Interpreting Conservation Easements and When New Structures are Allowed

Image of tractor in field by Chesapeake Bay Program

The article is not a substitute for legal advice. 

            The Court of Special Appeals of Maryland recently reversed the Circuit Court for Howard County’s granting of summary judgment involving how to interpret a conservation easement.  At issue in the decision is whether the easement allowed for additional residences to be built on the preserved farmland beyond the existing four residences when the easement was granted.  The easement permitted additional structures supporting continued agricultural use of the land to be built.  The new owners argued that the new house was an “additional structure” and should be allowed.  The decision is in Roxbury View, LLC v. McCauley.

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Recent Wind Farm Decision Highlights Difference in State Processes

Image of wind turbine in field by Chesapeake Bay Program

The article is not a substitute for legal advice. 

            A recent decision by Maryland’s Court of Special Appeals highlights the differences that proposed power generation facilities can bring before the Public Service Commission (PSC). For example, a proposed power generation facility can consider applying for a Certificate of Public Convenience and Necessity (CPCN) or for an exemption from the CPCN process.  The recent decision in Dan’s Mountain WindForce, LLC v. Shaw highlights the differences between these two processes, which will be vital to understand as renewable energy development in the state increases.

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Potential Class Action Lawsuit Filed Arguing Broiler Growers Are Employees of Company

Image of poultry houses with deer in the foreground. Image is by Chesapeake Bay Program

The article is not a substitute for legal advice. 

            An interesting potential class action was recently filed in U.S. district court in South Carolina involving a broiler grower and Amick Farms.  In this class action suit, the grower argues that they and other similarly situated growers for Amick Farms are Amick employees and not independent contractors as their contracts state.  This action is currently in the early stages and will be worth watching for those in the industry going forward. It is important to note that, however, as of right now, the action only involves Amick Farms and no other integrated poultry operations.  The action in question is Diaz v. Amick Farms, LLC, No. 5:22-CV-01246.

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Idaho CAFO Permit Sent Back to EPA for Lack of Monitoring

Image showing spreading liquid manure on a field by Chesapeake Bay Program.

This is not a substitute for legal advice. 

            Recently, the 9th Circuit Court of Appeals vacated Idaho’s Concentrated Animal Feeding Operation (CAFO) National Pollutant Discharge Elimination System (NPDES) permit for lack of monitoring underground discharges and potential discharges from dry weather applications.  Food and Water Watch (FWW) and the Snake River Waterkeepers (SRW) brought the lawsuit.  The decision vacates the permit back to EPA to determine its next steps.  The decision is in Food & Water Watch v. EPA.

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Ninth Circuit Rules in Favor of Beef Checkoff Program

This is not a substitute for legal advice. 

Image of barn and livestock corral in Montana. The image is by Daimon Eklund

            The Ninth Circuit Court of Appeals recently affirmed a U.S. District Court of the District of Montana decision holding that the Montana Beef Council’s and other qualified state beef councils’ (QSBCs) advertisements are exempt from First Amendment scrutiny. The decision is in Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. Vilsack, No. 20-35453 (9th Cir. July 27, 2021).

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Group Does Not Have Standing to Challenge USDA Loan Guarantee for Poultry Farm

Maryland poultry farm on the lower Eastern Shore by the Chesapeake Bay Program

This is not a substitute for legal advice. 

            Back in 2018, I posted on a federal district court decision involving a challenge to a USDA loan guarantee granted to a new Maryland poultry farm in Caroline County.  Food & Water Watch (FWW) had challenged the environmental assessment required at the time to comply with the National Environmental Policy Act (NEPA); see that information here.  In 2018, the federal district held that FWW had standing to bring the challenge. Still, a federal court of appeals recently reversed this decision. A two-judge panel of the U.S. Court of Appeals, District of Columbia, agreed that FWW did not have standing. 

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Federal Judge Allows Lawsuit to Continue Against Hog Farm

Hog farm with small pigs in a confined system. Image is by United Soybean Board.

This is not a substitute for legal advice.  See here for the site’s reposting policy.

            Late in 2020, we had a North Carolina Hog Farm Litigation settlement that ended several lawsuits filed against Murphy-Brown, LLC and Smithfield Foods.  In May 2020, neighboring landowners filed a new set of federal lawsuits against Murphy-Brown and Smithfield, the same defendants in the prior lawsuits.  Similar to the previous lawsuits, neighbors sued the companies that the farms grow for, not the actual hog farms themselves.  In these lawsuits, the neighbors used legal theories based on trespass and negligence and not around nuisance.  Recently, the federal judge hearing the lawsuit allowed it to continue and ruled the state’s right-to-farm law did not apply, though providing a defense in this case to the trespass and negligence claims.  The judge also dismissed two other claims brought by the neighbors. 

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Maryland Court Rules Poultry Farm Manager Is Co-Employee of Integrator in Workers’ Compensation Case

Chicken barns rise from a farm in Queen Anne’s County, Md., on June 27, 2016. (Photo by Will Parson/Chesapeake Bay Program with aerial support by LightHawk).

The article is not a substitute for legal advice. 

            The Court of Special Appeals of Maryland, in Uninsured Employers’ Fund v. Tyson Farms, Inc., recently agreed with the Workers’ Compensation Commission that a poultry farm manager’s occupational disease disablement arose out of his co-employment to both the poultry farm owner and the poultry company, Tyson Farms, Inc. Tyson may appeal to the Court of Appeals of Maryland, but growers and companies should consider the possible implications of this decision.

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Baltimore City Food Truck Ordinance is Constitutional

Image of food truck. Image by Peter Burnham

The article is not a substitute for legal advice. 

            Over the past few years, a revolution in the food service industry has developed with the increased popularity of food trucks.  Although many may love to get their daily lunch from food trucks, these vehicles have raised some concerns among many brick-and-mortar restaurant owners.  Baltimore City imposed restrictions on food trucks, limiting them from operating within 300 feet of any retail business establishment primarily engaged in selling the same type of food product, other merchandise, or services (Art. 15 § 17-33).  Food truck operators challenged this law in circuit court, and the ordinance was found unconstitutional for vagueness issues.  The City appealed, and the Maryland Court of Special Appeals recently ruled that the ordinance is not illegal, reversing the circuit court.  The Maryland Court of Appeals has agreed to hear the case on appeal, possibly putting an end to litigation involving the ordinance.

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USDA Did Not Have the Discretion to Implement New Program That Benefited Farmers: When Does The Agency Have Discretion to Implement a New Program?

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Combine unloading wheat into a semi truck in a harvested field.  Photo by Shannon Dizmag via flickr.com

The article is not a substitute for legal advice. 

Many of us are paying attention to the debate over the new Farm Bill and looking at how changes to existing programs and potential new programs. One issue that may come up after passing a new Farm Bill is how quickly USDA must implement the program changes or new programs. In Ausmus v. Perdue, a group of Colorado wheat farmers recently won after selecting to utilize a new crop insurance product before USDA’s Risk Management Agency (RMA) had implemented the product for wheat. The court ruled that although it might conflict with other duties had under federal law, RMA had to allow producers the ability to use the program after the effective date of the 2014 Farm Bill and not when RMA had implemented the regulations. Continue reading