The Year in Reverse: A Look Back at 2014

Each year I take a look back at the big legal stories in agriculture. This year, the usual wrangling over environmental and livestock issues took a back seat to drones and “big data.” These precision ag stories were everywhere.  But there was also a big fight over future environmental regulations, and that made my list too.  So here it is, my complete list of the top 5 legal ag issues from 2014.

Big Data and Drones at the IN/IL Farm Show

I'm presenting this year again at the Indiana/Illinois Farm Show at the Indiana State Fairgrounds. Each year, Hoosier Ag Today hosts a series of seminars on different topics for attendees.  I'll be on stage on December 16, 2014 at 11:00 am. My presentation is called: "Data Privacy on the Farm: What You Need to Know." I'll talk about recent data privacy developments and drone news.  I'll be joined by Jim Shertzer and Jim Love from Beck's Hybrids, which recently launched its own data analytic tool: FARMserver.  More information can be found here:  IN/IL Farm Show Seminars.  I hope to see you there!

If you missed my presentation, you can find it here:  Data Privacy on the Farm: What You Need to Know.

Questions to Ask About Your Data Privacy Policy

AgGateway recently introduced its latest whitepaper on data privacy best practices for the agricultural industry. For those unfamiliar with AgGateway, it is a non-profit consortium of businesses serving the agriculture industry, with the mission “to promote, enable and expand eBusiness in agriculture.” AgGateway’s 200 members come from the crop protection, seed, grain, ag retail and other industries. AgGateway’s latest whitepaper provides not so much the “best practices” for ag technology providers, but a list of questions ag technology providers should ask when drafting their policies. These same questions are ones farmers should ask before clicking “I accept” the terms:

The Council for Agricultural Science and Technology (CAST) - Becoming a Part of Dr. Borlaug's Legacy

In November I was elected to serve on the Board of Representatives for the Council for Agricultural Science and Technology ("CAST").  CAST is a nonprofit organization composed of  representatives of the scientific societies, commercial companies, and nonprofit or trade organizations. CAST was established in 1972 as a result of a meeting sponsored by the National Academy of Sciences, National Research Council. Its members today come from universities (like Purdue, Iowa State, Kansas State), food and agricultural companies (like Elanco, Dow Agrosciences, Monsanto), scientific societies, and industry trade organizations (like National Pork Board).  I am the representative for the American Bar Association's Agricultural Management Committee.

A Closer Look at Farm Data Ownership

A number of agriculture technology providers (ATPs) worked together recently to produce a document identifying core industry principles for data privacy and security on the farm.  (Read the core principles document here:  Privacy and Security Principles for Farm Data).  One principle addressed ownership questions.  This principle is particularly important as it is the first step to resolving the often asked question:  “Who owns farm data?”  Although the answer to this question seems obvious to most people, the core principles document developed by industry stakeholders contains a more in-depth approach than merely concluding “the farmer owns the data.”

Privacy and Security Principles for Farm Data

A few people have asked me for a link to the farm data core principles document released by ag technology providers and industry trade organizations. Below is the entire document, which represents a collaboration of American Farm Bureau Federation, American Soybean Association, Beck’s Hybrids, Dow AgroSciences LLC, DuPont Pioneer, John Deere, National Association of Wheat Growers, National Corn Growers Association, National Farmers Union, Raven Industries, The Climate Corporation, and USA Rice Federation.

Ag Industry Releases Core Principles for Farm Data Privacy

This past year some of America’s leaders in agricultural technology products worked together with American Farm Bureau Federation and industry trade organizations to come up with a set of core principles for data privacy. The principles identified should help these agriculture technology providers (ATPs) develop new privacy policies and ensure existing policies protect farmers’ privacy. Here is an abbreviated version of the of the core principles.

Farm Bureau Data Privacy Poll Produces Some Interesting Results

The American Farm Bureau Federation (Farm Bureau) recently polled over 2500 farmers about their concerns with data privacy and technology.  Over 1000 of those surveyed indicated that they already use “precision technologies” on their farm, including data analysis tools operated by off-farm companies.  These farmers expressed concerns over liability issues, off-farm usage by technology providers, and privacy.  This was not surprising, but still there were some interesting results.

