Debate Over Indiana "Ag Gag" Bill: What Does SB373 Really Mean?

There has been a lot of press in Indiana lately about Senate Bill 373.  SB373 attempts to prevent undercover filming or photographing on farms, done without the farmer's permission and with the intent to harm farming operations.  Farm industry groups have lined up to support the bill.  Bob Kraft at Indiana Farm Bureau explained that the bill seeks to stop vigilante practices used to denigrate Indiana’s livestock industry.  Animal rights groups and some environmental groups have lined up to oppose it, calling it an "ag gag" bill.  Even Bob Barker--of Price is Right fame--interjected himself into the debate by sending a letter in opposition to the bill.  (And no, the bill does not prevent anyone from spaying or neutering their pets).  PETA said the bill would "make it illegal to film on factory farms."  Putting aside the debate, here are some facts about the bill:

What I Heard While Visiting the Environmental Working Group

In my experience, most farmers are skeptical of environmentalists.  Many environmental groups deserve this reaction, in my opinion, because some exhibit a self-righteous quality that is insulting to someone whose livelihood depends on the long-term sustainability of his or her land.  How can someone in an office in Washington, D.C. understand land management better than someone who has spent his or her entire life managing the field outside their kitchen window?  This tension recently came to light when I, together with my Indiana Agricultural Leadership classmates, visited the Environmental Working Group (EWG) in Washington, D.C.  Here are some of the ideas I heard (italics are my paraphrasing of EWG):

Farm Policy Predictions After a Week in D.C.

I spent this past week in Washington, D.C., with the Indiana Agricultural Leadership Program.  We met with Senators, Congressmen, farm industry and environmental lobbyists, and executive agency officials. Though this was not my first visit to D.C., the past week was eye-opening for a number of reasons.  There were a few recurring themes I heard over and over this week I thought I would share.

New Fertilizer Rule Brings Regulations Further Downstream

On February 16, 2013, the Fertilizer Use Rule promulgated by the Office of the Indiana State Chemist went into effect. The new rule has some important components that are new to many Hoosier farmers. The most notable change from prior law is that the rule is applicable to everyone, not just large regulated livestock farms. (If you apply less than 10 cubic yards or 4,000 gallons of fertilizer or manure per year, you remain exempt.  But for all other farmers applying fertilizer or manure for the production of crops, this rule applies.)  Here are some important parts:

God Made a Farmer

Someone recently asked me if I had done a post about the Ram Trucks' Superbowl commercial titled "God Made a Farmer."  If you are one of the few people who missed the commercial, it was a series of photos of farmers and farm families undertaking various agricultural pursuits, all set to the lyrics of a poem written and read by the late broadcaster Paul Harvey.  To see the video, click here:  God Made a Farmer.

Some portion of the proceeds from the "likes" of the video will go to benefit the national FFA hunger relief efforts.    

By Todd Janzen

Atrazine Settlement Provides Millions to Water Utilities

A class action lawsuit alleging that the herbicide Atrazine contaminated various Midwestern water supplies has been settled. As part of the settlement, Syngenta Crop Protection, Inc. (Syngenta), the maker of Atrazine, has agreed to pay $105 million to over 1100 class members, consisting of water utilities across the Midwest.  (Indianapolis will reportedly receive $1 million).

A Tribute to a Dutch Dairywoman

Indiana’s dairy industry lost one of its own this week, Leontien Van de Laar Oostdijck.  Anyone who ever met Leontien knows what a huge loss this is for us all.

Leontien was part of waive of Dutch immigrant farmers who sold their farms in Europe to move to Ohio, Michigan, and Indiana in latter part of the 20th century.  After investing their life savings and relocating to the Midwest, farmers like Leontien worked hard to make ends meet in their new country. Coming from a family of Dutch immigrants, I loved watching the “American dream” unfold before my very eyes.

Raw milk study released in Indiana

Unpasteurized or "raw" milk sales for human consumption are illegal in Indiana, but lately every year a bill shows up in the Indiana General Assembly to legalize raw milk sales. After a legalization bill failed in the 2012 legislative session, Indiana legislators authorized Indiana Board of Animal Health (BOAH) to "conduct a study of the issue of farmers selling unpasteurized milk to consumers."  After a summer of researching and soliciting public comments, BOAH has released its study on the sale of raw milk.

The LLC - The Infinitely Variable Company

Growing up, tractors had gears.  The older the tractor, the fewer the gears.  Throughout my childhood, tractors moved from 4 to 8 to 16 gears.  Now, nearly every manufacturer offers an "infinitely variable" transmission that no longer restricts an operator to using a specific gear.

