Agricultural Law in the Spotlight: Federal Court Dismisses Des Moines Water Works Case

Written by Robert T. Caccese—Staff Attorney

On March 17, 2017, the U.S. District Court, N.D. Iowa, Western Division dismissed a lawsuit brought by an Iowa municipal water utility against thirteen Iowa agricultural water drainage districts (Board of Water Works Trustees of the City of Des Moines, Iowa v. SCA County Board of Supervisors, 2017 WL 1042072). The Des Moines Water Works (DMWW) is a municipal water utility (political subdivision) charged with providing drinking water to an estimated 500,000 citizens in the Des Moines area. The utility draws water primarily from the Raccoon and Des Moines Rivers, with the Raccoon draining over two million acres across seventeen counties. As a public water supplier, DMWW is mandated to meet maximum contaminant levels when serving water to customers, per obligations set out in state laws and the federal Safe Drinking Water Act. Included as a contaminant are nitrates, a common by-product of fertilizers in agricultural field runoff. Since the mid-1990s, nitrate concentrations in the Raccoon River have increased beyond acceptable standards set out by the U.S. Environmental Protection Agency, requiring DMWW to increase its resources to treat water from the river into safe drinking levels.. Specifically, DMWW stated three water treatment plants had been in continuous operation for extended time periods during 2015 and forced the authority to explore options of designing a new multi-million dollar nitrate-removal facility with larger capacities.

DMWW pointed to Iowa drainage districts as the primary culprits for increased nitrate levels in Raccoon River water. Drainage districts are political subdivision creations of Iowa with the purpose of allowing wetland areas to be converted into productive agricultural land. Districts enable property owners to fund improvements together, specifically through placement of tiles in swales, ditches, or man-made canals, which collect and convey water to streams and rivers. Importantly, the Iowa Legislature limited the powers of drainage districts to solely draining water from overlying land when it created the entities. In this specific part of Iowa, thirteen drainage districts contribute flows to the Raccoon River.

In 2015, DMWW filed suit in U.S. District Court, N.D. Iowa, Western Division against the Sac County Board of Trustees as Trustees of Drainage Districts, et. al. (thirteen districts total), alleging ten causes of action ranging from Clean Water Act violations to constitutional claims. Specifically, DMWW alleged the actions of the drainage districts caused additional costs necessary for complying with state and federal water regulations because of increased nitrate contributions into the Raccoon River. Another disagreement among parties focused on whether districts were considered “point sources” under the confines of the Clean Water Act; thus requiring a National Pollution Discharge Elimination System (NPDES) permit to discharge into navigable waterways. Simply put, the case centered on which political entity retained responsibility to pay to comply with state and federal regulations. After motions for summary judgment by the defendants, the District Court certified four questions to the Iowa Supreme Court for clarification of state law to proceed with the case. Specifically, the District Court inquired about implied immunity for drainage districts, due process and equal protection violations, and property interests in regards to takings claims by the government.

With regard to immunity of drainage districts to suits for damages and/or injunctive relief, the Iowa Supreme Court focused on the text of Iowa Code Chapter 468, which lays out the powers of drainage districts. The Court reasoned under the express language of the Code, “drainage districts are limited in their powers to restoring, maintaining, and increasing the flow of water through a drainage system.” References to removing contaminants from water or the quality of the water filtered through districts is expressly missing from the Code. Because of a lack of duty to remove nitrates, redressing the perceived injury to DMWW is not possible by the drainage districts because of their limited powers conferred to them by the Legislature. As a result, DMWW lacked standing to further address the notion of whether the districts could be considered “point sources” under the Clean Water Act. The Court held that while DMWW may have suffered an injury, “drainage districts lack the ability to redress that injury.”  The District Court held the first two claims failed for this reason and granted defendants summary judgment motion.

For Counts III through X, DMWW argued the grant of immunity to drainage districts violated Due Process, Equal Protection, and Takings clauses of the U.S. Constitution.  However, the District Court noted that because DMWW is a public entity created by the Iowa Legislature, they cannot invoke protections of the Fourteenth Amendment (reserved for private entities). Furthermore, DMWW’s claim “was not based on a suspect class or fundamental right”, leading to a rational basis review by the Court. Based on the limited powers and purpose conferred to districts in their enabling legislation, the Court ruled a rational basis existed for their immunity from suit and compliance of the Equal Protection clause. Although DMWW argued irrational results in nutrient management strategy obligations cause unfairness in compliance, the District Court viewed this as a policy issue best served for the Iowa Legislature to address. In regards to alleged Due Process violations by the districts, the District Court cited no authority supported a fundamental right to clean water. Instead, the Court noted “DMWW had continuous access to Raccoon River water and districts lack the broad police powers utilized by counties and other political subdivisions,” as noted by the Iowa Supreme Court.

