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Written by:\u00a0 <\/span> Brook Duer\u2014Staff Attorney<\/span> Want to listen to this Weekly Review? Check out the<\/span> <\/span>Penn State Agricultural Law Podcast<\/span><\/a>.\u00a0\u00a0<\/span><\/p>\n Right to Farm: North Carolina Swine Production Facility Nuisance Verdict Upheld On Appeal and Smithfield Announced Unspecified Settlement of Claims\u00a0<\/span><\/p>\n On November 19, 2020, the U.S. Court of Appeals for the Fourth Circuit issued an <\/span>opinion<\/span><\/a> affirming in part and vacating in part a judgment entered in the U.S. District Court for the Eastern District of North Carolina (<\/span>McKiver v. Murphy-Brown, LLC<\/span>, <\/span>No. 7:14-cv-00180<\/span><\/a>) upon an April 26, 2018 verdict awarding compensatory damages for nuisance of $75,000 each and punitive damages of $5 million each (reduced by state law to $250,000 each) in favor of ten neighboring landowners arising from odors, pests and noises from neighboring vertically-integrated contract production facilities producing approximately 15,000 hogs annually for Murphy-Brown, LLC, a wholly-owned subsidiary of the Chinese-owned pork and food processing company Smithfield Foods, Inc.\u00a0 Because of unique language in North Carolina\u2019s then-current Right to Farm Law (RTF) applicable to the case, and which has since been amended in a way that would prevent this result, the <\/span>trial court previously ruled North Carolina\u2019s RTF Law inapplicable<\/span><\/a>.\u00a0 In a complex decision, with a separately written concurrence and a dissent, analyzing multiple evidentiary and other legal issues, the Fourth Circuit Court upheld the verdict for compensatory damages in all respects.\u00a0 With regard to punitive damages, the Court upheld the awarding of punitive damages based on the evidence properly admitted but found prejudicial the consideration of evidence of the Defendant\u2019s parent company\u2019s financial information and remanded the case for a new calculation of punitive damages.\u00a0 This case is part of 20+ nuisance cases against Smithfield Foods and\/or subsidiaries pending in North Carolina and arising from swine production facilities which request the same legal relief, at least three of which have reached a verdict.\u00a0 According to <\/span>media accounts<\/span><\/a>, within hours of the Fourth Circuit decision, Smithfield Foods <\/span>announced<\/span><\/a> a settlement of all such cases, although no facts or details of such a settlement have been yet released.\u00a0\u00a0<\/span><\/p>\n Pesticides: Ninth Circuit Denies Rehearing on Enlist Duo Registration Approval<\/span><\/p>\n On November 18, 2020, the U.S. Court of Appeals for the Ninth Circuit issued an <\/span>order<\/span><\/a> denying both a rehearing and rehearing en banc to reconsider EPA\u2019s registration approval of Dow\/Corteva Agriscience\u2019s glyphosate blend, Enlist Duo.\u00a0 A <\/span>petition<\/span><\/a> for rehearing was filed by petitioners National Family Farm Coalition, et al. on September 15, 2020, following the court\u2019s upholding of EPA\u2019s Enlist Duo registration approval.\u00a0 For more on this topic, see <\/span>ALWR\u2014week ending July 24, 2020<\/span><\/a>, \u201cNinth Circuit Court of Appeals Affirms EPA Registration Approval for Glyphosate-Blend Enlist Duo (2,4-D).\u201d<\/span><\/p>\n National Agricultural Policy: GAO Reports on USDA \u201cActively Engaged in Farming\u201d Eligibility Compliance Review<\/span><\/p>\n On November 16, 2020 the U.S. Government Accountability Office (GAO) <\/span>publicly released<\/span><\/a> a <\/span>report<\/span><\/a> titled, \u201c<\/span>Farm Programs: USDA Has Improved Its Completion of Eligibility Compliance Reviews, but Additional Oversight Is Needed<\/span>.\u201d\u00a0 While the report found that, since 2013, the U.S. Department of Agriculture (USDA) has improved its review procedures to ensure that farm program payment recipients are <\/span>actively engaged in farming<\/span> through either active personal management or personal labor, USDA did not systematically monitor its performance of compliance reviews, thus allowing for non-compliant recipients to continue collecting payments.