Tag Archives: livestock

Iowa tries work-around on “ag-gag” law ruling

Written by Ellen Essman, Senior Research Associate, OSU Extension Agricultural & Resource Law Program

In January, we wrote about state “ag-gag” laws and the trend of federal courts overturning such laws nationwide.  “Ag-gag” is the term for fraud and trespass laws that aim to prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at agricultural production facilities. We specifically discussed a case in Iowa, where the state’s “agricultural production facility fraud law” was found to be unconstitutional on First Amendment grounds in the federal District Court for the Southern District of Iowa.  In response to that ruling, the legislature modified the law, but a group made up of animal rights, community, and food safety organizations has again sued the state.  The plaintiffs contend that the new law still violates the First and Fourteenth Amendments to the Constitution.

Iowa law: current and former

Shortly following the aforementioned district court decision, Iowa passed a new ag-gag law with slightly different language.  The new Iowa law changes the crime from “agricultural production facility fraud” to “agricultural production facility trespass.” The legislature also changed the language from outlawing false statements or pretenses to outlawing deception.  Another important change is the focus in the new statutory language on the “intent to cause physical or economic harm or other injury” to the farm.

The new law reads:

717A.3B Agricultural production facility trespass.

  1. A person commits agricultural production facility trespass if the person does any of the following:

    • Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of access to an agricultural production facility that is not open to the public, and, through such deception, gains access to the agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility’s operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.

    • Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of an opportunity to be employed at an agricultural production facility that is not open to the public, and, through such deception, is so employed, with the intent to cause physical or economic harm or other injury to the agricultural production facility’s operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.

 

Iowa law defines “deception,” in part, as “knowingly…[c]reating or confirming another’s belief or impression as to the existence or nonexistence of a fact or condition which is false and which the actor does not believe to be true,” or “[f]ailing to correct a false belief or impression as to the existence or nonexistence of a fact or condition which the actor previously has created or confirmed.”

The previous Iowa law, which was struck down in a district court decision, is currently still available on the Iowa Legislature’s website.  The old law made it illegal to gain access to a facility through false pretenses and to make a “false statement or representation” in order to be employed by an agricultural production facility.  Note that the former law did not use the word “deception,” or touch on injury to the farm.

In the district court decision overturning the previous law, Judge Gritzner agreed with the plaintiffs that the language of the law violated the First Amendment right to free speech because it was content-based, viewpoint based, and overbroad. He decided that even though the law banned false statements, such false statements are still protected under the First Amendment.  In other words, just because Iowa livestock operators do not like the speech of the activists and whistleblowers trying to gain access to their farms, it does not mean that the speech should be infringed upon.

 

Animal rights groups and others challenge the new law

On April 22, 2019, shortly after the passage of Iowa’s new law, plaintiffs filed suit against the state once again in the U.S. District Court for the Southern District of Iowa.  Plaintiffs include Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing out Benji, People for the Ethical Treatment of Animals, Inc., and the Center for Food Safety.  In their complaint against the state of Iowa, plaintiffs contend that the new law still violates the Constitution, saying that “the only difference” between the two laws is that the new law “targets a slightly different form of speech.”  In other words, Iowa has changed its law from outlawing false statements or pretenses to outlawing deception, but the plaintiffs believe the new law basically ends up doing the same thing as the old, overturned ag-gag law; it prevents their speech based on content and viewpoint. Plaintiffs rely on the following arguments to illustrate their reasoning:

  • Iowa’s new law bans any negative speech about the agricultural industry, which creates a preference for speech favorable to the industry.

  • Whistleblowing is not criminalized in other Iowa industries.

  • Iowa statutes already outlaw fraud, trespass, and adulteration of food products, as well as the theft of trade secrets, so agriculture already has adequate protection from economic harm.

  • Outlawing deception “with the intent to cause…other injury” is too vague; it is not easily discernable what other kinds of speech or actions might be illegal under the statute.

As such, the plaintiffs allege that the Iowa law violates freedom of speech under the First Amendment because it is overbroad, viewpoint-based discrimination, and because it is vaguely written under the First and Fourteenth Amendments. Finally, plaintiffs contend that the law violates the Fourteenth Amendment’s Due Process clause because it “substantially burdens” their exercise of free speech.  The court must determine whether or not they agree with this assessment.