Finally, DMWW’s takings claim was rejected by both the Iowa and District Courts. The Takings clause of the Fifth Amendment requires compensation where the government takes “private property” for public use. In this case, water in Iowa is owned by the state in trust for the public. DMWW does not own the water, nor was denied access to it. Because Raccoon River water is considered a public resource, a taking did not occur. As a result, the Court dismissed Counts III-X and granted the drainage districts motion for summary judgement, effectively dismissing the case altogether. In sum, DMWW must continue to treat collected Raccoon River water to comply with state and federal laws and may not sue drainage districts. Instead, DMWW consumers will likely see fees increase to compensate for increased treatment costs. Overall, the Court’s ruling allows the possibility of new dialogue and collaboration among parties to develop solutions to the water quality issue, while sustaining Iowa farming practices. Significantly, the ruling may provide insight for other states faced with similar issues in this context, in particular Pennsylvania.  

Agricultural Law Weekly Review: January 29, 2016

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Conservation: USDA to Create New Wetland Protection Program
On January 28, 2016, the United States Department of Agriculture issued a press release announcing “the establishment of the Natural Resources Conservation Service (NRCS) Wetland Mitigation Banking Program.”  Created as a result of the 2014 Farm Bill, the new program is designed to provide $9 million in resources to help “states, local governments or other qualified partners develop wetland mitigation banks that restore, create, or enhance wetland ecosystems, broadening the conservation options available to farmers and ranchers so they can maintain eligibility for other USDA programs.”

Avian Influenza: NAFTA Partners Sign Letter of Understanding on Avian Influenza
On January 19, 2016, the USA Poultry & Egg Export Council issued a press release announcing that government animal health officials from the United States, Canada, and Mexico had joined poultry and egg industry leaders in formally signing a Letter of Understanding on Avian Influenza.  According to the press release, the Letter of Understanding is “an arrangement to enhance collaboration on avian influenza and to work toward harmonizing procedures for responding to possible future detections of the virus.”

Labeling: New Labeling Requirements on Alaskan Pollock

On January 21, 2016, The U.S. Food and Drug Administration (FDA) announced an update to its “Seafood List” so as “to reflect a change for fish labeled as ‘Alaska Pollock.’”  As a result of FDA’s change, “only Gadus chalcogrammus caught in Alaskan waters or the exclusive economic zone (as defined in section 3 of the Magnuson-Stevens Fishery Conservation and Management Act) adjacent to Alaska can be called Alaskan ‘Pollock’ or Alaska ‘Pollock.’” 

Litigation: Court Approves Certification of Class Action Involving Pomegranate Seeds
On January 25, 2016, United States District Court Central District of California Southern Division Judge David O. Carter granted a class action certification in a case involving alleged injuries resulting from the risk of exposure to the hepatitis A virus after the consumption of pomegranate seeds imported from Turkey [CaseNo.: SA CV 13-1292-DOC (JCGx)].  The certified class action consolidated litigation from nine different single-state subclasses.

Food Safety: FSMA Requires Farmers to Retain Records to Prove "Qualified Exemption"

See previous Penn State Agricultural Law Blog article. 

Chesapeake Bay: Pennsylvania Announces New Plan to meet Chesapeake Bay Requirements

See previous Penn State Agricultural Law Blog article. 

Case Law Update: Court Approves Settlement of Lawsuit Challenging Oregon County’s GMO Ban

Written by M. Sean High – Staff Attorney

On December 22, 2015, Capital Press announced that U.S. Magistrate Judge Mark Clarke had approved a legal settlement reached between Oregon’s Jackson County and the owners of two alfalfa farms located in within the county.  The lawsuit in question involved the farmers’ challenge to Jackson County’s ban on genetically engineered (GMO) crops. 

