Thursday, May 25, 2006

Louisiana Catfish Statute and Use of the Term Cajun Interpreted

Piazza's Seafood World v. Odom, 2006 U.S. App. LEXIS 11188 (5th Cir. 2006)

In this case, the court considered the constitutionality of a statute that regulated the labeling of catfish and one that regulates the use of the word "Cajun" on food products. Piazza imports seafood and sells it using the word Cajun in its brands.

In the district court, the Louisiana Commisioner of Agriculture was enjoined from enforcing the statutes. The court found that the Catfish Statute, La. Rev. Stat. sec. 3:4617(c) was preempted by 21 U.S.C. secs 321d and 343(t). The court also found that the statute regulating the use of the term Cajun violated the first Amendment.

On appeal, the Court of Appeals affirmed, finding that the Catfish Statute violated the dormant commerce clause in that it improperly discriminated against foreign commerce in favor of local interests because it was protectionist. The Court of Appeals also affirmed the district court's finding that the Cajun Statute violated the 1st amendment as to Piazza's use of the term under the test announced in Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980).

Native American Farmers Cannot Cultivate Hemp Without DEA Registration

United States v. White Plume, 2006 U.S. App. LEXIS 12090 (8th Cir. 2006)

The Oglala Sioux Tribal Council passed an ordinance which criminalized production of marijuana. The ordinance was amended to exclude from the definition of marijuana a crop containing less than 1 per cent THC. The tribe was aware that the US DEA took the position that manufacture of industrial hemp required a DEA certificate of exemption.

Subsequently, White Plume raised a crop of industrial hemp on federal trust land which the government destroyed. In 2002, White Plume again raised a crop of industrial hemp and again, the government destroyed it and the district court enjoined the defendant from further production without a certificate of exemption.

The Court of Appeals held that the Controlled Substances Act required that the defendant submit to registration, and also found that the Treaty of Fort Laramie of 1868, which addressed native american farmers did not preserve any right to grow industrial hemp.

Court Affirms Denial of Benefits for Converting a Wetland

Holly Hill Farm Corp. v. United States, 2006 App. LEXIS 11375 (4th Cir. 2006)

In this recently decided case from the 8th Circuit court of appeals, farm owners were denied program benefits when they converted a one acre wetland into a pasture on their 650 acre property. Under the "Swampbuster" provisions of the Food Security Act of 1986, farmers are prohibited from producing an ag commodity crop on lands that have been converted from wetlands. Under subsequent legislation the prohibition was extended to include land on which commodity production is possible. Conversion of a wetland after Novembner 28, 1990 serves to make the converter ineligible for USDA program benefits.

Tuesday, May 23, 2006

Kimchi For the 21st Century? Read On.....

It was reported by the Los Angeles Times yesterday that many new developments are taking place in the realm of Korea's traditional hot and spicy pickled cabbage.

What is most interesting is that there is an entire scientific research bureau, the Kimchi Research Institute, devoted to researching the healing and therapeutic effects of the national delicacy from the Hermit Kingdom. All of which raises the question: what do they know that we don't?

Among other new and interesting developments: Kimchi has been shown to lower stress among mice fed on the fiery pickle, special anti aging, anti obesity and anti cancer kimchi is being developed by the Kimchi Research Institute, and there are literally thousands of books and doctoral dissertations on the subject. The counter to that is that people who regularly consume large quantities of kimchi are more likely to develop gastric cancer at rates ten times higher than here in the states.

The scientific establishment in Korea has also developed a special blend of kimchi that will be provided for the delectation of future astronauts who will travel to space aboard a Russian Soyuz in 2008 to the International Space Station. One can only hope that the other residents of the space station are provided with the appropriate level of protection from the resulting....ahem....fumes.

Koreans, it seems, take their national passion very seriously indeed, as befits a serious and hard working group of people who have done a lot with a very little.,0,2559692.story?coll=la-home-headlines

Monday, May 15, 2006

Owner of Trespassing Cattle Liable for Damage

Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286 (Colo. Ct. App. 2005)

Harsh owned nine fields comprising 165 acres with center point irrigation, and he raised corn on them. The fields were protected by a barbed wire and an electrified fence. Cure Feeders put cattle to pasture on the adjoining lands. The cattle broke through the fence, spreading out onto irrigated and unirrigated areas and also causing the loss of a large amount of prepared fertilizer.

