Indiana Real Property and Environmental Law Report - Commentary on State and Federal Environmental Issues Affecting Indiana

The House Judiciary Committee tacitly acknowledged first amendment concerns about SB 373.

SB 373, originally an attempt to create criminal penalties for unauthorized videotaping of farm operations, has been assigned to the House Judiciary Committee.  The committee held a hearing on Monday, April 8 and the bill underwent some major editing.  It no longer mentions videotaping.  

The Committee passed the bill and left in place language, inserted by the House Ag Committee, that makes those who falsify job applications in order to obtain employment on a farm for the purpose of photographing or videotaping that farm eligible for prosecution. 

Some of the teeth have been taken out of the legislation, but overall it still offers Indiana farmers and farm organizations some protection from the media and activists.  But it does it through the enhancement of trespass concepts.  

Indiana Farm Bureau’s Bob Kraft says “At the end of the day, we are still confident we will have a bill that provides additional protection for Indiana agriculture from those who slip onto farms surreptitiously for the purpose of defaming or harming the operation.” 

But it differs significantly from the originally drafted bill.  Not quite what the major meat producers and farm organizations were looking for.

I wrote about this case in an earlier post.

Decker involves a challenge to a Ninth Circuit ruling that runoff from logging roads into ditches requires a stormwater permit. Petitioners argue that the Ninth Circuit should not have held that channeled forest road runoff is subject to NPDES permitting. Because the EPA interpreted the definition of point source, petitioners argue that the courts accord Chevron deference to the agency's interpretation.

According the NEDC, the EPA’s interpretation of its regulations is either (a) inconsistent with the text of the regulation, or (b) the regulation would be better read to require permits. Relying on §1365 of the CWA, the NEDC brought a citizen’s suit in an attempt to eliminate the exemption from the permiting process..

The EPA has previously interpreted the CWA as exempting certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes from the permitting process.  The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision.

Since passage of the Clean Water Act, the EPA has considered runoff of rain from forest roads - whether channeled or not - to fall outside the scope of the NPDES process, and not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications. 

The Ninth Circuit rejected the EPA’s longstanding interpretation. This conflicts with other circuits and gives no deference to the EPA in interpreting the statute and regulations it has expertise in.

The Superme Court held. 

1. Challenges to EPA action under 33 U.S.C. §1369(b) are not a jurisdictional bar, and does not prevent the District Court from entertaining a citizen's suit under §1365. 

1. EPA's recent amendment to the Industrial Stormwater Rule did not moot the issue of the lawsuit. The controversy continues when respondent may face penalties for past activities under the old rule even if the new rule provides that a NPDES permit is not applicable. 

The Court found that the pre-amendment version of the Industrial Stormwater Rule, as construed by EPA, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme and that the regulation is a reasonable interpretation of the statutory term “associated with industrial activity,” §1342(p)(2)(B).

When an agency interprets its own regulation, the Court, as a general rule, defers to it unless that interpretation is plainly erroneous or inconsistent with the regulation. The Court also found that another reason to accord Auer deference (519 U.S. 452, 461) to the EPA’s interpretation is that there is no indication that EPA's current view is a change from prior practice or is a post hoc justification adopted in response to litigation. The conclusions of EPA as to logging roads has been consistent over time. 

The Court also noted that the CWA gives EPA discretion in the area of stormwater runoff, and EPA could have reasonably concluded that further federal regulation would be duplicative or counter-productive in light of Oregon’s extensive rules on the subject. 

To the Court, the key to the case appears to be the language of §1342(p)(2)(B), associated with industrial activity. It held that it was reasonable for EPA to conclude that the conveyances at issue are “directly related” only to the harvesting of raw materials, rather than to “manufacturing, processing, or raw materials storage areas at an industrial plant.” 40 C.F.R. §122.26(b)(14).

