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With 2020 over and 2021 just starting, I wanted to take a minute to look back at the top legal developments impacting agriculture in 2019. A few of these legal developments may seem like repeats from my 2019 update; see here. Moving into 2021, we will see new issues emerge as continued lawsuits involving pesticides, continued implementation of the 2018 Farm Bill and COVID-19 relief bills, and possible appeals in a few cases on the list. See above for the embedded annual podcast episode covering these issues. If you have not already signed up for updates, click here to sign up to get email updates sent to you as new content is available.
An Appeal in Maryland Poultry Farm Workers’ Compensation Decision
In December, I posted on the decision recently handed down by the Court of Appeals of Maryland, reversing the Court of Special Appeals’ decision that a poultry farm manager was not the co-employee poultry farm and poultry integrator. The Court of Appeals found that the circuit court correctly submitted to the jury the question of co-employment. The evidence on the farm manager being a co-employee was susceptible to differing reasonable inferences. A jury could properly decide that the farm manager was not a co-employee. The Court of Appeals does point out that a situation could be presented where a farm employee is a co-employee of the farm as well as the poultry integrator, but this was not the case here. To learn more about this decision, see here.
North Carolina Hog Farm Nuisance Appeal and Settlement
In 2018, the North Carolina hog farm litigation made the news with verdicts against Murphy-Brown, LLC totaling millions of dollars. Early in 2020, a Fourth Circuit Court of Appeals heard an appeal, and we finally had an opinion issued in November. In the opinion, the court upheld the compensatory and punitive damages and found that the amendments made to the state’s right-to-farm law did not apply retroactively. These amendments would have limited the amount of compensatory damages available to the plaintiffs. The court did agree that the punitive damages phase should have split from the compensatory stage. The court remanded to the trial court for a new trial on the amount of punitive damages. The day after the opinion was issued, Smithfield announced a confidential settlement agreement had settled the litigation. Check out my first podcast episode of 2021 with Andrew Branan, an
Extension Assistant Professor at NC State who handles ag law outreach for Extension. You can subscribe and check out the episode at www.marylandagpodcast.org.
Dicamba Issues
Producers experiencing dicamba drift damage brought the current In re Dicamba Herbicides Litigation against the manufacturers of the dicamba-based herbicides XtendiMax and Engenia. With the federal claims, the plaintiffs argue that Monsanto and BASF Corporation violated § 1125(a) of the Lanham Act in marketing both XtendiMax and Engenia dicamba-based herbicides. The plaintiffs also allege that state claims focused on negligence claims in product design, failure to warn of negligence in the design, failure to warn of the dangers, and poor training of sales representatives for the two dicamba-based herbicides. In June 2020, Bayer announced a settlement in this class action lawsuit for $300 million. This settlement was recently finalized in late 2020. Producers who experienced documented drift damage on soybeans in 2015 to 2020 should look at https://www.dicambasoybeansettlement.com/ to determine if they meet the settlement criteria. Stay tuned for more information.
Only one of the federal lawsuits went to trial on similar claims in In re Dicamba Herbicides Litigation in February 2020. A federal jury in Bader Farms, Inc. v. Monsanto Co. awarded a Missouri peach grower $265 million in damages, $15 million in actual damages, and $250 million in punitive damages. The defendants are currently appealing this decision.
In early June, the Ninth Circuit issued an order vacating the registrations for three dicamba-based herbicides based on flaws the court found with the three products’ 2018 registration process. Shortly after that vacating order, the EPA announced a final cancellation, providing clarity to those in agriculture who utilize those products, and allowing usage of existing stocks of the three products through the end of July 2020. In late October, EPA announced a new registration for the two dicamba-based herbicides and an extension of one other dicamba-based herbicide registration through the end of the 2025 growing season. Commodity groups are currently challenging this new registration as possibly violating federal law for some additions in the usage requirements. Stay tuned in 2021. I’m sure we will still be discussing this issue.
MD Recreational Use Decision
In April 2020, the Court of Special Appeals of Maryland issued an opinion that the state’s recreational use statute did not protect a landowner who only opened his property up for a social gathering, resulting in the injury to one of the guests. In that case, the landowner had the property fenced off with No Trespassing signage and locks on the gates to limit who could enter the property. The landowner opened the property up only for this social event. To the court, a landowner must do more to open the property up for a social event to gain protections from the recreational use statute. Read more about the decision here.
Clean Water Act Changes
EPA and the Army Corps of Engineers announced in 2020 the final Navigable Waters Protection Rule (NWPR) meant to provide a definition for “waters of the United States” in the Clean Water Act. This rule is the final step in the Trump administration’s two-step process to replace the prior Waters of the U.S. rule. We will have to wait and see how the next administration handles this rule, but we might see more movement on this rule in the future.
The U.S. Supreme Court also issued an opinion in County of Maui v. Hawaii Wildlife Foundation. This decision addresses indirect discharges under the Clean Water Act. At issue, in this case, were injection wells that injected effluent into the groundwater, which eventually made it into the Pacific Ocean. Hawaii Wildlife Foundation argued that this required a National Pollution Discharge Elimination System (NPDES) permit required under the Clean Water Act. The Court ruled 6-3 that the Clean Water Act did apply in this case and the County was required to get an NPDES permit. To the majority in this opinion, the discharge was a functional equivalent of a direct discharge. To understand more about this opinion, see here to read the Texas Ag Law blog’s overview of the decision.
Conclusion
As you can see, a number of these issues are not settled, and we can expect additional developments in 2021. We will also see new legal issues develop which we may not have considered. Agricultural law is a field that is always developing.