Court decisions and changes in the law can have significant impacts on farm and ranch businesses, according to two agricultural law experts who presented at a workshop at the American Farm Bureau Federation’s 2018 Annual Convention.
Tiffany Dowell Lashmet, assistant professor and Extension specialist in agricultural law with Texas A&M Agrilife Extension, and Paul Goeringer, Extension legal specialist at the University of Maryland, gave an overview of legal issues affecting farmers and ranchers, including the Waters of the U.S. rule, dicamba drift, a tentative settlement in the Syngenta corn class action lawsuits and “ag gag” laws.
“Congress gave the EPA jurisdiction over ‘Waters of the U.S.,’ but didn’t define Waters of the U.S.,” said Lashmet. This left the definition up to the agency, but rather than interpreting the scope of the regulation, EPA expanded it with the 2015 WOTUS rule. Numerous lawsuits were filed, and the 6th Circuit Court of Appeals stayed the rule in 2015. Farmers could be required to get a permit for a farm pond, with permit costs ranging from $30,000 for a “simple” permit up to $280,000 for a complex one, and with daily fines of $37,500 for non-compliance. In 2016 the Supreme Court heard a challenge, and a ruling is expected sometime in summer 2018.
“No group is more familiar with WOTUS than the American Farm Bureau,” said Lashmet.
Goeringer said new EPA regulations will force new labeling requirements for dicamba use. Only permitted, certified applicators who received dicamba-specific training can apply the product, and operators cannot spray if wind is higher than 10 miles per hour. There are new record-keeping requirements and more specific tank cleanout requirements. Dicamba can only be sprayed during daylight hours, and farmers must do additional checks for sensitive crops before spraying. Other labeling requirements from 2017 will still apply, and new state laws and regulations have been adopted in several states.
Tentative Syngenta settlement
In 2013, corn shipments were rejected at a Chinese port due to the presence of Viptera, and lawsuits were filed across the country by shippers and grain handlers, as well as farmers who did not plant the seed. Many suits were consolidated in Kansas, where a jury awarded $217 million to farmers. The court also certified nine initial class-action lawsuits in several states. Unconfirmed reports say a settlement could be $1.5 billion, but any payout will take considerable time to be decided. The message to farmers, said Lashmet, is to “pay attention to your mailbox for a mailing about opting in or out, or a notice of settlement.”
“Ag Gag” laws
Farm protection laws, unfairly described as “ag gag” laws by opposition groups, have been passed in Idaho, Montana, Utah, North Dakota, Kansas, Missouri, Iowa and North Carolina. These laws make it a crime to trespass on or video ag operations or to seek employment with intent to video ag operations. The court affirmed some of these provisions and struck down others.
Other legal issues
Goeringer and Lashmet also gave brief updates on federal reserved water rights on insurance protection exclusions for manure, and urged farmers and ranchers to be informed about legal issues that could impact their businesses.