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.

The Struggle Over the Mississippi River Basin

While most farmers go quietly about their spring planting this year, a storm is brewing over the Mississippi River Basin of which few are probably aware.  I am referring to the legal struggle over establishing "numeric nutrient criteria" for the Mississippi watershed, that would set numeric thresholds for nitrogen and phosphorus levels in rivers and lakes that ultimately drain into the Mississippi River.  The outcome of this struggle will impact most states in the breadbasket of America.

Department of Labor Abandons Proposed Changes to Child Labor Standards

Last fall I authored a post about the U.S. Department of Labor's efforts to revise decades-old labor laws that would change how children work on a farm:  "New Child Labor Restrictions Will Impact Farm Life"  Yesterday, that story became old news, as the Department of Labor issued a press release saying it was abandoning this process:

"The Obama administration is firmly committed to promoting family farmers and respecting the rural way of life, especially the role that parents and other family members play in passing those traditions down through the generations. The Obama administration is also deeply committed to listening and responding to what Americans across the country have to say about proposed rules and regulations.

"As a result, the Department of Labor is announcing today the withdrawal of the proposed rule dealing with children under the age of 16 who work in agricultural vocations. 

"The decision to withdraw this rule – including provisions to define the 'parental exemption' – was made in response to thousands of comments expressing concerns about the effect of the proposed rules on small family-owned farms. To be clear, this regulation will not be pursued for the duration of the Obama administration.

"Instead, the Departments of Labor and Agriculture will work with rural stakeholders – such as the American Farm Bureau Federation, the National Farmers Union, the Future Farmers of America, and 4-H – to develop an educational program to reduce accidents to young workers and promote safer agricultural working practices."

The press release can be found here.  This is a great result.

China's Hunger for U.S. Breeding Stock

This weekend I met a dairy farmer that derives part of his farm income from selling embryos from his high quality breeding stock. That by itself is not unusual in the dairy industry, but what he told me next is. He sells the embryos to buyers in China.

That is remarkable. Many United States' dairy farms have spent generations developing the world’s most efficient milking cows. China currently bans the importation of live cattle from the U.S., which is why embryos are shipped across the Pacific Ocean to start new herds in China.

Kicking the Raw Milk Can Down the Road

This past year a bill was proposed in Indiana to legalize the sale of "raw" milk.  The bill was met with a firestorm of criticism from industry groups and dairy farmers who view the sale of unpasteurized milk as dangerous and unfair, since "raw" milk does not have to pass the same milk quality inspections as Grade A store-bought milk.  Ultimately, the legalization of raw milk was defeated, but that is not the end of the road for raw milk sales in Indiana.

Buried in the end of House Bill 1129 (HB 1129), which was passed and signed by Governor Mitch Daniels, was a provision requiring the State Board of Animal Health (BOAH) to "conduct a study of the issue of farmers selling unpasteurized milk to consumers."   That's it.  The rest of the details are left up to BOAH, including the how, what, or who should be included in the study.  The study must be concluded by November 1, 2012 and reported to the governor by December 1, 2012.

Here's my list of questions for BOAH as it undertakes this process:

1. Can raw milk be sold in a way that minimizes the potential health dangers?
2. If raw milk sales are legalized, what warning labels should be required?
3. How can raw milk products be regulated so that they meet all other standards (aside from pasteurization) applicable to grade A milk? For example, regular store-bought milk is tested for antibiotic residue but raw milk sold on the black market lacks such tests.
4. How extensive are raw milk sales on the black market today? If raw milk sales are legalized and regulated, will these black market sellers disappear or continue to sell raw milk anyway?
5. How have other states regulated raw milk sales?
6. Does the likelihood of raw milk related illness increase in places where it is legal?
7. Is products liability insurance coverage available to sellers of raw milk, so that those farmers wishing to sell raw milk are insured in the case of illness?  Would such insurance be required along with a license to sell raw milk?

I look forward to BOAH's raw milk report.  Feel free to add your own list of questions in the comments below and I will gladly share with BOAH officials.

To read about what Indiana law currently says about raw milk sales, continue reading after the jump, click here.

By Todd Janzen

Raising the Stakes in Farm Nuisance Cases

Indiana farms that are the victims of "nuisance" suits by neighbors who don't like the smell, sounds, or sights associated with farming are generally protected by Indiana's Right to Farm Act.  The Right to Farm Act bars nuisance suits against "agricultural operations" that have been in operation for more than one year at the time the alleged "nuisance" began.  An "agricultural operation" is broad category, encompassing crop farming, raising livestock and poultry, and forestry.  In addition, conversion from one type of agricultural operation to another--e.g. from raising hogs to milking cows--does not strip away the Right to Farm Act's protections. In essence, if the area where the complained-of nuisance exists was "agricultural" for more than one year before the suit began, the Right to Farm Act bars the claim.