The United States Supreme Court recently heard oral arguments in the case opposing a farmer (little guy) against Monsanto (big guy) on the issue of patent exhaustion in patented seeds. The Supreme Court is expected to reach a decision sometime this spring.

The case revolves around the issue of patent exhaustion. The issue  that the US Supreme Court has to decide is, “Whether the Federal Circuit erred by (1) refusing to find patent exhaustion in patented seeds even after an authorized sale and by (2) creating an exception to the doctrine of patent exhaustion for self-replicating technologies?” 

Vernon Hugh Bowman v. Monsanto Company was originally brought by Monsanto, which sued the farmer for infringement of its patented technology. Bowman acquired a mix of commodity soybeans seeds from a local grain elevator containing Monsanto patented seeds. After spraying his field with the herbicide glyphosate to which Monsanto “Roundup-ready seeds” are resistant, he harvested the seeds and replanted some of them, thus infringing the patent, according to Monsanto. Bowman also bought high quality seeds every year from Pioneer Hi-Bred Limited, which commercializes Monsanto patented soybeans according to its amicus curiae brief. 

The Supreme Court took the case after a ruling by the Court of Appeals for the Federal Circuit, which ruled in favor of Monsanto. The patents in the technology expire in 2014. 

The biotech industry is concerned about a weakening of IP protection if the Supreme Court rules in favor of the farmer.

At the heart of the problem are products that are self-replicating, such as seeds. The industry is also worried about other areas such as vaccines and stem cells, some even introducing the idea that the case could have possible repercussions on copyright law. 

The Bowman v. Monsanto case is interesting because it lies at the intersection between patent law which provides exclusionary right to a patent owner to keep others from making, using or selling the patented technology, and the access to those agricultural products. It is a difficult question because of those competing dynamics.” 

An audio recording and a transcript of the hearing is available on the Supreme Court website. The SCOTUSblog summary is here.

Indiana, one of the eastern Corn Belt states also including Ohio, and southern Illinois, is now officially out of the drought; however much of the western Corn Belt is still in a drought, according to the March 5 Drought Monitor.

As the map shows, Iowa, southern Minnesota and most of the Western Corn Belt remain in drought.  This relates to how analysts deal with winter snowfall.  Significant precipitation has fallen across Minnesota and Wisconsin during the past 90 days, but most of it is sitting on top of the frozen ground, locked away in the snowpack, the March 5 report said. Accordingly, no changes were made across the region.

With the eastern Corn Belt officially out of drought and the outlook looking better for the rest of the Corn Belt, it should confirm farmers’ hopes for a better year.

The US Seasonal Drought Outlook's March 7 outlook through the end of May is showing expected improvement in the eastern third of Iowa and Minnesota, western Wisconsin and northern Illinois.

The western half of Minnesota and Iowa along with North Dakota, South Dakota, Nebraska and western Missouri are classified as “drought ongoing, some improvement,” while Kansas down to Texas and states further west are expected to see persistent or intensifying drought conditions.

For the time being, Indiana has returned to its normal soil moisture content. But we see a great many farmers spending heavily on irrigation systems — investments fueled by high grain prices and land values of $8,000 to $11,000 per acre.

The following bills were introduced in the House or Senate at the start of the session.

HB 1269 -- Environmental coverage.

HB 1202 -- Lawn fertilizers containing phosphorus.

HB 1489 -- Grants for green industry jobs.

HB 1514 -- Insurance for environmental claims.

SB 0358 -- Regulation of sewage backflow.

HB 1209 -- Environmental review of hydraulic fracturing.

HB 1021 -- Prohibition against Agenda 21.

SB 0157 -- Confined feeding operations and CAFOs.

HB 1475 -- Environmental rules.

SB 0113 -- Local air pollution control agency contracts.

Each was referred to one committee or another in early January. Sort of like Purgatory. You wait, you wait, you hope for a good outcome. But not likely. Unless the language resurfaces in other legislation, these bills are destined to move no further. Salvation is unlikely.