In 2013, the Oregon legislature approved S.B. 863 which prohibited counties from banning GMO crops.  Included in S.B. 863 was a provision that exempted counties where proposed initiative petitions banning GMO crops had already qualified for placement on the 2014 ballot.  Jackson County’s measure 15-119 met this exemption, and in May 2014, county residents passed into law a ban on GMO crops.

Accordingly, Jackson County alfalfa farmers Bruce Schulz, and James and Marilyn Frink filed suit, alleging that the GMO ban was: 1) a violation of Oregon’s right to farm law; 2) would cause their operations financial hardship; and 3) the removal of existing GMO plants would in result in $4.2 million in damages.  While Judge Clarke dismissed the first two arguments involving Oregon right to farm law and financial hardship, at the time of settlement, the claim involving the $4.2 million in damages was still up for consideration.

As per the approved settlement, the alfalfa farmers agreed not to appeal a previous court ruling upholding the ban; to stop seeking the $4.2 million in damages; to not plant any more GMO alfalfa; to harvest all GMO alfalfa before it reaches 10% bloom (so as to reduce the chance of cross- pollination); and to remove all GMO alfalfa within eight years.  Additionally, the alfalfa farmers agreed to submit “field data to attorneys representing biotech critics” under an “attorneys eyes only” protective order.

In exchange, Jackson County agreed to allow the alfalfa farmers up to eight years (the normal lifespan of the perennial alfalfa) to harvest those GMO crops that have already been planted.  Significantly, other Jackson County GMO alfalfa growers “can ‘opt in’ to the settlement by submitting sworn documents identifying where their crops are grown, either with satellite data or geographic information, within 30 days of the deal’s approval.”

Case Law Update: PA Supreme Court Rules in Favor of Biosolid Land Application

Written by M. Sean High – Staff Attorney

On December 21, 2015, the Supreme Court of Pennsylvania held that: 1) the Pennsylvania Right to Farm Act (RTFA) contains a one-year statute of repose barring nuisance suits, and application of the one-year statute of repose is a question of law for courts to decide; and 2) the land application of biosolids as fertilizer meets RTFA’s definition of a “normal agricultural operation.” (Gilbert v. Synagro Central, LLC, No. 121 MAP 2014).

According to the Court, RTFA’s one-year bar regarding nuisance suits operates as a statute of repose (which is a time limit on when an action may be brought that is not related to when an injury actually happened, as opposed to a statute of limitation which is a time limit on when an action may be brought based on when an injury actually happened or was discovered), and “that, generally, statutes of repose are jurisdictional and their scope is a question of law for courts to determine.” As a result, the Court proclaimed that “[h]aving courts [as opposed to juries] apply RTFA’s definitions achieves the meaningful degree of legal certainty, uniformity, and consistency that the RTFA was intended to provide to farms.”

In deciding that the land application of biosolids meets RTFA’s definition of “normal agricultural operation,” the Court stated that the legislative policy of RTFA is to protect Pennsylvania agriculture and that this purpose is best achieved by broadly interpreting a “normal agricultural operation” so as to take “into account new developments in the farming industry,” which includes the land application of biosolids as fertilizer.  The Court further reasoned that “[t]he statistics and facts relating to the history of biosolids land-use also support the conclusion the use of biosolids as fertilizer is a 'normal agricultural operation.’”

Finally, the Court asserted that when deciding what qualifies as a RTFA “normal agricultural operation,” the focus should be placed on the “practice in general, not on whether the defendant in [a] particular instance conducted the practice with accepted industry standards and regulations.” Chief Justice Saylor disagreed with this assertion, and as a result, filed a concurring opinion stating that while he agreed with the majority in the present case, “if the manner in which a farming practice is carried out deviates substantially from the norm and has unusual adverse effects upon neighboring properties, at some point that particular method of implementing the practice should be viewed as a distinct practice whose agricultural normalcy should be independently evaluated.” 

Vermont Farm Agrees to Settlement with DOJ Regarding Tainted Animals Sold for Human Consumption

M. Sean High – Staff Attorney

One day after the Department of Justice (DOJ) filed a complaint for permanent injunction to prevent a Vermont dairy farm’s use of unauthorized animal drugs in animals sold for human consumption, the parties filed an agreed upon settlement.