Many “ag-gag” statutes struck down as unconstitutional, but many more decisions to go

As was mentioned in our January blog post, there is ongoing ag-gag litigation outside of Iowa, as well.  Kansas and North Carolina have both been sued for their ag-gag statutes, and both cases are still pending.  Will the federal courts find laws in Iowa, Kansas and North Carolina unconstitutional like they have previously in Iowa, as well as in Idaho, Utah and Wyoming, or will they find that they do not violate freedom of speech and due process?  Will lawsuits challenge the remaining ag-gag laws in Alabama, Arkansas, Missouri, Montana, and North Dakota? The answers may take a while to sort out.

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The Legal Challenges to the Lake Erie Bill of Rights Begin

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Toledo’s Lake Erie Bill of Rights (LEBOR) has been in the headlines a lot lately, and certainly on the minds of farmers in the Lake Erie watershed.  So far, the Ag Law Blog has focused attention on what LEBOR iswhy it was on the ballot, and what types of defenses agricultural producers can raise if sued.  Because voters approved the ballot measure, the focus now shifts to how LEBOR will be treated in the courts.

On February 26th, Toledo held a special election, with one of the ballot questions being whether to amend the City of Toledo’s charter to adopt LEBOR.  While less than 9 percent of Toledo’s registered voters cast a ballot, the majority of those who did voted in favor of amending the city’s charter to include LEBOR.

On February 27th, the Drewes Farm Partnership filed a complaint and initiated a lawsuit in federal court against the City of Toledo.  Family owned and operated, this Wood County based grain farm operates wholly within the Lake Erie watershed.  Drewes Farm utilizes both manure and commercial fertilizers, and states in its complaint that it follows industry best practices, scientific recommendations, and all legal requirements such as keeping records and not applying fertilizer on snow covered ground.  Two of the family members obtained Fertilizer Applicator Certificates, and the Ohio Department of Agriculture certified the farm under its Ohio Agricultural Stewardship Verification Program.

The complaint specifically alleges violations of Drewes Farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of both the Fifth and Fourteenth Amendments.  Further, the complaint argues that LEBOR exceeds the City of Toledo’s authority by intruding on state and federal powers by attempting to meddle with international relations, invalidate state and federal permits, invalidate state law, alter the rights of corporations, and create new causes of action in state courts.  Drewes Farm requests that the court 1) grant it a preliminary and permanent injunction to prevent LEBOR’s enforcement, 2) invalidate LEBOR, and 3) grant the plaintiff an award for costs and fees.

The following day, Drewes Farm filed a motion for a preliminary injunction.  Parties use preliminary injunctions as a way to enforce the status quo and prevent the other parties from acting in a way that would cause further harm.  If granted, the preliminary injunction would prevent the enforcement of LEBOR against the Drewes Farm Partnership during the course of the litigation.  At the end of the case, there would be a determination of whether Drewes Farm should receive a permanent injunction, which would prevent LEBOR from being enforced against it after the case has ended.

The party who brings the motion must argue and prove four elements in order for the court to grant the motion for a preliminary injunction:

First, that the movant has a likelihood of success on the merits, meaning that it is likely that the movant will win the underlying case.  Drewes Farm’s motion examines each of the grounds that it believes violates its constitutional rights and state and federal law.  Drewes Farm argues that it can win on each of the dozen grounds it examines, and that it need only show a likelihood of success on one ground to satisfy this element.

Second, that the movant could suffer irreparable harm without a preliminary injunction, meaning that without a preliminary injunction, the other party may take action to harm the movant in a way that it will not be able to recover.  Here, Drewes Farm cites court cases explaining that the loss of one’s constitutional rights for any amount of time constitutes irreparable harm, and that a likelihood of success also demonstrates irreparable harm.

