Agriculture

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14.AGRHIOne of the hottest issues in Hawaii at the moment is agriculture. From the spreading county restrictions on GMO crops and pesticides, to water issues, to estate planning, the issues impacting farmers, ranchers, and owners of Ag land are growing. 

On January 8 and 9, 2014, the Seminar Group is putting on what we hope will become a regular event – the Hawaii Agriculture Conference. This two-day conference is for both farmers and lawyers, and covers these issues and others:

  • Contracts and marketing methods for Hawaii agriculture products
  • The Hawaii coffee industry
  • GMO vs organic
  • Zoning and land use issues
  • Exporting issues
  • Water rights
  • Labor law for farmers and ranchers
  • Best husbandry practices
  • Crop loss insurance

I’m the Planning Co-chair, along with David Bateman, a retired lawyer who also happens to be the owner of Heavenly Hawaiian Farms, an award-winning coffee farm on the Big Island. We’ve…

Continue Reading Mark Your Calendars: Hawaii Agriculture Conference, January 8-9, 2014

In a 2-1 decision (en banc next?) in a case we’ve been following with some interest in which a Marin County oyster farming operation in the National Seashore sued the Interior Department for its decision to not renew the farm’s permit, in this opinion, a Ninth Circuit panel held that courts have jurisdiction only to review the limited question of whether the Department understood its authority to renew or not renew the permit. The majority held that the statute pretty much gives the Department total discretion whether or not to do so, and thus the courts could not review its decision that wilderness legislation prohibited any extension of the permit.

In the majority’s words, “[t]he choice was the Secretary’s to make.” Slip op. at 27 (footnote omitted). 

The panel held that the farm was unlikely to prevail on the merits, and thus affirmed the District Court’s refusal to…

Continue Reading 9th Cir: Courts Have No Jurisdiction To Review Discretionary Decision To Not Issue Permit

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Did you know that in 2002, the voters of Florida adopted a “pregnant pig” amendment to the state’s constitution? Well, neither did we. The amendment, effective in 2008, makes it unlawful for “any person to confine a pig during pregnancy in an enclosure, or to tether a pig during pregnancy, on a firm in such a way that she is prevented from turning around freely.”

Farmer Basford’s pig farm used such “gestation crates,” and he was forced by the amendment to go out of business. He tried other things like peanut farming, but those didn’t work, so in 2010, he filed an inverse condemnation claim and a claim under Florida’s Bert Harris Act, arguing that the pig amendment deprived him of all economically viable use of his far. The trial court dismissed the Bert Harris Act claim, and after a trial, held that he was entitled to $505,000…

Continue Reading Fla App: “Pregnant Pig” Constitutional Amendment Took Farmer’s Property

The Supreme Court has denied cert in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

That’s the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. The issue in the case was whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water. The Court of Federal Claims awarded $4.2 million in just compensation for the taking of Hage’s water rights. But the Federal Circuit reversed because the case was not ripe.

In a different phase of the case, the U.S. District Court for the District of Nevada recently held that the…

Continue Reading Cert Denied In Western Water Rights Case

Mark your calendars for July 12, 2013 for our CLE teleconference on “Supreme Court Takings: A First Look at Koontz and Horne,” sponsored by the ABA’s State and Local Government Law Section. We’ll start at 1:00 pm ET (Noon CT, 11:00 am MT, 10:00 am PT, 7:00 am HT). Here’s the program description:

In the 2012term, the U.S. Supreme Court heard arguments on two regulatory takings cases,Koontz v. St Johns River Water Management District, and Horne v. U.S.Department of Agriculture. Join our panel of legal scholars and expertpractitioners for the first analysis of these cases, and how the Court’srulings on land use exactions (Koontz), and jurisdiction (Horne) will impactyour practice.

We’ve assembled a great faculty with a mix of expert scholars and practitioners: Professor Michael McConnell (arguing counsel in Horne), Professor David Callies, W. Andrew Gowder, and…

Continue Reading Upcoming ABA CLE: “Supreme Court Takings – A First Look At Koontz And Horne”

Having now had a chance to review in detail the U.S. Supreme Court’s unanimous opinion in Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), we were struck by how at least one of the reactions to the decision painted it as a “narrow, specialized ruling” that’s more of a one-off, than a case with lasting impact. Maybe this is a natural result of the case being argued last of the three takings cases the Court considered this term. Or because it involves what Justice Kagan characterized at oral arguments as possibly “the world’s most outdated law.” Or because there are several very high-profile cases on the Court’s docket that everyone’s anticipating. Or maybe just because it’s about raisins.

California raisins. 

But we respectfully dissent from the viewpoint that sees Horne as the least important and interesting of the 2013 Takings trilogy, or…

Continue Reading Unanimous SCOTUS: There’s More To The Takings Clause Than Just “Just Compensation”

So we’re reviewing today’s Supreme Court opinion in Horne v. U S. Dep’t of Agriculture, No. 12-123 (June 10, 2013), and we come across the Court’s description of the raisin marketing program, the New Deal-era federal statute and related regulations that determine how and when raisins are marketed and sold.

The Court’s description of the program is a libertarian’s nightmare, and reminds us that if these are the regulations that govern the growing and selling of raisins (and a wide variety of other agricultural products, see n.1 on page 3), now we are beginning to see why some decry the regulations that are being promulaged for nationalized health care:

The AMAA {Agricultural Marketing Agreement Act of 1937] does not directly regulate the “producer[s]”who grow agricultural commodities, §608c(13)(B); it only regulates “handlers,” which the AMAA defines as “processors, associations of producers, and others engaged in the handling” of covered agricultural…

Continue Reading Libertarian Nightmare: SCOTUS’s Description Of Raisin Death Panel

Looks like the Supreme Court tackled the easier of the two remaining takings cases first. This morning, the Court issued a unanimous opinion, authored by Justice Thomas, reversing the Ninth Circuit and holding that federal courts have jurisdiction to hear a property owner’s defense in a case where the agency has imposed or seeks to impose a fine, that doing so would be a taking. Horne v. U.S. Dep’t of Agriculture, No. 12-123 (June 10, 2013).

Yes, this is the California raisin case, for those of you who have been following along. The Court held that the takings defense was properly raised by the Hornes in their capacity as raisin “handlers.”

We’re reviewing the opinion now, and will have some further thoughts once we do. We predicted the Court would overturn the Ninth Circuit, but it looks like we were off the mark when we guessed that it might…

Continue Reading SCOTUS: Property Owner Can Raise(in) A Takings Defense

Here’s the Reply Brief, filed by the petitioner/property owner in Estate of Hage v. United States, No. 12-918 (cert. petition filed Jan. 17, 2013).

That’s the case in which the Federal Circuit held that a 22-year old takings case was not ripe because even though the agency denied Hage’s every application for a grazing permit, it might issue a special use permit that might allow the use of the water he alleges was taken. 

The issue in the case is whether it is a taking for the government to cut off physical access to a property owner’s vested right to use water. The Court of Federal Claims awarded $4.2 million in just compensation for the taking of Hage’s water rights. But the Federal Circuit reversed because the case was not ripe.

Here is the cert petition, here’s the federal government’s BIO, and here are the amicus briefs…

Continue Reading Final Brief In Western Water Rights Takings Case