Harsh sued Cure to recover the yield difference between the undamaged and damaged areas of his cornfield based on a projection of anticipated yield. The trial court concluded that Harsh had not adequately documented his deductible costs he was not entitled to recovery, and the court also denied the claim for damages for the spilled fertilizer.

The Colorado Court of Appeals reversed, saying that the correct measure of damages in a case where the crop is not completely destroyed was correctly stated in Blossom v. San Luis Valley Crop Care, Inc., 596 P.2d 1189 (Colo. 1979). That case stands for the proposition that when a crop is partially destroyed, the measure of damages can be adequately demonstrated by comparisons, which the plaintiff had demonstrated at trial.

On the issue of liability for the spilled fertilizer, the Court of Appeals also reversed, holding that the fence law was applicable to the controversy, which included liability for damage that the trespassing cattle caused while in Harsh's cornfield.

Ag Decision Maker's Page

Prof. Roger McEowen, the agricultural law guru deluxe, is putting some timely agri law legal information up on the Iowa State extension Ag Decision Maker's page. I've linked it to this blog. It's well worth a visit. When you get to the Ag decision maker's page click on legal and taxes over on the left hand side and you're there.

Roger's got a big job ahead of him to measure up to the standard that Neil Harl set. Prof. Harl, of course recently retired after many years in harness, and he is one of those people whose discourse is so clear and incisive that it leaves you shaking your head and saying "Now why in the hell didn't I think of that?"

Right to Farm Issue Not Reached In Code Enforcement Suit

Vavrus v. City of Palm Beach Gardens, 2006 Fla. App. Lexis 4959 (Fla. Ct. App. 2006)

Vavrus' land was annexed to the city at his request, but he refused to allow access to code enforcement officers, instead operating a clearcut softwood timber logging operation on his land. In his counterclaim, among other things, Vavrus argued that the Florida Right to Farm statute prohibited the city from regulating his activities. Passing on the right to farm question the court held that Vavrus had not preserved the alleged improprieties of the trial court judge for review.

Constitutionality of Michigan Right to Farm Law Not at Issue in Nuisance Case

Vasko v. Michigan Department of Agriculture, 2006 Mich. App. LEXIS 293 (Mich. Ct. App. 2006)(unpublished opinion)

Pro se plaintiffs sued a hog farm operator on a nuisance theory. Among other things, the plaintiffs requested a determination of the constitutionality of the Michigan right to farm law in view of Bormann v. Kossuth County Board of Supervisors, 584 N.W.2d 309 (Iowa 1998). The Bormann case held that Iowa's right to farm nuisance suit exemption constituted an uncompensated taking of an easement.

The Vasko court found that the plaintiffs failed to allege any facts that would controvert the governmental immunity of the Michigan Department of Agriculture, and also found that the plaintiffs had failed to allege any reasons why Bormann was relevant or applicable to the case at bar.

Lease From Life Tenant Expires on Life Tenant's Demise

Olmsted v. Nodland, 828 N.E.2d 338 (Ill. App. 2005)

Nodland leased farm ground from a life tenant on a cash basis. The life tenant died in 2003, and the sole remainderman served a notice of termination of the lease on the lessee. The lessee argued he was entitled to farm the ground for the 2004 crop year under the lease. It was held by the court that a life tenant's ownership interest, and any lease thereunder, expires with the death of the life tenant, unless the lease specifically provided otherwise.

Google News Malaprops

Sometimes the system by which Google News ranks news stories produces unexpectedly funny results.

I mean, don't get me wrong.

Google is the single biggest thing that's come along since the wheel. In addition the folks at Google provide this forum free of charge and remarkably free of niggling and small minded oversight. This they do out of a sense of doing good works, as I understand their corporate ethos. It also grows the internet, which is one of those rising tides that float all sorts of things including their revenues.

Most recently they ran a story this moring about the conjoined twins that are the biggest thing to hit Fargo, North Dakota since the blizzard of 1936. Here's how it looked.

Conjoined twins doing well after separation surgeryFood Consumer - 19 hours agoBy Sue Mueller. The twins, born to a Fargo North Dakota couple, are doing well Saturday morning after an uneventful night, Mayo Clinic said. After surgery, they remain in intensive care under sedation, as planned ... Surgeons separate conjoined twins Monsters and Critics.comParents pray for recovery and of twins The Mercury (subscription)Contra Costa Times - - - Pioneer Press - all 712 related ยป

Friday, May 12, 2006

Smithfield Loses Appeal of Union Busting Thuggery

United Food & Comm'l Workers v. Nat'l Labor Relations Board, 2006 App. LEXIS 11190 (D.C. Cir. May 5, 2006)

It was widely reported that the D.C. Circuit handed down a decision Monday which should get the attention, however briefly, of thugs and union busters in the meat packing industry.