Corporate law underwent a similar transformation in the early 1990s with the development of the "limited liability company" or "LLC."  Prior to the passage of the Indiana Business Flexibility Act in 1994, the LLC form of legal entity did not exist in Indiana. The same was true elsewhere. In 1989, only two states had enacted LLC statutes.  Businesses that wanted to protect their owners from personal liability had one option--form a corporation.

Three reasons it's time to incorporate your farm.

I'm surprised how many farmers I meet that own land or buildings in their personal name.  I'm surprised, because my non-farm clients would not even consider starting up a new business or purchasing commercial property in their own personal name.  Farmers shouldn't do it either, for a number of reasons.

Don't like CAFO regulations? Tell the EPA.

On October 31, 2012, the United States Environmental Protection Agency ("EPA") provided notice that it was undertaking a review of its regulations for concentrated animal feeding operations, or "CAFOs" as they are often described (or "factory farms" as their opponents describe them).  Under Section 610 of the Regulatory Flexibility Act, the EPA must review regulations every ten years to determine their continued necessity.

What the Indianapolis Star forgot to tell you about "Big Farms"

Today's Sunday Indianapolis Star's ("IndyStar") lead front page story was titled:  "Big farms pose challenge for state."  The focal point of the story was Chalfant Farms, a 4000 sow Indiana swine farm (or "CAFO" as it is legally defined) that was accused of spilling manure and causing a kill of 107,650 fish in the Mississinewa River.  As someone who routinely defends  farmers against accusations of fish kills, manure spills, and environmental non-compliance, I took a particular interest in this story.  There are some big facts the IndyStar article left out.

Indiana Farmer Takes Monsanto to Supreme Court

The United States Supreme Court will hear one Indiana farmer's claim that he is entitled to re-plant Roundup Ready (RR) soybeans that contain Monsanto's patented glyphosate resistant technology.  The Court granted the farmer's petition for appeal (or "certiorari") in Bowman v. Monsanto Company on October 5, 2012.

The farmer, Vernon Bowman, purchased RR soybeans from Pioneer Hi-Bred, which licenses the glyphosate resistant technology under patents from Monsanto.

Melon Farming "Ripe for Litigation"

Today's Indianapolis Star reported on the results of a recent Food and Drug Administration (FDA) inspection of Chamberlain Farms, a southern Indiana farm that was believed to be the source of a salmonella outbreak this summer that caused 270 people to get sick, including 101 hospitalizations.  The inspector noted, among other things:

Failure to clean as frequently as necessary to protect against contamination of food:  On 08/14/2012, while cantaloupes were
 being processed, I observed, multiple locations of the conveyor including rollers and belts, had an accumulation of black, green, and brown buildup.  There was an accumulation of debris including trash, wood, food pieces, standing water, mud,  dirt,  and green buildup observed  beneath the  conveyor belt in the cantaloupe packing shed.

Is GMO Corn Killing Me?

A recent French study suggests that eating genetically modified corn will produce an increase tumors in mammals.  The study, published in the Food and Chemical Toxicology Journal, details the findings of French researchers after feeding Genetically Modified (GMO) corn (maize) and the herbicide Roundup to rats for two years.  Rats were divided in various groups, some were fed GMO corn at different levels, some were fed GMO corn and given doses of Roundup, some were only given Roundup, and few were left in the control group.  Gilles-Eric Séralini, one of the researches from the University of Caen in France, said:  “The results were really alarming”:

Aflotoxin Poses Risk to Crop Insurance Recovery

There have been a number of reports in recent days about elevated aflotoxin levels in harvested corn. Such corn can be rejected by the local elevator and is also unfit for livestock consumption. All is not lost, however, if the crop is covered by crop insurance. Hoosier Ag Today recently reported that the presence of aflotoxin in this year's crop has created a number insurance issues for farmers.

Unique nuisance case produces unique Right to Farm Act ruling

Indiana’s courts have traditionally been very strong supporters of the Right to Farm Act, a law that shields farms from being sued for creating a “nuisance” because a neighbor dislikes the sights, smells or sounds of the nearby farm.  If you live in the country, you should expect to smell manure once in while.  That’s what the Indiana Court of Appeals stated more eloquently in 1987, when it upheld the Right to Farm Act in a nuisance suit against an Indiana hog farmer:

We must observe that pork production generates odors which cannot be prevented, and so long as the human race consumes pork, someone must tolerate the smell. [The Right to Farm Act] addresses that fundamental fact and protects pork production when it is confined to its natural habitat, that is, rural farm communities . . . 

Does the EPA Need to Flyover Farms to Know Where They Are?

Recently, Indiana-Illinois Agri-News ran a good article on the topic of EPA flyovers. Jeannine Otto at Agri-News interviewed a local cattleman, who echoed the concerns from other livestock owners in Nebraska, Iowa, and elsewhere:

“If you’ve got issues, come to the door. Don’t be sneaking in with an airplane just because you’ve got the power of the government behind you,” said Steve Foglesong, a cattleman from Astoria in Fulton County.

