Public/usdafiles/EPAS/PDF/2020_afida_annual_report.pdf</a>.







Brown, Micha. &#8220;<a href="https://southernagtoday.org/2022/02/foreign-ownership-of-agricultural-land-in-the-united-states/">Foreign Ownership of Agricultural Land in the United States</a>&#8220;. Southern Ag Today 2(8.5). February 18, 2022. <a href="http://foreign-ownership-of-agricultural-land-in-the-united-states">Permalink</a>

Foreign Ownership of Agricultural Land in the United States

goal of ensuring that all Americans have&nbsp;<a>access to affordable, reliable, high-speed internet.&nbsp;</a>The Bipartisan Infrastructure Law plans to invest $65 billion to help with this effort, with funding falling into seven major program areas. These areas include: (1) the Broadband Equity, Access, and Deployment Program ($42.45 billion), (2) the Affordable Connectivity Program ($14.2 billion); (3) Digital Equity Planning, Capacity and Competitive Grants ($2.75 billion); (4) the Tribal Broadband Connectivity Program ($2 billion), (5) Rural Broadband Programs at the Department of Agriculture ($2 billion); (6) the Middle Mile Broadband Infrastructure Program ($1 billion); and (7) Private Activity Bonds ($600 million).



Access to affordable, reliable, high-speed internet is a need expressed by&nbsp;socially disadvantaged farmers and ranchers (SDFR) in a research study conducted by&nbsp;Tougaloo College under the guidance of the SDFR Policy Research Center (Policy Center) at Alcorn State University.&nbsp;&nbsp;The research study sought to identify factors that hindered SDFR’s access to technology and the use of technology in the poverty-stricken counties located in Mississippi.&nbsp;After surveying&nbsp;respondents in 46 of the 82 counties in Mississippi,&nbsp;the study found that&nbsp;the internet was the most frequently referenced source for information about new technology.



According to USDA’s report, “Farm Computer Usage and Ownership”, 25% of farms in the United States have no access to the internet. As agricultural technology continues to change, become smarter and, integrate within agriculture tools that farmers utilize daily, they will likely require use of the internet and data to expand their knowledge of tools that may create greater farm productivity.  With the expansion of broadband access to communities like those of the farmers surveyed, farmers will be able to learn more about agricultural technology.



Love, April S. . &#8220;<a href="https://southernagtoday.org/2022/02/the-bipartisan-infrastructure-law-could-offer-new-information-to-sdfrs-in-rural-america/">The Bipartisan Infrastructure Law Could Offer New Information to SDFRs in Rural America</a>&#8220;. Southern Ag Today 2(7.5). February 11, 2022. <a href="http://the-bipartisan-infrastructure-law-could-offer-new-information-to-sdfrs-in-rural-america">Permalink</a>

The Bipartisan Infrastructure Law Could Offer New Information to SDFRs in Rural America

As the New Year begins, tax documents are spread across kitchen tables, pulled from basement boxes, amassed in spreadsheets, and stuffed in mailboxes to CPAs across America. As the saying goes, there are two certainties in life: death and taxes. One is dreaded and the other is often neglected. As a global pandemic extends another season and reminders of our health and longevity flash across headlines, this is your friendly reminder that while you’re digging up those tax documents, revisit your estate plan. An uncomfortable truth is that if you neglect to do your estate planning, the state will do it for you. A comprehensive estate plan includes succession planning, a very different beast from estate planning. A succession plan sets forth how your enterprise (i.e. farm) will continue operating after you are no longer running the business. However, doing one without the other is like rowing a boat without an oar.&nbsp;



To get the most out of your estate planning effort, do these things every year:&nbsp;



<ol type="1"><li>Review your executor(s), beneficiaries, trustee(s), guardian(s), personal representative(s), and other appointed roles under your estate planning documents; </li><li>Review your assets, accounts, life insurance policies, and charitable giving wishes; </li><li>Discuss with your CPA the benefits and limitations on gifting assets during your lifetime; </li><li>Ensure that your estate plan and succession plan compliment, and do not conflict, with each other; </li><li>Ensure that your durable power of attorney and living will are consistent with your wishes. </li></ol>



Some of the most voluminous estate plans may fail to adequately provide for a testator’s desires if they aren’t routinely revisited and updated. Reconsider a plan that leaves your estate planning to others, such as your children or other heirs. Your assets are your responsibility. Leaving difficult decisions to your heirs can leave them vulnerable to discourse and overwhelmed, particularly when they are aggrieved. A relevant, thorough, and thoughtful estate plan may be the best gift you could ever leave behind.



