http://Texaslandandranch.com/blog/archive_202201/sort_entrydatetime-desc/ Originally posted by tiffany.dowell on the Texas Agriculture Law Blog2021 was another big year in the agricultural law world here in Texas.  From key legal decisions to new laws passed during the legislative session, there was no shortage of information to discuss in this year in review.  As you will see, many of the key updates involve actions taken by the Texas Legislature.  To read in more detail about the key bills for agriculture this session, click here to read a blog post and here to listen to a podcast episode with J Pete Laney.Texas Farm Animal Liability Act AmendmentThis is easily the issue on which I have had the most presentation requests and questions this year.  The Texas Farm Animal Liability Act is designed to ensure that, subject to certain limitations, farm animal owners are not liable for injuries caused by inherent risks of farm animal activities.  For example, if you get on a horse, there is just an inherent risk you could get bucked off.  This statute has been in place for decades, but it was amended by the Texas Legislature as of September 1, 2021.  The amendments came as a result of a Texas Supreme Court decision last year which held that the Act did not apply to ranchers or ranch hands.  The Legislature expressly modified the language of the Act to make clear it is to apply to working ranches.  From a practical perspective, the most important change is that farm and ranch owners and lessees need to hang up the Farm Animal Liability Act sign at or near their stable, corral or arena.  This is a simple, yet important, step for liability protection.  To review all the details of the amendments, click here.  In January, we will be releasing a podcast episode with Trace Blair discussing the three Texas landowner liability statutes.Brand Registration ExpirationEvery ten years, all brand registrations in Texas expire.  This happened on August 31, 2021.  This means that all horse and livestock owners need to register their brands in the County Clerk’s office in each county where the animals are located.  Animal owners have until February 28, 2022 to do so.  Keep in mind that the use of a brand without registration constitutes a misdemeanor offense  punishable by up to a $500 fine.  Read more here.Prescribed Burn Liability Statute AmendmentsAnother change to come out of the 2021 Texas Legislature was amendments to the limited liability offered for people involved in conducting prescribed burns.  There are different liability protections for landowners, lessees, and occupiers, Certified and Insured Prescribed Burn manager, burn bosses, and participants in a burn.  To review these in detail, click here for a fact sheet I co-authored with prescribed burning expert, Dr. Morgan Treadwell.  For landowners, lessees, or occupiers of agricultural or conservation land, the statute provides they are not liable if the burn is conducted by a Certified and Insured Prescribed Burn Manager who maintains the required insurance coverage.  Because of this protection, I always recommend that landowners conducting prescribed burns consider using a Certified and Insured Prescribed Burn Manager.Eminent Domain Law ChangesAnother bill from the Texas Legislature this session had to do with eminent domain reform.  House Bill 2730 made numerous changes to the eminent domain statutes in Texas.  In particular, there were additional requirements added to what condemnors must do in order to make the required “bona fide offer,” including providing information to landowners as to whether their offer includes any damages to the remainder.  Additionally, for private entities exercising eminent domain power to obtain a pipeline right-of-way easement or an electric transmission line right-of-way easement, there are no certain required minimum terms that must be included in the written easement document such as terms regarding limitations on the number, types, and sizes of lines, location of the easement, restoration and repair obligations, and more.  While these required terms are not exhaustive, they are certainly a starting point for a landowner negotiating a pipeline or transmission line easement.  As always, I recommend that landowners seek an attorney when negotiating a pipeline or transmission line easement.  We have a number of resources available related to eminent domain including podcast episodes and publications.Texas Supreme Court to Hear High Speed Rail SuitAlso related to eminent domain is a case involving a landowner challenging the right of the proposed high speed rail to utilize eminent domain power to condemn property for the railway.  Texas Central Railroad and Infrastructure plans to build a high speed rail from Dallas to Houston and has sought easements from landowners along their route in order to do so.  Some landowners have refused,  and the company has filed condemnation suits seeking to condemn the property.  In Texas Central Railroad & Infrastructure v. Miles, a landowner facing condemnation challenged the company’s ability to use this power.  