At one time, a John Deere B or a Farmall M was a pretty big machine that could, in machine shed “honk the donkey” and do a lot of work for a farm operation. Now, they are regulated to parade duty, augur power or maybe raking hay. The equipment keeps getting bigger.
Drones are going to get bigger. The proof of concept for application of fertilizer and chemical to selected areas of the field via air delivery is bearing fruit. Small drones are already in service. Much like tractors, they are going to get bigger.
The question is are we going to regulate drones to orderly lines like the Jetsons cartoon from yesteryear or is it the wild west. Obviously, straight-line to and from locations cut down on costs. Our legal framework is not really “sky aware.” The last real US supreme court case on how far your property rights go into the air for exclusive control is about 400 feet (adjusting a World War 2 era fly over dispute). Other property rights are likely impacted, like the right to sun light and what happens if that is interrupted (not only because we humans seem to enjoy access to the sun but also, solar panels are implicated). If a large drone can hover over your house at 450 feet and block out the sun for an hour or two while small drones deploy to deliver feed, fuel and chemical, a non-farm operator might take issue with that.
The courts are the last place you want to develop law, we have a whole other branch, the legislative branch, for that. Unfortunately, it seems to be interested in regulating personal conduct, conducting sham inquiries, and spending on pet projects rather than pro-actively addressing the looming drone debate.
Busting up the SwampBuster
Holdings (an Iowa corporation that is styled a family owned farm corporation with 1075 acres in Iowa) filed a federal law suit over 9 acres in Delaware County, Iowa that is designated as a swampland. Back in the mid-1980s, a Swampbuster provision was enacted that essentially bars farmers from draining wetlands if they want to any government price supports , loans, or other USDA payments and crop insurance. Swampbuster’s twin brother, Sodbuster also entered the scene at the same time.
The wrinkle is, the farm operators didn’t get paid anything for this sudden idling of land. Yes, a provision to get things “not swampy” existed if you can show it was farmed at one time. Sometime, developers who aren’t worried about farm payment drain those wetlands anyway and buy wetlands developed elsewhere to “offset” the drained ones. So, the farmer gets nothing for ground as they can’t put it to use that if a developer had, has value. The Pacific Legal Foundation, which is a leader in the realm space of challenges to governmental environmental regulation of ag (see further the waters of the United States never ending struggle) is backing the plaintiffs. They make the claim that this denial of the land use without compensation runs afoul of one of the things that is so irritating the founding fathers wrote it down in the first System Update to the law of the land (that’s Bill of Rights for you non tech users). The 5th Amendment says if the government takes your property, they can, but they have to pay for it. Further, the lawsuit says that the laws around Swampbuster exceed the type of law that Congress can even make.
In this case, it appears the offending acres are not visibly wet and are 1000 feet or so away from a stream. The operator applied to the NRCS to have it removed as a wetland and the government declined.
The post Swampbuster world is not a straightforward one, sometimes wetland determinations were done and sometimes they were not. Depending on when a determination was done and if you have the paperwork to back it up, you may have a different outcome than somebody who has no paperwork or who had the determination done at a different rate.
Rest Assured good readers, Ag Law remains more viable than abacus manufacturing law and will continue to for the near future.
