Lamson, Dugan and Murray, LLP, Attorneys at Law

The 6th Circuit Puts the Brakes on EPA Enforcing New Definition of Waters of the US

Posted in Government Regulations, Water Law

water drop


The Environmental Protection Agency (EPA) was set to begin enforcing the new definition of Waters of the United States (WOTUS) on August 28, 2015.  However, several states filed suits in various jurisdictions alleging the EPA lacked the authority to expand its jurisdiction pursuant to the new definition.  Now the United States Court of Appeals for the 6th Circuit has put the brakes on the EPA’s plan to enforce WOTUS until the court can determine whether the new definition is lawful.

Earlier this summer, thirteen states successfully obtained an order from the United States District Court of North Dakota prohibiting the EPA from enforcing the new definition until the states had an opportunity to litigate their claims.   The judge found “the states are likely to succeed on their claim because (1) it appears likely that the EPA has violated its Congressional grant of authority in its promulgation of the Rule at issue and (2) it appears likely the EPA failed to comply with [Administrative Procedure Act] requirements when promulgating the Rule.”  Judge Blocks EPA’s ‘waters’ rule from taking effect; find the full order here.  However, the order only applied to those thirteen states who filed suit in North Dakota.  Consequently, the EPA planned to establish the new rule in the remaining 37 states.

On October 9, 2015 the 6th Circuit extended the stay to all states.  Similar to the North Dakota Court, the 6th Circuit found the the petitioners have a substantial possibility to succeed on their claims that the new definition “is at odds” with the Supreme Court’s prior rulings, a product of “facially suspect” rulemaking and not supported by scientific decision making.  Read full opinion here.

In sum, the EPA was not going to be able to effectively enforce the new definition of WOTUS considering the multiple claims filed across the country.  Now the brakes won’t come off WOTUS until and unless the EPA  can obtain a favorable ruling from the 6th Circuit and eventually the U.S. Supreme Court.

Crop Insurance Deadline: Missouri AG Tries to Buy Time for Flooded Farmers

Posted in Crop Insurance
Too wet to plant

Too wet to plant


Earlier this month, Chuck Koster, Attorney General for Missouri, filed a lawsuit against Tom Vilsack, U.S. Secretary of Agriculture to extend the deadline for filing  planted acreage reports.  The USDA requires most farmers in Missouri to report their planted acres by July 15 in order to secure coverage under the farmers’ crop insurance policies.  The USDA allows farmers a 5 day grace period to submit the reports.

However, heavy rainfall and flooding the last few months pushed the planting season back several weeks preventing many farmers from getting their crops planted in time to submit the acreage report.  Approximately 60% of Missouri farmers may be ineligible for corp insurance on some of their land as a result of missing the deadline.  Many farmers left some fields fallow and submitted the acreage reports on the ground they were able to plant.

The lawsuit is a last ditch effort to convince the USDA to accept acreage reports after the deadline and farmers are encouraged to keep filing their paperwork while the lawsuit is processed.  Hopefully the suit will buy the time necessary for Missouri’s flooded farmers to receive the insurance coverage they need.    

For more information on the suit visit the articles in the Insurance Journal, the Springfield News Leader and KSPR.   


Syngenta Lawsuit Update: Fed. Ct. Sends Cases Back to State Court

Posted in Biotechnology
Syngenta cases u-turned back to state court

Syngenta cases u-turned back to state court

On May 5th, 2015, United States District Judge, John Lungstrum sent two lawsuits against Syngenta back to the state courts in which they were originally filed.  The decision appears to be a major strategic victory for plaintiffs looking to keep their claims in state court and a potential blueprint for others who may want to file a claim in state court.

Syngenta has been under a pile of lawsuits filed in federal and state courts across the country for losses allegedly caused by the the release of Agrisure Viptera trait (otherwise known as MIR162) prior to China’s approval of the trait in imported grain. The federal lawsuits have been combined and moved to a Multi-District Litigation (“MDL”) in the United States District Court for the District of Kansas.  Syngenta had been attempting to remove most if not all state court claims to the federal MDL claiming the state court suits include questions of federal law and, therefore, fall under federal court jurisdiction.

Strategically, Syngenta wanted to litigate all the cases in federal court for two reasons. First, defending all the cases in one federal forum is easier and more cost effective than appearing in multiple states.  Syngenta can file pre-trial motions and discovery requests against all plaintiffs at one time rather than individually in each state court.  Second, and most importantly, Syngenta did not want to defend cases in state courts which may be located in the farmers’ back yards.