“It doesn’t sit very well with me,” Foglesong said. “It seems to me to be a bit of a waste of taxpayers’ money.”

Dealing with Distressed Properties

On August 20, 2012, I'll be speaking to lenders, attorneys, and real estate professionals about dealing with distressed properties.  Everyone knows that there are thousands of distressed properties on the market right now, with more in the pipeline.  The seminar will tackle a number of current topics, including:

• The nuts and bolts of the foreclosure process, including its requirements and pitfalls.
• Using various workout tools and loan modification options at your disposal to avoid foreclosure.
• Recognizing the title issues involved in the foreclosure and workout context and learn how to resolve them.
• Mitigating the environmental risk associated with troubled assets using tips from our experienced faculty. 

My portion of the program involves the last of these topics, how to resolve environment issues before, during, or after the foreclosure process.

If you would like to know more, please click here.  The conference will be held at the Capital Conference Center, 201 N. Illinois Street, Indianapolis, Indiana.

"Pig Adventure" Breaks New Ground

Today I attended the groundbreaking ceremony for the Fair Oaks Pig Adventure in Fair Oaks, Indiana.  The Pig Adventure will be a modern, 2500+ sow swine farm that will showcase the latest technology and production capabilities utilized by the pork industry.  More importantly though, the Pig Adventure will be open to the public.  Adults and school children will be able walk through the facility on an elevated platform to see how modern pigs are raised.  The farm will be coupled with a nearby education center that will seek to inform the public about modern swine raising.  To my knowledge, the Pig Adventure will be the first such facility in the nation, if not the world.

EPA Drops CAFO Reporting Rule

In an about face, the US Environmental Protection Agency (EPA) has dropped its proposed CAFO reporting rule. The rule was published last October and required CAFOs (concentrated animal feeding operations) to report to the EPA the overall size of the farm and the total available manure application area. The reporting requirements were the result of a settlement agreement reached between the EPA and the Natural Resources Defense Council, Waterkeeper Alliance, and the Sierra Club.

The Return of the Plow

In 1837, John Deere invented the steel moldboard plow.  In the years that followed, Midwestern and Great Plains' farmers plowed under prairie sod to plant corn, wheat, and other grains for humans and livestock consumption.  Prairie busting continued for years, gradually putting more and more grassland into grain production.  Not until the Great Depression and the coinciding Dust Bowl did use of the plow begin to diminish.  Use of herbicides, no-till and minimum till have further diminished the traditional moldboard plow's role in north american farming practices.

But I've read that in the last couple years the moldboard plow has returned to the Midwest--if not literally, at least figuratively.

Indiana's New Confined Feeding Regulations

The Indiana Department of Environmental Management's (IDEM) new Confined Feeding Operation (CFO) regulations go into effect on July 1, 2012.  As a result of National Pork Producers v. EPA, most of Indiana's regulated Concentrated Animal Feeding Operations (CAFOs) will be moving from the state's CAFO program to the state's CFO program.  This makes the new CFO regulations especially significant, as it signals a transition from a federal (CAFO) program to a state (CFO) regulation.  Does that mean that those new CFO permitted farms will no longer face strict regulations?  Not hardly.  The new CFO regulations ratchet up environmental regulations in a number of ways:

Silage vs. Curtilage: More on the EPA's Flyover Controversy

The web has been abuzz the last few weeks with articles and editorials about the Environmental Protection Agency’s (EPA) use of aerial flyovers to look for violations of the Clean Water Act on Nebraska and Iowa feedlots. The issue exploded online when someone described the EPA’s actions as using “military drones” to spy on farmers. Even Fox News and The Daily Show picked up on this story. (Both incorrectly reporting, as far as I am aware, since no drones are used by EPA, just a Cessna and a really good camera). I too, have been in the middle of this discussion, thanks to a couple of popular blog posts and a trip last week to speak to the Nebraska Cattlemen on environmental issues and property rights.

Questioning the EPA's Use of Aerial Surveillance

A few weeks ago I wrote an article about the U.S. Environmental Protection Agency's (EPA) use of aerial surveillance to look for violations of the Clean Water Act. (EPA Aerial Surveillance Under Fire) I questioned whether the EPA's usage of aerial flyovers was both necessary from an enforcement perspective and legal under the Fourth Amendment's protections that people be free from unreasonable search and seizure.

The topic seems to have struck a nerve with farmers and cattle ranchers in Nebraska. Kristen Hassebrook, director of natural resources and environmental affairs for the Nebraska Cattlemen, told the Grand Island Independent that her organization expressed their concerns about flyovers to the EPA, but "we didn't get the response that we wanted." So they took their concerns to Nebraska's senators and congressmen.