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The pet industry is big in the US. We buy cat and dog related retail items for ourselves and the animals. We purchase pet insurance. Vets who work on Fido and Fluffy charge premiums that the large animals would never have spent on them.

It is also, a jumping off platform to stop production. Animal law is broadly animal welfare rules. Rules to protect production animals are deeply rooted in America, by comparison, prior to 1860s nothing made a difference between your favorite dog and a wild one when it came to them being shot by your neighbor. By 1867, New York said starving, torturing, or killing living creatures was a crime. Other laws regulate puppy mills, dog and chicken fighting. Pretty soon, denial of food, water, shelter, and vet care were actionable offenses.

Animal rights is the idea that animals have more than a welfare interest. They can inherit an interest in a trust (which is a good idea if you own an animal that will outlive you like an elephant, certain breeds of birds etc). Wilder ideas that are being pushed are that animals have the right to own land and have humans owe them a duty of care and responsibility to not destroy their habitat. Some ways to get into court for animals are to indicate the human is harmed observing by what is happening to the animal, the animal itself is harmed by the action (like denial of habitat) so the humans bring action for the animals, or more directly, the animal can sue in its own name. The most famous was a case where PETA filed a case for a macaque monkey who hit a button on camera. PETA claimed the monkey owned the copy right to the image. At least under the copy right act of 1976, the monkey didn’t have the right to sue, but the photographer who did own the image had to settle and donate 25% of the revenue from the photo to a macaque protection agency.

Horses, killer whales, and chimpanzees have all been apparently trying to file lawsuits via human intervention in their own name. Why do you care? If they have standing to sue, then animal husbandry practices like artificial insemination are now sexual assault.

In addition to suing, the latest maneuver is to “rescue” (read steal) animals from production faculties and say they are getting care for the animal. They will live cast the act in order to get views and interaction. They try to say the stolen property has no value and that the actions were designed to establish a right to rescue animals in peril. The defendant actually wanted to be jailed and appealed getting suspended jail sentence.

These interests are getting “experts” who are willing to testify that fish can be happy or sad based on the type of environment they are in. That is amazing for the idea that not so much fish might have but that humans are qualified to interpret the display of those emotions through mere observation.

Colorado’s proposed legislation would have also limited slaughter to only after 25% of natural life span had lapsed (for cattle that would be a chewy steak). In Oregon, they attempted to outlaw hunting and slaughter livestock full stop as well as criminalizing the breeding practices of AI. Don’t worry, in Iowa, a file was introduced to ban new confined feeding operations. A similar bill has been proposed on the federal level by Senator Cory Booker. Sen Booker had presidential aspirations at one time.

What about what did pass.   Eight states (Nevada, Massachusetts, California, Colorado, Michigan, Oregon, Utah and Washington) require all eggs sold to be from cage-free facilities. Restrictions on housing types are also on the books. Largely in states that don’t actually produce the regulated egg or chicken.

I wish I was making this stuff up. I wish this wasn’t a funded effort. This article didn’t even cover California’s efforts to tell producers in other states how to raise livestock.

Back to the drawing board: Peeping Tom law help torpedo anti Trespass and record law. Okay, its more than that.

For the third time, the Federal courts have found Iowa farm trespass law to be unconstitutional. Iowa Code § 727.8A made trespassers who and “knowingly places or uses a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property” an aggravated misdemeanor. That’s up to 2 years in prison. Simple trespass is more like a fine.

The objecting party was the Animal Legal Defense Fund. They admitted in their court filing that they haven’t recorded yet, but this would prevent them from trespassing and recording in the future. Weird way to say we plan on breaking the law later, but we don’t want to be in more trouble that we would have been under the old law. The federal court said that was enough to give them a “chip and chair” to proceed. (For the law students in the room, standing was the issue).

It’s private property so no first amendment applies was the defense. However, because the state of Iowa waded in and made it a criminal issue, the court said the first amendment applies. So that issue did not save the day for the defense.

Also, it’s a not a free speech issue said the producer groups because the recordings only become protected speech once they are edited or distributed. The federal court found the recording was also part of free speech (in line with some earlier holdings) so this defense fell flat.

With those barriers broke, the last line of inquiry is, can the government do this anyway? The parties did agree that “intermediate scrutiny” is the standard. That means that government wins if it shows that it thought about and couldn’t use less restrictive ways to achieve its specific governmental interest. The court found that the other Iowa laws on peeping toms and invasion of privacy already criminalize recordings and this law was too broad to achieve the government’s desire.