In 1992 Smithfield established a processing facility in North Carolina that soon became the focus of organizing efforts by the UFCW. The UFCW lost elections in 1994 and 1997. In actions that would have made Carnegie and Frick proud, Smithfield threatened to fire employees who voted for organizing, freeze wages and ultimately to close the facility. Smithfield also threatened to discipline employees, it grilled suspected pro union employees, it confiscated recruiting materials and spied on the workers with videocameras.

Complaints were filed with the NLRB and a voluminous decision was released, the opinions consisting of nearly 400 pages of record, which was the subject of the instant appeal

The Court of appeals found that Smithfield had threatened workers, ordered one to stamp hogs with a "vote No" stamp, unlawfully discharged several employees for union activities, and violated its own employee disciplinary process in so doing.

In an interesting sidelight, three former Smithfield attorneys intervened, in an attempt to upset the NLRB's decision to investigate them for potentially suborning perjury with respect to the testimony of a witness and the procurement of a potentially spurious affidavit.

Think about all that the next time you're in the grocery looking for some chops to toss on the barbecue-there's a lot more going on than happy farmers and full cases at the meat counter.

Closer than you think?

One of the news sources that graces my cyber table is the Miami Herald, and it is a snappy and interesting work in progress that seems to contain more than its share of strange stuff.

It was reported by that august journal that an alligator attacked, dragged into the water, and partially consumed a 28 year old woman who was sitting on a canal bank in West Broward the other day. It was determined that the gator was 8-10 feet long.

I know, I know. This is supposed to be an agricultural law blog. But this is interesting.

What it points to is that the natural world operates by different rules than our world does, and that the natural world really hasn't gone away at all. It's been there all along, waiting and watching.

Tuesday, May 09, 2006

Challenge to Open Range Doctrine Fails on Constitutional Grounds

Herzberg v. County of Plumas, 34 Cal. Rptr. 3d 588 (Cal. Ct. App. 2005)

The "open range doctrine" is a rule of law that provides that no liability shall attach to the owner of cattle for the trespasses of the cattle in open range, unfenced districts, unless the landowner has erected a suitable fence. This is known as the fence-out provision, and it is a notion that has existed in American law since the middle of the 19th century. Cases in some states have extended the open range doctrine to preclude liabilityfor cattle owners whose animals wander into roadways and cause collisions with motor vehicles. That is something quite different.

In this case, the plaintiffs challenged a county open range statute that, they say, compelled them to accept the trespasses of cattle belonging to their neighbors without recourse. This, they alleged, was a taking of private property for public use without compensation. The landowners further alleged that their property was trampled, damaged and, as is customary among cattle, that it was pooped upon.

The court found that the essential elements for a taking did not exist, as the only remedy the plaintiffs were precluded from in addressing the issue was distraint of the cattle.

Injured Recreational Horsewoman's Claim Defeats Equine Activity Defense

Teles v. Big Rock Stables, L.P. 2006 U.S. Dist. LEXIS 13035 (D. Tenn. 2006)

Plaintiff rented a horse from the stable to ride on trails owned by Big Rock. Plaintiff also signed a release of liability of the stable and its associates for ordinary negligence prior to riding the horse. The plaintiff alleged that she was provided with a faulty saddle which caused her to fal and sustain injury.

The defendants moved for summary judgment, asserting that Tenn. Code Ann. 44-20-101 et seq. , the "Equine Activities Act" barred the plaintiff's claim. The statute provides that an equine activity operator is immune from liability because of the risks inherent in riding horses. The statute also provides that if the operator knows or should have known that equipment provided for the rider is faulty or willfuly or wantonly disregards the safety of the participant, then liability is not barred by the statute. The defendant also argued that the signed release of liability barred the plaintiff's claim.

The court overruled the defendant's motion for summary judgment, finding that the exculpatory clauses in the release of liability were unenforceable as to intentional, reckless or grossly negligent conduct. Likewise, a reasonable jury could find that the conduct alleged was willful and wanton, taking it out of the reach of the Equine Activities statute.

