NE2203: Legal Issues in Agriculture and Natural Resources
(Multistate Research Project)
NE2203: Legal Issues in Agriculture and Natural Resources
Duration: 10/01/2022 to 09/30/2027
Statement of Issues and Justification
Unlike traditional areas of the law, agricultural law is not just one field of study but is made of those areas of law that impact agriculture (Schneider, 2009). Production agriculture is at the heart of agricultural law (Kershen, 2008). As has been highlighted by many agricultural law scholars, the study, research, and education related to agricultural law are necessary because agriculture is important to human existence (Schneider, 2009). Understanding the impacts of laws on production agriculture can assist policymakers, producers, and service providers to better adapt to the changing needs on agriculture.
Legal risks are pervasive in agricultural and natural resource industries. Stakeholders’ decisions are often constrained by limited knowledge of laws and their impacts on operations, including environmental laws, contract laws, agricultural leasing, bankruptcy, estate planning, food safety, and others. Legal risk impacts vary across agricultural firm types, geographic regions, and government agencies, ranging from local ordinances to state laws to federal laws.
Legal risk impacts are becoming a growing concern of agriculture and natural resources operations. For example, in Maryland, 60 percent of agricultural producers and service providers responded that laws and regulations in the state affect farm businesses to a high degree. In this survey, respondents highlighted a wide range of issues impacting agricultural operations from environmental law issues, zoning and planning issues, estate planning, and USDA programs as potential areas of concern for producers (Millet-Williams et al, 2019). This is just one example in one state with other states having similar to truly unique issues depending on the conditions in that state.
While much progress has been made in understanding making decisions with legal risks, the knowledge base remains incomplete due to the continually evolving nature of U.S. law. There is a continuing need to examine both the short- and long-term effects of legal changes in agriculture and other natural resource-based industries. The ever-evolving definition of waters covered under the Clean Water Act is a good example, highlighting the importance of understanding the changing nature of the law and legal risk management. A better understanding of how legal changes affect these businesses will improve and help firm-level decision-making adapt to laws changes. Though proposed in the Northeast, one of the strengths of this project is it will bring a national scope of institutions represented by the participants and allow us to understand a breadth of the local, state, and federal laws impacting the agricultural and natural resource industries.
While many legal issues are initially driven by local and/or state interests, these may also turn into concerns in other states. In response to legal challenges involving North Carolina’s right-to-farm law, in 2018, the North Carolina legislature amended that law to provide additional statutory protections to agricultural operations. Following the North Carolina amendments, several other states looked at modifying their state’s right-to-farm law to provide similar protections. Pulling together a coalition of national institutions working together on these issues will help all states understand the effects of changes in agricultural law.
This proposed coalition would allow researchers to present work to a broader group of peers and allow a more successful understanding of applying these legal issues to a broader range of legal risks impacting the agricultural and natural resource industries. In addition, the information exchange format creates opportunities for researchers to interact on issues of mutual interest, fostering extramural grant-writing efforts.
Related, Current and Previous Work
This would be a new research project that would focus in on developing multi-state collaborations in four key research areas of agritourism, heirs' property, environmental law, and labor laws.
Agricultural law can often be a broad field taking up many areas in agriculture. From contract law (involved in planting seeds or marketing the final product), land use law, water law, and constitutional law, to name a few. Several past projects have hit upon agricultural law within CRIS.
National Agricultural Law Center Initiatives (Project No. ARK02661) is focused on the National Ag Law Center (NALC) 's outreach and educational resources at the University of Arkansas. This project’s work has done a tremendous job of expanding audiences for agricultural law work. However, NALC often has limited resources developed in our four research areas, and our proposed multi-state project would allow for more timely research in these areas. In addition, our proposed multi-state work would pull in all agricultural law land grant faculty to provide deeper collaborations than the National Ag Law Center’s initiatives have.
Another project, The Right-to-Farm For Small and Medium-Sized Farmers: A National Legal Analysis (Project No. KY.W-2021-10284), is focused on reviewing right-to-farm laws to determine what language works best for small and medium-sized farms. We would build upon this work further in our proposed project, determining what environmental, labor, agritourism, and heirs’ property laws work best for these farming operations. Right-to-farm laws are a nuisance defense for agricultural operations, and compliance with environmental laws is often a factor in gaining the right-to-farm law as a defense. Our proposed work would build upon this project.
The term “heirs property” refers to jointly-held land passed down from generation to generation without going through probate (United States Department of Agriculture, https://www.farmers.gov/working-with-us/heirs-property-eligibility). However, the large numbers of owners dividing the property amongst the cotenants are more complex, and agreement on land use is more unlikely (Richardson, Jr., 2017).
