Category Archives: Crop Issues

Syngenta corn seed settlement claims due October 12

Those post cards advising producers of a $1.51 billion settlement in the Syngenta corn seed lawsuits are legitimate, and corn producers seeking compensation from the settlement must file claims by 11:59 p.m. on October 12, 2018.  The settlement is the result of class action and individual lawsuits alleging that Syngenta failed to receive import approval from China before selling its genetically modified Viptera and Duracade seeds in the United States, which led to the rejection of  U.S. corn shipments and a lowering of corn prices from 2013 to 2018.

Who can file a claim?

Three types of claimants that were involved in the U.S. corn market between September 15, 2013 and April 10, 2018 may file claims:

  • Corn producers, which includes any owner, operator, landlord or tenant who shared in the risk of producing any variety of corn, not just Syngenta varieties.  Landlords who operated under fixed cash leases are not eligible.
  • Grain handling facilities that purchased, transported, stored, handled and sold any variety of corn.
  • Ethanol production facilities that produced, purchased and sold dried distillers’ grains from any variety of corn.

How to file a claim?

File electronically through a secure, encrypted portal at www.CornSeedSettlement.com or download a printed form on the same website to file via U.S. mail.  Claimants must file using either a federal tax ID number or social security number and must file a separate claim for each Form 578 filed with FSA.  Note that the settlement claims administrator states that all claims information is confidential and will be destroyed after the payment of claims.

How much will a claimant receive?

Payments will vary and will depend upon the total number of filed claims.  For corn producers, the claims administrator will determine payments based on the following factors: (1) compensable recovery quantity as calculated by number of acres, ownership interest, NASS county yields and predetermined marketing year averages, (2) the year of planting, (3) the producer’s ownership interest, and (4) whether the producer purchased and planted Agrisure Viptera or Duracade seed or a different variety.

When will claimants receive payments?

A claimant might not receive a payment for about a year.  A court hearing to approve the settlement will take place in the U.S District Court in Kansas on November 15, 2018.  If the court approves the settlement, those who object to the approval can file appeals.  Final payments won’t occur until the court resolves all appeals, which could take about a year or more.

Must claimants report payments as income?

Class action settlement payments that compensate for the loss of business income should be reported for tax purposes.  Claimants should consult with tax advisors to determine IRS reporting requirements.

For more information, an extensive list of frequently asked questions about the Syngenta corn seed settlement is available here.

Advertisements

Leave a comment

Filed under Biotechnology, Crop Issues

The Ag Law Harvest

Movement on Ohio “Watersheds in Distress” rules.  As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress.  Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package.  ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018.  Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option).  A draft of the newly amended proposed rules is available here.

WOTUS woes continue.  The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live.  A background on the rule can be found in our previous blog post.  The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act.  The rule became effective in 2015.  Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states.  Additionally,  last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s  rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition.   However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule.  This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated.  As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated.  Ohio is one of the twenty-six states where the Obama rule currently applies.  Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule?  Follow the Ag Law Blog for any updates.  In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.

Regulators, meet “meat.”  Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat.  Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat.  Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.”  Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time.  The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance.  Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives.  Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives.  The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute.  The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund.  Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements.  As this issue develops, the Ag Law Blog will keep you updated.

USDA taps Commodity Credit Corporation to aid farmers.  Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports.  Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation.  What is it?  The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.”  Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors.  CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller.  This gives USDA access to billions of dollars in funding without having to go to Congress first.  The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more.  CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service.  On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs.  The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities.  For more about the Commodity Credit Corporation, check out its website.

Bayer reports increasing number of lawsuits against newly acquired Monsanto.  Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer.  According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier.  Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer.  As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers.  Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision.  These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy.  Stay tuned to the Ag Law Blog as these lawsuits continue to develop.

Leave a comment

Filed under ag law harvest, Biotechnology, Crop Issues, Environmental, Food, Water

ODA proposes changes to Ohio’s noxious weeds list

Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:

  • Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
  • Field bindweed (Convolvulus arvensis)
  • Heart-podded hoary cress (Lepidium draba sub. draba). Hairy whitetop or ballcress (Lepidium appelianum)
  • Perennial sowthistle (Sonchus arvensis)
  • Russian knapweed (Acroptilon repens)
  • Leafy spurge (Euphorbia esula)
  • Hedge bindweed (Calystegia sepium)
  • Serrated tussock (Nassella trichotoma)
  • Columbus grass (Sorghum x almum)
  • Musk thistle (Carduus nutans)
  • Forage Kochia (Bassia prostrata)
  • Water Hemp (Amaranthus tuberculatus)

The director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property.  The current noxious weeds list also contains the following plants, which will remain on the list:

  • Grapevines: (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
  • Canada thistle (Cirsium arvense L. (Scop.))
  • Poison hemlock (Conium maculatum)
  • Cressleaf groundsel (Senecio glabellus)
  • Musk thistle (Carduus nutans)
  • Purple loosestrife (Lythrum salicaria)
  • Mile-A-Minute Weed (Polygonum perfoliatum)
  • Giant Hogweed (Heracleum mantegazzianum).
  • Apple of Peru (Nicandra physalodes)
  • Marestail (Conyza canadensis)
  • Kochia (Bassia scoparia)
  • Palmer amaranth (Amaranthus palmeri)
  • Kudzu (Pueraria montana var. lobata)
  • Japanese knotweed (Polygonum cuspidatum)

ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018.  E-mail comments to ecomments@agri.ohio.gov or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068.  Learn more about noxious weed laws in our bulletin, here.

