Agricultural Law Weekly Review—week ending November 20, 2020

Right to Farm: North Carolina Swine Production Facility Nuisance Verdict Upheld On Appeal and Smithfield Announced Unspecified Settlement of Claims 
On November 19, 2020, the U.S. Court of Appeals for the Fourth Circuit issued an opinion affirming in part and vacating in part a judgment entered in the U.S. District Court for the Eastern District of North Carolina (McKiver v. Murphy-Brown, LLC, No. 7:14-cv-00180) upon an April 26, 2018 verdict awarding compensatory damages for nuisance of $75,000 each and punitive damages of $5 million each (reduced by state law to $250,000 each) in favor of ten neighboring landowners arising from odors, pests and noises from neighboring vertically-integrated contract production facilities producing approximately 15,000 hogs annually for Murphy-Brown, LLC, a wholly-owned subsidiary of the Chinese-owned pork and food processing company Smithfield Foods, Inc.  Because of unique language in North Carolina’s then-current Right to Farm Law (RTF) applicable to the case, and which has since been amended in a way that would prevent this result, the trial court previously ruled North Carolina’s RTF Law inapplicable.  In a complex decision, with a separately written concurrence and a dissent, analyzing multiple evidentiary and other legal issues, the Fourth Circuit Court upheld the verdict for compensatory damages in all respects.  With regard to punitive damages, the Court upheld the awarding of punitive damages based on the evidence properly admitted but found prejudicial the consideration of evidence of the Defendant’s parent company’s financial information and remanded the case for a new calculation of punitive damages.  This case is part of 20+ nuisance cases against Smithfield Foods and/or subsidiaries pending in North Carolina and arising from swine production facilities which request the same legal relief, at least three of which have reached a verdict.  According to media accounts, within hours of the Fourth Circuit decision, Smithfield Foods announced a settlement of all such cases, although no facts or details of such a settlement have been yet released.

Pesticides: Ninth Circuit Denies Rehearing on Enlist Duo Registration Approval 
On November 18, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an order denying both a rehearing and rehearing en banc to reconsider EPA’s registration approval of Dow/Corteva Agriscience’s glyphosate blend, Enlist Duo.  A petition for rehearing was filed by petitioners National Family Farm Coalition, et al. on September 15, 2020, following the court’s upholding of EPA’s Enlist Duo registration approval.  For more on this topic, see ALWR—week ending July 24, 2020, “Ninth Circuit Court of Appeals Affirms EPA Registration Approval for Glyphosate-Blend Enlist Duo (2,4-D).”

National Agricultural Policy: GAO Reports on USDA “Actively Engaged in Farming” Eligibility Compliance Review 
On November 16, 2020 the U.S. Government Accountability Office (GAO) publicly released a report titled, “Farm Programs: USDA Has Improved Its Completion of Eligibility Compliance Reviews, but Additional Oversight Is Needed.”  While the report found that, since 2013, the U.S. Department of Agriculture (USDA) has improved its review procedures to ensure that farm program payment recipients are actively engaged in farming through either active personal management or personal labor, USDA did not systematically monitor its performance of compliance reviews, thus allowing for non-compliant recipients to continue collecting payments.  The report includes five recommendations for the USDA to improve its eligibility compliance reviews, including electronic safeguard to prevent a compliance review from being entered as both waived and completed, and further examination of the extent to which compliance review teams document the reasons for not doing an interview.

Ag Transportation: FMCSA announces Interim Final Rule “Hours of Service Drivers; Definition of Agricultural Commodity.” 
On November 19, 2020, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) announced the forthcoming publication in the Federal Register of a final rule titled, “Hours of Service of Drivers; Definition of Agricultural Commodity.”  The new rule, which was published as proposed on July 29, 2020 (84 FR 36559), clarifies the definition of the terms “any agricultural commodity,” “livestock,” and “non-processed food” for the purposes of hours of service rules.

National Agricultural Policy: Farm and Environmental Groups Form Alliance to Tackle Climate Change 
On November 17, 2020, the Food and Agriculture Climate Alliance (FACA) announced a set of forth policy recommendations to shape federal climate change policy, which address soil health, livestock and dairy, forests and wood products, energy, research, and food loss and waste.  The Alliance was formed in February 2020 and consists of a eight prominent interest groups with a divergence of views: American Farm Bureau Federation (AFBF); Environmental Defense Fund (EDF); The Food Industry Association (FMI); National Alliance of Forest Owners (NAFO); National Association of State Departments of Agriculture (NASDA); National Council of Farmer Cooperatives (NCFC); National Farmers Union; and The Nature Conservancy.