This is not the first rodeo on this topic. The State started in 2012 with penalties for lying about why somebody was on a farm as an employee (deceptive practices to gain access Iowa Code 717.3A).

Since 2012, the Iowa Legislature has enacted several agricultural fraud and trespass laws. The laws, sometimes referred to as “ag-gag” laws, make it a crime to use fraud or deception to gain access to or employment at an agricultural facility. The Ag gag law was partially dismantled by the federal court.

So, Iowa tried again, and criminalized those who trespass on ag facilities intending to do harm or lying to gain access via employment for non-employment reasons. The federal district court said no, again. That issue is on appeal.

Then Iowa tried a new trespass take, calling it “food operation trespass”. That has survived the first test in Federal district court and is still standing. In 2021, they made it criminal to interfere with livestock transport, unauthorized sampling, and another camera law.

Iowa is not in a vacuum doing all this alone. North Carolina, Idaho, Wyoming, Utah, Arkansas and Kansas have all promoted similar laws to provide producers protections. What is a livestock producer to do? First, make sure your operation and your employees are following proper husbandry and animal practices that promote animal wellbeing. Employees should be encouraged and rewarded for reporting variations from the standard. Unless your operation enjoys unannounced visitors, maintain a locks, video surveillance, signs restricting access, and monitor operations sights. Part of this fight is people getting access to facilities to either document problems or create them. You can control the first one, the second one is only controllable to the extent of who you invite into your operation.

So, three pipelines are proposed in Iowa to move carbon dioxide from ethanol plants to a storage facility. The idea is that captured CO2 is better than released CO2, making ethanol more environmentally friendly and a “greener” product. Good idea until you realize you have to build a giant pipe to move it to a captured facility. Instead of treating the CO2 on site with scrubbers or buying land from willing owners to put the pipeline in, the pipeline company is invoking the state’s power to take private property for public good. The pipeline company is selling itself as a “bus route” for other private companies to pay to move its CO2 from location a to b. They will just charge a “fare” to enter and exit the pipeline, like a toll way really. The problem is, the majority of the route is through Iowa farm ground that is owned by folks who remember the hollow promises of cooperation and compensation from prior pipeline projects. From a policy point, if you were told a private road was being built over your property and the private road company got to charge what ever it wanted to now and in the future, would you rather own part of that company or just get a one time payment for putting the road in ? The proposed easement is a one-time payment.

Without a doubt, the pipeline install will disturb soil, make it less productive and impair the value of the property now and into the future. The question is can the landowner get enough out of the company in hard concrete terms to compensate them. The free-flowing federal money for “green” projects makes it hard for states to stand in the way. While the state appears to not be concerned, it would appear local county and city governments and private citizens are concerned about the end result. Also, in the end, nobody will see the pipeline once it’s punched in and a few election cycles later it will be only those directly impacted that remember exactly where the pipe was shoved into the ground anyway. The Federal precedent is on the side of the pipeline, as a public good is not that difficult of a showing. While we have seen other long standing legal precedent overturned recently (Roe, Planned Parenthood vs. Casey), I don’t see the Kelo decision (which sets the bar for public use to allow the taking) going away anytime soon. The best course of action is likely to spend your time and effort ensuring that whatever the easement deal that is presented and agreed to is clear, easily implemented, leaves little decision making in the hands of the pipeline company and when or how to pay, and has provisions to ensure that the pay scale keeps up with the economy.

No King, No Crown

A popular joke is running around the internet where it starts with Tell these two images apart. The first is the phrase Most Farm Succession Plans in Action and the second is a picture of the Queen of England with the phrase 96-year-old dies, leaves 73-year-old in charge.

The response is, they are the same. The other joke is that the dad tells the kid he did a nice job planting and selecting the seed last year so this year he gets to combine, and the kid responds, sounds good, but I have an appointment to sign up for social security we will need to work around.

In both cases, it’s funny because it is all too often it’s true, painful as it is. Many ag operations, because of timing or control or lack of trust, deal with this scenario. Now is a great time to examine your operation and see if you are holding back your prince or princess from ascending to the throne. Do 80-year-olds need to be the sole combine operator? Can the next generation market the production? Why don’t we find out before the elder generation is carried away by six at the church? Better a warm hand to guide someone into prosperity than a cold hand from the grave.

Congress doing Congress things

In legislative news, some ag requests for funding are getting slid into the Continuing resolutions for spending by Congress. This includes disaster relief; child nutrition reimbursement rate increases and WRDA (Water Resources Development ACT) funding that helps waterway flood control and coastal flooding controls. Reduction of tariffs on developing countries imports are also being kicked around. Interestingly, it looks like our complicated relationship with China will continue to be complicated as Congress considers excluding some Chinese products from the punishment tariffs they enacted. Meanwhile, China roots against the US interests in Ukraine but fails to overtly come out and say it.