There are good reasons for this.  The Indiana legislature declared that it wanted to protect farmland and encourage its development for agricultural purposes.  The Right to Farm Act states:

The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.

Indiana Code 32-30-6.

In spite of the strength of the Right to Farm Act, nuisance suits against Indiana farmers--based upon my unscientific observations--have been on the rise in recent years, due to the expansion of small farms combined with the number of non-farmers moving into rural areas.  This year House Bill 1091 (HB 1091) was introduced to the Indiana legislature to try to bolster the Right to Farm Act by giving farmers that successfully defended against "frivolous" lawsuits an award of attorneys' fees.  HB 1091 stirred up a lot of controversy, and as a result, the final bill that the governor signed into law is substantially watered-down.  It now states:

(a) If a court finds that an agricultural operation
that is the subject of a nuisance action:
(1) was not a nuisance under section 9 ofthis chapter and that
the nuisance action was frivolous,the courtshall award court
costs and reasonable attorney's fees, to the defendant in the
action; or
(2) was a nuisance under this chapter and that the defense of
the nuisance action was frivolous,the courtshall award court
costs, including reasonable attorney's fees, to the plaintiff in
the action.

The key difference between the enrolled act and the original introduced bill is that now plaintiffs--neighbors complaining of nuisance--can also be awarded their attorneys' fees if the farmer's "defense of the nuisance action was frivolous."  In sum, now either side risks having to pay the opposing side's attorneys' fees if they take a position in the litigation that was "frivolous."  (Indiana law already provides an award of attorneys' fees if the lawyer asserts a frivolous claim or defense in any litigation.  See IC 34-52-1-1).  Still, HB 1091 raises the stakes of nuisance litigation.

But the stakes were already high.  My prediction is that HB 1091 will have no measurable effect on the number of nuisance suits filed in Indiana.

Posted by Todd Janzen

What is a "nuisance"?

Sackett v. EPA: Landowners Win!

The past few months I've been watching Sackett v. EPA, a case involving one couple's fight against an EPA enforcement order compelling restoration of a "wetlands" on a residential lot they purchased for development.  (See prior posts: Sackett v. EPA: The Supreme Court Reviews the EPA's Ability to Regulate Wetlands and Sackett v. EPA: Quotes from Oral Argument). The case has tremendous implications for farmers who are often accused by the EPA of intentionally destroying "wetlands" while doing innocent ditch, stream, or levee maintenance.  Fortunately, the landowners won this one--which does not mean the end of wetlands, but it does restore some due process to EPA enforcement proceedings.  Thanks to Dan Cory for being the guest blogger on this story: 

The U.S. Supreme Court issued its most anticipated decision in the environmental arena this term in Sackett v. U.S. Environmental Protection Agency - a case that has been dubbed a sort of David vs. Goliath battle by property rights advocates - finding in favor of the landowner and against EPA.

The basic facts of Sackett are relatively straight-forward: the Sacketts owned a residential lot near Priest Lake, Idaho and were preparing to build a home there. After they performed grading and fill work at the site, EPA officials served the couple with an administrative compliance order advising them that their parcel constituted wetlands subject to federal permit jurisdiction under section 404 of the Clean Water Act. The order directed the Sacketts to restore the lot to its original condition without delay; and threatened the Sacketts with substantial daily fines (quantified by the Solicitor General at oral argument as up to $75,000/day) for non-compliance with the CWA and administrative order. 

The landowners then sought a hearing to make their case that the property was not actually a wetland. This request was denied and the Sacketts filed suit in federal district court to challenge EPA’s wetlands classification of their lot. The district court dismissed their lawsuit, holding that EPA administrative compliance orders issued under the CWA do not constitute final agency actions subject to judicial review. The Ninth Circuit affirmed, joining numerous other federal circuits that had previously come to the same conclusion. 

The Supreme Court disagreed, holding that a compliance order issued under the CWA is final agency action under the APA and subject to judicial review. The Supreme Court did not reach the issue of whether EPA violated the Sacketts' due process rights by depriving them of the opportunity for judicial review. Had the Court reached this issue, it would likely have had impacts on administrative law far beyond the wetlands context. Instead, the Court restricted its opinion to the question of whether the administrative compliance order was a final agency action, and found that it was. 