Leave a comment

Filed under Crop Issues, Property, Roadway Laws

Answering your questions about industrial hemp

Written by Ellen Essman, Sr. Research Assoc., Agricultural & Resource Law Program

We often receive questions about the status of industrial hemp as an agricultural crop in Ohio. Historically, growing industrial hemp has been controversial in the United States because of its close relationship to the marijuana plant—both are members of the same species. Plants used for industrial hemp, however, have a much lower amount of tetrahydrocannabinol (THC) than marijuana and do not have the intoxicating qualities of marijuana plants. Uses for industrial hemp are numerous; ranging from fabrics, to car parts, to bedding for animals. Because of potential usefulness, Congress authorized the growing of industrial hemp in individual states for “purposes of research” in the 2014 Farm Bill.

The 2014 Farm Bill and industrial hemp

The 2014 Farm Bill included a section codified at 7 U.S.C. § 5940 that allows industrial hemp to be grown under certain circumstances. Specifically, industrial hemp can be grown in a state if:

  • It is grown for research purposes;
  • The research is conducted under an agricultural pilot program or other agricultural or academic research; and
  • State law permits the growth of industrial hemp.

The federal law only permits hemp to be grown, cultivated, studied, and marketed under the guidance of institutions of higher education located in the state or the state department of agriculture. Furthermore, the state must certify and register the sites permitted to grow industrial hemp because any substance containing THC is a Schedule I controlled substance under 21 U.S.C. § 812 (c). This means that without a license issued by a state that allows industrial hemp to be grown for research, someone in possession of the plant would be violating federal drug law.

It is also important to note that under the federal law, “industrial hemp” is defined as the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a THC concentration of not more than 0.3 percent on a dry weight basis. Any concentration over that amount is not legal. Even those plants with a THC concentration less than or equal to 0.3 percent are illegal unless the grower has a state license.

State action on industrial hemp research

Since the passage of the 2014 Farm Bill, 26 states have implemented legislation allowing industrial hemp research or pilot programs.  Ohio is not one of these states, but all of the states bordering Ohio have passed laws allowing industrial hemp research. The National Conference of State Legislatures provides a compilation of the state laws here.

Kentucky is an example of a state that is carrying out an industrial hemp pilot program. The program, codified in the Kentucky Revised Statutes §§ 260.850-260.869, allows universities, the state department of agriculture, and those who hold a license from the department of agriculture “to study methods of cultivating, processing, or marketing industrial hemp.” In order to obtain a license, a person must give the Kentucky Department of Agriculture both the legal description and the GPS coordinates of the area where they will grow industrial hemp. Furthermore, applicants for licenses must agree in writing to allow the State to enter the premises for inspection, and receive a yearly background check. Any convicted felon or person with a “drug-related misdemeanor” is barred from becoming licensed.

By implementing this industrial hemp program under state law, Kentucky has stated that it intends to be at the “forefront” of the industry. The state hopes to be in a position to profit from industrial hemp if and when the federal government removes the restrictions on growing and selling industrial hemp.  Information from the Kentucky Department of Agriculture is here and here.

Looking forward

Will the U.S. soon allow hemp to be legally grown as a crop? A bill introduced in the U.S. House of Representatives last July, H.R. 3530, calls for industrial hemp to be removed from the federal definition of marijuana, which would in turn remove it from the list of illegal controlled substances.  A quick search on Congress’ website reveals that similar bills have been introduced many times in the past but have not garnered sufficient support. The possibility that the current proposal will gain enough traction to pass is therefore slim.  But it is possible that continued research could prove the value of industrial hemp as an agricultural crop, which could eventually lead to less regulation in the future. Given Ohio’s lack of legislative interest in allowing industrial hemp research, Ohio farmers may be at a disadvantage if that day arrives.

For more information

Our colleague Harrison Pittman, Director of the National Agricultural Law Center, presented a webinar on industrial hemp and it’s recorded here.  A Congressional Research Service report on “Hemp as an Agricultural Commodity” is available here.   A recent article on hemp by Farm and Dairy is here.

Leave a comment

Filed under Crop Issues

What will dicamba changes mean for farmers?

Last week, the Environmental Protection Agency (EPA) announced an agreement with Monsanto, BASF and DuPont to change dicamba registration and labeling beginning with the 2018 growing season.  EPA reports that the agreement was a voluntary measure taken by the manufacturers to minimize the potential of dicamba drift from “over the top” applications on genetically engineered soybeans and cotton, a recurring problem that has led to a host of regulatory and litigation issues across the Midwest and South.   The upcoming changes might alleviate dicamba drift issues, but they also raise new concerns for farmers who will have more responsibility for dicamba applications.