Is Your Business Prepared for a Crisis?

A crisis can destroy a business’s reputation and bottom line. A crisis can come from anywhere:  a surprise EPA, OSHA, or other regulatory inspection, a natural disaster, or a man-made catastrophe like the West, Texas fertilizer plant explosion last year. Though a business owner can never anticipate every crisis, there are certainly steps you can take to minimize the damage to your company.

While FAA Regulations Stay Grounded, State Drone Laws Take Flight

Harvest photo taken from a UAV.
Thanks @TheChadColby.

Indiana is one of at least twelve states that enacted laws this past year limiting use "unmanned aerial vehicles" (UAVs) or "drones." The Federal Aviation Administration (FAA) has known about the coming wave of drones for years, but as summer comes to an end in 2014, the FAA still has no regulation on the books. Driven by fears that unregulated drone flights will lead to accidents and the invasion of privacy, many states have filled a perceived regulatory gap with their own anti-drone legislation.

Indiana Sets Rules for "Satellite" Manure Storage Structures

A few years ago, concerned Indiana residents raised complaints with their elected officials about the storage of manure in remote ponds, or “lagoons” that were not sited next to existing livestock farms.  There was also concern that poultry litter was being shipped across state lines from Ohio into Indiana (this is perfectly legal, by the way, due to the Interstate Commerce Clause in the US Constitution).  The Indiana Department of Environmental Management (IDEM) for years had regulated concentrated animal feeding operations (CAFOs) and their Indiana equivalent, confined animal feeding operations (CFOs), but nowhere did the rules capture these stand-alone manure structures.  Now Indiana has rules on the books.

Top 10 Reported CAFO Violations

David Letterman has his Top 10 list.  Now the Indiana Department of Environment Management (IDEM) has its Top 10 list for Concentrated Animal Feeding Operations (CAFOs).  These large livestock producers are primarily regulated through IDEM's confined feeding operation (CFO) regulations.  Recently, IDEM provided Indiana Pork Producers with a list of most commonly witnessed CFO violations from its inspectors.  The top ten violations are below. My observations follow.

Agricultural Drones: Flying Into Trouble?

Hoosier Ag Today interviewed me following my presentation on drone usage in agriculture at the Big Data/UAV forum in Indianapolis. Here is an excerpt:

Last week we reported on how drones held some important applications for agriculture. A recent air show in Illinois that featured drones drew hundreds of farmers. Yet, the lack of regulations by the government and the lack of clear cut legal precedents could spell trouble for those who try to take off. Todd Janzen, an Indiana Attorney, told HAT that the FAA has not released any rules on the use of drones and, for the time being, considers flying them for commercial purposes illegal, “The FAA says flying drones for recreation or hobby use is OK, but if it is being used for a commercial use that that is illegal. A use for a farm would fall somewhere in between.” He added, currently, farmers are most likely using a drone for a hobby but eventually they will want to use it for commercial applications.
Continue reading at Hoosier Ag Today. 

What Agriculture Can Learn from Medical Data Privacy Laws

Earlier this year, I suffered sudden hearing loss in my left ear. The condition caused me to visit a number of different doctors and medical providers. These visits made me realize, although we live in the digital age, doctors' offices still treat data like they did 100 years ago. Each time I visited a new physician or medical center, I filled out a similar stack of paper forms asking for the same information I had already given other providers--health history, prescriptions used, insurance, date of birth, SSN, symptoms, acknowledgments, etc. There was no data sharing between providers.

I can’t help but compare how the medical industry treats data to the discussion the agricultural industry is having right now about sharing big data and privacy.

It's Time for Real Property Law to Join the 21st Century

A farmer uses GPS to plant this field,
but his deed uses old metes and
bounds to describe it.  

