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The 2019 ag law year in review

Tiffany Dowell Lashmet for Progressive Cattle Published on 22 November 2019
Ag law

This year in review may feel more like a dé jà vu as there are a number of legal issues remaining on our list from last year. It has been a busy year with regard to agricultural laws impacting beef producers.

Here is a look at three of the top legal issues impacting the beef industry.

Checkoff litigation

Litigation related to the beef checkoff program continues around the country. As beef producers know well, under the checkoff program, a mandatory $1-per-head assessment is paid when cattle are sold. Typically, half of that payment is retained by the qualified state beef council and the other half is remitted by the council to the national organization, the Cattleman’s Beef Board.

Ranchers-Cattlemen Action Legal Fund (R-CALF) initially filed suit in the U.S. District Court for the District of Montana, R-CALF v. Perdue, challenging the requirement that producers pay checkoff money to the Montana Beef Council. Specifically, R-CALF argued this requirement violates the First Amendment because the Montana Beef Council is a private entity that engages in speech. Further, they argue, there is no mechanism allowing plaintiffs to elect to have their full assessment paid to the Cattleman’s Beef Board if the plaintiffs object to the messaging by the Montana Beef Council.

The beef council argues, among other things, that its messaging is not private speech, but is instead government speech and points to a memorandum of understanding entered into between the Montana Beef Council and other state beef councils with the USDA to provide USDA oversight and approval for any messaging from the state beef councils. This issue of whether the speech is private or government is critical, as prior U.S. Supreme Court rulings have found that compelled government speech does not implicate the First Amendment, whereas compelled private speech does raise First Amendment concerns.

During this litigation, R-CALF sought, and was granted, a preliminary injunction requiring all checkoff payments made by Montana producers be sent to the Cattlemen’s Beef Board, unless producers specifically indicate they wish for a portion of their checkoff payment be retained by the Montana Beef Council.

The Montana lawsuit was then expanded to request a permanent injunction in Montana for the funding of state beef councils in 13 additional states (Hawaii, Indiana, Kansas, Nebraska, Nevada, New York, North Carolina, Pennsylvania, South Carolina, Texas, Vermont and Wisconsin). Thus far, no similar injunctions have been issued in these other states, although they have been requested by R-CALF.

Waters of the U.S. definition

If my math is correct, this marks the fourth year of the controversy surrounding the definition of “Waters of the U.S.” under the Clean Water Act making this list. A brief summary of the issue is that the Clean Water Act gives federal jurisdiction to the EPA and the U.S. Army Corps of Engineers over “waters of the U.S.” As such, to do certain activities on a water of the U.S., a federal permit is required. What the Clean Water Act failed to do, however, is define the meaning of “Waters of the U.S.” This has been the source of legal disputes lasting several decades.

In 2015, the EPA promulgated a new regulation that did define Waters of the U.S. Numerous lawsuits were filed related to this definition, various stays and injunctions have been issued, and several courts have ruled on various issues, including most recently Georgia v. Wheeler, where the U.S. District Court for the Southern District of Georgia held that the rule was both procedurally and substantively invalid.

Currently, the 2015 rule has been rescinded by a final agency rulemaking from the EPA. Thus, currently, the 2015 rule is not in effect anywhere in the U.S. Instead, landowners are left with the pre-2015 Waters of the U.S. approach that led to years’ worth of litigation.

Meanwhile, the Trump administration is working on crafting a new Waters of the U.S. definition. They released their proposed draft to the public last December and took public comment through April 15, 2019. After reviewing the comments received, the agencies will issue a final rule imposing a new Waters of the U.S. definition. It is all but certain litigation will follow, meaning we will likely make it five years in a row talking about this issue next year.

Endangered Species Act revisions

In August of this year, the Department of the Interior announced significant changes to the Endangered Species Act. Some of the most significant changes included: (1) allowing consideration of economic impacts when determining whether a species should be listed as endangered; (2) requiring that a “critical habitat” be an area actually occupied by the listed species or for an unoccupied area a showing be made that the currently occupied area is inadequate to ensure survival; (3) the protections of animals deemed “endangered” will no longer automatically apply to species listed as “threatened”; and (4) to be listed as “threatened,” factors considered must be “likely” to occur, rather than just foreseeable.

Shortly after the new rule was published, a number of environmental and animal rights groups filed suit in Center for Biological Diversity, et al. v. Bernhardt, challenging the new regulations. Specifically, the lawsuit filed in the U.S. District Court for the Northern District of California claims the new rules violate the National Environmental Policy Act, the Administrative Procedures Act, and the Endangered Species Act.

Conclusion

Just as 2019 was a busy year for agricultural law, we expect the same for 2020. A number of these issues will carry over, and we will almost certainly see new issues arise in the new year.  end mark

IMAGE: Getty Images.

Tiffany Dowell Lashmet
  • Tiffany Dowell Lashmet

  • Assistant Professor and Extension Specialist – Agricultural Law
  • Texas A&M AgriLife – Extension Service
  • Email Tiffany Dowell Lashmet

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