Agritourism:  Limitation on Agritourism Liability Included In Bill Sent to PA Governor
On November 20, 2020, both chambers of the Pennsylvania General Assembly signed and presented to the Governor for signature HB 1737, an omnibus bill amending Title 42 of the Pennsylvania Consolidated Statutes to add a large collection of immunities and limitations of civil liability to a wide-range of entities for a wide-range of activities, both COVID-19 related and otherwise.  Contained within the bill is a subchapter containing the text originally proposed in HB 1348, titled “Agritourism Activity Protection,” providing limitations on certain civil liabilities arising from agritourism activities.  Based upon sharply divided votes in both chambers mostly along party lines, the prospects of its enactment are uncertain.

Animal Health: Pennsylvania Quarantines Pentobarbital-Euthanized Animals
On November 21, 2020, the PA Department of Agriculture, Bureau of Animal Health and Diagnostic Services, published in the Pennsylvania Bulletin a new quarantine order titled, Interstate/International Quarantine Order; Prohibition of Rendering of Domestic Animals Euthanized with Pentobarbital.  Immediately effective and covering the entire state, the order outlines the process and obligations of animal owners, veterinarians, haulers and rendering, slaughter or other domestic animal processing establishments, for proper marking and disposal of domestic animals, or parts thereof, which have been euthanized with pentobarbital so as to prevent drug residue contamination of commercial feed or pet food products produced in Pennsylvania.

From the National Agricultural Law Experts:

Agricultural Economic Insights, LLC, Escaping 1980 (Podcast) Chapter 3: The Slide (Nov. 18, 2020).

Tiffany Lashmet, Case Offers Reminder of Statute of Fraud Requirements for Property Description (Nov. 16, 2020).

Kristine A. Tidgren, IRS Says No 2020 Deduction if PPP Forgiveness Reasonably Expected in 2021 (Nov. 18, 2020).

Roger A. McEowen, Beef May Be For Dinner, But Where’s It From? (Nov. 18, 2020).

Rusty Rumley, 4th Circuit Rules on North Carolina Right to Farm Litigation (Nov. 19, 2020).

Penn State Research & News:

Biochar from Agricultural Waste Products can Adsorb Contaminants in Wastewater (Nov. 16, 2020).

Dairy Cows Exposed to Heavy Metals Worsen Antibiotic-Resistant Pathogen Crisis (Nov. 16, 2020).

AGENCY PRESS RELEASES—STATE/FEDERAL

Pennsylvania Department of Agriculture Press Releases:

2021 PA Farm Show Asks Pennsylvanians, ‘Oh, Say, Can You Sing?’ (Nov. 17, 2020).

State Veterinarian Urges Poultry Owners To Tighten Biosecurity Efforts Amid Overseas High-Path Avian Influenza Discoveries (Nov. 18, 2020).

Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, November 9 – November 15 (Nov. 18, 2020).

Wolf Administration: Don’t Go Without This Holiday Season, Food Assistance Programs Fill Holiday Meal Gaps (Nov. 19, 2020).

Make It A Pennsylvania Thanksgiving: Agriculture Secretary Highlights Ways To Support Local Farmers This Holiday (Nov. 20, 2020).

U.S. Department of Agriculture (USDA) Press Releases:

USDA Forest Service Announces Key Changes to NEPA Procedures (Nov. 18, 2020).

USDA Opens Registration for the 2021 Agricultural Outlook Forum (Nov. 18, 2020).

U.S. Department of Agriculture (USDA) Agencies Press Releases:

USDA Introduces Enhanced Coverage Option Crop Insurance Product, RMA (Nov. 16, 2020).

USDA Reminds Dairy Producers of Dec. 11 Deadline for 2021 Safety-Net Enrollment, FSA (Nov. 16, 2020).

STATE ACTIONS—EXECUTIVE/LEGISLATIVE

Pennsylvania Executive Agencies (Pa. Bulletin Vol. 50, No. 47—Nov. 21, 2020):

Department of Agriculture

50 Pa.B. 6674 Notice: “General Quarantine Order; Prohibition of Rendering of Domestic Animals Euthanized with Pentobarbital.”