This decision will likely make life more difficult for EPA regulators, requiring the agency often to engage in costly litigation before actual compliance with its administrative orders is required. But a system in which EPA can use the threat of significant daily fines in order to force compliance without the landowners having any opportunity for judicial review is inequitable and was in need of fixing. Judicial review should also reduce waste in many cases because it will allow courts to decide disputed issues before the landowner is required to pay significant compliance costs. This is particularly important when the issue, as in Sackett, is whether EPA has jurisdiction over the site at all. Presumably the availability of judicial review will also make EPA think twice before denying a request for a hearing from a landowner.

The full opinion of Sackett v. EPA can be found at http://pub.bna.com/lw/101062.pdf.

Dan Cory regularly blogs on The Monitoring Well.

Cleaning up Illegal Pharming on Rural Properties

Today's Indianapolis Star ran a story about the continuing problem of methamphetamine ("meth") manufacturing in rural America: "Cleaning up the mess left by meth labs a profitable niche."  The Star's article focused not on the problem of meth use, but on the chemical residue left behind when meth labs are discovered in rural homes.

Inside a Crawfordsville rental property, the tenants liked to cook.
But what they were cooking got them busted last month, Indiana State Police say. In the kitchen, police found everything it took to make meth.. . .
Methamphetamine labs are more than just dangerous and illegal. They leave a mess -- an environmental hazard that, according to state law, must be cleaned up.

When meth is "cooked," such amateur chemistry often results in explosions and fires, leaving behind a toxic mess of chemicals:

At the Crawfordsville home . . . [a]ccording to the police report, there was a lithium/ammonia reaction, flammable solvents, water reactive metal (lithium), hydrochloric acid gas generator and corrosive acid.

The Indiana Department of Environmental Management ("IDEM") and county health departments require that the chemical constituents left behind be remediated before occupants are allowed back into the building. According to the Star, "it takes a special process, certification and inspectors who scour the property in full-gear Hazmat suits and respirators to do the dirty work."  This can be expensive, $10,000 or more.

Tonya Bond, an attorney at our law firm, has helped a number of landowners confronting five-figure meth cleanups on their rural rental properties.  She instructs clients to file their cleanup claims with their insurers.  Often, insurers will deny these claims because they involve "criminal activity" or "pollution,"  but that is not the end of the matter:

Tonya Bond

Though there is no Indiana coverage law interpreting meth cleanups under insurance policies, other jurisdictions have found that the damages from meth manufacturing are caused by “smoke” and “vandalism”—both covered perils under standard property policies. Indiana courts also would likely find that meth manufacturing is “criminal mischief,” another commonly covered peril.

Coverage for drug manufacturing, however, does not stop with first-party property coverage. Where cleanups are required by the government, these are standard environmental liability claims, and coverage is also available under the liability coverage in most policies.

There a number of legal lessons here.  First, if you own rental property, know your tenants.  Second, make sure your rental property is insured for the casualties like those described in the Star article.  Third, if you are dealing with an expensive state-mandated cleanup, engaging a knowledgeable attorney can make a big difference.

IDEM's "Good Character" Disclosure Receives its First Legal Challenge

The Indiana Department of Environmental Management's (IDEM) "good character" regulations require Confined Feeding Operations (CFO) and CAFOs to disclose past violations of environmental laws when applying for an operating permit. IDEM's Commissioner has the authority, based upon the disclosed information in the application, to decide whether to grant or deny the permit. Though well-intentioned, the good character law is fraught with legal problems because it allows one person at a state agency to make a judgment call as to whether or not a farmer should receive a permit to operate. A recent case, New Fashion Pork v. Commissioner of IDEM, exposed just how difficult it is for IDEM to apply the "good character" law fairly. Josh Trenary, general counsel for Indiana Pork, explained the facts behind this case:

Beginning in 2010, New Fashion Pork, LLP (NFP) used Mike Veenhuizen from Livestock Engineering Solutions to complete and submit three applications for expansion at two different NFP production sites. NFP had an agreed order with IDEM on record in regard to a spill from 2009. Because of this violation, NFP checked “yes” in the box indicating that the company had a violation of state environmental law. However, further down the form, NFP did not check yes in the box indicating that the violation presented a “substantial endangerment to human health or the environment.” 

NFP and Dr. Veenhuizen considered it inappropriate to check “yes” to indicate the violation was substantial because based on the facts of the situation, the spill did not present a substantial endangerment. However, any spill, regardless of how minor, was considered substantial by IDEM merely by virtue of the fact that it was something greater than a paperwork violation.

