August 2, 2013 Weekly Round Up

**This article is not a substitute for the advice of an attorney.**

Happy August!  Here are some agricultural law-related stories making the news this week.

* Arsenic in Texas Wells?  A recent study looking at water well quality in the Barnett Shale region has found elevated levels of arsenic in wells that are closer to natural gas extraction sites.  The study tested 100 wells in the region where fracking has been used to extract natural gas and found that those with dangerous arsenic levels were generally closer to the natural gas extraction sites than the wells with lower arsenic levels.  It is not clear from the study, however, that the natural gas production caused the increased arsenic levels.  The environmental effects of fracking are a hotly debated issue, and this study will likely add to that debate. [Read study here and article here.]

* Flurry of Nuisance Suits in New Mexico.  Nuisance lawsuits and right to farm laws (both of which have been discussed previously on this blog here and here) have been in the news recently in many states.  This past week, New Mexico joined that list.  [Read article here.]  According to Dairy Farmers of America, there have been 11 nuisance lawsuits filed against dairies in New Mexico since 2011.  All of these suits claim nuisance based on odor, flies, or obstructions, and all were filed by the same out-of-state law firm.  The DFA and the dairies who have been sued are requesting amendments to New Mexico’s right to farm statute to ensure that agriculture is protected from this type of situation.  Specifically, the provision that allows suits to go forward against farms operating “negligently, improperly, or illegally” is seen as problematic because these terms are not defined by the statute.  A group of agricultural interests groups representing cattle, sheep, and green chile producers have all joined together in seeking a legislative amendment to the right to farm law next session in order to ensure protections for New Mexico producers.  [Read New Mexico's right to farm statute here and article here.]

* Half-Million Dollar Award for Hog Farmer.  The Florida Court of Appeals has upheld a verdict awarding $505,000 to a hog farmer in an inverse condemnation action after a Florida voters passed an amendment to the Constitution banning farrowing crates.  In  2002, Florida voters approved a Constitutional amendment known as the “Pregnant Pig Amendment,” which went into effect in Florida in 2008.  The amendment makes it unlawful “for any person to confine a pig during pregnancy in an enclosure, or to tether a pig during pregnancy, on a farm in such a way that she is prevented from turning around freely.”  Prior to the 2002 amendment being passed, Basford Farms built operated a large commercial hog farm and built certain improvements o the property including a breeding barn, a gestation barn that used gestation crates, a farrowing barn with farrowing crates, and a host of other structures, wells, and lagoons.   After the amendment was passed in 2003, Mr. Basford closed down his business because he said he could not compete with other producers without the use of farrowing and gestation crates.  He was unable to use the majority of his barns and structures in his subsequent hay production operation, or for any other feasible operation.  He then filed suit against Florida for inverse condemnation (meaning that the state took his property without providing just compensation in violation of the 5th Amendment).  The state did not dispute that Mr. Basford could not use the structures for other purposes, but argued there was no taking because Mr. Basford was able to continue raising crops on his land and, therefore, he had not been deprived of all economic value.  Mr. Basford argued that the taking was not of his land, but of the structures thereon, of which he was deprived of all economic value.  The court found for Mr. Basford and held that the state did, by the rules of the Constitutional Amendment, take his property.  [Read opinion here.]

Why is this significant?  This case is interesting for a couple of reasons.  First, animal rights lobbies are pushing these type of animal rights bills and constitutional amendments in multiple states, so this is an issue that will likely continue to arise for producers.  Second, this is the first reported case dealing with an inverse condemnation claim in the context of animal rights legislation.  Although the decision would not be binding on other states, it might be persuasive to other courts.  Third, the case points out that a takings claim may be made based not on regulation of the land, but on regulations that impact the structures themselves.

Sow and babies

* More COOL Litigation.  Several meat industry groups are seeking a temporary injunction to stop the new country of origin “COOL” labeling requirements imposed by the Department of Agriculture.  This request for an injunction comes after a lawsuit was previously filed against the USDA claiming that the rules are unconstitutional as they violate the First Amendment.  If granted, the temporary injunction would prevent the rules from being enforced until the constitutionality of the rules can be decided by a court.  The COOL regulations require that meat packaging provide information about where animals were born, raised and slaughtered.  The groups claim that these new regulations will require them to spend millions in additional record-keeping and packaging costs.  [Read article here.]

*Super Sized Sodas Survive.  The Supreme Court Appellate Division in New York has found that New York City’s ban on large sodas in is unconstitutional.  The court found that the law, which was presented by Mayor Michael Bloomberg and passed by the mayor-appointed Board of Health violates the separation of powers doctrine.  Specifically, the court found that Mayor Bloomberg violated the separation of powers doctrine by sidestepping the City Council, and instead bringing the law before the Board of Health for consideration.  The court explained that the Board’s action overstepped its power to regulate public health, and instead constituted policy-making, which is the province of the Legislative branch.  Mayor Bloomberg says that the ruling will be appealed to the Court of Appeals (the highest appellate court in the state).

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