50 Pa.B. 6676 Notice: “Interstate/International Quarantine Order; Prohibition of Rendering of Domestic Animals Euthanized with Pentobarbital.”

Game Commission

50 Pa.B. 6747 Executive Order: “Chronic Wasting Disease—Establishment of CWD Containment Zone Permit.”

Susquehanna River Basin Commission

50 Pa.B. 6762 Notice: “Telephonic Commission Meeting [Friday, December 11, 2020].”

50 Pa.B. 6762 Notice: “Grandfathering Registration Notice.”

Pennsylvania Legislature

Presented to the Governor

HB 1737 “An Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in particular rights and immunities, providing for economic development agency, fiduciary and lender environmental liability protection, for agritourism activity protection and for COVID-19-related liability; and making a related repeal.” (Nov. 20, 2020).

SB 835 “An Act providing for funding of high-speed broadband service infrastructure deployment in unserved areas of this Commonwealth and for powers and duties of the Commonwealth Financing Authority; establishing the Unserved High-speed Broadband Funding Program Account; making an appropriation; and making a related repeal.” (Nov. 20, 2020).

Senate Legislation in the House

SB 1182 “An Act amending . . . the Pennsylvania Agricultural Fair Act, further providing for advisory committee; and providing for COVID-19 Emergency Agricultural Fair Grants.” Re-referred to Appropriations (Nov. 18, 2020).

FEDERAL ACTIONS—EXECUTIVE/LEGISLATIVE

Federal Executive Agencies (Federal Register Nov. 16–20, 2020):

Agriculture Department

85 FR 73017 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: FNS Information Collection Needs Due to COVID-19]” (Nov. 16, 2020).

85 FR 73259 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service: Supplemental Nutrition Assistance Program—Store Applications]” (Nov. 17, 2020).

85 FR 73258 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Bee and Honey Survey]” (Nov. 17, 2020).

85 FR 73258 Notice: “Submission for OMB Review; Comment Request [National Agricultural Statistics Service: Livestock Slaughter]” (Nov. 17, 2020).

85 FR 73455 Notice: “Submission for OMB Review; Comment Request [Food and Nutrition Service

Title: Assessment of the Collection, Analysis, Validation, and Reporting of SNAP Employment and Training Data project]” (Nov. 18, 2020).

85 FR 73670 Notice: “Submission for OMB Review; Comment Request [Rural Utilities Service: Telecommunications System Construction Policies and Procedures]” (Nov. 19, 2020).

85 FR 73671 Notice: “Request for Nominations of Members for the Citrus Disease Subcommittee” (Nov. 19, 2020).

Agricultural Marketing Service

85 FR 72914 Final Rule: “Tomatoes Grown in Florida; Amendments to the Marketing Order No. 966” (Nov. 16, 2020).

85 FR 73599 Final Rule: “Tart Cherries Grown in the States of Michigan, New York, Pennsylvania, Oregon, Utah, Washington and Wisconsin; Changes to Subcommittee Size and Addition of Term Limits” (Nov. 19, 2020).

85 FR 73670 Notice—Comment Period: “Notice of Request for Extension and Revision of a Currently Approved Information Collection [Regulations and Related Reporting and Recording Requirements—Packers and Stockyards Division]” (Nov. 19, 2020).

Commodity Credit Corporation

85 FR 73601 Rule, correction: “Payment Limitation and Payment Eligibility” (Nov. 19, 2020).

Animal and Plant Health Inspection Service

85 FR 74312 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Infectious Salmon Anemia; Payment of Indemnity” (Nov. 20, 2020).

85 FR 74311 Notice—Comment Period: “Notice of Request for Revision to and Extension of Approval of an Information Collection; Foot-and-Mouth Disease: Prohibition on Importation of Farm Equipment” (Nov. 20, 2020).

Environmental Protection Agency

85 FR 72968 Final Rule—Comments Accepted: “Indoxacarb; Pesticide Tolerances” (Nov. 16, 2020).

85 FR 74339 Notice—Comment Period: “Pesticide Registration Review; Draft Human Health and/or Ecological Risk Assessments for Ethylene Oxide; Notice of Availability” (Nov. 20, 2020).