Specifically, the question at issue is whether Texas Central is a “railroad company” or “interurban electric railway” to which eminent domain power is granted by statute.  Texas Central argues they are given their plans to build the high speed rail. Miles argues they are not as they own no trains or tracks and are not operating as a railroad as required.  The trial court agreed with Miles, but the El Paso Court of Appeals reversed, finding that Texas Central did meet the requirements to use eminent domain authority. Click here to read more.  Miles appealed to the Texas Supreme Court, which initially denied the petition, but then granted a motion for rehearing.  Currently, oral argument on the case is set for January 11.  Just last week, the Texas Solicitor General, who was asked to write a brief by the Supreme Court, indicated that the State agrees with Mr. Miles and does not believe Texas Central qualifies to exercise eminent domain power. To read more about that, click here.Solar/Mineral Owner DisputeAn interesting case out of the El Paso Court of Appeals addresses an important issue in Texas: The relationship between a solar lessee and mineral owner of property.  In this case, the mineral owner filed suit against a surface owner and the solar company who built solar facilities on 215 acres of the 315 acre property at issue.  The mineral owner claimed that the solar company trespassed on his mineral estate and breached the lease by denying reasonable access to the mineral estate.  The El Paso Court of Appeals dismissed the case, holding that an attempt to develop the minerals was required for a legal remedy to be available.  Here, the mineral owner had made no attempt to drill or otherwise produce the mineral estate.  This case was appealed to the Texas Supreme Court, but that petition was denied in November.  A motion for rehearing on that denial has been filed and remains pending.  To read more, click here.  This exact issue–the relationship between solar and mineral interests–has been a topic of concern for solar developers across Texas.  Many developers require a surface owner to either own or control the minerals before entering into a solar contract, or require surface waivers be obtained from the existing mineral owners.  As we see more and more solar development across Texas, it will be interesting to see how these issues play out.  To learn more about solar leases, click here.Other Cases Pending Supreme Court ReviewThere are two other cases potentially pending Texas Supreme Court review that are worth mentioning.Hlavinka v. HSC Pipeline Partnership, LLC is a case involving a landowner challenging condemnation by a pipeline company.  Specifically, the First District Court of Appeals in Houston held that HSC did not conclusively establish its status as a common carrier pipeline as required to qualify to exercise eminent domain authority.  Moreover, the court held that the landowner could offer lay testimony regarding other private pipeline sales on the property and about his belief that the highest and best use of the property was for pipeline developments.  To read more, click here.  Currently, this case is pending review before the Texas Supreme Court.  The Court did require briefing on the merits, but no oral argument has been set or ruling made at this time.Huynh v. Blanchard is a case from the Tyler Court of Appeals involving a nuisance lawsuit against a chicken farm.  The Tyler Court of Appeals affirmed the trial court’s nuisance verdict and issued a permanent injunction against the farm.  Read more here.  The chicken farm filed a petition for review with the Texas Supreme Court in November and briefing is ongoing at this point.  If the Court accepts the petition for review, the question of whether a permanent injunction prohibiting agricultural operations on the farm is the appropriate remedy in this type of lawsuit. http://Texaslandandranch.com/blog/1342/2021-year-in-review-–-texas/ Tue, 11 Jan 2022 09:37:27 -0600 Originally posted by tiffany.dowell on the Texas Agriculture Law BlogHappy 2022!  As we do each year, we’ve compiled our list of some of the biggest agricultural law stories in 2021.  Today, we will take a look at this from the national level.  Next week, we will take a look at Texas-specific issues.  To hear Paul Goeringer and I discuss the biggest issues of 2021, click here to listen to our year-end episode of the Ag Law in the Field Podcast.Photo by Todd Aarnes on UnsplashWaters of the United StatesIf there has been one constant over the last 5 years, it has been the inclusion of this topic on every year-in-review blog post.  Just a brief background, the federal Clean Water Act was passed in 1972 giving federal jurisdiction to the Environmental Protection Agency and US Army Corps of Engineers over “waters of the United States.”  Particularly relevant for agriculture, this requires a federal permit to discharge a point source pollutant into a water of the US or to move dredge and fill material on a water of the US.  [To read more about the Clean Water Act and agriculture, click here or listen to my podcast with Anthony Schutz here.]  Despite using the term, the Clean Water Act did not define the meaning of “waters of the United States.”  Decades of litigation ensued.  In 2015, the Obama administration published its “WOTUS Rule,” to define the meaning of “waters of the United States.”  Lawsuits quickly followed around the country.  When President Trump took office, he told the EPA to rescind and revise the definition, and the Navigable Waters Protection Rule (“NWPR”) was passed in 2020.  Again, lawsuits quickly followed.  After an Arizona federal court struck down the NWPR, the Biden EPA announced it would no longer seek to enforce that definition.   In November 2021, the Biden administration published its proposed rule, which includes elements of Justice Scalia’s plurality opinion and Justice Kennedy’s concurring opinion in Rapanos v. EPA.  Public comment is currently open through February 7, 2022.  The final Biden rule is expected in 2022.  It is certainly likely that, again, lawsuits will follow.  Stay tuned for 2022, as I’ll be having Jim Bradbury on the podcast to chat with us about the proposed rule.  Also, if you really want to dive into the weeds on this topic, Jesse Richardson and I will have a law review article coming out in 2022 in the William & Mary Law Review that really provides a detailed history of waters of the United States.  Without question, this definition being a moving target is frustrating for landowners, agriculture, construction, and other industries required to follow the Clean Water Act.Carbon ContractsIf a person were to choose the hottest topic of 2021 by counting news headlines, carbon contracts might be high on that list.  There has been lots of discussion around the country about farmers entering into various agreements with companies related to carbon.  In the agricultural space, most of these agreements involve farmers or ranchers entering into contracts with brokers and agreeing to undertake certain production practices such as no till farming or regenerative grazing.  To listen to a podcast episode I did on this topic, click here.  To hear from a Midwestern farmer who has been involved with a number of carbon contracts with various companies, click here.  I’m currently working on a fact sheet along with Dr. Jordan Shockley from the University of Kentucky and Dr. Justin Benavidez with Texas A&M AgriLife Extension that will help farmers and ranchers know what to look for when evaluating a potential carbon contract.  For now, I would just remind everyone to take time to really review, analyze, and understand any contract prior to signing!Proposition 12Why does a California-specific law make the national list of hot topics?  Because of it’s potential to impact pork producers around the country.  California voters passed a ballot initiative in 2018 related to specific spacing requirements and production practices required for pigs, laying hens, and veal animals.  The initiative, Proposition 12, sets forth specifications that California producers must follow on their operations.  It also went a step further, providing that products raised in other states not comporting with these practices may not be sold in California.  For example, if a hog producer in North Carolina does not meet the spacing requirements of the California law, that producer may not sell his pork in California.  This provision goes into effect January 1, 2022 and reports indicate that nearly all pork produced in the United States would violate the California standards.  There were a number of lawsuits filed challenging the constitutionality of this law, but thus far, none have succeeded.  One such suit brought by the National Pork Council and the American Farm Bureau Federation was dismissed at both the trial court and the US Court of Appeals for the Ninth Circuit and is currently awaiting a decision on a petition for certiorari from the United States Supreme Court.  To listen to a podcast episode I did with Beth Rumley from the National Ag Law Center, click here.Beef CheckoffLitigation continues with regard to the Beef Checkoff program.  You may recall from this prior blog post that R-Calf USA filed suit against the Montana Beef Council (MBC) claiming that the MBC’s advertising violated the First Amendment rights of R-Calf members.  In 2020, the US District Court for the District of Montana dismissed the case, holding that the MBC advertisements constituted government speech, which is protected from First Amendment challenge. [Read blog post here.]  This was based in large part on Memorandum of Understandings that were signed between numerous state beef councils and the USDA, allowing government oversight of the messaging from the state beef councils.  The US Court of Appeals for the Ninth Circuit affirmed this decision on appeal in July 2021.  [To listen to a prior podcast episode discussion these issues, click here.]  