IDEM denied the permit and NFP appealed to the Office of Environmental Adjudication (OEA). The issue before the OEA was whether NFP should have checked “yes” in the question that asked about whether it had caused a “a substantial endangerment to human health or the environment.”  Before the OEA, NFP presented evidence that the prior environmental spill was a "minor" violation, and thus did not present a substantial endangerment to health or the environment.  Without any contradictory evidence from IDEM, the OEA judge had no choice but to side with NFP.

What does this mean?

IDEM is going to have to rethink how it reviews good character disclosures. It cannot just deny a CFO or CAFO permit because someone checks “yes,” indicating that there has been a prior environmental violation. IDEM will have to do a more detailed analysis, determine whether there had been a "substantial" negative impact on the environment, and whether that means this farmer should be denied a permit to operate.

To read more about New Fashion Pork, see the Indiana Lawyer's article:  Disclosing Environmental Violations.   To learn more about IDEM's CFO/CAFO regulations, click here.

EPA Aerial Surveillance Under Fire

Brownfield Ag News recently reported that the U.S. Environmental Protection Agency (EPA) had come under scrutiny for conducting aerial surveillance over Midwestern concentrated animal feeding operations (CAFOs). The practice is used by Region 7 (Nebraska, Iowa, Missouri and Kansas).  I do not know whether other regions, such as Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin) also engage in such activities.

In the Brownfield article, Josh Svaty of EPA defended the use of "fly-overs," as cost-effective, saying: “It’s a very efficient use of taxpayer dollars and it’s also a good way to look at a lot of CAFOs and AFOs all at once."

The problem with this statement is that the EPA has delegated to the states the right to permit CAFOs and enforce the Clean Water Act.  The EPA does not need to inspect every CAFO by air, ground, or otherwise.  It gave Indiana, Illinois, Nebraska, etc., the right and obligation to do these inspections. 

Read the entire Brownfield article here: EPA CAFO Overflights Receive Scrutiny.

At a seminar a couple years ago, I saw photos taken by EPA inspectors during these flights.  The pictures did paint a clear picture of feedlot run-off into creeks and streams.  Still, I was left with a disturbing feeling that these overflights are wrong.  It is one thing for an inspector to show up on a farm, meet the operator, and receive a farm tour.  It is an entirely different type of inspection that occurs by air, without the farmer's knowledge or opportunity to explain matters.  Aerial surveillance is also overinclusive in that it includes a clear view of a farmer's home, backyard, swimming pool, etc.

But more than anything, aerial surveillance violates privacy.  The US Constitution does not contain an express "Right of Privacy," but the Supreme Court has numerous times interpreted The Fourth Amendment as protecting one's home from unreasonable government surveillance.  The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

My guess is that most people have no idea that the EPA condones aerial flyovers.  If, upon learning this you are troubled, you are not alone.   

Why Sound the Alarm for Resistance to Bt Corn?

Why do those against genetically modified foods (GMOs) sound the alarm whenever some research shows that a pest has developed resistance to the genetic modification?  I have often had this thought when reading about "dangers" of glyphosate-resistant weeds appearing in corn, soybean, or sorghum fields.  This same thought emerged while recently reading The Salt, NPR's food blog, in an article about the corn rootworm's resistance to "Herculex" trait in biotech (Bt) seed corn:  "Insect Experts Issue 'Urgent' Warning on Using Biotech Seeds":

For America's agricultural biotech companies, the corn rootworm is threatening to turn into their worst nightmare.

CDC: More Outbreaks Where Raw Milk is Legal

A recent bill before the Indiana General Assembly stirred up significant controversy about whether "raw" or "unpasteurized" milk sales should be legal in Indiana. Ultimately, the bill did not make it out of committee, but I understand that the Board of Animal Health (BOAH) will undertake a study to determine whether raw milk can be safely sold in Indiana.

Now the Center for Disease Control ("CDC") has published a report stating that the rate of outbreaks caused by unpasteurized milk and related dairy products was 150 times greater than outbreaks linked to pasteurized milk.  The study finds that states that have legalized raw milk sales had more than double the rate of outbreaks than states where it was illegal over a thirteen year period.  According to the CDC:

The study included 121 dairy related disease outbreaks, which caused 4,413 illnesses, 239 hospitalizations and three deaths. In 60 percent of the outbreaks (73 outbreaks) state health officials determined raw milk products were the cause. Nearly all of the hospitalizations (200 of 239) were in those sickened in the raw milk outbreaks. These dairy-related outbreaks occurred in 30 states, and 75 percent (55 outbreaks) of the raw milk outbreaks occurred in the 21 states where it was legal to sell raw milk products at the time. The study also reported that seven states changed their laws during the study period. 

