Agricultural Law Weekly Review—June 9, 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:

Biosolids: Bellefonte Borough Agrees to Delay Spreading of Biosolids

On June 6, 2016, the Centre Daily Times reported that Pennsylvania Centre County Judge Jonathan Grine had approved an agreement between Bellefonte Borough and Benner Township residents regarding the spreading of biosolids in Benner Township.  According to the article, under the approved agreement, Bellefonte Borough will forego original plans to spread biosolids on the property known as Spicer Family Farms “until a resolution is reached” in the separate civil action Swancer v. Spicer Family Farms and Bellefonte Borough Authority.

Animal Liability: Owner of Bull Charged With Manslaughter after Fatal Crash

On June 6, 2016, the Associated Press reported that a Vermont farmer was charged with involuntary manslaughter after his bull wandered onto a road and caused a fatal car crash.  According to the article, the state's attorney stated “that police had responded to reports of [the] bull in the roadway three times and out of its pasture once in June and July 2015.” According to the article, if convicted, the bull’s owner faces the possibility of 15 years in prison.

Organic: USDA Extends Comment Period for Organic Livestock Rule

On June 7, 2016, he U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) issued a press release stating that the agency “is extending the comment period for the proposed rule to amend organic livestock and poultry practices until July 13, 2016, to allow stakeholders additional time to provide feedback on the proposed rule.” According to USDA AMS, the purpose of the proposed rule is “to amend the organic livestock and poultry production requirements by: adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expanding and clarifying existing requirements covering livestock health care practices and mammalian living conditions” (FR 2016-08023)

PA Bulletin: PDA Establishes Fertilizer Nutrient Values

On June 4, 2016, the Pennsylvania Department of Agriculture published notice in the Pennsylvania Bulletin of the establishment of commercial fertilizer nutrient values (Pa.B. Doc. No. 16-949).  The new fertilizer nutrient values become effective July 1, 2016.

Legislation: PA House Agricultural and Rural Affairs Committee Schedules Voting Meeting

On June 15, 2016, the Pennsylvania House of Representatives Agricultural and Rural Affairs committee has scheduled a voting meeting on HB 872 and SB 1123.  Accordingly, HB 872 is a “resolution encouraging the use of peer-reviewed, science-based data to assess the impacts and the regulation of agricultural technologies,” while SB 1123 is an amendment to “Title 3 (Agriculture) of the Pennsylvania Consolidated Statutes, in weights and measures, further providing for standards for automotive fuel.”

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.”