On December 7, 2015, on behalf of the United States of America, DOJ filed a complaint in the United States District Court for the District of Vermont requesting a permanent injunction against Correia Farm Limited Partnership for allegedly violating the Federal Food, Drug, and Cosmetic Act (FDCA) by administering unapproved new animal drugs which resulted in unsafe drug residue levels in animals slaughtered for human consumption.   

On December 8, 2015, the parties filed a settlement consent decree for permanent injunction.  As part of the settlement, Correia Farm Limited Partnership agreed to a heightened level of Federal Drug Administration (FDA) oversight and scrutiny of their operation and to cease operations until the implementation of FDA approved “record-keeping and operational protocols designed to ensure consumer safety.” Significantly, Correia Farm Limited Partnership agreed not to resume food production (excluding milk) until an FDA determination that the operation’s manufacturing practices have come into compliance with the law.  

The agreed upon consent decree for permanent injunction now awaits judicial approval from the U.S. District Court for the District of Vermont.

Sugar Companies and Corn Refiners Settle Lawsuit

Written by M. Sean High - Staff Attorney

On November 20, 2015, less than one month into a trial that pitted sugar companies against corn refiners, parties announced a settlement had been reached.  The lawsuit in question involved the advertisement of various health claims relating to high fructose corn syrup.  According to the parties, the terms of the settlement agreement are confidential.

In 2011, sugar companies brought suit against the Corn Refiners Association for using advertisements that referred to high fructose corn syrup as “corn sugar” and “natural.” Furthermore, the sugar companies disputed those advertisements that claimed high fructose corn syrup was “nutritionally the same as table sugar.”

According to the sugar companies, sugar and high fructose corn syrup are distinct products and any advertisement to the contrary is false and misleading.  The sugar companies claimed that this false advertisement resulted in damages in excess of $1.1 billion.  Relatedly,  in 2012, the Food and Drug Administration issued a ruling denying the Corn Refiners Association petition to use “corn sugar” as an alternate name for high fructose corn syrup.

In a joint statement announcing the settlement agreement, the parties expressed that they will “continue their commitments to practices that encourage safe and healthful use of their products, including moderation in the consumption of table sugar, high fructose corn syrup and other sweeteners.”

Court Rules on Preliminary Objections in Luzerne County CAFO Case

Written by M. Sean High

On October 29, 2015, in the Court of Common Pleas of Luzerne County Pennsylvania, a ruling was rendered regarding Country View Family Farms, LLC’s preliminary objections in a Concentrated Animal Feeding Operation (CAFO) case involving a Salem Township pig farm.

The legal action in question originated from an April 27, 2015 complaint filed by multiple Salem Township residents seeking relief from the operation of a neighboring CAFO.  In their complaint, 90 individual plaintiffs collectively stated that “foul-smelling odors particulate matter, harmful chemical compounds, pathogens, other hazardous substances, and in some cases flies, generated at Defendants’ CAFO and the spreading of swine manure and urine, have intermittently and frequently escaped and continue to escape form Defendants’ CAFO  and the spreading fields and invade Plaintiffs’ properties, and thus have and continue to substantially impaired Plaintiffs’ use and quiet enjoyment of their properties, and caused substantial annoyance, inconvenience and discomfort and property devaluation.”

Defendant Country View Family Farms, LLC countered Plaintiffs’ allegations by filing seven preliminary objections to the complaint.  According to Defendant’s brief in support of the preliminary objections: 1) Plaintiffs’ nuisance claim (both public and private) was legally and factually insufficient; 2) allegations concerning harm to nearby schools, a hospital, a retirement village and Thompson’s Run Creek should be stricken; 3) allegations concerning potential violation of a Salem Township zoning ordinance should be stricken; 4) Plaintiffs’ trespass claim was legally and factually insufficient; 5) Plaintiffs’ potential claim for negligence was improperly pleaded and legally insufficient; 6) demand for punitive damages should be stricken; and 7) the demand for diminution in value damages should be stricken.

With only one partial exception, the Court of Common Pleas of Luzerne County agreed with Country View Family Farms, LLC and ruled in favor of all seven of Defendant’s preliminary objections.  The lone exception concerned Country View Family Farms, LLC’s preliminary objection to Plaintiffs’ nuisance claim. Specifically, though the Court agreed with Country View Family Farms, LLC that Plaintiffs “public nuisance” claim should be stricken, the Court also ruled that Plaintiffs’ claim of “private nuisance” could proceed with the added requirement that within 45 days of the Order, Plaintiffs must submit an amended complaint “delineat[ing] with the requisite specificity the alleged injury” suffered by each one of the 90 individual plaintiffs. 

