July 16, 2021 Weekly Round Up

I’m not sure how this happened, but it is the middle of July and the summer is flying by.  There are plenty of agricultural law stories in the news.

Photo via Laura McKenzie/Texas A&M AgriLife Marketing and Communications

*President Biden addresses several agricultural issues in Executive Order Promoting Competition in the American Economy.  President Biden recently issued his Executive Order on Promoting the Competition in the American Economy.  [Read Fact Sheet here.]  This Executive Order addresses a number of issues, including several related to agriculture.  Namely, the Executive Order: (1) directs USDA to consider new rules under the Packers and Stockyards Act to make it easier for farmers to successfully make claims; (2) directs USDA to consider promulgating new rules about when meat may be labeled “Product of the USA”; (3) Directs USDA to support alternative food distribution systems and develop standards and labels for such markets; and (4) encourages the FTC to limit equipment manufacturers from restricting a person’s right to repair, such as limitations on farmers’ rights to repair tractors.  [Read article here and listen to prior podcast episode on the Right to Repair here.]

*Courts issue injunctions and certify classes in challenges to USDA loan repayment for socially disadvantaged farmers and ranchers.  You may recall from prior posts there have been several lawsuits filed challenging the legality of Section 1005 of the American Rescue Plan Act, which would pay up to 120% of eligible loan balances to socially disadvantaged farmers and ranchers.

In Miller v. Vilsack, the US District Court for the Northern District of Texas issued a preliminary injunction against the debt relief program and certified two classes to challenge the program.  The two certified classes consist of US farmers who do not meet the definition of a socially disadvantaged farmer or rancher in Section 1005.  The injunction will prohibit USDA from “discriminating on account of race or ethnicity” in carrying out the loan forgiveness program, including “considering or using an applicant Class Member’s race or ethnicity as a criterion” or “considering or using any criterion that is intended to serve as a proxy for race or ethnicity” in determining eligibility for loan forgiveness.  [Read Order here.]

Similarly, in Wynn v. Vilsack, a Florida federal court issued a preliminary injunction in a lawsuit claiming Section 1005 violated the equal protection and due process clauses and violated the Administrative Procedures Act.  The court granted the motion for injunction, finding that Section 1005 was not sufficiently narrowly tailored as well as being both over- and under-inclusive.  Because the court found the plaintiff likely to succeed on the merits, the preliminary injunction was granted, thereby halting any payments under Section 1005 until further notice from the court. [Read Order here and article here.]

*FSA announces new indemnity program for livestock and poultry producers due to pandemic.  Livestock and poultry producers who suffered losses due to insufficient access to processing facilities may qualify for the newly announced Pandemic Livestock Indemnity Program (PLIP).  The program is designed to offer indemnity to producers who depopulated herds during the pandemic from March 1, 2020 through December 26, 2020.   Applications will be taken from July 20 – September 17 at local FSA offices.  Payments will be based on 80% of the fair market value of the animals and the cost of depopulation and disposal.  Chickens, turkeys, and swine qualify for the program, but packers, live poultry dealers, and contract growers are not eligible.  Payments will be reduced by any payments received for disposal under EQUIP or any other state program, and by any CFAP 1 and 2 payments made on the same inventory of swine depopulated.  [Read press release here.]

*Mississippi Supreme Court dismisses lawsuit relying on Right to Farm Statute in lawsuit alleging propane cannon to scare deer from fields was nuisance.  In Briggs v. Hughes, the Mississippi Supreme Court found that the Mississippi Right to Farm Act protects farmers using propane cannons to keep deer away from fields.  [Read article here.]

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Upcoming Programs

Next Friday and Saturday, I’ll be at the Texas and Southwestern Cattle Raisers Association Convention in Ft. Worth.  On Saturday morning, I’ll be speaking as part of the Ask an Ag Lawyer session with my friends Jim Bradbury, Amber Miller, and James Decker.  Saturday afternoon, I’ll be speaking as part of the Texas Cattle Women’s meeting.  If you’re going to TSCRA, I hope to see you there!

The following week, I’ll be presenting July 28 on fence law at the Ag Producers Virtual Lunch and Learn hosted by a group of County Extension Agents in East Texas.  Then, on July 29, I’ll be speaking on agricultural law at a virtual webinar series called “Amongst the Pines” hosted by the Texas A&M Forest Service.

Then, I’ll be kicking off August at Beef Cattle Short Course in College Station.  I’ll be presenting the Landowner Rights Session where we’ll cover landowner liability and estate planning.  For more info, click here.  If you see me around the Short Course, be sure to say hi!

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