Friedel, Jennifer. &#8220;<a href="https://southernagtoday.org/2022/01/revisit-your-estate-plan/">Revisit Your Estate Plan</a>&#8220;. Southern Ag Today 2(3.5). January 14, 2022. <a href="http://revisit-your-estate-plan">Permalink</a>

Revisit Your Estate Plan

Lawsuits involving plaintiffs who have alleged that exposure to glyphosate caused their non-Hodgkin’s lymphoma continue to make their way through the court system. Over the past year, the issue of preemption has become a focus of these lawsuits. Preemption occurs when a “higher” level of government reduces the authority of a “lower” level of government and may occur when a federal law and a state law conflict. In glyphosate lawsuits, the defendant Bayer has argued that the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), the federal law governing pesticide regulation, preempts the state law failure-to-warn claims raised by most glyphosate plaintiffs.



FIFRA regulates the labeling of pesticides. A pesticide may not be distributed or sold in the United States until it has a label approved under FIFRA. Additionally, states may not impose any labeling or packaging requirements that are “in addition to or different from” those required by FIFRA. Plaintiffs bringing state law failure-to-warn claims are arguing that&nbsp;had the label included adequate warnings about the risks of glyphosate, then their injuries would not have occurred. So far, juries have found in favor of plaintiffs on these claims.



Bayer has appealed these jury findings, arguing that FIFRA’s prohibition on states imposing additional or different pesticide labeling requirements preempts failure-to-warn claims. If the state law claims are preempted by FIFRA, then Bayer argues that those claims should never have been raised in court.



Courts have split on the issue. A state court in California dismissed a plaintiff’s failure-to-warm claims, finding that the claims were preempted because the approved label for glyphosate does not require a carcinogen warning. However, both a California state appellate court and the Ninth Circuit have ruled the opposite. Those courts found that the failure-to-warn claims were not preempted because FIFRA prohibits pesticides from being “misbranded.” A pesticide is misbranded if its label does not contain a warning which may be necessary to protect human health. The Ninth Circuit concluded that FIFRA’s prohibition on misbranding was broader than the state law failure-to-warn and that such claims were therefore not preempted.



Bayer has appealed the Ninth Circuit’s decision to the Supreme Court. If the Court takes up the case, a ruling could impact not just glyphosate lawsuits, but any pesticide lawsuit where a plaintiff raises a state law failure-to-warn claim.



<hr class="wp-block-separator has-alpha-channel-opacity"/>



Rollins, Brigit. &#8220;<a href="https://southernagtoday.org/2022/02/what-is-preemption-and-how-might-it-affect-glyphosate-litigation/">What is Preemption and How Might it Affect Glyphosate Litigation</a>.&#8221; Southern Ag Today 1(51.5). December 17, 2021. <a href="http://what-is-preemption-and-how-might-it-affect-glyphosate-litigation">Permalink</a>

What is Preemption and How Might it Affect Glyphosate Litigation

The Food and Drug Administration (“FDA”) is responsible for the labeling of dairy products, among other things.&nbsp;&nbsp;In part, it regulates labels through the creation of “standards of identity,” which outline how specific words may be used.&nbsp;&nbsp;FDA is given authority in the&nbsp;Federal Food Drug and Cosmetic Act&nbsp;(“FFDCA”) to enforce those standards.&nbsp;&nbsp;Under the FFDCA, a food is misbranded if it is labeled using a word for which a standard of identity has been established, but the food does not match the requirements.&nbsp;&nbsp;In these situations, FDA has a range of options from warning letters or a seizure of the mislabeled product up to fines or even criminal prosecution.