WOTUS Suffers another Legal Setback

Written by M. Sean High

On October 13, 2015, a United States Judicial Panel issued a ruling denying the Obama Administration’s attempt to consolidate the multiple pending Waters of the United States (WOTUS) actions into one centralized action in the District of Columbia.   The Judicial Panel Ruling follows the federal government’s recent WOTUS legal setback, issued October 9, 2015, where the Sixth Circuit court denied the nationwide application of WOTUS.  

As a result of the Judicial Panel ruling, the federal government will need to continue litigating the nine separate WOTUS challenges in seven different federal courts (Northern District of Georgia, Southern District of Georgia, District of Minnesota, District of North Dakota, Southern District of Ohio, Northern District of Oklahoma, and Southern District of Texas).

In denying the federal government’s attempt at consolidation, the Judicial Panel stated that “centralization will not serve the conveniences of the parties and witnesses or further the just and efficient conduct of this litigation.” 

Idaho “Ag-Gag” Law Ruled Unconstitutional

On August 3, 2015, U.S District Court Judge B. Lynn Winmill for the U.S. District Court of Idaho ruled Idaho’s “ag-gag” law unconstitutional.

The Idaho legislature passed the “ag-gag” bill back in 2014 as a response to a Los Angeles animal rights group that released a video exposing animal abuse on a dairy farm in Iowa.  The bill made it a misdemeanor for an individual to “interfere with agricultural production.”  Interference included various acts such as obtaining employment at an agricultural facility only to cause economic injury, intentionally damaging crops or machinery, and entering an agricultural operation that is closed to the public to make video recordings of the conditions on the premises.  The bill was signed on February 14, 2014 by Idaho Governor C.L. Otter, which then became Idaho Code § 18-7042.

According to the written opinion, the lawsuit was brought by the Animal Defense Fund, with other organizations, that argued the law was unconstitutional because “§ 18-7042 has both the purpose and effect of stifling public debate about modern agriculture ‘by (1) criminalizing all employment based undercover investigations; and (2) criminalizing investigative journalism, whistle blowing by employees…”  The constitutional arguments brought against § 18-7042 were “violation of the Free Speech Clause of First Amendment and the Equal Protection Clause of the Fourteenth Amendment…”    

In the written opinion, Winmill found § 18-7042 both violated Freedom of Speech under the First Amendment and could not stand under the Equal Protection Clause. 

Seven other states have passed similar “ag-gag” laws.  The Animal Legal Defense Fund has also brought a challenge to Utah’s “ag-gag” laws in federal court.

Written by Katharine Richter - Research Assistant

August 4, 2015

Twelve Waters of the U.S. Lawsuits Consolidated

On July 29, 2015, the United States Judicial Panel on Multidistrict Litigation approved the Environmental Protection Agency (EPA) and Army Corps of Engineers request that twelve different lawsuits filed in relations to the Waters of the United States (WOTUS) rule be consolidated.  The panel randomly chose the Sixth Circuit Court to hear the consolidated cases.

Some of the lawsuits consolidated were filed against the EPA by environmental groups who want stricter pollution protection.  The rest of the lawsuits were filed by industry groups and states who believe the EPA has overstepped its bounds and argue for rules that will not so greatly burden businesses.

It is expected the consolidation of the lawsuits will help bring a faster resolution to the challenges.   

Written by Katharine Richter - Research Assistant

July 31, 2015

Chesapeake Bay Update: Court Upholds Chesapeake Bay TMDL

On July 6, 2015, the U.S. Third Circuit Court ofAppeals ruled against the American Farm Bureau Federation (AFBF) and in favor of the U.S. Environmental Protection Agency (EPA) regarding the legality of the Chesapeake Bay total maximum daily load (TMDL) regulations.  According to the court, AFBF was incorrect in its assertion that EPA’s Chesapeake Bay TMDL regulations exceeded EPA’s statutory authority to regulate.