\u00a0 The report includes five recommendations for the USDA to improve its eligibility compliance reviews, including electronic safeguard to prevent a compliance review from being entered as both waived and completed, and further examination of the extent to which compliance review teams document the reasons for not doing an interview.<\/span><\/p>\n Ag Transportation: FMCSA announces Interim Final Rule \u201cHours of Service Drivers; Definition of Agricultural Commodity.\u201d<\/span><\/p>\n On November 19, 2020, the U.S. Department of Transportation\u2019s Federal Motor Carrier Safety Administration (FMCSA) <\/span>announced<\/span><\/a> the forthcoming publication in the Federal Register of a <\/span>final rule<\/span><\/a> titled, \u201c<\/span>Hours of Service of Drivers; Definition of Agricultural Commodity<\/span>.\u201d\u00a0 The new rule, which was published as proposed on July 29, 2020 (<\/span>84 FR 36559<\/span><\/a>), clarifies the definition of the terms \u201cany agricultural commodity,\u201d \u201clivestock,\u201d and \u201cnon-processed food\u201d for the purposes of hours of service rules.\u00a0\u00a0\u00a0<\/span><\/p>\n National Agricultural Policy: Farm and Environmental Groups Form Alliance to Tackle Climate Change<\/span><\/p>\n On November 17, 2020, the <\/span>Food and Agriculture Climate Alliance<\/span><\/a> (FACA) <\/span>announced<\/span><\/a> a set of forth policy recommendations to shape federal climate change policy, which address soil health, livestock and dairy, forests and wood products, energy, research, and food loss and waste.\u00a0 The Alliance was formed in February 2020 and consists of a eight prominent interest groups with a divergence of views: American Farm Bureau Federation (AFBF); Environmental Defense Fund (EDF); The Food Industry Association (FMI); National Alliance of Forest Owners (NAFO); National Association of State Departments of Agriculture (NASDA); National Council of Farmer Cooperatives (NCFC); National Farmers Union; and The Nature Conservancy.<\/span><\/p>\n Agritourism:\u00a0 Limitation on Agritourism Liability Included In Bill Sent to PA Governor<\/span><\/p>\n On November 20, 2020, both chambers of the Pennsylvania General Assembly signed and presented to the Governor for signature <\/span>HB 1737<\/span><\/a>, an omnibus bill amending Title 42 of the Pennsylvania Consolidated Statutes to add a large collection of immunities and limitations of civil liability to a wide-range of entities for a wide-range of activities, both COVID-19 related and otherwise.\u00a0 Contained within the bill is a subchapter containing the text originally proposed in <\/span>HB 1348<\/span><\/a>, titled \u201c<\/span>Agritourism Activity Protection,<\/span>\u201d providing limitations on certain civil liabilities arising from agritourism activities.\u00a0 Based upon sharply divided votes in both chambers mostly along party lines, the prospects of its enactment are uncertain.\u00a0<\/span><\/p>\n Animal Health: Pennsylvania Quarantines Pentobarbital-Euthanized Animals\u00a0<\/span><\/p>\n On November 21, 2020, the PA Department of Agriculture, Bureau of Animal Health and Diagnostic Services, published in the Pennsylvania Bulletin a new quarantine order titled, <\/span>Interstate\/International Quarantine Order; Prohibition of Rendering of Domestic Animals Euthanized with Pentobarbital<\/span><\/a>. <\/span>\u00a0Immediately effective and covering the entire state, the order outlines the process and obligations of animal owners, veterinarians, haulers and rendering, slaughter or other domestic animal processing establishments, for proper marking and disposal of domestic animals, or parts thereof, which have been euthanized with pentobarbital so as to prevent drug residue contamination of commercial feed or pet food products produced in Pennsylvania.\u00a0\u00a0<\/span><\/p>\n From the National Agricultural Law Experts:\u00a0<\/span><\/p>\n Agricultural Economic Insights, LLC, <\/span>Escaping 1980 (Podcast) Chapter 3: The Slide<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n Tiffany Lashmet, <\/span>Case Offers Reminder of Statute of Fraud Requirements for Property Description<\/span><\/a> (Nov. 16, 2020).