Two primary concerns arise from heirs' property: the vulnerability (or displacement) concern and the wealth (or efficiency) concern (Deaton, Baxter & Bratt, 2009). The vulnerability concern refers to the fear of being forcibly dispossessed from the property through a partition sale initiated by another cotenant, whether a family member or third party (Ibid.). The wealth concern refers to the diminished ability of cotenants to use the land--whether to build a home, for agriculture or forestry, for recreation, for business, as collateral for a loan, or other reasons, without the unanimous consent of all owners (Ibid).
Heirs' property often coincides with land loss in rural communities (Parsons, et al., 2010). Although the latest Farm Bill includes a provision to make obtaining a farm number for federal programs easier (USDA Farm Service Agency, Guidance for Heirs’ Property Operators to Participate in Farm Service Agency Programs) and a relending program (United States Department of Agriculture, https://www.farmers.gov/working-with-us/heirs-property-eligibility/relending) no program presently exists to address assess and remedy the heirs' property issue.
Agritourism operators increasingly encounter obstacles in the form of local zoning ordinances ( Brunch & Holland, 2005) and ( Eckert, 2007). Agritourism promises increasing profits for operators, but the local land use planner looks much different than production agriculture (Hall & Bachelor, 2019).
The difficulty in defining agritourism and fitting the practice into existing zoning categories has caused increased litigation on zoning compliance and the interpretation of “agritourism” and related terms (Hall & Essman, 2020). With many state definitions of lacking agritourism clarity and the creative addition of new agritourism enterprises, land use clashes involving agritourism are likely to continue to increase.
Agricultural operators continue to face increased pressures from environmental compliance. However, complying with these environmental laws can often create confusion for operators and a struggle to understand how to comply. For example, some environmental laws focus on limiting possible nutrient runoff going on to fields (Hall & Essman, 2019). Other focuses include water quality trading programs (Everhart, Huntley, & Johnson, 2020). Millet-Williams et al. have found that in Maryland, the top legal issue Maryland operators are concerned about is environmental regulations.
As it comes to labor, agricultural operations face pressures from both hiring domestic labor and non-domestic labor. In addition, depending on state laws, operations may need to consider how best to comply with state wage laws, state requirements on benefits (such as health insurance), and when agriculture exemptions from labor laws exist. The use of H-2A workers continues to rise as operations face labor shortages of domestic workers (Canales, 2022). Operations often face several legal hoops to work through to bring in H-2A workers, which can often lead to frustration.
At the same time, operations face domestic labor shortages or a domestic workforce that is less likely to have experience in agriculture. This can lead to operations not understanding how to hire appropriately, onboard, and continually train this new workforce, with many operations not having full-time human resources departments that can take this job on. Additionally, states have begun looking at traditional exemptions for agricultural workers in state labor laws and in many cases, doing away with those exemptions. New York, for example, has recently removed the exemption from overtime that existed for agricultural workers (Melfi & Duby, 2022).
Provide a scientific/professional forum to facilitate the exchange of theoretical and methodological approaches to agricultural law, and to develop original concepts and preliminary research related to agriculture and natural resources.
Develop and communicate legal analysis of contract law, succession planning, nuisance, and environmental legal issues and legal risk management strategies in agriculture, including analysis of how these laws impact firm-level decisions, technology adoption, and access to information.
Develop and communicate legal analysis of federal laws and regulations impacting agricultural and resource businesses.
Develop and communicate legal analysis of how state laws and regulations vary among the states can impact agricultural and resource businesses.
Our research approach would be that utilized by many in applied agricultural law research. We would focus on using literature reviews, case law reviews, and comparative law reviews (both nationally and internationally). The U.S. is made up of 50 states that often adopt different state laws that will allow us an opportunity to understand better what legislative language could work in one area and potentially not in others.
The primary activity would be an annual meeting, allowing for the exchange of ideas and information about legal issues surrounding agricultural and natural resources law. Project members will hold this meeting in conjunction with the American Agricultural Law Association’s (AALA) annual meeting/Extension Risk Management Educators (ERME) Conference, with individual tracks for the project members to exchange ideas and information.
Initially, we would propose four areas of agricultural law on which we would focus our research efforts. At the same time, we would be nimble enough to focus on developing issues that could impact agriculture in the region/nation, such as animal welfare, climate change, and legal issues related to public health, including nuisance issues and environmental law issues. Many growers in the region (and across the U.S.) are focused on adding agritourism and agri-entertainment options to the farm. We would propose to collaborate together on research projects related to agritourism. This would include potential liability issues, strategies to limit liability, and land use issues. We imagine that research outputs would include best practices for legislation or ordinances related to agritourism and suggestions for state policies that would allow for agritourism. At the same time, we would offer outreach to attorneys, state officials, insurance providers, and land use planners to allow these key groups to understand the issues better and work with agricultural operations looking to expand to agritourism. The group has already seen success in similar outreach efforts for these audiences by offering continuing education credit through the National Ag Law Center and typically reaching 200-plus professionals through webinars.