I handle a number real estate transactions each year.  It is not uncommon to find an error in the property description located in a deed.  Often somewhere in the chain of title, someone made a typo which was then passed on from deed to deed to deed.  Attorneys call such mistakes "scrivener's errors."   These errors still occur today because the way property is described in deeds and other real estate documents has not changed much in past two centuries. Witnessing how much technology has improved farming in the past decade has made me wonder--why isn't the same technology being used to improve how we describe property boundaries?

Upcoming "Big Data" Seminar on August 15

I'll be speaking at a Big Data seminar in Indianapolis hosted by the Indiana Ag Law Foundation on August 15, 2014.  My topic will be "The Legal Aspects of Unmanned Aerial Vehicles (UAVs)."  I will be covering a number of legal issues surrounding the entrance of  UAVs (or "drones") into agricultural airspace, including Federal Aviation Administration (FAA) regulations for UAVs, the law of trespass and privacy, and constitutional concerns when government agencies use UAVs for surveillance.

The seminar will cover various other topics concerning Big Data in agriculture.  Matt Erickson, American Farm Bureau Federation (AFBF), will provide an overview of UAV issues and AFBF's data privacy policy. Scott Beck, Vice President of Beck's Superior Hybrids, will discuss farm data privacy together with representatives from The Climate Corporation and DuPont Pioneer. To see the full agenda and list of speakers, visit www.INAgLaw.org/BigData.

Book Review: The John Deere Way

My last stop before heading to the lake for summer vacation was to the local half-price bookstore.  I was delighted when I found a previously-owned copy of The John Deere Way by David Magee, a book that promised to dive into the corporate culture of one of America's oldest corporations, Deere & Company. This book is a few years old already, but for the most part the topics are still relevant today.  Here is my book review.

What You May Be Giving Up When You Agree to "Arbitration"

Grain contracts often
contain arbitration clauses

Although most people are unfamiliar with the arbitration process, it is common for many form contracts to contain "arbitration" clauses. The Texas Supreme Court recently addressed cotton farmers’ challenge to an arbitration clause in a cotton marketing contract.  The Texas court upheld the arbitration clause but questioned whether a one-sided attorneys’ fees provision favoring the marketer was unconscionable. (Read Texas ag blogger Tiffany Dowell's good summary here).  Having not read the boilerplate common in many contacts, people are often surprised to learn they have consented to arbitration.  The recent Texas case reminded me of my own experiences with arbitration clauses and what four rights clients give up when they agree to arbitrate:

Before You Click "Accept," Read Your Farm Data Privacy Policy

If you are like most people, when computer programs ask you to accept their latest privacy policy, you probably just hit "I accept these terms" and get on with using the software.  But recent concern over who controls agriculture's "big data" might have made you pause and think about whether you should just accept the terms provided--or decline and look for something else.  As agribusinesses roll out their farm data collection and analysis programs, take some time to read the data privacy policy that will accompany the program.  Here are some questions to ask as you do:

What You Need to Know About Drone Safety

I was recently interviewed for an article in Farm Journal's AgWeb about liability issues surrounding drone usage. Author Ben Potter does a nice job of discussing these issues and others that might arise from drone flights on the farm:

Randall Adkins, a precision farming specialist for Scott Equipment in Louisiana, has been researching several models of rotor drones over the past several months. On this clear spring day, he’s assembling his first fixed-wing model.

"I got a cheaper fixed-wing model so when I crash it, I don’t cry," he says. "One thing I know for sure – this thing’s going to be painted orange."

Continue reading at AgWeb: What You Need to Know About Drone Safety

Are Drones Legal as "Hobby" Aircraft?

The prevalence of drone flights on farms and in other remote locations has apparently caused some real concern at the Federal Aviation Administration (FAA).  There are court cases pending to determine whether current drone usage is legal (from both a regulatory standpoint and a First Amendment standpoint--more on that in future posts), and new FAA regulations are expected in 2015 integrating drone use into U.S. airspace.  But in the meantime, many farmers are taking to the skies--either believing drones are already legal or believing no one will notice or care.

