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Farm Bill Smarm Bill

It is becoming increasingly clear that Ag is losing some clout in the hallowed halls of DC. Many provisions of the permanent law known collectively as the “Farm Bill” are set to expire on 30 September. Many times, that means we revert back to some really out of date provisions and no body is really excited about that.

This likely means that the Farm Bill will get an extension to kick it past key political events, likely to include early primaries in the presidential election. The official statement from the Senate is no later than end of the year, but I don’t buy it. The delay has been anticipated all summer, it is still a disappointment that our gridlocked government cannot handle basic food and fiber policy. The Bill covers commodities, research, food programs, rural development, crop insurance, food aid, and land stewardship provisions.

Part of the problem is that the food portion of the farm bill (which is included to get votes on rural policies from urban politicians) has become a whipping post for political rhetoric. Conservative republicans are expected to fight with liberal democrats on access to food aid (aka food stamps). The farm bill takes back seat to annual government funding legislation, which is also in limbo. Those fights get more eyeballs and views than fights about limits on food stamps, conservation payments and crop insurance.

We are the government; we don’t make mistakes.

A case out of South Dakota should be of interest to all farm operators who utilize FSA or NRCS programs. The fight of the case is an old erroneous determination of a wetland. The new operator found out that the wet area was caused by the installation of a shelter belt of trees many moons ago, not hydric wetland soils. Ironically, the government pushed and helped install many shelterbelt plantings in that time period. When the landowner obtained new information and presented it to the government for a review, the government said no thanks, we are good. Essentially indicating unless they want to acknowledge the error, they don’t have to.

Money Talks

In response to California’s Prop 12 production rule being upheld, and therefore requiring all producers in the US to conform to that state’s rules if you want to sell in that state, federal legislation was suggested. It is referred to at the EATS act. Ironically, the big producer companies seem to be indicating they will just comply with Prop 12. This is despite the Nation al Pork Producers group being among the largest opponents to the California law.

Perhaps, the big guys have already invested in complying and have considered the lack of market distinction and invalidation of the state and local regulations that the proposed federal legislation might bring.

From the same litigation group that helped narrow up the scope of the government’s claim to regulate every last puddle of water in the United States, another victory against omnipresent government.

The Villegases had property in Lincoln County, NE. They were in the earth moving business and moved a bunch of it on the property to improvement, within what they believed the rules allowed. The EPA leveled a $300,000 fine and ordered them to restore the land. The owners disagreed and asked for a federal district court to take the matter up.

Specifically, they challenged the EPA structure that allows the EPA field office to levy a fine and then your appeal is heard by employees of the EPA under a term called Administrative Adjudication. It’s a lot like being told by the teacher that you are expelled because you violated the school board’s rules, and you have to appeal it to a judge who is an employee of the school, selected by a board that the school board pays for, employees and selects.

The challenge pointed out that the that under the Constitution, the appointments clause requires anybody with significant authority to be appointed a set of rules that include presidential nomination, congressional approval and senate confirmation unless some law provides otherwise. Here the EPA admin law judges (ALJ) were not appointed by that process nor did another law allow their appointment. The challenge essentially said the ALJ had no power to decide the matter.

EPA backed down, terminating the enforcement action and dismissing the federal case. That is believed by some to be clear sign of how far afield the agency’s policies were.

In other moves, Colorado has inserted itself into the water regulation gap created when the Supreme Court indicated the federal government’s wet blank of regulation wasn’t all encompassing. Colorado state regulators have issued temporary guidance which includes farm group (like Farm Bureau) endorsed exemptions for irrigation, plowing and the like. Power does abhor a vacuum.

In other western water fights that might have application in Iowa at some point, an 80 year fisherman who walked up a river claiming that because it was navigable by boat in 1876 when Colorado became a state, that it was open for wading and fishing as in individual or that the state had an interest in the navigable water. The adjoining landowner threw rocks at him and got sued. With the hundreds of pages of filing by various pro public and pro private landowners on file, the court used Occam’s razor and decided the issue on the simplest way. The court found that the old fishermen was all wet didn’t have standing to claim a protected interest to pursue individually or on behalf of the state.

It was a move that we should expect from courts.

Okay, that would be fun place to find. Realistically, government is all around us and we are subject to a dizzying array of rules, regulations, codes, and taxing schemes. It is unescapable. We can only seek to have less government, the nil state is a nirvana that just isn’t likely to happen, no matter how many motions some litigant’s file.