Third, that the issuance of an injunction will not cause greater harm.  This element balances the previous element to see whether the injunction is fair.  Where the second element looks at the harm to the movant, the third element looks at whether a preliminary injunction will harm others.  Here, Drewes Farm argues that others will not be harmed by the granting of a preliminary injunction because it will merely allow the farm to continue operating as required under the law and its permits using best practices.  Further, Drewes Farm mentions that the other farms in the watershed will actually experience a benefit from the prevention of LEBOR’s enforcement.

Fourth, that the issuance of a preliminary injunction would serve the public interest.  Here, Drewes Farm cites additional court cases explaining that the enforcement of constitutional rights is inherently in the public interest.  Further, it argues that the State of Ohio holds its portion of Lake Erie in trust “for all Ohio citizens, not just those residing in a single municipality.”

If the court is satisfied that Drewes Farm has established each of the four elements, it may grant a preliminary injunction.

At this time, the City of Toledo has not filed any responses to the complaint or motion; however, procedural rules require it to respond in a timely manner.  Because it has not filed anything with the court, it is unclear how the City of Toledo intends to defend or respond.  However, since enforcement of LEBOR had not been commenced against the Drewes Farm Partnership, it is possible that Toledo will challenge the plaintiff’s standing to sue at the present time.

The case is cited in court records as Drewes Farm Partnership v. City of Toledo, Ohio, 3:19-cv-00343 (N.D. Ohio).  Stay tuned to the Ag Law Blog for updates about the case.

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Did you know that states’ “right-to-farm” protections can apply to aquaculture, too?

Written by Ellen Essman, Sr. Research Associate

A few weeks ago we attended the American Agricultural Law Association’s (AALA) annual conference, which was held in Portland, Oregon this year. While we were there, we had the opportunity to learn about numerous topics related to agricultural law.  One such topic was presented by our colleague from the National Sea Grant Law Center, Amanda Nichols.  Nichols presented her research on state “right-to-farm” statutes and their applicability to aquaculture.

What is aquaculture?

For those who don’t know, aquaculture is defined by the National Oceanic and Atmospheric Administration (NOAA) as “the breeding, rearing, and harvesting of fish, shellfish, plants, algae, and other organisms in all types of water environments.”  Thus, aquaculture is essentially the farming of aquatic species in freshwater and saltwater, in manmade and natural bodies of water.

What are right-to-farm laws?

Right-to-farm laws are meant to protect agricultural operations against nuisance lawsuits brought by neighboring landowners complaining about smell, dust, noise, or other annoyances.  In terms of “traditional,” terrestrial farming, for example, right-to-farm laws could potentially protect against lawsuits claiming the spreading or accumulation of livestock manure is a nuisance to neighbors.  Every state in the U.S. has their own right-to-farm statute, and some of the statutes protect farming operations more completely than others do.  For example, Ohio’s right-to-farm language provides farmers with a complete defense to civil nuisance lawsuits when certain conditions are met.  On the other hand, neighboring Michigan and Pennsylvania’s statutes provide no such defenses.

Where aquaculture and right-to-farm laws overlap

In her research on the topic of which states include protection of aquaculture operations in their right-to-farm laws, Nichols found that twenty-six states, including Ohio, “expressly include fish or aquaculture within the scope of their right-to-farm protections.” As a result, any right-to-farm protections to traditional agriculture, as well as any conditions agricultural operations must meet in order for the right-to-farm language to apply, would also extend to aquaculture in those twenty-six states.  Nichols found that one state, New Jersey, did “not mention aquaculture or fish expressly” but has adopted a manual for best management practices (BMPs) for aquaculture within the state, which shows the state’s “intent” to protect aquaculture from nuisance lawsuits.

Ohio’s right-to-farm legislation

As mentioned above, Ohio’s right-to-farm legislation “expressly include[s]” aquaculture.  It does so by defining “agricultural production” not only as “animal husbandry” or production of plants for “a commercial purpose,” but also as “commercial aquaculture” and “algaculture meaning the farming of algae.”

Ohio farmers, including those involved in aquaculture, have right-to-farm protection in two parts of the Ohio Revised Code (ORC).  ORC Chapter 929 establishes “agricultural districts.”  Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor.  Certain requirements must be met in order for an application to be accepted.  Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality.  If the application is accepted, the land is placed in an agricultural district for five years.  The owner may submit a renewal application after that time is up.

Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits.  ORC 929.04 reads:

In a civil action for nuisances involving agricultural activities, it is a complete defense if:

A. The agricultural activities were conducted within an agricultural district;

B. Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;

C. The plaintiff was not involved in agricultural production; and

D. The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.

The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.”  Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.

Not only is Ohio’s right-to-farm legislation more forceful in its protection of agriculture than many other states, but it also explicitly includes aquaculture under that protection.  AALA gave us the chance to learn about this very interesting study of right-to-farm legislation as applies to aquaculture, which is an area of agriculture that many Ohioans might not necessarily think about.  If you are interested in learning more about state right-to-farm laws and aquaculture, the National Sea Grant Law Center’s report is available here.

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Law bulletin helps livestock farmers with new air emissions reporting

Beginning today, farmers must now report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act.  This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions.  We’ve authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process.  The new bulletin is available here.

Read more about the new CERCLA air emissions reporting mandate in our earlier post.

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Farms must now begin reporting air releases of hazardous substances from animal wastes

Beginning November 15, 2017, many livestock, poultry and equine farms must comply with reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103. The law requires entities to report releases of hazardous substances above a certain threshold that occur within a 24-hour period. Farms have historically been exempt from most reporting under CERCLA, but in the spring of 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule that allowed reporting exemptions for farms. As long as there is no further action by the Court to push back the effective date, farmers and operators of operations that house beef, dairy, horses, swine and poultry must begin complying with the reporting requirements on November 15, 2017.

Farmers and operators, especially of sizeable animal operations that are likely to have larger air emissions, need to understand the reporting responsibilities. The Environmental Protection Agency (EPA) has published interim guidance to assist farms with the new compliance obligations. The following summarizes the agency’s guidance.

What substances to report

The EPA specifically names ammonia and hydrogen sulfide as two hazardous substances commonly associated with animal wastes that will require emissions reporting. Each substance has a reportable quantity of 100 pounds. If a farm releases 100 pounds or more of either substance to the air within a 24-hour period, the owner or operator must notify the National Response Center. A complete list of hazardous substances and their corresponding reportable quantities is here.

Note that farmers do not have to report emissions from the application of manure and fertilizers to crops or the handling, storage and application of pesticides registered under federal law. However, a farmer must report any spills or accidents involving these substances when they exceed the reportable quantity.

How to report

Under CERCLA, farm owners and operators have two compliance options—to report each release or to follow the continuous release reporting process:

  • For an individual release that meets or exceeds the reportable quantity for the hazardous substance, an owner or operator must immediately notify the National Response Center (NRC) by phone at 1-800-424-8802.
  • Continuous release reporting allows the owner or operator to file an “initial continuous release notification” to the NRC and the EPA Regional Office for releases that will be continuous and stable in quantity and rate. Essentially, this puts the authorities “continuously” on notice that there will be emissions from the operation within a certain estimated range. If the farm has a statistically significant increase such as a change in the number of animals on the farm or a significant change in the release information, the farm must notify the NRC immediately. Otherwise, the farm must file a one year anniversary report with the EPA Regional Office to verify and update the emissions information and must annually review emissions from the farm. Note that a farm must submit its initial continuous release notification by November 15, 2017.

No reporting required under EPCRA

The litigation that led to CERCLA reporting also challenged the farm exemption from reporting for the Emergency Planning and Community Right to Know Act (EPCRA). EPRCRA section 304 requires facilities at which a hazardous chemical is produced, used or stored to report releases of reportable quantities from the chemicals. However, EPA explains in a statement issued on October 25, 2017 that the statute excludes substances used in “routine agricultural operations” from the definition of hazardous chemicals. EPCRA doesn’t define “routine agricultural operations,” so EPA states that it interprets the term to include regular and routine operations at farms, animal feeding operations, nurseries, other horticultural operations and aquaculture and a few examples of substances used in routine operations include animal waste stored on a farm and used as fertilizer, paint used for maintaining farm equipment, fuel used to operate machine or heat buildings and chemicals used for growing and breeding fish and plans for aquaculture. As a result of this EPA interpretation, most farms and operations do not have to report emissions under EPCRA. More information on EPA’s interpretation of EPCRA reporting for farms is here.