The court opinion stated that under the federal Clean Water Act (CWA) Congress has required the establishment of TMDLs for certain waters.  According to the court, though undefined in CWA, EPA has interpreted the term TMDL “to require publication of a comprehensive framework for pollution reduction in a given body of water.” Accordingly, EPA’s Chesapeake Bay TMDL provided for “allocations of permissible levels of nitrogen, phosphorous, and sediment among different kinds of sources of these pollutants.”

According to the court, one of AFBF’s primary assertions was that the correct reading of the “total load” in TMDL represented a single number, “like the ‘total’ at the bottom of restaurant receipt,” and did not permit specific allocations of permissible levels of nitrogen, phosphorous, and sediment.  The court disagreed that CWA only permitted one number, stating that “a plausible understanding of ‘total’ is that it means the sum of the constituent parts of the load.”

In addition to finding that “total” allowed for allocations of permissible levels of nitrogen, phosphorous, and sediment, the court found that EPA had not overstepped its statutory authority in requiring both TMDL target dates and state assurances that TMDL objectives would be fulfilled. 

Significantly, the court opinion stated that any solution to the Chesapeake Bay problem “will result in winners and losers.” According to the court, the winners include “environmental groups,” “fishermen,’ and “urban centers,” while the losers are “rural counties with farming operations,” and “the agricultural industry.”

Written by M. Sean High - Staff Attorney

July 7, 2015

New Mexico District Court Dismisses Horse Slaughter Lawsuit, 10th Circuit Issues Emergency Injunction on Appeal

On November 1, 2013, the United States District Court for the District of New Mexico dismissed a lawsuit brought by the Humane Society of the United States seeking to prevent horse slaughter inspections. HSUS alleged that the United States Department of Agriculture (USDA) failed to conduct proper environmental studies when it issued grants of inspection for federal meat inspection services to Valley Meat Co., Rains Natural Meat, and Responsible Transportation.  The court stated that the Food Safety Inspection Service (FSIS) Directive 6130.1 and drug residue program did not require the agency to prepare an environmental impact statement, an environmental assessment, or a categorical exclusion under NEPA (National Environmental Policy Act). The court further concluded that the issuing of a grant of inspection is a mandatory act not subject to NEPA review.

HSUS filed an immediate appeal with the Tenth Circuit. The Tenth Circuit issued an emergency injunction to prevent the USDA from performing inspections and halted the slaughter facilities from operating once more.

For more information, please see the full opinion issued by Judge Christina Armijo in the District Court of New Mexico.

Written by Sarah L. Doyle - Research Assistant 

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

November 11, 2013

Court Rules Against EPA in Clean Water Act Lawsuit

On October 23, 2013, the United States District Court for the Northern District of West Virginia ruled in favor of plaintiffs American Farm Bureau Federation (AFBF) and Lois Alt, a poultry producer, over the U.S. Environmental Protection Agency (EPA) in a Clean Water Act suit. The EPA claimed that runoff from Ms. Alt’s ventilation-fan in her farmyard was being carried by rainwater to a nearby “navigable water/water of the United States,” giving the EPA jurisdiction to require Ms. Alt to obtain a permit for the runoff. The judge disagreed, however, and enjoined the EPA from requiring Ms. Alt to obtain a Clean Water Act National Pollutant Discharge Elimination System permit. The court stated that the “agricultural storm water discharge exemption” in the Clean Water Act exempts the runoff (dust, feathers, and litter) from the farmyard area outside Ms. Alt’s barn’s exhaust system from EPA jurisdiction. The judge stated that the farmyard area is not the “production area” of Ms. Alt’s concentrated animal feeding operation (CAFO), and therefore Ms. Alt does not need to obtain a permit for the runoff because it is within the exemption.

For more information, please see the court’s opinion on AFBF’s website.

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 28, 2013

Washington State Sues Grocery Manufacturers Association Over Campaign Against GMO Labeling

On October 16, the Washington State Attorney General Bob Ferguson filed suit in Thurston County Superior Court alleging that the Grocery Manufacturers Association (GMA) violated the state’s campaign disclosure laws.  The AG alleges that GMA did not disclose its contributors to the more than $7 million it collected and spent in opposition to Initiative 522 which would require the labeling of genetically engineered foods, seeds, and seed products in Washington.