Dr. Robert Tauxe from the CDC's Division of Foodborne, Waterborne and Environmental Diseases (DFWED) concluded:  “This study shows an association between state laws and the number of outbreaks and illnesses from raw milk products.”  The study also had some harsh words for parents that feel that the health benefits of raw milk far outweigh the risks to their children:

The study also found that the raw milk product outbreaks led to much more severe illnesses, and disproportionately affected people under age 20. In the raw milk outbreaks with known age breakdowns, 60 percent of patients were younger than age 20, compared to 23 percent in outbreaks from pasteurized products. Children are more likely than adults to get seriously ill from the bacteria in raw milk.

“While some people think that raw milk has more health benefits than pasteurized milk, this study shows that raw milk has great risks, especially for children, who experience more severe illnesses if they get sick,” said study co-author Barbara Mahon, M.D., M.P.H., deputy chief of CDC's DFWED Enteric Diseases Epidemiology Branch. “Parents who have lived through the experience of watching their child fight for their life after drinking raw milk now say that it's just not worth the risk.”

I have a lot of respect for the CDC and the work it does.  There is little doubt that BOAH does as well, and if authorized to study whether Indiana can safely legalize raw milk sales, I am sure this study will be one of the many items discussed.

To view the study, please visit http://wwwnc.cdc.gov/eid/ahead-of-print/article/18/3/11-1370_intro.htm

To view the press release regarding the study, please visit:  http://www.cdc.gov/media/releases/2012/p0221_raw_milk_outbreak.html

$1.5 Million Fine Levied Against Hog Farm for Violating the Clean Water Act

The Department of Justice issued a press release earlier this week:

WASHINGTON – Freedman Farms Inc. was sentenced today in federal court to five years probation and ordered to pay $1.5 million in fines, restitution and community service payments for violating the Clean Water Act when they discharged hog waste into a stream that leads to the Waccamaw River, announced the Department of Justice’s Environment and Natural Resources Division and the U.S. Attorney’s Office for the Eastern District of North Carolina.

William B. Freedman, president of Freedman Farms, was sentenced to six months in prison to be followed by six months of home confinement.

Freedman Farms was sentenced to pay a $500,000 criminal fine and $925,000 in restitution. The judge will hold a status conference in 30 days to determine the scope of restitution to compensate for or repair lost or injured resources that resulted from these violations. In addition, a community service payment of $75,000 will be paid directly to the Southern Environmental Enforcement Network (SEEN), one of four U.S. regional environmental enforcement associations established to train environmental enforcement professionals. SEEN is to use the funds for funding environmental projects designed to preserve and restore waters in the Eastern District of North Carolina.

Continue reading here.

As an outsider, I certainly do not know all of the facts surrounding this case, and therefore cannot comment as to culpability of Freedman Farms or the correctness of the result.  Still, a seven figure fine against a farm for violating the Clean Water Act is remarkable--the highest of which I have ever heard.  What's troubling about the press release is the indictment of all CAFOs, as if they are ready to pollute--but for the EPA's keeping them in check: 

“Concentrated Animal Feeding Operations (CAFOs), like Freedman Farms, are an EPA enforcement priority because manure, if not properly controlled, can contaminate both surface waters and ground waters that may be used as drinking water sources and harm fish and other aquatic species,” said Maureen O'Mara, Special Agent-in-Charge of EPA's criminal enforcement office in Atlanta. “In this case, hog wastes flowed through sensitive wetlands, posing a risk to water and wildlife. Today's sentences send a clear message to CAFO's and their owners that if you disregard the law, you will be prosecuted.”

Most people would be surprised to learn that CAFO operators--at least those I work with--actually know the law better than most smaller, unregulated livestock farms. They do not need the EPA to make an example out of another farm to make them follow the law.    

Egg Producer Agreement Shows the Value in Mediation

A recent NPR story provided a good synopsis of how the United Egg Producers (United Egg) and the Humane Society of the United States (HSUS) came together to resolve their differences. Rather than spend millions of dollars fighting years of litigation over animal welfare, United Egg and HSUS signed an agreement that requires egg producers to increase cage sizes over next 10-15 years, and in exchange, the HSUS will retract its litigation talons (and likely sink them into something else).

As explained on NPR, the dispute between HSUS and United Egg was years in the making:

[Wayne Pacelle, president of HSUS,] has been among that industry's fiercest critics. He took aim, specifically, at the industry's standard practice of crowding chickens into long lines of wire cages, with hundreds of thousands of birds in a single chicken house.