The main reason I hear explaining why drones are legal in the US is that they are essentially "model" or "hobby" aircraft. I thought it was worth digging into the legal basis for this claim. Here's what I found.

U.S. v. Causby: How a 1940s Chicken Farmer Case Will Impact Drone Usage in the 21st Century

In 1946, a North Carolina chicken farmer sued the United States government for trespass by air.  The US navy and army operated an airstrip adjacent to the chicken farm, such that the glide path from the runway extended directly over the farmer’s house and outbuildings. Normal glide paths put aircraft 67 feet above the house, 63 feet above the barn, and 18 feet above the highest tree.  Bombers, fighters, and other aircraft routinely flew over the farm, causing quite a disturbance:

The noise is startling. And at night the glare from the planes brightly lights up the place. As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm. Respondents are frequently deprived of their sleep and the family has become nervous and frightened.

Agricultural Leadership is Hard Work

During our Indiana Ag Leadership class trip to Liberia, West Africa recently, I saw something that has stuck with me since I arrived back in Indiana. At a United Nation's peacekeeping outpost in Ganta, Liberia--manned completely by Bangladeshi troops and engineers--I noticed a large saying hand painted on the side of a building. I could only make out a few words, but I wrote those down. When I returned to Indiana, I Googled the phrase to see what it said.  Here's what I found:

It is not enough to talk about peace. One must believe in it. And it isn’t enough to believe in it. One must work at it.

Reduce Farm Liability: Set Up a New Company for Your Custom Farming Operation

Farm Journal's Sara Schafer recently consulted me for an article she wrote on how to "Reduce Liability" for the farm. Her article discusses the need to create new legal companies to handle certain farm operations that fall outside of normal farm-work, such as custom farming or trucking.  Her article appeared in Top Producer and AgWeb, Farm Journal's online publication:

Custom farm work is a great way to diversify a business. It can provide supplemental income but can also add extra risk and exposure to your primary farm.

Indiana Ag Leadership Program Wrap Up

The previous five posts chronicled my journey with the Indiana Agricultural Leadership program to The Netherlands, Belgium, and Liberia. From an agricultural standpoint, the contrast between northern Europe and West Africa could not be more extreme.  Northern Europe has highly developed agricultural systems; West Africa's agriculture is rudimentary by comparison. Now that the trip is a few weeks behind me, I thought it worthwhile to provide some big picture deductions after observing these two different places in our world.

The Challenges Facing Liberian Agriculture

The last leg of our Indiana Ag Leadership class was to Liberia, West Africa. What we saw was dramatically different than the highly structured and sophisticated agricultural systems of Northern Europe.  Liberian agriculture struggles in every area where EU agriculture thrives.  The root causes are many.  After a week traveling across the country, I am no expert in Liberian agriculture, but I hope these observations are enlightening to those who may never get to travel to Liberia or similar places.  My analysis below means no disrespect to the Liberian people, many of whom work hard each day just to obtain food and water.  The people I met were very friendly and welcomed US visitors with open arms.

The European Union's Common Agricultural Policy

Our Indiana Ag Leadership trip to northern Europe included a visit to the European Commission in Brussels, Belgium. The European Commission is the executive branch of the European Union (EU). One of the main topics of discussion was the Common Agricultural Policy, or "CAP," the EU's version of the US Farm Bill.  The CAP has been an essential part of EU policy for decades and, like the Farm Bill, periodically undergoes reform.  The post explains some of the differences and similarities between the CAP and most recent Farm Bill.

The European Union's Reluctance to Embrace GMOs

One of the questions that was frequently asked by our Indiana Ag Leadership class in Europe was why the European Union (EU) has not embraced genetically modified organisms (GMOs) like farmers in the US.  The answers were very interesting.

A fact I did not know prior to our recent trip is that many EU countries do allow importation of GMO corn and soybeans from the US.  Such products are used as animal feed, even though the same products could not be sold on the shelves for direct human consumption (unless the proper labeling was attached). Thus, milk on the grocery store shelves in EU member states may have come from cows fed GMO corn.