The following registration and labeling changes for dicamba use on GE soybeans and cotton will occur in 2018 as a result of the agreement:

  • Dicamba products will be classified as “restricted use” products for over the top applications. Only those who are certified through the state pesticide certification program or operating under the supervision of a certified applicator may apply the product.  Training for pesticide certification will now include information specific to dicamba use and application, and applicators will be required to maintain records on the use of dicamba products.
  • The maximum wind speed for applications will reduce from 15 mph to 10 mph.
  • There will also be greater restrictions on the times during the day when applications can occur, but details are not yet available on those restrictions.
  • Tank clean-out instructions for the prevention of cross contamination will be on the label.
  • The label will also include language that will heighten the awareness of application risk to sensitive crops.

Farmers should note that the additional restrictions and information on dicamba labels shifts more responsibility for the product onto the applicator.  An applicator must take special care to follow the additional label instructions, as going “off label” subjects an applicator to higher risk.   If drift occurs because of the failure to follow the label, the applicator is likely to be liable to the injured party for resulting harm and may also face civil penalties.  Producers should take care to assess the new dicamba labels closely when the manufacturers issue the revised labels.

To learn more about legal issues with pesticide use, be sure to sit in on the Agricultural & Food Law Consortium’s upcoming webinar, “From Farm Fields to the Courthouse:  Legal Issues Surrounding Pesticide Use.”   The webinar will take place on Wednesday, November 1 at Noon EST and will feature an examination of regulatory issues and litigation surrounding pesticide use around the country by attorneys Rusty Rumley and Tiffany Dowell Lashmet.  To view the free webinar, visit http://nationalaglawcenter.org/consortium/webinars/pesticide/

Leave a comment

Filed under Crop Issues, Environmental

Answering your questions about Ohio’s noxious weeds laws

Noxious weed law questions are common in the midst of the growing season and this year is no different.  Below is a sampling of frequently asked questions we’ve received about noxious weed law.  Learn more about the laws in our new law bulletin, Ohio’s Noxious Weed Laws, available here.

My neighbor doesn’t keep his fence row clear of noxious weeds.  What can I do about it?
First, talk to the neighbor.  If your neighbor doesn’t respond favorably, the second step is to provide a written notice to the neighbor stating that he has ten days to clear the fence row of the noxious weeds.  Third, if the neighbor still doesn’t take action, provide a written notice of the situation to the township trustees, which will initiate a process that could result in the trustees determining that there is a valid need to clear the fence row and hiring some to do the work.  Your neighbor will be legally obligated to pay for the costs on his property tax bill.

I’ve been notified by my township trustees that I have noxious weeds on my property.  What should I do?
Be aware that you must respond within five days of the date the trustees notified you about the weeds or the trustees will have the authority to destroy.  Your options are to destroy or cut the weeds or to provide information to the township trustees showing that there is no need to take action.  For example, such information might include showing that noxious weeds don’t exist on the property or showing that plants were incorrectly identified as noxious weeds.

Do I have to destroy my crop if noxious weeds are on my land?
No, Ohio law states that you must only “cut or destroy the weeds” if you have been notified by the township trustees that noxious weeds are on your property.

Noxious weeds are growing in the road right-of-way. Can I remove them myself and charge the township for my costs? 
You may remove the noxious weeds, but you will probably not receive reimbursement for your costs unless the township trustees violated their duty to cut the weeds even after you followed the proper legal process for demanding their action.  Ohio law requires the township trustees to cut road right-of-way weeds in early June and August, in early September if necessary, and at other times if public safety is at issue.  If they fail to do so, you should formally complain to the township trustees in writing or by speaking at a township meeting.  If the trustees still fail to take action, the next step is to file a “writ of mandamus” action that asks the court to order the clearing.  Seeking reimbursement for your work prior to following this legal process is not the proper method for enforcing the township’s duty, according to the Second District Court of Appeals in Mezger v. Horton, 2013 Ohio 2964.

How do I know which weeds are “noxious”?
The director of the Ohio Department of Agriculture conducts rulemaking to designate a plant as a prohibited noxious weed.  The list of plants that the director has formally designated as noxious weeds is in the Ohio Administrative Code and is available at http://codes.ohio.gov/oac/901:5-37-01.

 

Leave a comment

Filed under Crop Issues, Property

Farmers Have One Month to Decide Whether to Stay in Syngenta Litigation

Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more.  The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta.  Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta.  With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.

The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas.  It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn.  The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.

Class Certification

Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members.  Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta.  The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims).  The nationwide class is for producers bringing claims under federal law.  The court also certified eight state classes for producers bringing claims under state laws, including Ohio.  Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.

Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes.  This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation.  However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta.  The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation.   A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.

Pros and Cons of Staying in the Class

A major benefit of remaining in the class action lawsuit is convenience.  Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class.  However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions.  Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees.  Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.

What’s Next?

The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June.  Bellwether cases are chosen to be representative of the class.  Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation.   Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.

The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/

Leave a comment

Filed under Biotechnology, Business and Financial, Crop Issues, Uncategorized