Removing the state cases to federal court, Syngenta argued the plaintiffs’ claims questioned a foreign government’s impact on a domestic industry and therefore, the federal common law of foreign relations trumped state courts jurisdiction.  Throwing a wrench in Syngenta’s strategy, the judge disagreed and found the plaintiffs did not question China’s actions nor did China or the U.S. express interest in the lawsuits. Therefore, the alleged federal question was “not substantial” and the judge remanded the two cases back to the Louisiana state court in which they were originally filed.

The judge admitted his ruling may “result in the remand of many MDL cases to state court” and ordered Syngenta to provide a list of all cases removed from state court under the same theory.   A complete copy of the opinion can be found here.  Since the original opinion, Judge Lungstrom has remanded more than 1,000 other lawsuits back to state court.

Corn producers thinking about filing a claim against Syngenta should talk with their attorney about how this ruling may affect where their claim is filed and which claims to assert.



Actively Engaged In Farming: The New Definition

Posted in Farm Management, Government Regulations


As farm operations continue to grow and become more complex, multiple owners or members of a farming entity may consider themselves “farm managers” even though they never set a foot in the field.   Characterizing oneself as a “farm manager” may entitle the individual to benefits under certain government programs. However, to obtain benefits from such programs an individual has to be considered actively engaged in farming, which means

(1)     Contribute land, capital, or equipment; and

(2)     Contribute personal labor, active personal management, or a combination of personal labor and active personal management.

The term “active personal management” has been subject to various interpretations, especially in non-family farming operations that are seeking to qualify more than one manager and collect more benefits.  Therefore, the Agricultural Act of 2014 (Farm Bill) proposed a new rule to define what constitutes a “significant contribution of active personal management.”

The new rule would restrict the number of farm managers to one person, except in situations where the farming operation is considered a “large operation” or “complex operation”.  While large and complex operations may qualify for two or three managers, no operation would be allowed more than three.

The new rule would also redefine “significant contribution of active personal management” as an annual contribution of 500 hours of management, or at least 25% of the total management required for that operation.  Eligible management activities would include:

Capital, land and safety-net programs: Arrange financing, manage capital, acquire equipment, negotiate land acquisition and lease, and manage insurance or USDA program participation

Labor: Hire and manage labor; and

Agronomics and Marketing: Decide which crop(s) to plant, purchase inputs, manage crops, … price crops, and market crops or futures.

The newly proposed standard was created for those farming operations structured as general partnerships or joint ventures rather than family farming operations.  Consequently, the new rule would not affect farming operations made up by family members, landowners who share a risk in the crop, or spouses whose husband or wife are actively engaged in farming.

The comment period for the proposed rule ended in May and are to be implemented in 2016.  Farm operations with multiple “farm managers” need to ensure the they meet the new requirements of “actively engaged in farming” prior to seeking benefits from various farm programs.

For more information please check out the Farm Service Agency website here, and the fully version of the proposed rule here.




Getting Permission: FAA Proposes New Regulations to Legalize Drone Scouting

Posted in Farm Management, Government Regulations

When deciding whether to let your spouse know you are going out for a beer with friends rather than straight home for dinner, you may have heard the phrase “it is better to ask for forgiveness than it is for permission.”  If you haven’t heard that phrase, then I guess we do not have the same type of friends.  Recently, I have noted the truism is being entertained by those using drones for scouting crops and other agricultural uses.

Quadrocopter drone flying in the sky


Currently, the Federal Aviation Administration (FAA) bans the use of drones or UAV’s (unmanned aerial vehicles) for almost all commercial purposes; including crop scouting, irrigation equipment monitoring, mid-field weed identification, variable rate fertility, and cattle herd monitoring.  Despite the ban, many producers are using drones for these purposes and figure receiving forgiveness would be easier than getting FAA permission.



In response to the unavoidable drone revolution, the FAA has proposed new regulations to govern the use of drones for commercial purposes.  The regulations provide several restrictions for drone use including the following:

–     UAV weight limit of 55 lbs;

–     The operator must be able to see the UAV at all times, unaided by any device;

–    Daylight operation only;

–     Maximum airspeed of 100 mph;

–     Maximum altitude of 500 feet;

–     Minimum weather visibility of 3 miles;

Drone operators would also be required to meet the following criteria:

–    Pass an initial aeronautical knowledge test and subsequent test every 2 years;

–     Be vetted by the Transportation Security Administration;

–     Obtain an UAV operator certificate; and

–     Be at least 17 years old.

I expect some may not want to hassle with the restrictions or operator certification and continue to ask for forgiveness rather than seek permission.  However, as a producer who hires a crop scout, it would be in your interest to make sure the scout has FAA permission before using a drone.

Please visit the FAA Website for the complete set of rules and summary of the provisions.