The complaint specifically alleges that GMA violated disclosure laws by “1) soliciting and receiving contributions and making expenditures to oppose Initiative 522 without properly registering and reporting as a political committee, 2) failing to identify a treasurer for the political committee, 3) failing to identify a depository for funds collected by the political committee, and 4) concealing the true source of the contributions received and made by Defendant GMA.”  The state is asking for the court to compel GMA to adhere to state disclosure laws and seeking civil damages.

The Grocery Manufacturers Association is a trade association based in Washington, D.C. representing more than 300 food, beverage, and consumer product manufacturers, distributors, retailers and more.

Initiative 522 is set to be voted upon by the public on November 5.

The complaint can be found here.  The full text of Ballot Initiative Measure No. 522 is available on the Washington State website.  For further information on GMA, please visit their website.

Written by Alyssa Looney – Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 18, 2013

Animal Rights Groups File Lawsuit in Federal Court Challenging Utah’s So-Called “Ag-Gag” Statute

People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF), journalists, and college professors joined together to file a lawsuit in Utah District Court challenging the validity of the Utah’s “agricultural operation interference” law on First Amendment and Fourteenth Amendment grounds.

The Utah Law, Utah Code Ann. §76-6-112 makes it a Class A misdemeanor for a person to knowingly or intentionally record an image or sound from an agricultural operation by “leaving a recording device on the agricultural operation” without the consent of the owner.  It also makes it a Class B misdemeanor for a person to obtain access to an agricultural operation under false pretenses; apply for employment on an agricultural operation with the intent to record an image or sound when they know that the owner of the operation prohibits the employee from recording an image or sound of the operation and record an image or sound of the agricultural operation while employed at and present on the agricultural operation; or knowingly or intentionally record an image or sound of an agricultural operation while committing a criminal trespass.  The law was passed by the Utah Legislature in 2012.

The July 22, 2013 complaint says that the Utah law prohibits images and speech that are unfavorable toward the agriculture industry while allowing images and speech that show agriculture in a positive light.  It claims that the law criminalizes protected speech.

For more information on the law suit, see the Globe Gazette article and the Ag & Food Law Blog post.

Written by Alyssa Looney – Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

October 4, 2013

Activist Groups Sue EPA Over Withdrawal of Proposed CAFO Reporting Rule

On August 28, 2013, several environmental and other activist groups filed suit against the U.S. Environmental Protection Agency (EPA) due to the agency’s withdrawal of the Proposed Concentrated Animal Feeding Operation (CAFO) Reporting Rule. Plaintiffs contend that the withdrawal of the rule violates the Administrative Procedure Act. The rule, which would have required CAFOs located in focus watersheds to submit certain information about their operations to the EPA, was proposed under the Clean Water Act as part of the National Pollutant Discharge Elimination System permitting program.  

The agency withdrew the proposed rule in July of 2012. According to the complaint, the only reason the EPA gave for withdrawal of the rule was because it believed that it was more appropriate to determine CAFO information from existing sources like the United States Department of Agriculture. Plaintiffs contend that without the rule, the agency will not be able to fulfill the requirements under the Clean Water Act to regulate CAFO pollution, and that the agency did not give a reasonable explanation for the removal of the rule.

For more information, please see the complaint.

 

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

August 29, 2013

Court Denies FDA Motion for Reconsideration of Deadlines for FSMA Rule Implementation

On August 13, 2013, the U.S. District Court for the Northern District of California denied the Food and Drug Administration’s motion for reconsideration of the court’s previous order that set a schedule of deadlines for Food Safety Modernization Act rule implementation. Specifically, the FDA asked the court to reconsider the deadlines for intentional adulteration and sanitary transport rulemaking (two of seven areas the court previously ruled on). The FDA argues that the complexity of the rulemaking for these two areas of FSMA will prevent the FDA from meeting the deadline set by the court.

The court did grant the FDA part of its motion by extending the deadline for publishing the proposed sanitary transport rule and the comment period, although, the date for the final rule implementation remains unchanged. The court denied the request to extend the deadline for promulgation of the intentional adulteration rule, noting that this dispute is between the FDA and Congress. The court states that it is unwilling to permit the FDA to continually delay implementation of this rule because of the clear Congressional directive that FSMA rule implementation be a closed-ended process.

For more information, please see the order filed by the court.

