Ag Law Issues of the Year
Outside of the less than ideal crop season, ag issues in the law continue to have an impact on production ag, whether or not we see them immediately as muddy fields, rain-soaked crops, and lack of L.P.
Special Thanks to Tiffany Dowell Lashment for identifying these issues as being important to ag this year. Here are my thoughts on them.
Hemp.
The 2018 Farm Bill has opened a pathway for legal hemp production, which is slated to be used not for pirate ships (ropes used to be hemp in many cases) but rather for the production of CBD oils and other hemp-based consumer products. State-level production plans need to be created, approved, and approved by the USDA. For the want to be hemp growers in states without a plan, the USDA has a fall back plan. I am not convinced that this isn’t the latest sunflower, ostrich, emu, aquaculture, Aronia berry fad that sounds great but needs more work to make it work when the smoke clears and the true market for the product is established. Yeah, I said smoke…… but not that kind of smoke.
Beef checkoff litigation.
Under the checkoff program, a $1/head assessment is paid when cattle are sold. Producers don’t get a choice. Half of that payment is retained by the state beef council and the other half goes to the Cattleman’s Beef Board.
R-Calf, a group that decidedly does not like the check off or Beef Boards. They initially filed suit in the United States District Court in Montana, challenging the requirement. R-Calf argued this violates the First Amendment because the Montana Beef Council is a private entity and its members are being forced to pay for its speech (i.e. advertising). They don’ t have a way avoid that half their full assessment paid to the Cattleman’s Beef Board.
The beef councils say their messaging is not private speech but is instead government speech. This is because a memorandum of understanding entered into between the Montana Beef Council and other state beef councils with the USDA allows USDA control and oversight of their speech. This issue of whether the speech is private, or government is critical, as prior United States Supreme Court rulings have found that compelled government speech does not implicate the First Amendment, whereas compelled private speech does raise First Amendment concerns.
R-Calf was granted a preliminary injunction requiring all checkoff payments made by Montana producers be sent to the Cattlemen’s Beef Board unless producers specifically indicate they wish for a portion of their checkoff payment be retained by the Montana Beef Council.
The fight on who control checks off dollars has been engaged in many different commodity groups over the years. It won’t stop. OPM… Other People’s Money (that is the producers who have to pay the fee) is always a source of control issues.
WOTUS definition.
The Clean Water Act gives federal jurisdiction to the Environmental Protection Agency and the US Army Corps of Engineers over “Waters of the United States” AKA WOTUS. WOTUS waters require federal permits. What the Clean Water Act failed to do, however, is define the meaning of “WOTUS.” This has been the source of legal disputes lasting several decades.
In 2015, the EPA made a new regulation that did define WOTUS. Lawsuits were filed related to this definition, including most recently Georgia v. Wheeler, where the United States District Court for the Southern District of Georgia hold that the rule was both procedurally and substantively invalid.
2015 Rule has been rescinded by EPA effective December 23, 2019. Now we are back the pre-2015 WOTUS approach that led to years’ worth of litigation.
The White house released their proposed draft to the public last December and took public comment through April 15, 2019. After reviewing the comments received, the government will issue a final rule imposing a new WOTUS definition. Vegas says litigation is highly likely.
Another issue year is whether indirect discharges from a point source into groundwater that eventually reaches a WTOUS is covered by WOTUS rules, which means a permit is needed. There have been a number of federal court rulings on this issue, which are not consistent with one another. Again, smart money is on more ligation on how much the fed can be involved in local waterways and what locals can do to stay out of another level of government control (i.e. the Federal system).