Additionally, in 2020, R-Calf filed suit against the USDA alleging that these MOUs were unlawful as the USDA failed to follow the Administrative Procedures Act. In September 2021, the US District Court for the District of Columbia denied USDA’s motion to dismiss the case, allowing it to proceed.US Supreme Court Water Law RulingsIf anyone is curious about what can unite the United States Supreme Court, apparently it’s water law cases.  This year, the High Court issued two unanimous opinions in water law disputes between states.  To hear a discussion between Jesse Richardson and me on these cases, click here.Most recently, the court dismissed the claims in Mississippi v. Tennessee.  This case involved a dispute over the Middle Claiborne Aquifer, which sits beneath multiple states, including Mississippi and Tennessee.  Mississippi argued that Tennessee’s pumping resulted in the loss of billions of gallons of water that used to lie beneath Mississippi.  In what is an important opinion on an issue of first impression, Chief Justice Roberts found that the doctrine of “equitable apportionment” applied to this case.  This doctrine had previously only been applied to surface water disputes.  This case makes clear that equitable apportionment applies to an interstate aquifer if it is: (1) multistate; (2) water flows naturally between the states; and (3) actions of one state affects portions of the aquifer below another state.  Because Mississippi expressly said it did not seek equitable apportionment, and because the Court found that to be the only available remedy in this dispute, the case was dismissed.  It will be interesting to see how this plays out in cases going forward now that it is clear that, at least in some instances, equitable apportionment does apply to groundwater.The other water law decision from the Supreme Court this year pitted Florida against Georgia in a dispute over the waters of the Apalachicola Chattahoochee Flint River Basin.  Florida filed an equitable apportionment lawsuit claiming that Georgia was using more than their fair share of the water from the basin.  Justice Barrett wrote for the unanimous Court finding that Florida simply could not prove substantial injury caused by Georgia’s actions.  Thus, the case was dismissed.DicambaJust recently over the last couple of weeks, dicamba has been in the news based on various statements and reports from the EPA.  You may recall that in 2020, the US Court of Appeals for the Ninth Circuit vacated the registration for three over-the-top dicamba products in June.  [To read more about that click here or listen here.]  In November 2020, the EPA approved the use of XtendiMax, Engenia, and Tavium through 2025 and added a number of additional restrictions to the label.  [Read more here.]  At the end of December 2021, the EPA released a summary of dicamba-related incident reports from the 2021 growing season.  This report noted widespread alleged damage from dicamba in 2021, despite the more restrictive label.  The EPA also stated that it could not move quickly enough to fully implement changes by the 2022 growing season.  [Read article here.]North Carolina Right to Farm StatuteAnother development right at the end of 2021 came from North Carolina where the NC Court of Appeals upheld the constitutionality of the state’s Right to Farm statute.  After numerous hog farms were sued for nuisance in North Carolina, the General Assembly passed (overriding the governor’s veto) a more stringent Right to Farm Statute in 2019. Plaintiffs filed suit challenging the constitutionality of the amended Right to Farm law.  The trial court granted the state’s motion to dismiss in December 2020.  On December 21, 2021, the North Carolina Court of Appeals affirmed that dismissal. [Read Opinion here].Potential Changes to Estate & Capital Gains TaxesLastly, one of my most popular speaking requests related to potential changes that did not occur in 2021.  There were certainly proposals, talking points, and agendas in Washington, DC that would have modified estate and capital gains taxes, which had agricultural producers and rural landowners paying attention.  In particular, there was concern from agricultural groups that Congress might decrease the lifetime exemption for estate taxes from the current 2021 level of $11.7 million/person to far less, with some proposals suggesting $3.5 million/person.  [Read this prior blog post about estate taxes.]  With regard to capital gains taxes, agricultural groups were concerned that Congress may do away with the step up in basis or impose capital gains taxes on unrealized gains at death.  [Read this prior blog post about capital gains taxes.]  Thus far, none of these changes have come to fruition.  [To listen to podcast episodes about estate, gift and capital gains taxes, click here and here.]FacebookTwitterEmailThis entry was posted in Carbon Contracts, Checkoff Program Challenges, Dicamba, Federal Regulations, Right to Farm laws, United States Congress, United States Supreme Court Decisions, Water Law, WOTUS, Year in Review. 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