"I said that these factory farms were cruel and inhumane, no question about that," he says. "We're passionate about this issue. We want to see changes within this industry."

This did not stop Gene Gregory, president of United Egg from sending Mr. Pacelle a request “to talk.” The result:

Within a few months, the two sides came up with a compromise. They agreed to jointly lobby Congress for a law that would allow farmers to keep their chickens in cages, but the chickens would get twice as much space, plus perches and "nest boxes" where they could lay their eggs.

The changes will be phase in over the next 15 years.  The settlement now moves to Washington, D.C., where it must be approved due to antitrust concerns.

This story reminds me of the many mediations I’ve attended over the years. Mediation is a purely voluntary process, where litigants sit across the table from each other and, with the help of a neutral third party mediator, attempt to reach a compromise. Often times, as with the HSUS and United Egg agreement, the result is something that makes both parties equally unhappy, but as a result, a deal is struck. The alternative, potentially years of litigation, expensive discovery and trial preparation, and the possibility that a party might ultimately get nothing or lose everything, makes a compromise more desirable to both sides. The process is not always pretty, but it often works.

Read or listen to the entire NPR story here:  How Two Bitter Adversaries Hatched a Plan to Change the Egg Business.

The United Egg and HSUS agreement can be found here:  Historic Agreement. 

Toxicologist Responds to Atrazine's Critics

I recently attended a seminar with Tim Pastoor, a toxicologist from Syngenta and a leading expert on atrazine (also simazine and propazine), a popular farm herbicide used to control weeds in corn and sorghum. This was particularly interesting to me, having spent many days as a young farm-hand spraying atrazine on row-crop acres.

Atrazine has come under fire in recent years from environmental groups, who have lobbied the EPA to restrict atrazine’s usage, claiming it is harmful to humans and amphibians and has led to groundwater and surface water pollution. Dr. Pastoor knows these complaints well, but says the science does not back them up:

These claims are baseless and wrong. The EPA just completed a 12-year evaluation of the corn herbicide atrazine in 2006 and concluded that it can be reregistered for use. The EPA's painstakingly detailed review of more than 6,000 scientific studies led it to state very clearly that atrazine poses "no harm that would result to the general U.S. population, infants, children or other ... consumers." 

One would think such a thorough review with this much data and with so many qualified scientists examining each aspect of atrazine's safety would be enough. But not for the agenda-driven activist organizations that just don't like EPA's conclusions. Political pressure by these groups has pushed the EPA to announce yet another "comprehensive" reevaluation of atrazine.

Dr. Pastoor believes another reevaluation of atrazine is unnecessary. He explained that atrazine has been safely used for over 50 years and in more than 60 countries. Read more about Dr. Pastoor's comments in the Winona Daily News:  Atrazine is Proven Safe, Despite Critics' Assertions.

Still, atrazine has its critics. A Google search will pull up hundreds of articles cautioning people to be wary of atrazine in their drinking water and the negative health effects. The New York Times, for example, published a story: Debating How Much Weed Killer Is Safe in Your Water Glass, where it discussed both sides of the controversy surrounding atrazine.

There is a lot of information available for interested persons.  If you want to know more, I suggest starting with EPA’s regulatory webpage on atrazine, which addresses some of the claims that the herbicide is harmful to humans and amphibians.  The atrazine website also responds to the various reports and studies that claim that the herbicide is unsafe.

Syngenta is currently fighting a class-action lawsuit involving claims by homeowners in Holiday Shores, Illinois, that atrazine contaminated their water. Stay tuned for more posts about atrazine and the Holiday Shores litigation in the future.

Ethanol News From Across the Hall

Jeff Featherstun, an attorney at our firm, frequently writes about environmental issues on his blog, Outside of My Environment.  This week he tackled two stories involving ethanol that will be of interest to readers of this blog.  First, California's attempt to discriminate against  "Midwest" corn ethanol in favor of "California" ethanol was struck down as unconstitutional:

A federal judge recently struck down California’s program to reduce the “carbon intensity” of motor fuels, citing constitutional “interstate commerce” concerns that it discriminates against ethanol. The case was brought by groups that have an interest in corn ethanol, including corn growers, users, merchants and marketers of distillers grain (a by-product created during the corn-to-ethanol process that is fed to livestock), producers of corn ethanol, and importers of ethanol into California from other states.

Did President Obama Read the Janzen Ag Law Blog?