Labor demands in the Northeast and across the country often rely on domestic and foreign labor to work in fruit and vegetable, livestock, dairy, and poultry operations. At the same time, agricultural operations often struggle to understand the myriad of federal and state labor laws to comply with. We would propose to collaborate on agricultural labor legal issues. We would imagine that research outputs would include best practices for legislation related to labor and suggestions for state policies that would allow for improvements to the labor laws in a state.
Although often considered a problem in the South and the West, heirs’ property is also a problem in the Northeast region. We would focus on comparative law analysis of state laws across the region to determine optimal solutions for heirs’ property issues. We would imagine that research outputs would include best practices for legislation related and suggestions for state policies that would allow for improvements to the heirs' property regimes across the region. This research would potentially go beyond the agricultural field in the region and could also have an impact on urban areas as well. We would disseminate this information to agricultural operations, agricultural services providers, and state officials to promote better compliance with existing laws.
We would propose collaborating on research projects related to environmental law as it impacts agriculture. This research would have implications across the region and the country. This research would include information related to public health and climate change. We would imagine that research outputs would include best practices for legislation related and suggestions for state policies that would allow for improvements to the environmental law impacts on agriculture across the region.
Measurement of Progress and Results
- Journal Articles
- Book Chapters and Books
- Conference Sessions
- Organized Symposiums
- Extension Publications
Outcomes or Projected Impacts
- Increase the ability to understand good practices with laws impacting agritourism
- Increase the ability to understand the good practices with laws impacting agricultural labor
- Increase the ability to understand and predict potential impacts in changes to environmental law policy impacting agriculture
- Increase the ability to understand and develop good practices related to heirs' property
- Increase clientele exposure to understanding of agricultural law impacts
Milestones(2023):Organize and conduct organized symposia and invited paper sessions at regional, national, and international professional meetings and other fora to extend the applied research results obtained within this regional research project.
(2024):Organize and conduct a major regional conference outlining the challenges and best practices in one of our four research areas
(2025):Apply for and receive major external funding related to one of our four research areas.
Projected ParticipationView Appendix E: Participation
We will disseminate research and extension information to stakeholder groups through publications and presentations. We will develop a website that will provide electronic copies of all publications, presentations, and recordings of virtual meetings. We will make presentations of specific issues addressed to clientele groups as requested. The project members will collaborate on organizing sessions for the AALA’s annual meeting and for professional meetings of agricultural economists and Extension faculty as needed.
A three-member executive committee consisting of a past project chair, project chair, and program chair will govern the project. Administrative issues will be addressed during the business meeting held in conjunction with the annual meeting. The committee will conduct elections to fill the position of program chair during the business meeting. The program chair coordinates the program for the next annual meeting and the quarterly virtual meeting sessions. The outgoing program chair becomes the project chair and is responsible for conducting the business meeting, submitting an annual report on project activities, and maintaining communication with the administrative advisor and the Northeast Association of Agricultural Experiment Station Directors. The outgoing project chair will become the past project chair to provide additional support to the executive committee. Initially, at the first annual meeting, the project team would elect project team members to fill the three executive committee positions.
We would also incorporate into this project an advisory panel of key stakeholders such as attorneys, Experiment Station Directors, agricultural operators, and other ag service providers. This advisory panel would be integrated into our annual meetings to help provide additional feedback on research to ensure it's timely and valuable to our target audience.
Selected works focused on agricultural and natural resource laws
Brunch, Megan and Rob Holland, “A Snapshot of Tennessee Agritourism: Results from the 2003 Enterprise Inventory.” University of Tennessee Extension, Publication PB 1747 (2005).
Canales, Elizabeth. “Reliance on H-2A Workers Continues to Spike as Specialty Crop Producers Face Labor Shortages“. Southern Ag Today 2(18.5). April 29, 2022.
Deaton, B. James, Jamie Baxter & Carolyn S. Bratt, "Examining the Consequences and Character of “Heir Property,”" 68 Ecological Econ. 2344, 2345 (2009).
Eckert, Jane, “Zoning Laws a Challenge to Farms Wanting to Grow,”, Eckert Agrimarketing (2007) (out of print).
Ellixson, Ashley, et al. "Legal and Economic Implications of Farm Data: Ownership and Possible Protections." Drake J. Agric. L. 24 (2019): 49.
Everhart, Sarah, Harry Huntley, and Elizabeth Johnson. "Model Water Quality Trading Agreement" FS-1150 University of Maryland Extension (2020).