In 2018, FDA asked for comments about the labeling of plant-based&nbsp;products with names of dairy foods.&nbsp;&nbsp;They wanted to learn more about&nbsp;how consumers use them and how they understand terms such as “milk” or “yogurt” when included in the product names.&nbsp;&nbsp;&nbsp;&nbsp;



Since that time, FDA changed the standard of identity for “yogurt.”&nbsp;&nbsp;As of this July, “yogurt” is limited to the food produced by culturing at least one “basic dairy ingredient” and any “optional dairy ingredients” along with a “characterizing bacterial culture.”&nbsp;&nbsp;21 CFR § 131.200.&nbsp;&nbsp;Based on that definition,&nbsp;&nbsp;non-dairy alternatives will be excluded from using the word “yogurt.”&nbsp;&nbsp;



The recent change to the standard for yogurt is in contrast to the standard of identity for milk, which has been in place for decades.&nbsp;&nbsp;“Milk” is&nbsp;“the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.”&nbsp;21 CFR § 131.110.&nbsp;&nbsp;Based on that definition standard, non-dairy substitutes should not be able to use the term. However, FDA has discretion to decide what standards to focus its enforcement resources on, and so far, the agency has not chosen to strictly enforce the standard of identity for milk.&nbsp;As a result, non-dairy substitutes made of almonds, soy, oats, or rice claim the “milk” label alongside the dairy variety.&nbsp;



FDA intends to submit a draft guidance for industry regarding the labeling of plant-based milk alternatives by the end of June 2022.&nbsp;&nbsp;The guidance, along with any changes to the regulatory standard of identity, will be important in determining whether plant-based products may continue use the term “milk.”&nbsp;&nbsp;Just as important for dairy producers, though, will be whether the FDA intends to enforce the standards as written, or allow continued expansion of the terms.&nbsp;&nbsp;&nbsp;



Rumley, Beth. &#8220;<a href="https://s">What’s in A Name? Standards of Identity for “Milk” &amp; “Yogurt.”</a> Southern Ag Today 1(46.5). November 12, 2021. <a href="http://whats-in-a-name-standards-of-identity-for-milk-yogurt">Permalink</a>

What’s in a Name?  Standards of Identity for “Milk” & “Yogurt”

For decades, there has been contentious debate surrounding the meaning of a seemingly simple phrase in the Clean Water Act (CWA), “waters of the United States.”&nbsp;&nbsp;This phrase describes the scope of federal jurisdiction under the CWA but is not statutorily defined.&nbsp;&nbsp;In 2015, the Obama administration promulgated the WOTUS Rule.&nbsp;&nbsp;The Trump administration then replaced the WOTUS Rule with the Navigable Waters Protection Rule in 2020.&nbsp;&nbsp;Both the Obama and Trump Rule faced a flurry of lawsuits filed across the nation.&nbsp;



A recent decision from the United States&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;District Court for the District of Arizona has vacated the Trump administration’s&nbsp;<a href="https://agrilife.org/texasaglaw/2020/09/28/navigable-waters-protection-rule-aka-the-new-wotus-rule/">Navigable Waters Protection Rule</a>, meaning it is no longer in place.&nbsp;&nbsp;This triggered the Environmental Protection Agency to&nbsp;<a href="https://www.epa.gov/wotus/definition-waters-united-states-rule-status-and-litigation-update">announce</a>&nbsp;that it has “halted implementation of the Navigable Waters Protection Rule.”&nbsp;&nbsp;The EPA and US Army Corps of Engineers are&nbsp;currently&nbsp;interpreting “waters of the United States” consistent with the pre-2015 regulatory approach.&nbsp;&nbsp;



The EPA Administrator, Michael Regan, has announced that the agency  promulgate its      definition, which will differ from both the Obama WOTUS Rule and Trump Navigable Protection Rule.  The EPA plans to release their proposed rule for comment in November.  To read more, <a href="https://agrilife.org/texasaglaw/2021/09/20/waters-of-the-united-states-update/">click here</a>. 



<hr class="wp-block-separator has-alpha-channel-opacity"/>



Dowell Lashmet, Tiffany. &#8220;<a href="https://southernagtoday.org/2021/10/update-on-waters-of-the-united-states-2/">Update on Waters of the United States</a>.&#8221; Southern Ag Today 1(44.5). October 29, 2021. <a href="http://update-on-waters-of-the-united-states-2">Permalink</a>

Update on Waters of the United States

Private companies are approaching farmers and forest landowners about entering into carbon contracts, generating a lot of interest.&nbsp;&nbsp;Carbon contracts are voluntary agreements that landowners can enter into promising to use certain practices such as limited/no-till farming, planting cover crops, or forego the harvesting of mature timber and then paying the farmer for sequestered carbon.&nbsp;&nbsp;Contracts are difficult to come by and typically contain confidentiality clauses; however, there are some common elements that landowners should be aware of before signing.



