Welcome to the Ag & Food Law Blog

Welcome to the Ag & Food Law Blog, a comprehensive news, research, and information resource on agricultural and food law for the nation’s agricultural community. 

It is provided by the National Agricultural Law Center, the nation’s leading source of agricultural and food law research and information.  Located in Fayetteville, Arkansas the National Agricultural Law Center serves the nation's agricultural community and is a unit of the University of Arkansas System Division of Agriculture.  In addition, the Center leads the eXtension Community of Practice for Agricultural and Food Law.

Federal judge halts EPA's clean water rule

Posted August 28, 2015

A federal judge in North Dakota blocked the Obama administration’s waters of the U.S. (WOTUS)” rule hours before it was set to go into effect, according to a U.S. News and World Report article available here. The Wall Street Journal also published an article available here and Reuters here.

U.S. District Judge Ralph Erickson in Fargo issued a temporary injunction requested by North Dakota and 12 other states halting the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers from regulating some small streams, tributaries and wetlands under the Clean Water Act. The rule, which has prompted fierce criticism from farmers among others, was scheduled to take effect Friday.

North Dakota Attorney General Wayne Stenehjem, who filed the injunction request, said his reading of the ruling was that it applied to all 50 states, not just the 13 that sued. However, the EPA said in a statement that it applied only to the 13 and it would be enforced beginning Friday in all other states.

The 13 states exempted for now are Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

The North Dakota ruling follows a separate decision on Thursday in Georgia, where a federal judge rejected a similar request by a different group of 11 states seeking to stop the EPA rule, according to The Wall Street Journal.

The EPA spokeswoman said the Army Corps and the EPA are “evaluating these orders and considering next steps in the litigation.” The agency has the option to ask a higher court to throw out the judge’s injunction.

The EPA has said the rule is necessary to clarify which waters should fall under the protection of the federal Clean Water Act of 1972 after two Supreme Court rulings, in 2001 and 2006, called into question whether and to what extent 60% of U.S. waterways, especially streams and wetlands, should fall under federal jurisdiction.

The WOTUS rule has faced intense opposition from Republicans in Congress, farmers and energy companies. Critics claim the rule vastly expands the federal government's authority and could apply to ditches and small isolated bodies of water, according to Reuters.

The EPA and Army Corps have argued that the rule does not create new permitting requirements and only seeks to make jurisdictional determinations more predictable.

At least 10 lawsuits have been filed in federal district courts challenging the rule, with at least 27 states joining in the lawsuits. Several petitions for review have also been filed with U.S. federal appellate courts.

"This is a victory in the first skirmish, but it is only the first," North Dakota Attorney General Wayne Stenehjem in a statement. "I remain confident that the rule will be declared unlawful once all the issues have been presented."

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Ruling mandates stricter ag runoff limits

Posted August 24, 2015

A Sacramento Superior Court judge has ordered the state to write stricter controls for agriculture water runoff in Monterey, San Luis Obispo and Santa Barbara Counties, according to The Californian article available here. KCBX also published an article available here and Monterey County Weekly here.

Judge Timothy Frawley issued his decision on Aug. 10, following a May 15 hearing, resulting from 2013 lawsuit filed against the California Water Resources Control Board by five nonprofit groups and a Gonzales woman whose tap water is contaminated with ag waste.

Their concern is that pesticides were polluting water supplies. Specifically, the group contended a conditional waiver from the Central Coast Regional Water Quality Control Board didn't provide enough environmental protections, according to KCBX.

The judge in this case agrees and said new rules need to be developed to protect both surface and groundwater supplies.

Current research contends that nitrates and phosphates present in ag runoff promote the growth of blooms in the ocean that produce toxics capable of poisoning marine mammals and birds, according to The Californian.

Judge Frawley issued a peremptory writ of mandate, ordering the State Water Resources Control Board to set aside its Ag Order and reconsider the conditional waiver of waste discharge requirements and its monitoring and reporting program.

He agreed with the environmental groups that the state board’s modified waiver is “not in the public interest because there is no evidence it will lead to quantifiable improvements in water quality or arrest the continued degradation of the Central Coast region’s water.”

The state water board is still reviewing the court's decision and considering an appeal, according to spokesman Tim Moran, as stated in the Monterey County Weekly

Sacramento-based attorney Tess Dunham representing Western Growers and the Grower-Shipper Association on the ag waiver says an appeal is definitely on the table.

"We are disappointed with the decision," she says. "We don't believe that the judge was correct in this case. We think he got it wrong." 

For more information on environmental law, please visit the National Agricultural Law Center’s website here.

Idaho's ag-gag law ruled unconstitutional by federal judge

Posted August 6, 2015

A federal judge struck down Idaho's ban on undercover videos at factory farms, ruling that state legislators wrongly criminalized free speech to protect prominent agricultural companies, according to a LA Times article available here. The Guardian also published an article available here, NPR here and Food Safety News here.

Animal rights advocates called the ruling the first defeat for “ag-gag” law in the U.S. Due to the recent influx of publishing undercover videos showing animal abuse at facilities, the laws have gained popularity in some states.

Idaho is the first state to strike down “ag-gag” statute in a federal court. Seven other states have adopted similar statutes in the past few years, according to Food Safety News.

Judge B. Lynn Winmill wrote his 28-page decision in 97 days after hearing oral arguments in the case last April.

The 2012 Mercy for Animals video exposed workers beating, kicking and shocking cows, twisting their tails and dragging them with chains attached to their necks, according to The Guardian.

It led to charges of criminal animal cruelty against multiple workers, including a manager.