What should owners and operators of farms with animal wastes do now?

  1. Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
  2. Determine if the operation may have reportable quantities of air emissions from hazardous substances such as ammonia or hydrogen sulfide. The EPA offers resources to assist farmers in estimating emission quantities, which depend upon the type and number of animals and type of housing and manure storage facilities. These resources are available here.
  3. A farm that will have reportable emissions that are continuous and stable should file an initial continuous release notification by November 15, 2017. A guide from the EPA for continuous release reporting is here. Make sure to understand future responsibilities under continuous release reporting.
  4. If not operating under continuous release reporting, immediately notify the National Response Center at National Response Center (NRC) at 1-800-424-8802 for any release of a hazardous substance that meets or exceeds the reportable quantity for that substance in a 24-hour period, other than releases from the normal application or handling of fertilizers or pesticides.
  5. Learn about conservation measures that can reduce air pollution emissions from agricultural operations in this guide from the EPA.

Note that the EPA is seeking comments and suggestions on the resources the agency is providing or should provide to assist farm owners and operators with meeting the new reporting obligations. Those who wish to comment should do so by November 24, 2017 by sending an e-mail to CERCLA103.guidance@epa.gov.

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Legislation Proposes Tax Credits for Manure Infrastructure Investments

A legislative proposal to address manure infrastructure costs introduced by Rep. Brian Hill (R-Zanesville) is moving once again, receiving its third hearing before the House Ways and Means Committee on Tuesday, April 26.  To continue reading this post, go to our new blog site, here.

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Ohio Legislature revises law for livestock running loose

New law establishes clear standards for liability, adds alpacas, llamas and bison

Livestock owners and keepers in Ohio will soon have less risk of automatic liability when their animals escape enclosures and run loose on public roadways or the property of others.   The Ohio legislature has revised the “animals running at large” law to clarify two different standards for criminal and civil liability under the law.  

Criminal liability will occur only when proven that a livestock operator behaved “recklessly” in allowing the animals to run loose.  Under Ohio law, a person behaves recklessly when he or she perversely disregards a known risk of his or her conduct, with heedless indifference to the consequences of that conduct.   For example, a livestock owner who sees but intentionally ignores a downed fence where cattle graze near a roadway could be deemed “reckless.”  

The new law establishes a different standard of liability for a civil situation.  A person may recover damages against a livestock owner if harm resulted because the livestock owner’s “negligence” caused the animals to escape.  Under Ohio law, negligence is a substantial lapse of “due care” that results in a failure to perceive or avoid a risk.  For example, a livestock owner who has not checked the line fences in a grazing area for several years could be deemed “negligent.”

Additionally, the revised law states that an animal being at large creates an initial presumption of negligence by the owner.  The animal owner must then rebut the presumption by proving that he or she exercised due care.

The revised law should address a growing problem in Ohio, where livestock owners have been held automatically liable when their animals are found running at large–regardless of  the reason for the animals’ escape or any actions taken or not taken by the owner.  This problem has occurred most frequently with criminal prosecutions.  Owners of escaped animals have been assessed automatic criminal penalties, without having an opportunity to explain their management practices or present facts about the animals’ escape.  The new law remedies this problem by clarifying that criminal liability is not “automatic” simply because livestock are loose; there must be proof that the owner was reckless.

In addition to addressing the standards for liability, the revised animals at large law also:

  • Adds llamas, alpacas and bison to the list of animals addressed in the liability provisions, which already included horses, mules, cattle, sheep, goats, swine and geese.
  • Also adds llamas, alpacas and bison to the law’s provisions for taking, confinement and care of animals running at large.
  • Removes a separate liability provision for male breeding animals; male breeding animals will now fall under the same liability section of the law as other animals.
  • Revises a similar civil liability provision for livestock in Ohio’s line fence law to clarify that negligence is the requisite standard of liability under that law.

The governor signed H.B. 22 on June 21, 2011; the law takes effect on September 20, 2011.  View H.B. 22 here.

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