Written by Sarah L. Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

August 15, 2013

Jury Deems AQHA’s Denial of Registration to Cloned Horses to be a Violation of Antitrust Laws

On July 30, a jury verdict was handed down in a trial that began on July 17, challenging the American Quarter Horse Association (AQHA) rule preventing registration of cloned horses.  The jury determined that banning cloned horses from the AQHA registry violates state and federal antitrust laws.  The jury did not, however, award any of the six million dollars in damages sought by the plaintiffs.  The lawsuit was brought by two horsemen in the U.S. District Court for the Northern District of Texas, in Amarillo, Texas.  The men own Quarter Horses used for AQHA-sanctioned horse races.  Their complaint claims that the AQHA created a monopoly by banning cloned animals from the registry.  The AQHA approved Rule 277 in 2004, which prohibits the registration of cloned horses and their offspring in its registry. 

To see the text of the complaint, please click here.

Written By Gaby Gilbeau – Research Assistant

 

The Agricultural Law Resource and Reference Center

@PSUAgLawCenter

July 31, 2013

American Farm Bureau Federation Files Suit Against the EPA Claiming Unwarranted Invasion of Privacy

On July 5, 2013, the American Farm Bureau Federation (AFBF) and the National Pork Producers Council filed suit against the U.S. Environmental Protection Agency for declarative and injunctive relief prohibiting the EPA from releasing the personal information of farmers through Freedom of Information Act (FOIA) requests. The suit was filed in the U.S. District Court for the District of Minnesota.

Organizations such as Earthjustice and the Humane Society of the United States have requested information regarding CAFOs (concentrated animal feeding operations) in 35 states under FOIA to date. According to the complaint filed by AFBF, information about the specific location of certain CAFOs, the owners’ names, and other details, has already been disseminated to these organizations in 29 states. This information stands to be rereleased on July 11, 2013 along with similar information regarding CAFOs in six other states. Plaintiffs allege that the information requested about these CAFOs is protected under Exemption 6 of FOIA because the public release of this information is personal in nature. The complaint explains that the locations of CAFOs are often the home addresses of the farmers, and releasing this information is an unwarranted invasion of personal privacy.

Previously, the EPA has justified its policy on the release of personal information under FOIA by explaining that the public has an interest in understanding how the EPA and authorized states are implementing the Clean Water Act, which is applicable to CAFOs.

Please visit the AFBF website for a copy of the complaint. For more information on the EPA’s compliance with FOIA, please visit the EPA’s website on public information regulations.

This case is docketed at 13-01751.

 

Written by Sarah Doyle - Research Assistant

The Agricultural Law Resource and Reference Center

July 8, 2013

Court Issues Proposed Order Setting Schedule of Deadlines for FDA Implementation of FSMA Rules

** Updated 8/15/2013: See Final Order

Enacted on January 4, 2011, the Food Safety Modernization Act (FSMA) imposed many obligations on the Food and Drug Administration (FDA). Attached to these obligations were deadlines for implementation of rules. Due to the failure of the FDA to implement rules according to these deadlines, on August 29, 2012, the Center for Food Safety (CFS) filed a complaint in the Northern District of California alleging that the FDA was in violation of FSMA and the APA, and asked the court to compel the agency to implement rules. On April 22, 2013, the court ordered the FDA and the CFS to jointly submit a schedule of deadlines for the implementation of FSMA rules.

On June 10, 2013, both the FDA and the CFS submitted implementation schedules. These schedules were submitted separately, however, as neither party could agree to a compromised schedule of deadlines. The plaintiffs (CFS) did not agree that the schedule submitted by the FDA was an actual schedule of deadlines and therefore submitted its own schedule. CFS stated that the FDA’s submission contained “target dates” for implementation, rather than the “firm dates” demanded by the court order. The FDA’s submission contained target time frames for implementation. It also contained factors that could potentially affect the time frames, such as the potential need for additional information or the need for re-proposal of a rule.

The court issued a proposed order on June 10, 2013, that requires the FDA to comply with the CFS schedule of deadlines. The order also stated that the FDA is enjoined from seeking additional time for rulemaking related to review by the Office of Management and Budget.  In addition, the FDA must submit quarterly progress reports detailing the rulemaking process to the court with the first report due September 1, 2013.

This case is docketed at 12-cv-04529.

Written By Sarah Doyle – Research Assistant

The Agricultural Law Resource and Reference Center
June 20, 2013