The state’s multi-billion dairy industry believed the sting was an attempt to hurt businesses and rallied legislators in the state capitol to pass a law making it a crime to film inside agricultural facilities. A coalition of animal activists, civil rights groups and media organizations lobbied the court to overturn the ban, claiming it criminalized whistleblowers and chilled free speech.

Judge Winmill agreed and said the law violated the first amendment and the equal protection clause.

“The effect of the statute will be to suppress speech by undercover investigators and whistleblowers concerning topics of great public importance: the safety of the public food supply, the safety of agricultural workers, the treatment and health of farm animals, and the impact of business activities on the environment.”

The Dairymen's Association will be asking the state to appeal Judge Winmill's decision, according to NPR.

"Obviously we're disappointed" with the decision to strike down the law, says Idaho Dairymen's Association director Bob Naerebout. "The legislation was designed and crafted to try and protect First Amendment rights while also trying to provide some personal property protection."

Idaho, Missouri, Iowa, Kansas, Montana, North Dakota, Utah and North Carolina are all states that have passed ag-gag laws, according to Food Safety News.

Twelve states challenging CWA rule to be heard together

Posted August 3, 2015

A dozen lawsuits against the newly finalized “waters of the United States” (WOTUS) rule are scheduled to be heard together before the 6th Circuit Court based in Ohio, according to an Agri-Pulse article available here. Capital Press also published an article available here and NBC Nebraska here.

The WOTUS rule aims to expand Clean Water Act protections to cover streams and wetlands.

The 73-page rule, which was intended to clarify certain aspects of the CWA only it raises more questions than it clarifies. One of the most troubling aspects is that any interpretations of the WOTUS rule are left to agency staff members, according to Capital Press.

Landowners have no means of appealing those interpretations without going to court. There are12 lawsuits filed so far against the EPA and the Corps over the rule. Among the plaintiffs are 28 states, ranchers, farmers and environmentalists.

The plaintiffs argue that the EPA’s new rule wrongly places a majority of water and land resources management with the federal government. Congress and the courts have confirmed the states have primary responsibility for the protection of intrastate waters and land management; however, the states argue that the burdens are harmful to the states and will negatively affect farmers, developers and landowners, according to NBC Nebraska.

Attorney General Doug Peterson said, “Farmers, ranchers, and landowners will find it difficult to operate without added permits and additional obstacles.”

The states are seeking to have the rule vacated and the EPA and Corps enjoined from enforcing the new definition of WOTUS.

The states participating in the filing are: Alaska, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota and Wyoming.

For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.

Federal prosecutors seeking life sentence for Parnell brothers

Posted July 27, 2015

Federal court officers have recommended a life sentence for a peanut company executive convicted of selling salmonella-tainted food, according to a CNBC article available here.

Stewart Parnell, former Peanut Corporation of America owner, is scheduled to be sentenced Sept. 21 by a federal judge in Albany, Georgia.

Parnell, peanut broker Michael Parnell and former plant quality manager Mary Wilkerson were found guilty Sept. 19th on 71 counts, including conspiracy, obstruction of justice and introduction of adulterated food, according to USA Today.

The contamination was the most deadly and expensive contaminated food-borne disease outbreak in the country, according to the Center for Disease Control’s (CDC) findings. Nine people died and 700 were sickened after eating the tainted food.

Because the Parnell brothers are middle-aged, the multiple-count convictions could add up to the equivalent of life sentences. Wilkerson’s conviction carries a maximum term of 20 years. Federal sentencing guidelines, findings of the pre-sentence investigative reports and prosecution and defense recommendations will all contribute, according to Food Safety News.

Stewart and Michael Parnell were briefly taken into custody after the trial, but they have since been free on cash bonds of $150,000 and $100,000, respectively. Wilkerson has been free on unsecured bond since the indictment.

In their court filing, prosecutors stood by their numbers for victims injured and financial losses — and insisted they possibly understate the impact, according to CNBC.

"Life in prison, especially in a food case, it's frankly unprecedented," said Bill Marler, who has represented victims of food-borne illnesses for two decades. "But the case itself, on a factual basis, is unprecedented." 

The government brief released Thursday is available here. 

 For more information on food safety, please visit the National Agricultural Law Center’s website here.

Missouri sues USDA over crop insurance deadlines

Posted July 22, 2015
Missouri filed a lawsuit pushing the federal government to extend a key agricultural deadline, which is necessary to keep many of the state's farmers eligible for crop insurance, according to a News Leader article available here. Insurance Journal also published an article available here and KSPR here.

Attorney General Chris Koster filed the federal lawsuit against Tom Vilsack, U.S. Secretary of Agriculture.

"Missouri farmers rely on the availability of insurance to guard their crops against events beyond their control," Koster said a press release. "The USDA should not punish farmers whose planting was delayed by unexpected rain and flooding by enforcing an arbitrary deadline. Millions of dollars in Missouri agriculture is at risk, and we will fight to make sure these resources are protected."

Sixty percent of Missouri farmers could be ineligible for crop insurance this year, because heavy rainfalls and floods will prevent them from meeting the reporting deadline.

The USDA requires farmers to report their planted acreage each year by a fixed deadline, which is July 15 for farmers in northwest Missouri. Rainfall over the past two months caused severe flooding so severe that the Governor declared a state of emergency. Many farmers were unable to plant their crops in time to get accurate acreage reports filed, even with the five-day grace period normally allowed by the USDA, according to KSPR.

His lawsuit asks a federal court to require that the agriculture agency give farmers 15 additional days to file reports, according to Insurance Journal.

The federal agriculture department says by law it cannot extend the deadline, but said it will work with farmers to help them maintain coverage.

For more information on crop insurance programs, please visit the National Agricultural Law Center’s website here.