Ferrell, Shannon L., and Eric A. DeVuyst. "Decommissioning wind energy projects: An economic and political analysis." Energy policy 53 (2013): 105-113.
Ferrell, Shannon L., et al. "The Future of Agricultural Law: A Generational Shift." Drake J. Agric. L. 18 (2013): 107.
Ferrell, Shannon L., and Rodney Jones. "Legal Issues Affecting Farm Transition." Data Development and Policy Analysis Conference, Washington, DC. 2013.
Ferrell, Shannon L. "Legal Issues on the Farm Data Frontier, Part I: Managing First-Degree Relationships in Farm Data Transfers." Drake J. Agric. L. 21 (2016): 13.
Ferrell, Shannon L. "The Technical and Ethical Challenges for Lawyers in Evaluating Wind Energy Development Agreements." Drake J. Agric. L. 17 (2012): 55.
Goeringer, Paul. "Adapting to the Changing World of Biotechnology: Syngenta AG MIR162 Corn Litigation as Regulation by Litigation." Tex. A&M L. Rev. 4 (2016): 373.
Goeringer, L. Paul, and Harold L. Goodwin. "An Overview of Arkansas' Right-to-Farm Law." J. Food L. & Pol'y 9 (2013): 1.
Goeringer, L. Paul, H. L. Goodwin, and Michael Popp. "The New Fuel Frontier: Biomass Contracting." Ky. J. Equine Agric. & Nat. Resources L. 5 (2012): 71.
Goeringer, Paul, Ashley Ellixson, and Jon Moyle. "Privacy Issues and the Use of UASs/Drones in Maryland." (July 30, 2015) (2015).
Goeringer, Paul, et al. "Understanding the Diverse Legal Needs of the Maryland Agricultural Community." (2014).
Hall, Peggy Kirk, and Evin Bachelor, “Agritourism Activities and Zoning: Examples from around the country”. The Ohio State University (2019).
Hall, Peggy Kirk, and Ellen Essman, “Recent Agritourism Litigation in the United States,” The National Agricultural Law Center (2020).
Hall, Peggy Kirk, and Ellen Essman, "State Legal Approaches to Reducing Water Quality Impacts From the Use of Agricultural Nutrients on Farmland." The Ohio State University (2019).
Ibid; Unif. Partition of Heirs Prop. Act, Prefatory Note, at 4.
Kershen, Drew. “What is Agricultural Law? Proposing Production Agriculture as the Core.” Agricultural Law Update. American Agricultural Law Association (Dec. 2008)
Lashmet, Tiffany Dowell. “Eminent Domain in Texas: A Landowner’s Guide.” Texas A&M AgriLife Extension (March 2020).
Lashmet, Tiffany Dowell. “Impact of Conversion of Land from Agricultural Use Property Tax Valuation to Wildlife Use Valuation on the Livestock Industry.” No. 1459-2016-120536. 2015.
Lashmet, Tiffany Dowell. “Owning Your Piece of Texas: Key Laws Texas Landowners Need to Know” Texas A&M AgriLife Extension (May 2019).
Lashmet, Tiffany Dowell, Shannon Ferrell, Rusty Rumley, & Paul Goeringer. “Ranchers Agricultural Leasing Handbook: Grazing, Hunting, & Livestock Leases.” Texas A&M AgriLife Extension (June 2016).
Lashmet, Tiffany Dowell, and Amber Miller. "Texas exempt wells: Where does fracking fit?." Natural Resources Journal 55.2 (2015): 239-268.
Melfi, Patrick V. and Gianelle M. Duby. "New York Lowers Overtime Threshold for Agricultural Workers." J.D. Supra. (2022). available at: https://www.jdsupra.com/legalnews/new-york-lowers-overtime-threshold-for-6553623/
Millet-Williams, Nerice, et. al. “2019 Ag Law Education Assessment Evaluation in Maryland.” University of Maryland (August 2019).
Parsons, Robert, et al., "The Farmlasts Project: Farm Land Access, Succession, Tenure, and Stewardship" 16 (2010).
Richardson, Jr., Jesse J. "The Uniform Partition of Heirs Property Act: Treating Symptoms and Not the Cause?", 45 Real Est. L.J. 507, 510 (2017).
Schneider, Susan A. “What is Agricultural Law?” (January 22, 2009). Available at SSRN: https://ssrn.com/abstract=1331422 or http://dx.doi.org/10.2139/ssrn.1331422
Suri, Mayhah, and Paul Goeringer. "Community Supported Agriculture: How do Maryland Operators Manage Legal Risks." Ky. J. Equine Agric. & Nat. Resources L. 9 (2016): 211.