Well, maybe.  Last March, after much controversy swirled about whether the EPA was going to regulate milk containers under its Oil Spill Prevention, Control and Countermeasure rule (SPCC), I paraphrased EPA Administrator Lisa Jackson's response as:  "No need to cry over spilled milk."  The EPA eventually exempted milk from the SPCC rule, and dairy farmers breathed a sigh of relief.  

Tonight, in the State of Union address, President Barack Obama essentially said the same thing:

There is no question that some regulations are outdated, unnecessary, or too costly. In fact, I've approved fewer regulations in the first three years of my presidency than my Republican predecessor did in his. I've ordered every federal agency to eliminate rules that don't make sense. We've already announced over 500 reforms, and just a fraction of them will save business and citizens more than $10 billion over the next five years. We got rid of one rule from 40 years ago that could have forced some dairy farmers to spend $10,000 a year proving that they could contain a spill- because milk was somehow classified as an oil. With a rule like that, I guess it was worth crying over spilled milk. 

I'm confident a farmer can contain a milk spill without a federal agency looking over his shoulder. . . . 

President Obama, I hope that you are reading this blog.  There are plenty of other agricultural regulations that could  use the same common sense approach applied to the "spilled milk" issue.  See, for example, the Department of Labor's proposed child labor restrictions.

Bill Gives Farmers a Legal Tool to Stop Groundless Nuisance Suits

Today's Indianapolis Star ("Protection Bill Leaves a Bad Smell") contained an editorial opposing HB 1091, a bill before the Indiana General Assembly that would allow courts to award attorneys' fees to farmers that successfully defend "frivolous, maliciously initiated, or groundless" nuisance suits.   The Star's editorial mistakenly described the bill, "under which agricultural operations, such as large confined livestock complexes, would be guaranteed payment of their legal fees if found to be victims of nuisance lawsuits."  (Emphasis added).

As the bill is currently written, the Star's statement is wrong.  Only if the farm prevails in the lawsuit and the suit is determined by a court to be "frivolous, maliciously initiated, or groundless," would the court award attorneys' fees. This is not a guaranty.

Nevertheless, some anti-ag groups are already lining up to oppose the bill.  Kim Ferraro of the Hoosier Environmental Counsel explained in Nuvo: "Given the significant hurdles already in place that limit the ability of CAFO communities to protect themselves,this is probably the most repulsive, underhanded and unjust piece of proposed legislation I've ever seen. . . . No other industry is afforded these protections (included in the proposed bill) ... It seems the purpose is to have a chilling effect."

Farm group industry leaders explained why the bill is necessary.  Justin Schneider, a staff attorney from Indiana Farm Bureau, testified that was bill was necessary because there have been several cases where judges declined to award court costs to successful defendants.  Michael Platt, executive director of the Indiana Pork Producers, testified that he is seeing more attorneys file suits against CAFOS with the express purpose of delaying and disrupting industry expansion.

From my standpoint, Indiana Farm Bureau and Indiana Pork have it right. A number of lawsuits have been filed in the last few years against Indiana farms, often funded by out-of-state attorneys or in state anti-farm groups.  Nuisance suits dissuade farms from expanding.  HB 1091 seeks to address these problems. 

Read the text of HB 1091 for yourself:  HB 1091.

Sackett v. EPA: Quotes from oral argument

Any attorney who has argued in open court will tell you that you cannot always predict how a court will rule based upon the questions asked from the bench.  Still, the inquiry can tell you a lot about what a judge is thinking and what issues he or she views as most important.  Sackett v. EPA, the recent wetlands case before the United State Supreme Court, provided its observers with a lot of insight into what issues are important to the justices.  Here are few of the more interesting quotes from the oral argument: (Mr. Stewart = EPA's counsel):

Justice Alito asked:  “Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don't you think most ordinary homeowners would say this kind of thing can't happen in the United States? You don't -- you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can't build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to.  You have to turn over to us all sorts of documents, and for every day that you don't do all this you are accumulating a potential fine of $75,000.  And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.

Chief Justice Roberts:  ”That's what you would do? You would say, I don't think there are wetlands on my property but EPA does, so I'm going to take out all the fill, I'm going to plant herbaceous trees or whatever it is, and I will worry about whether to -- that way, I'll just do what the government tells me I should do.”

Justice Breyer: “for 75 years the courts have interpreted statutes with an eye towards permitting judicial review, not the opposite. And yet -- so here you are saying that this statute that says nothing about it precludes review, and then the second thing you say is that this isn't final. So I read the order. It looks like about as final a thing as I have ever seen.”  