One thing that can be done is chip away at the breadth and scope of what we agree government can do. That is the heart of the issue in the Sackett case regarding the reach and depth of the EPA’s ability to regulate conduct of landowners when water is involved.

That water that the EPA seeks to regulate has come to be known as WOTUS (Whoa TU US), short for Waters of the United States. The Federal government, seeing everything from a federal point of view took the position that if the water touches the water that they clearly have control over then they get to have control over that water too. The landowners disagreed. The US supreme court, in another ruling that reminds me of middle schoolers forced to work together on a group project, gave some guidance on the issue, which was, hey Feds, it isn’t’ as far as you think it is. But we are still not going to say exactly what because one of our group members had an orthodontist appointment and she had that paragraph. (Okay, the last part is hyperbole, all middle schoolers…er Supreme Court Justices… participated and still puked out a murky, muddy ruling).

Why isn’t it clear on where the federal government stops and where state county and local governments get to say what is what. Easy, because our representatives passed vague laws with no clear guidance to any agency. Why would they do that, simple because they wanted to get something passed and specifics means other voting members of the body might stop and actually consider what it might do to the rubes that send them to Congress. Better to pass a broadly worded bill and leave it to an agency (whose heads and leaderships are routinely swapped like Lego figurine heads with the changing of administrations) to issue rules on what they think the law is. Then when actual stake holders (people who own land and want to use it for example) try to do something with in those rules we will all collectively see if the outcome is anything we all like. Inevitably, we don’t, so we sue and then we let a series of largely unelected and not subject to recall decision makers review limited materials, apply broad political (yes, they are political stop fooling yourself) and philosophical principles to the matter and decide who is right, the agency or the individual.

If this system was pitched on one of those entrepreneurs shows, I don’t think it would get funded, but it is they system that we use and it seems to be doing pretty well by comparison to the tin pot dictatorships, ruling juntas and ancestry-based governments past and current. So do your part, find a federal regulation, and attempt to interpret it, federal lawyers are standing by.

The long-awaited decision on if California residents, can by proposition, put an item on the ballot to dictate without any basis in science, the conditions under which pork is allowed to be produced for sale in California, regardless of production location is in.

Unfortunately, the answer (which can only be divined from reading 5 separate opinions rendered by five different Supreme court judges), is you bet. Go ahead, California, take the wheel.

This tortured outcome was an artful dance of reasoning as the justices attempted to preserve the concept that one state can’t make regulation that impact another state but that in this particular case, it’s okay. Because we can balance and excessive harm to the market”.

What the opinion doesn’t do is provide a clear cogent road map for what future good idea factory propositions will be handled. Indeed, the court’s high scholars couldn’t even agree on what parts of its prior holdings in the “Pike” case where controlling, with judges meandering in and out of agreement part by part, with some judges saying the pork industry didn’t show the harm this law has while other just said no, not that but still the law isn’t a problem.

What it does is creates more wiggle and “well but wait what about this….” In legal cases in the future. Good news if you are an appeals lawyer, not so great news if you are a producer trying to invest in long term capital assets to raise food and fiber.

The group of fractured thinkers will get another change to demonstrate how each one of them has their own “hot take” instead of coming to a consensus with the upcoming Clean Water casers. I am sure between hogs and water; it will all be crystal clear……… or hogwash.

Farm bill heats up.

The farm bill, which funds a number of pretty important programs in the Midwest, is set up for renewal this September. All the ag and ag adjacent interest groups will be seeking a portion of the pot. From Renewables, climate change, biochar research, EQUIP payments, precision farming loans, organic, traditional row crop, food and school lunch are just some of the stakeholders that will be spending their Sumner trying to shape the cheese wheel of the farm bill into a mold they enjoy.

Monday, May 27, 2024
  • Patrick B. Dillon
  • Jill Dillon
  • Tori Beyer
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill is a firm owner but not currently accepting private pay clients. Jill still has ties to her family farm operation which includes a dairy herd.
Dillon Law PC
Tori is a University of Iowa undergraduate where she double majored in Criminology, Justice, and Law and Ethics and Public Policy and a North Dakota Law School graduate. Tori practices in the Sumner office. Tori's areas of practice include but are not limited to estate planning, wills/probate, criminal defense, and civil litigation.

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