McEowen details top ag law stories of 2011
By Jean Caspers-Simmet
simmet@agrinews.com
Date Modified: 04/25/2012 9:36 PM
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NASHUA, Iowa —The legal system affects agriculture and its impact is likely to grow, said Roger A. McEowen, director of the Iowa State University Center for Agricultural Law and Taxation.
"Agricultural law is reality," McEowen said. "It's the stuff you have to deal with on a daily basis."
He shared his Top 10 significant agricultural law developments of 2011 at the Northeast Iowa Agricultural Experimental Association annual meeting at Nashua.
1. Patient Protection and Affordable Care Act at the Supreme Court. It was enacted in early 2010 and its constitutionality will be decided by the U.S. Supreme Court. Of primary focus is whether the mandate provision is constitutional.
2. U.S. Court of Appeals for the Tenth Circuit vacates tax court opinion on spousal reimbursement plan.
3. Pesticide drift may constitute a trespass. In this Minnesota case, pesticide drift onto organic crops led to problems between neighbors, and litigation involving a local cooperatve, McEowen said. The organic farmer claimed that the cooperative sprayed chemical pesticides that drifted from targeted fields to theirs, thereby preventing the plaintiff from selling organic crops.
4. The Kansas Supreme Court upholds a county's ban on large-scale wind generators against a constitutional taking claim.
5. A multi-million dollar judgment award in the GMO rice case. The Arkansas Supreme Court affirmed a jury verdict of $5.9 million in actual damages and $42 million in punitive damages against Bayer CropScience for damages relating to Bayer's introduction of GMO rice in 2006. Bayer outdoor tested their newly developed GMO rice in 2006 before the USDA gave regulatory approval and before any foreign government had authorized its commercial use for human consumption. Trace amounts of the GMO rice showed up in the conventional long grain rice supply and foreign import markets banned imports. The plaintiffs, Arkansas rice farmers, claimed damages.
6. Charitable lid estate planning technique validates use of defined value clauses for gift tax purposes.
7. EPA issues draft guidance on wetland jurisdiction.
"The issue is important for farmers and ranchers due to the presence of seasonally ponded areas, drainage ditches, intermittently dry streams, prairie potholes, and other wet areas located on farm and ranch land that may be adjacent to other waters and over which the federal government may claim jurisdiction," McEowen said. "In that event, agricultural activities can be curtailed substantially."
8. The courts more clearly define the limits of the antitrust exemption for cooperatives. In 2011, two federal courts addressed the scope of the antitrust exemption for agricultural cooperatives. Early antitrust legislation contained a general exemption from antitrust restrictions for agricultural organizations, but the exemption came to be viewed as too limited and not applicable to cooperative marketing activities. As a result, the Capper-Volstead Act was enacted in 1922.
9. The U.S. Department of Labor proposed rules applicable to young farm workers. For the first time since the 1970s, the U.S. Department of Labor proposed amendments and additions to the Fair Labor Standards Act.
"The Department of Labor has pulled back on this but don't think it's done," McEowen said. "Stay on top of this one."
10. Penner vs Vilsack, a Kansas case that illustrates the importance of details in administrative appeals, McEowen said. In this swampbuster case, the plaintiff claimed that the federal government failed to implement a final USDA determination that plaintiff's property did not contain a certified wetland, and then made an unauthorized wetland determination.