In response to Mr. Stewart's suggestion that the EPA might alter its wetlands determination during litigation, Justice Alito responded: “Well, that makes the EPA's conduct here even more outrageous.  We think now that this is -- these are wetlands that -- that qualify, so we're going to hit you with this compliance order, but, you know, when we look into it more thoroughly in the future, we might change our mind?”

To the read the full transcript, click here.

Sackett v. EPA: Supreme Court Reviews EPA's Ability to Regulate Wetlands

Today the United States Supreme Court will hear oral argument in Sackett v. EPA, a case that may fundamentally alter the scope of the EPA’s ability to enforce the Clean Water Act. The Sacketts’ counsel describes the issue as the EPA’s overreaching net:

Representative Photo

The Clean Water Act casts a nationwide regulatory net that snags individual citizens doing ordinary, everyday activities. Unlike other environmental statutes, the Clean Water Act is not directed toward a certain field of activity where those involved would be expected to know the applicable regulations. Any citizen engaged in a range of activities may run afoul of the Act. The Clean Water Act’s reach is extremely broad, requiring a permit for the discharge of “pollutants” from a “point source” into the “waters of the United States,” which phrase has been interpreted by regulation to include “wetlands.”

Wetlands are themselves defined by complex criteria—including soil type, vegetation, and hydrology—which defy consistent application and are not apparent to the average citizen. The government finds regulable “wetlands” even on land that appears to be totally dry.  

The plaintiffs were ordinary citizens that purchased a residential lot and began to develop it for construction of their home, only to receive a compliance order from the EPA:

The order charges them with violating the Clean Water Act by placing fill material on their lot. . . First, the order enjoins them from the only authorized use of the property under local law. . . The order, as subsequently amended, requires them, at their own expense, to “remove all unauthorized fill material” and move it to “a location approved by [an] EPA representative,” as well as to prepare for EPA “photographs of [s]ite conditions prior to and following compliance” with the order.

Even after completion of the fill removal, the compliance order continues to control the use of the Sacketts’ property. The order then requires them to plant certain native plants on their property.

Most troubling for the Sacketts, though, is that failure to abide by the order’s terms can result in civil penalties up to $37,500 per day.

The Sacketts were denied judicial review before the local district court, where they alleged the “wetlands” were not under the Clean Water Act’s (and thus the EPA’s) jurisdiction. The district court dismissed complaint, holding that so-called “pre-enforcement” orders by the EPA were not reviewable.  The Sacketts’ only choice was to obey the order and essentially lose all use of their land, or ignore the order and potentially be fined.  Instead, they took their case to the U.S. Supreme Court.

The Sacketts have asserted that the order violates their due process rights.  Various other groups have also filed briefs in the case, including American Farm Bureau the National Association of Manufacturers.  Stay turned for the results.

The Debate on Labeling GM Food

The Diane Rehm Show on NPR recently featured a debate on whether companies should be required to label genetically modified food (GM food or GMOs) on their packaging.  This episode was particularly interesting to me because one of the panelists was Thomas P. Redick, principal at the Global Environmental Ethics Counsel and general counsel for the United Soybean Board.  I know Mr. Redick as he and I  are both officers on the American Bar Association's Agricultural Management Committee.

Gary Hirshberg, president of Stonyfield Farms, was also on the program. He stated:

Polls show that Americans overwhelmingly want labeling. Thomson Reuters, in a poll actually commissioned by NPR a year ago, showed over a sample of 3,000, showed 93 percent of consumers desiring foods to be labeled. Lake Associates, Consumers Union, MSNBC, there's endless polls. All of the numbers come in at well over 90 percent. This is not a small debatable number.

Mr. Redick reponded that such polls may not be as clear cut as suggested:

[T]here's a good group called IFIC International Food Information Council that did a survey that's not designed to get a result. I mean, in these surveys that Gary mentioned they say, wouldn't you like to label gm foods, and that's a very leading question. If you ask the question, what would you like to see on a label that's not already there, genetic modification is very low on the list. So we view the survey as designed to get a result.

Mr. Redick also suggested that requiring labeling of GMOs would inevitably lead to higher costs for consumers:

And because companies would then have to change the labels and then they would voluntarily source non-GM inputs to avoid the label, it will drive more folks in the chain of, say, corn chips to purchase a non-GMO corn. And then, the non-GMO corn goes up in price because of demand. That's certainly the case in any nations they've implemented labeling. 

Well, there's over 40 nations actually that have labeling laws. The Institute for -- IFPR, International Food Policy Research did a study that showed not many of these are actually being implemented. Where they are being implemented, significant costs are incurred and it raises the price for those who can least afford to pay for the food.

Continued reading or listen to the complete discussion at  The Diane Rehm Show website.