Farm Credit Administration

85 FR 73401 Rule: “Criteria To Reinstate Non-Accrual Loans” (Nov. 18, 2020).

Farm Service Agency

85 FR 73455 Notice—Comment Period: “Information Collection Request; County Committee Elections” (Nov. 18, 2020).

Federal Emergency Management Agency

85 FR 73498 Notice: “Changes in Flood Hazard Determinations [Ark., Colo., Conn., Fla., Ga., Me., Miss., N.M., S.C., S.D., Tex., Utah, Va., D.C.]” (Nov. 18, 2020).

85 FR 73501 Notice—Comment Period: “Proposed Flood Hazard Determinations [Fla., Va.]” (Nov. 18, 2020).

Fish and Wildlife Service

85 FR 73164 Proposed Rule—Comments Accepted: “Endangered and Threatened Wildlife and Plants; Review of Domestic Species That Are Candidates for Listing as Endangered or Threatened; Annual Notification of Findings on Resubmitted Petitions; Annual Description of Progress on Listing Actions” (Nov. 16, 2020).

85 FR 73012 Proposed Rule: “Endangered and Threatened Wildlife and Plants; Reclassification of the Red-Cockaded Woodpecker From Endangered to Threatened With a Section 4(d) Rule [and Public Meeting December 1, 2020]” (Nov. 16, 2020).

85 FR 74050 Proposed Rule—Comment Period: “Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Upper Coosa River Distinct Population Segment of Frecklebelly Madtom and Designation of Critical Habitat” (Nov. 19, 2020).

Forest Service

85 FR 73017 Notice: “Forest Service Manual (FSM) 3800, Zero Code; State and Private Forestry Landscape Scale Restoration Program” (Nov. 16, 2020).

Industry and Security Bureau

85 FR 73411 Final Rule: “Revisions to Export Enforcement Provisions” (Nov. 18, 2020).

National Institute of Food and Agriculture

85 FR 72912 Final Rule: “Department of Agriculture Regulations for Grants and Agreements; Update of Citations” (Nov. 16, 2020).

Small Business Administration

85 FR 73841 Notice: “Presidential Declaration Amendment of a Major Disaster for the State of California” (Nov. 19, 2020).

85 FR 73841 Notice: “Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of California” (Nov. 19, 2020).

U.S. Customs and Border Protection

85 FR 73496 Notice: “Agency Information Collection Activities: Bonded Warehouse Regulations” (Nov. 18, 2020).

Wage and Hour Division

85 FR 73295 Notice: “Agency Information Collection Activities: Comment Request; Information Collections: Application for a Farm Labor Contractor or Farm Labor Contractor Employee Certificate of Registration” (Nov. 17, 2020).

U.S. House Agriculture Committee

H.R.8790 “To extend the wildfire and hurricane indemnity program to cover certain crop losses in calendar year 2020, and for other purposes.” Referred to the House Committee on Agriculture (Nov. 19, 2020).

U.S. Senate Committee Agriculture, Nutrition, and Forestry:

No new actions Nov. 16–20, 2020.

Follow us on Twitter @AgShaleLaw—Top #AgLaw HotLinks Nov. 16–20, 2020:
Dairy Groups: USTR Must Address Key Trade Barriers, Feedstuffs
Poll Shows Americans’ Unwavering Trust in Farmers, Morning Ag Clips
CFAP Payments Top $20 Billion, Brownfield
Apply Now for USDA’s Coronavirus Food Assistance Program 2, Morning Ag Clips
EPA, Dairy Industry Sign MOU on Sustainability, Feedstuffs
Redding Encourages Pennsylvanians to Support PA Agriculture, Morning Ag Clips
Penn State Virtual Ag Issues Forum on CFAP 2, Morning Ag Clips

Connect with us on Facebook.

PFEL: The Pennsylvania Farm Employers’ Listserv (PFEL) is an email networking and resource-sharing group about human resources topics exclusively for agricultural operations and producers.  No reporters or regulators, please. To subscribe, please send an email to: pfel-subscribe-request@lists.psu.edu.  In the subject line, type “subscribe” and type any word in the body (to circumvent spam filtering).  This is a project of the Penn State Ag Law Center with many thanks to Penn State Extension for assistance.

Want to listen to this Weekly Review? Check out the Penn State Agricultural Law Podcast.

Written by: 
Audry Thompson—Research Assistant 
Brook Duer—Staff Attorney