Des Moines Divides the House: Files suit against rural drainage districts

Posted in Uncategorized

As previously reported in A House Divided, Des Moines claims its water supply has been polluted by excessive nitrogen from farm runoff drained through the rural tiling systems.  Des Moines’ threat to sue neighboring rural drainage districts for failing to prevent the pollution of Des Moines water supply is no longer idle.

On March 16, 2015 Des Moines filed suit against the board of supervisors of Sac County, Calhoun County and Buena Vista County for allegedly violating the Clean Water Act, which regulates point source pollutants.

The lawsuit claims the drainage districts’ actions violated provisions of the Clean Water Act, the Iowa Code, was a public and private nuisance, and constituted negligence, trespass and a taking of Des Moines water rights.  Des Moines seeks compensation for the alleged discharge of nitrates into Des Moines water supply plus a permanent injunction requiring the counties to “take all steps reasonably necessary within a reasonable period of time to reduce the discharge of nitrate to the Raccoon River to concentrations that do not exceed 10 mg/L”.

The house has been officially divided.  The question is whether it can be repaired.

A copy of the complaint can be found at: Des Moines Board-of-Water-Works-Trustees Complaint

Crack in the wall



A House Divided: Urban Iowa Threatening to Sue Rural Iowa for Farm Runoff

Posted in Government Regulations, Water Law


Dividing the House

Dividing the House

“A house divided against itself cannot stand.”  Abraham Lincoln quoted this indisputable truth in reference to the issue of slavery.  Although unlikely to lead to civil war, the debate between urban water use and rural land use is an ever increasing concern.

The issue has come to head in Iowa and may be fought in court.  The city of Des Moines plans to file a federal lawsuit against three upstream neighboring counties for failure to regulate and prevent agricultural products from polluting Des Moines’ water supply.  Specifically, Des Moines seeks an order requiring the county drainage districts to regulate agricultural runoff like other wastewater under the Clean Water Act (CWA).

Agriculture is generally exempt from the CWA because agricultural runoff is considered a “non-point source” of pollution.  A “point source” of pollution is basically pollution that comes from a pipe.  Des Moines claims that water and pollutants that drain from agricultural land through a farmer’s subsurface tiling system qualifies as a “point source” since the pollution flows and exits from a “pipe”.

Des Moines also claims it has recently incurred $4,000 per day in increased costs and expenses to remove agricultural pollutants, such as nitrogen, from the Des Moines water supply.  Des Moines fears the city may be required to build another denitrification facility if the increase in agricultural pollution continues.

Des Moines will have the tough job of  persuading a judge the agricultural runoff that flows through the subsurface tile system does not fall under the “agricultural storm water” or irrigation “return flows” exemptions.  Considering agriculture’s economic impact in Iowa, Des Moines will also have a difficult time finding support outside the metro area.  Siding with agriculture, Governor Terry Branstad commented Des Moines has “declared war on rural Iowa.”

Eventually urban and rural Iowa are going to have to solve the water and land use divide.  Otherwise, Iowa’s house will not stand.

For more information on Des Moines proposed lawsuit see Brett Walton’s article in Circle of Blue


Court Finds Manure Not So Refreshing and May Be Subject to Resource Conservation and Recovery Act

Posted in Farm Management, Government Regulations, Property Rights

According to the Seinfeld character George Costanza; “If you consider the other choices “manure” is actually pretty refreshing.”   Seinfeld – My Boyfriend – YouTube.  Well, a Washington Federal Court disagrees; meaning dairy and other livestock operations may have to re-analyze their manure management practices.  In Community Association for Restoration of the Environment (CARE) v. Cow Palace, LLC, et al, the United States District Court for the Eastern District of Washington ruled a dairy’s management of manure was governed by the Resource Conservation and Recovery Act (RCRA).  Essentially, manure which is not properly managed can be considered a solid waste subject and subject to citizen suits under the RCRA.

"It's actually quite refreshing"

“It’s actually pretty refreshing”

The RCRA, designed to regulate issues of hazardous waste disposed at landfills, governs the management of solid and hazardous waste from the time the waste is generated through the time the waste is disposed.  Generally, manure is excluded from the definition of solid waste if the manure is applied as a beneficial use such as fertilizer or soil conditioner.  However, the Washington Court found defendants failed to properly manage the manure, thereby removing it from the exclusion.

Specifically, the Court found:

Defendants applied the manure above the agronomic rate violating their Dairy Nutrient Management Plan and over application was not a beneficial use;

Defendants’ manure lagoons leaked into the subsurface, converting the manure from a beneficial product to a discarded product;

Defendants composted manure in an unlined composting area allowing manure to leach into the ground and shallow water converting the product from a beneficial use to a discarded product; and

Defendants’ manure management resulted in contaminated groundwater beyond the dairy with nitrates above the Maximum Contaminant Level.