<ul>
<li>The length of the contracts can vary substantially.&nbsp;&nbsp;I have read contracts that range from one year to ten years in length, and some may be longer.&nbsp;&nbsp;One contract required the storage of carbon in the field for the next one hundred years.&nbsp;&nbsp;Ensure that you can comply with the contract for the entire life of the agreement.</li>



<li>To measure the carbon sequestered, the landowner often has to grant the other party access to the property to take those measurements.&nbsp;</li>



<li>Payments, and payment mechanisms, can vary substantially. For example, some contracts pay for certain practices, such $3 per acre for no-till farming, while other contracts pay based on the tons of carbon sequestered, typically around $15-$20 per ton, but this can vary as well.</li>



<li>Read the definitions section carefully, as words may not mean what you think they mean.</li>



<li>Many contracts pay only for the carbon sequestered and allow the other party to sell off other environmental benefits, such as water quality credits. Unfortunately, some of the contracts do not have a mechanism to enable the landowner to realize any gain from the sale of other environmental benefits, so make sure that your contract allows you to profit from all potential environmental benefits.</li>
</ul>



If approached with a carbon contract, read it carefully, make sure that it makes financial sense to adopt the practices you will be required to follow, and consult with a knowledgeable attorney before signing.



Source – <a href="https://nationalaglawcenter.org/category/author/nalc-staff/considering-carbon/">Considering Carbon Series</a> from the <a href="https://nationalaglawcenter.org/">National Agricultural Law Center</a>



<hr class="wp-block-separator has-alpha-channel-opacity"/>



Rumley, Rusty. &#8220;<a href="https://southernagtoday.org/2022/01/carbon-contracts-for-the-farmer/">Carbon Contracts for Farmers</a>.&#8221; Southern Ag Today 1(43.5). October 22, 2021. <a href="http://carbon-contracts-for-the-farmer">Permalink</a>

Carbon Contracts for the Farmer

Forecasting legal developments is never an easy task, but we can often look at what is currently happening to get a sense of what to keep an eye on in 2022.&nbsp; Below are just a few issues discussed at the recent Southern Outlook Conference in Atlanta.&nbsp;
As we move into 2022, producers will need to pay attention to the ongoing Roundup/Glyphosate class action settlement process.&nbsp; A federal judge has now rejected Bayer’s settlement with class members for a <a href="https://www.cand.uscourts.gov/wp-content/uploads/cases-of-interest/in-re-roundup-mdl/Pretrial-Order-No.-235-Denying-Motion-for-Preliminary-Approval.pdf">second time</a>.&nbsp; This rejection is based on how the settlement handles future class members who may not be aware of all potential medical costs until years from now. Nevertheless, Bayer continues to settle individual claims and has put an additional $4.5 billion into settling these claims.
CAFO (Concentrated Animal Feeding Operations) legal issues always seem to be on the list each year, and 2022 will likely be no exception. One such issue to watch involved an appeal out of Maryland from an interesting <a href="https://www.agrisk.umd.edu/post/maryland-circuit-court-judge-reverses-final-maryland-afo-permit">lower court decision</a>.&nbsp; A group challenged the state’s Animal Feeding Operation Discharge permit (a water discharge permit), claiming the State should have considered air emission of ammonia that could eventually reach waters in the state.&nbsp; The lower court agreed with this approach, and the State has appealed this decision with a decision expected later in 2022.
Additionally, Texas has seen a challenge to a poultry farm after complaints by neighbors who lived in the area where the farm was recently constructed. The Court of Appeals upheld a permanent injunction against the poultry integrator and poultry growers from continuing poultry farms in the area, click <a href="https://agrilife.org/texasaglaw/2021/09/13/tyler-court-of-appeals-affirms-nuisance-verdict-permanent-injunction-against-chicken-farm/">here</a> to read an overview.&nbsp; This decision has been appealed to the Texas Supreme Court, and we should see a decision in 2022.
2022 will continue to see developments that could have significant legal implications for producers in the South and across the country.&nbsp;&nbsp;


Goeringer, Paul. &#8220;<a href="https://southernagtoday.org/2022/01/legal-outlook-for-2022-shows-several-ongoing-issues-will-be-top-of-mind-for-agricultural-producers/">Legal Outlook for 2022 Shows Several Ongoing Issues Will Be Top of Mind for Agricultural Producers</a>.&#8221; Southern Ag Today 1(42.5). October 15, 2021. <a href="http://legal-outlook-for-2022-shows-several-ongoing-issues-will-be-top-of-mind-for-agricultural-producers">Permalink</a>

ag law