Owww… My eyes…. Prospectively

A member of an environmental nonprofit was found to have standing to object to a hotel’s plan to fill a half-acre wetland and build a new building. Despite the fact the member HAD NEVER BEEN TO THE HOTEL, she claimed she suffered an aesthetic injury. Such an injury occurs when a person who uses the affected area will experience diminished aesthetic value due to the proposed drainage. Even if the individual member never visited the wetland, the court found that she nevertheless experienced an injury in fact because she could no longer enjoy viewing the wetland. The court found that to require them to see the site before claiming the injury would result in a situation where “must “step on the Old Faithful geyser at Yellowstone National Park to challenge its destruction.” Further, the court found that the fact that it was private property didn’t matter, because the complaining person could see it. This is not a great case for private land use advocates.

With apologies to one of the more protective copyright holders out there, the song, (which was intended as a parody of the party culture and turned into a party song itself) fits the repair bill directly. If we don’t stop it, soon nothing will be fixable locally or without great cost of our capital.

Technology is changing our consumption habits. I have clients show me videos of problems that 15 years ago they would have never dreamed of capturing on video and the multiple ways to communicate with one another expand every day.

It isn’t just new apps to snap, tweet, and toc that are evolving. It’s the machines the Ag industry relies upon. The manufacturers know that the operations are getting more efficient and need less iron to cover the same number of acres, so they are looking for revenue streams wherever they can. Repairing those machines is a prime target.

First, printers. Most printers are designed with “bricking” technology that shuts them down after so many sheets run through them, full stop. The “jail break” to make these perfectly functioning machines continue to work past a programing que requires violations of federal copy right protections. Combine this self-imposed wear date with requirements (calibration pages) that are designed to waste ink (which if you consider the price you pay for the volume you get it might be cheaper to print in blood) and create more purchases. One company has reported said they sell ink, and the printers are just a deliver system. Other manufactures simply chose cheaper materials that will wear out forcing a replacement purchase earlier. That’s why everybody has a basement fridge from 1970s and nobody has a basement fridge from the 2000s.

Next, pay to play. BMW is experimenting with selling cars with all the bells and whistles on every frame, and then requiring you to pay for the extras you want. Heated seats, back up camera, defogger swipe your credit card. Can’t pay, freeze away.   Same can be done to farm equipment: Didn’t want to pay for the big motor, that’s fine, we will govern down your out put to the base model. It isn’t really a new concept; luxury cars have had hard to acquire tools to fix them for years for the same reason.

Finally, ag equipment. We have heard the story about John Deere shutting off equipment remotely when it was looked in Ukraine. We have heard the fights about trying to keep operators from being able to fix their own equipment.

What happens in response. Farm operators buying eastern European hacking kits to avoid built in restrictions on software. Hackers attacking corporate servers to “jail break” codes to trick the computers on the equipment into thinking they are at an authorized dealer to make repairs.

What happens next? When you bid on that used tractor in 2030, not only are you going to kick the tires, look at the wear points, but also you are going to want to plug in what ever comes after cell phones and check to see if the operating system has been tampered with. Consider the danger of a full throttle tractor when the operator intended to be moving slowly through a pen of cattle. You didn’t want that PTO to actually work, did you? Sorry, your credit card was expired and it’s a holiday in north Africa where our service center is located, find another tractor to unload feed with.

Right to repair legislation is some states are gaining traction (pun not intended but I will take it). New York will require sellers to provide access and resources for owners to repair their own equipment. Ag is not alone in this fight. Hospitals have similar issues repairing equipment that it has to have ready to perform at the drop of hat. Maybe once a more vocal sector of the economy than the rugged individualism of Ag is impacted more change will be on the horizon.

Tuesday, November 29, 2022
  • Patrick B. Dillon
  • Jill Dillon
Dillon Law PC
Patrick B. Dillon enjoys finding solutions to legal issues and catching problems for clients. Pat practices in the Sumner office regularly represents clients in district, associate district and magistrate courts for agricultural, real estate, criminal and collection issues. He drafts wills and trusts, creates estate plans and helps clients through the probate process.
Dillon Law PC
Jill is a University of Northern Iowa undergraduate (Political Science Cum Laude) and a Drake University Law School graduate. Jill is a firm owner but not currently accepting private pay clients. Jill still has ties to her family farm operation which includes a dairy herd.

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