Three Agricultural Lessons from The Netherlands

The Netherlands is a country roughly the size of New Jersey yet is the second largest agricultural exporter in the world behind only the USA. That statistic is made even more remarkable when one considers that The Netherlands has over 17 million people and much of the country is below sea level. Our Indiana Agricultural Leadership class recently toured parts of The Netherlands to examine how the country maintains such productivity.  Here are my top three observations:

Indiana Ag Leaders to Visit Dutch Farms, European Union and West Africa

I am fortunate to be part of the Indiana Agricultural Leadership Program (or AgrIInstutitue).  In the next few weeks, our class will be travelling to The Netherlands, Belgium, and Liberia, West Africa.  While in The Netherlands we will tour a dairy farm, the flower market, The Hague, and one of the world's largest ports, Rotterdam.  Our Belgium visit will take us to the European Union (EU), where we will meet with world ag leaders.  Our stop in Africa will be in the country of Liberia, on the central western coast.  We will work with organizations teaching and developing agriculture in that country.

Our trip was recently written about in The Liberian Observer, the newspaper of the capital city of Monrovia.

Understanding Indiana's Farm Trespass Bill

The past two years farm issues in the Indiana legislature have been dominated by so-called “ag-gag" bills. These bills sought to stop undercover videotaping and photographing, activities used by undercover groups to expose what they believe are abusive practices.  This year’s farm trespass bill takes a different approach, and as a result, it lacks the “gag” component that many found offensive in prior legislation.

What Agriculture Can Learn from McDonald's

Today I had the privilege of hearing Don Thompson, CEO of McDonald's Corporation, speak to a room full of farmers, agribusiness professionals, politicians, and students about the connections between McDonald's and agriculture.  Some of Mr. Thompson's messages really resonated with me, so I thought I would share them here.

According to Mr. Thompson, McDonald's sees three consumer trends that drive how McDonald's evolves:  (1) transparency, (2) food quality, and (3) sustainability. Transparency explains why McDonald's posts nutritional information on all of its packaging.  It also explains why McDonald's started answering questions from consumers openly on its website:  Your Questions Answered.  For example, "Are Chicken McNuggets really made from the parts of chicken no one wants to eat?"

With the Promise of Drones Comes Legal Questions

Imagine a future where a rancher can use an autonomous drone to fly out to a pasture miles from the homestead to check on his herd. The drone reports back that the herd is accounted for except for one steer that is lying down alone, more than 1,000 feet from the herd, and appears to be sick. The drone sends GPS coordinates to the rancher, who then dispatches a ranch hand to the exact location of the sick animal. The drone’s surveillance ultimately saves the animal’s life.

Now imagine that a similar drone is used by the Environmental Protection Agency (EPA) to fly over feedlots. The EPA drone spends its flying hours, not looking for sick or stray cattle, but instead looking for Clean Water Act violations. The drone flies over pens, counts cattle to make sure numbers do not exceed permitted amounts and checks for visual evidence of runoff from pens into nearby creeks or streams. If a problem is found, the drone takes pictures for evidence and alerts state or federal officials to come to the feedlot for an inspection.

As is often the case with new technology, beneficial uses are often accompanied by nefarious uses. The promise for drones raises a lot of legal questions about how drones will ultimately be used.

Five Legal Issues to Watch in 2014

What will be the hot topics in ag law for 2014? Here are some predictions for the coming year:

1. Clean Air Act Targets Farmers. Congress passed the Clean Air Act in 1970 to clean up the nation’s air. The low hanging fruit of air pollution—power plants, industrial factories, trucks and automobiles-- have been under scrutiny ever since. The EPA is looking for ways to further reduce air pollution in the US, and farms will be next. Large grain dryers (producing particulate matter) and anaerobic digesters (producing carbon dioxide, carbon monoxide, and methane) will be part of this new frontier for the Clean Air Act.