Claim on Gifted Stud Fee Time Barred

In Adika v. Smith, the U.S. District Court for Western Kentucky looked at a cause brought by a jockey's agent under a gifted stud arrangement. Smith, the jockey, raced a horse named Unbridled's Song throughout its career, and Adika was Smith's agent under an oral agreement. When the horse was retired and placed at stud, Smith was granted a "gifted stud fee" by the owner, Paraneck Stable which returned money to Smith every year.

Adika never made a claim on anything Smith received under the gifted stud arrangement during their agency agreement which ended in 1999, and sued on the agreement in 2005. Smith argued that the five year statute of limitations on oral contracts in Kentucky barred Adika's claim. The case came on for hearing in late 2005 on Smith's motion to dismiss.

The court agreed, holding that Kentucky Rev. Stat 413.120 applied, barring Adika's claims.

Adika v. Smith, 2005 U.S. Dist. LEXIS 27205 (D. Ky. 2005).

Tuesday, May 02, 2006

Fraud Allegations in Production Contracting Time Barred

Sanderson Farms Inc. v. Ballard, 917 So.2d 783 (Miss. 2005).

In this case, a group of broiler and egg producers attacked Sanderson's ranking system, by which producers were ranked by efficiency within the group and the best performers were compensated thereunder. The producers argued that their assent to the production contracts they signed was procured through fraudulent and negligent inducement. They also argue that the statute of limitations was tolled through fraudulent concealment on the part of Sanderson.

The court found that the defendants on appeal were well aware of the ranking system long before the three year statute of limitations on fraud claims. Under Miss. Code. Ann. sec. 15-1-49 their claims were therefore time barred. The court also found that the defendants on appeal had not demonstrated any affirmative act of concealment that would operate to support a claim of fraudulent concealment.

Because the fraud claims were time barred, the rest of the defendant's complaint was moot.

Monday, May 01, 2006

Right To Farm Does Not Protect A Malicious Structure

Morytko v. Westfort, 2005 Conn. Super. LEXIS 1456 (Ct. Sup. Ct. 2005).

In this action, a defendant sold most of his farm for subdivision but retained a small part on which he produced bedding plants and hay but always kept some animals.

Previously, the defendant had moved cattle onto his property immediately adjacent to the plaintiff, possibly in retaliation over a dispute among members of the subdivision, but removed them.

When the plaintiff's husband became a board member of the subdivision and the board decided to place street signs, one Ranno, on whose lot a sign was to be placed, stated he was going to place animals on Westfort's property and not remove them until the sign was removed. Ranno and Westfort together located animals on the property adjacent to the property line and also a truck with the legend "Baa baa" painted on it.

The plaintiff alleged that the animal pen and the box truck were nuisances and a maliciously erected structure, which is actionable under Connecticut law. The defendant raised the right to farm law, Conn. Gen. Stat. sec. 19a-341 (2005) as a bar to a nuisance action.

The court noted that the statute did not apply when a nuisance arose from negligent, willful or reckless conduct in the operation of the farm. As it was likely that the plaintiff would prevail in showing willful conduct on the part of the defendants, they would likely not prevail on their right to farm defense.

Nuisance Abatement Action Does Not Deprive Landowner of the Right to Farm

Gray v. County of Riverside, 2006 Cal. App. LEXIS (Cal. Ct. App. 2006)

In a recent unpublished opinion (April 10, 2006) the California Court of Appeals addressed landowner contention that a nuisance abatement action by the county deprived them of their right to farm the property. The plaintiffs had an eleven acre property that was the subject of complaints by the neighbors, and it contained numerous deceased motor vehicles, run down house trailers, and rubbish. They asserted that they were in 'the early stages' of establishing a farm on the property and relied on the California Right to Farm statute, Cal. Civ. Code, sec. 3482.6 which generally bars nuisance suits against existing agricultural operations that are operated in accordance with proper and usual standards. The court of appeals stated that the landowners had the burden of proving the applicability of the statute, in particular that they had to show that the nuisance complained of was an agricultural activity conducted for commercial purposes in a manner consistent with proper and accepted customs judged by the conduct of similar operations in the area. The court also stated that the plaintiff also had to show that the nuisance claim arose as a result of changed circumstances in the area after his operation had been in business for three years or more. As the court noted, the plaintiffs did not submit any evidence to support their defense which rendered their arguments 'meritless'.