<\/span><\/p>\n Kristine A. Tidgren, <\/span>IRS Says No 2020 Deduction if PPP Forgiveness Reasonably Expected in 2021<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n Roger A. McEowen, <\/span>Beef May Be For Dinner, But Where\u2019s It From?<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n Rusty Rumley, <\/span>4th Circuit Rules on North Carolina Right to Farm Litigation<\/span><\/a> (Nov. 19, 2020).\u00a0<\/span><\/p>\n Penn State Research & News:<\/span><\/p>\n Biochar from Agricultural Waste Products can Adsorb Contaminants in Wastewater<\/span><\/a> (Nov. 16, 2020).<\/span><\/p>\n Dairy Cows Exposed to Heavy Metals Worsen Antibiotic-Resistant Pathogen Crisis<\/span><\/a> (Nov. 16, 2020).<\/span><\/p>\n AGENCY PRESS RELEASES\u2014STATE\/FEDERAL<\/span><\/p>\n \u00a0<\/span><\/p>\n Pennsylvania Department of Agriculture Press Releases:<\/span><\/p>\n 2021 PA Farm Show Asks Pennsylvanians, \u2018Oh, Say, Can You Sing?\u2019<\/span><\/a> (Nov. 17, 2020).<\/span><\/p>\n State Veterinarian Urges Poultry Owners To Tighten Biosecurity Efforts Amid Overseas High-Path Avian Influenza Discoveries<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n Department Of Agriculture Releases COVID-19 Restaurant Enforcement Actions, November 9 – November 15<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n Wolf Administration: Don\u2019t Go Without This Holiday Season, Food Assistance Programs Fill Holiday Meal Gaps<\/span><\/a> (Nov. 19, 2020).<\/span><\/p>\n Make It A Pennsylvania Thanksgiving: Agriculture Secretary Highlights Ways To Support Local Farmers This Holiday<\/span><\/a> (Nov. 20, 2020).<\/span><\/p>\n U.S. Department of Agriculture (USDA) Press Releases:<\/span><\/p>\n USDA Forest Service Announces Key Changes to NEPA Procedures<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n USDA Opens Registration for the 2021 Agricultural Outlook Forum<\/span><\/a> (Nov. 18, 2020).<\/span><\/p>\n U.S. Department of Agriculture (USDA) Agencies Press Releases:<\/span><\/p>\n USDA Introduces Enhanced Coverage Option Crop Insurance Product<\/span><\/a>, RMA (Nov. 16, 2020).<\/span><\/p>\n USDA Reminds Dairy Producers of Dec. 11 Deadline for 2021 Safety-Net Enrollment<\/span><\/a>, FSA (Nov. 16, 2020).<\/span><\/p>\n STATE ACTIONS\u2014EXECUTIVE\/LEGISLATIVE<\/span><\/p>\n Pennsylvania Executive Agencies (<\/span>Pa. Bulletin Vol. 50, No. 47\u2014Nov. 21, 2020<\/span><\/a>):\u00a0<\/span><\/p>\n Department of Agriculture<\/span><\/p>\n 50 Pa.B. 6674<\/span><\/a> <\/span>Notice: <\/span>\u201cGeneral Quarantine Order; Prohibition of Rendering of Domestic Animals Euthanized with Pentobarbital.\u201d<\/span><\/p>\n 50 Pa.B. 6676<\/span><\/a> <\/span>Notice: <\/span>\u201cInterstate\/International Quarantine Order; Prohibition of Rendering of Domestic Animals Euthanized with Pentobarbital.\u201d<\/span><\/p>\n Game Commission<\/span><\/p>\n 50 Pa.B. 6747<\/span><\/a> <\/span>Executive Order: <\/span>\u201cChronic Wasting Disease\u2014Establishment of CWD Containment Zone Permit.\u201d<\/span><\/p>\n Susquehanna River Basin Commission<\/span><\/p>\n 50 Pa.B. 6762<\/span><\/a> <\/span>Notice: <\/span>\u201cTelephonic Commission Meeting [Friday, December 11, 2020].\u201d<\/span><\/p>\n 50 Pa.B. 6762<\/span><\/a> <\/span>Notice: <\/span>\u201cGrandfathering Registration Notice.\u201d<\/span><\/p>\n Pennsylvania Legislature<\/span><\/p>\n Presented to the Governor<\/span><\/p>\n HB 1737<\/span><\/a> \u201cAn Act amending Title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, in particular rights and immunities, providing for economic development agency, fiduciary and lender environmental liability protection, for agritourism activity protection and for COVID-19-related liability; and making a related repeal.\u201d (Nov. 20, 2020).<\/span><\/p>\n
<\/span>Audry Thompson\u2014Research Assistant<\/span><\/p>\n
<\/span>The Agricultural Law Weekly Review provides an update of recent agricultural law developments from local, state, national, and international levels.\u00a0 Subscribe at <\/span>pennstateaglaw.com<\/span><\/a>.\u00a0<\/span><\/p>\n