In sum, Defendants’ manure management constituted a open dumping of solid waste in violation of RCRA.  Many environmental groups also disagree with Costanza and will certainly model future claims on the success CARE had in Washington.  Livestock operations will be under an additional microscope if the Washington case withstands appeal and other federal judges fall in line.

For more information check out CALT’s article: Court Says Application of Manure To Farmland In Manner Inconsistent With Good Husbandry Agricultural Practices is Subject to Federal Regulation as Solid Waste | Center for Agricultural Law and Taxation


Viptera Approved: China Ends Import Ban On 3 GMOs

Posted in Biotechnology, Government Regulations
China finally opens up to Viptera

China finally opens up to Viptera

On December 17, 2014 China finally ended its import ban on Syngenta’s Viptera corn and two varieties of GMO soybeans produced by DuPont Pioneer and Bayer Crop Sciences.

The announcement is cause for great relief to the seed companies and U.S. grain exporters considering U.S. grain trading with China was shut down for all intents and purposes during the ban.  Secretary of Agriculture, Tom Vilsack, cautioned the approval was not a change in China’s regulatory review process of GMO crops.  Via  Rather, the delayed approval is another example of China’s consistently inconsistent approval bureaucracy.

Syngenta is not out of the Viptera woods yet.  Numerous lawsuits have been filed against Syngenta in the last year with plaintiffs alleging Sygenta’s release of Viptera before China’s approval caused a dramatic drop in corn prices.  Syngenta Under Pile of Lawsuits  China’s approval will open the trade going forward but will obviously not affect any alleged issues caused by the ban in the past.  Consequently, Syngenta still has a fight on its hands with grain exporters and farmers who were allegedly damaged by the ban.

8th Circuit Intercepts Syngenta’s Attempt to Pass Viptera Problem to Bunge

Posted in Biotechnology

tall corn

As a follow up to Syngenta Under Pile of Lawsuits, the United States 8th Circuit Court of Appeals recently broke up Syngenta Seeds, Inc.’s attempt to pass the Viptera problem to Bunge North America, Inc.

In 2013 Syngenta tried to get ahead of the problems caused by China’s ban of Viptera corn by suing Bunge for refusing to accept corn which contained the Viptera trait. Knowing Bunge would not accept Viptera corn, farmers subsequently refused to purchase Syngenta products resulting in lost profits, market share and goodwill.

Syngenta alleged Bunge’s refusal to accept Viptera corn breached Bunge’s obligations under the United States Warehouse Act (USWA), breached a duty to third-party beneficiaries of Bunge’s licensing agreement with the federal government, and Bunge engaged in false advertising in violation of the Lanham Act.

Under the USWA, Bunge is required to treat depositors of grain in a fair and reasonable manner.  Syngenta claims Bunge violated its obligation to treat all grain depositors equally by refusing to accept Viptera corn.  However, the 8th Circuit Court found the USWA did not allow seed producers to sue for a breach of the Act nor did it provide a private right of action against the warehouse operator.

Syngenta also claimed it was a “third party beneficiary” of Bunge’s Licensing Agreement with the federal government which also requires Bunge to treat all depositors fairly and reasonably.  The 8th Circuit disagreed and found the Licensing Agreement did not intend to benefit seed producers.  Consequently, Syngenta was not a third-party beneficiary to the agreement and had no claim under the agreement for Bunge’s refusal to accept Viptera corn.

Finally, Syngenta claimed Bunge posted signs falsely advertising Viptera was not approved in major export destinations and Bunge, therefore, could not accept corn with the Viptera trait.  The District Court had dismissed Syngenta’s false advertisement claim finding (1) Syngenta could not bring a false advertisement claim because Syngenta was not Bunge’s competitor; and (s) Bunge’s signs were not considered commercial speech.  Giving Syngenta a glimmer of hope, the 8th Circuit returned Syngenta’s false advertisement claim back to the District Court.

The 8th Circuit did not determine Syngenta had standing or Bunge’s signs constituted commercial speech.  Rather, the 8th Circuit instructed the District Court to determine whether Syngenta had standing under the “zone of interest” and “proximate causality” tests recently developed by the Supreme Court in Lexmark Int’l, Inc. v. Static Control Components.

The Viptera problem is multi-faceted and has effected the entire chain of grain distribution in the U.S.  Syngenta will do what it can to make sure it is not holding the ball for the problems caused by China’s ban of Viptera.  Per the 8th Circuit, Syngenta gets another down to prove it has standing under the Lanham Act to complete a pass of the Viptera problem onto Bunge.

For the full opinion see: Syngenta Seeds, Inc. v. Bunge North America.