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Agricultural Update The Official Newsletter of the

______Volume 29, Number 2 Fall 2017 ______Inside This Issue

Justin Newell Hesser, THE BATTLE OVER “AG-GAG” CONTINUES, WITH CHALLENGERS HAVING SUCCESS

Todd J. Janzen, WILL SHARING AG DATA LEAD TO ANTI-TRUST VIOLATIONS?

Drew Kershen, GMO FOOD – MANDATORY LABELING IN THE UNITED STATES

Joe Willis, INTRODUCING THE UNIVERSITY OF ARIZONA NATURAL RESOURCE USER’S LAW AND POLICY CENTER

Drew Kershen, AGRICULTURAL LAW BIBLIOGRAPHY – 2ND QUARTER 2017 ______THE BATTLE OVER “AG-GAG” LAWS CONTINUES by Justin Newell Heesser* ______Challengers of so called “ag-gag” operation interference.”3 The law made it Legal Fund v. Herbert referred to laws obtained two victories from the a to obtain “access to an these different types of conduct as the this summer. In July, the federal agricultural operation under false district in Utah declared that state’s pretenses” or to record images or sound unconstitutional because it violated from the operation under certain operation with the intent to record an the First Amendment.1 Then in circumstances.4 The Court in Animal image of, or sound from, the agricultural September, the Tenth Circuit dealt a blow operation; (ii) knows, at the time that the person accepts employment at the to Wyoming’s statute when it held that the 3 UTAH CODE ANN. § 76-6-112 agricultural operation, that the owner of “collection of resource data constitutes the (LexisNexis 2017). the agricultural operation prohibits the 2 protected creation of speech.” 4 UTAH CODE ANN. § 76-6-112(2) employee from recording an image of, or provides as follows: A person is guilty of sound from, the agricultural operation; Utah agricultural operation interference if the and (iii) while employed at, and while Utah’s “ag-gag” statute passed in person: present on, the agricultural operation, 2012 created a crime for “agricultural (a) without consent from the owner records an image of, or sound from, the of the agricultural operation, or the agricultural operation; or owner's agent, knowingly or intentionally (c) without consent from the owner 1 Animal Legal Def. Fund v. Herbert, No. records an image of, or sound from, the of the operation or the owner's agent, 2:13-cv-00679-RJS, 2017 U.S. Dist. Lexis agricultural operation by leaving a knowingly or intentionally records an 105331 (D. Utah July 7, 2017). recording device on the agricultural image of, or sound from, an agricultural 2 W. Watersheds Project v. Michael (W. operation; operation while the person is committing Watersheds II), No. 16-8083, 2017 U.S. (b) obtains access to an agricultural criminal trespass, as described in App. Lexis 17279 (10th. Cir. Sept. 7, operation under false pretenses; (i) applies Section 76-6-206, on the agricultural 2017). for employment at an agricultural operation. AG LAW UDPATE – FALL 2017 Page 1 lying provision and the recording exposing abuses at agricultural portion of the statute that made it provisions.5 facilities. The State has not argued this unlawful to cross private land to access The Court’s decision analyzed in as a government interest motivating adjacent or proximate land to collect detail whether the lying and recording the Act. And had it done so, it is not resource data prohibited them from prohibited in the law were protected clear whether that interest could be engaging in protected speech on public 14 speech under the First Amendment. sufficiently compelling to withstand . The Court agreed stating the Because the act’s “false pretenses” strict scrutiny. But that question is for “fact one aspect of the challenged 10 language could apply to “a host of trivial, another day. concerns private property does not defeat 15 harmless misrepresentations” the Court Wyoming the need for First Amendment strutiny.” concluded that at least some of the lies At issue in Western Watersheds The Court determined only that the statute covered by the law were protected Project v. Michael were statutes that at issue regulated protected speech—the speech.6 The Court also followed several created criminal and civil liability for first part of a three-part first amendment decisions from other district courts and individuals who trespassed upon private challenge—remanding to the district court circuits to determine that the act of property to collect research data or to determine the level of scrutiny to be recording is protected speech.7 crossed private property to collect applied and whether the statute survives 16 11 that scrutiny. After concluding that Utah’s law was research data on public lands. These Conclusion subject to First Amendment scrutiny, the laws had broad application and did not 12 The decisions in these two cases Court had little problem determining it just apply to the agriculture industry. followed B. Lynn Winmill’s was a content-based restriction subject to The district court in July 2016 dismissed decision from August 2015 declaring strict scrutiny.8 Finally, the Court the plaintiffs’ challenge to this law, Idaho’s statute unconstitutional.17 The fate determined that the statute did not pass concluding individuals do not have a First of the Idaho statute is still pending in an strict scrutiny because of the health and Amendment right to engage in speech on 13 appeal to the Ninth Circuit, in what will safety interests given by the state were the private property of others. likely be the next decision addressing ag- “entirely speculative” and did not The plaintiffs in Western Watersheds gag laws. These cases are likely to pave constitute a compelling state interest.9 appealed part of district court’s ruling to the way for plaintiffs’ challenges to the Tenth Circuit. Plaintiff’s argued the Although the Utah statute was found similar laws in other states. unconstitutional, the court noted that it was not deciding one of the key issues in * Justin Newell Hesser is an attorney with Dray, the debate regarding ag-gag laws. The Dyekman, Reed & Healey, P.C. in Cheyenne, WY. Court recognized that the “complex policy Justin devotes his practice to helping agricultural questions” never materialized in the case businesses and families with their legal needs. He based on the interests asserted by the grew up on a ranch in Western Nebraska and applies state, and later noted: this knowledge on the ranch and in his legal practice. In his transactional practice, Justin negotiates oil What the Act appears perfectly and gas leases and surface use agreements; drafts tailored toward is preventing agreements and conducts for real undercover investigators from transactions, assists in curing mineral title defects, and prepares estate plans. Justin also helps families through trust administration or , including 5 Animal Legal Def. Fund, 2017 U.S. Dist. litigation involving fiduciary duties. Lexis 105331, at *9. 6 Id. at *20–21. Justin received his JD from the 7 Id. at *28–32. 10 Id. at 43. The State of Utah did not file Univ. or Wyoming with honors and 8 Id. at *35–39. an appeal of the district court’s summary is licensed in WY and NE. 9 Id. at *39-43. The state provided the decision. Contact Justin at (307) 634-8891 following four government interests in 11 WYO. STAT. ANN. § 6-3-414; 40-27-101 or [email protected]. support of the law: “(1) the Act protects (2017). animals from diseases brought into the 12 For a discussion of the history of “ag- 14 facility by workers; (2) it protects animals gag” laws and four categories they fit W. Watersheds Project, 2017 U.S. App. from injury resulting from unqualified or within, see Jacob Coleman, ALDF v. Lexis 17279, at *8. 15 inattentive workers; (3) it protects Otter: What does it mean for other States, Id. at *9. 16 workers from exposure to zoonotic 13 J. Food L. & Pol’y 198, 201–06 Id. at *16. 17 diseases; and (4) it protects workers from (Spring 2017). Animal Legal Def. Fund v. Otter, injury resulting from unqualified or 13 W. Watersheds Project v. Michael, 196 118 F. Supp. 3d 1195 (D. Idaho inattentive workers.” Id. at *40. F. Supp. 3d 1231, 1248 (D. Wyo. 2016). 2015). AG LAW UDPATE – FALL 2017 Page 2

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WILL SHARING AG-DATA LEAD TO ANTI-TRUST VIOLATIONS?

by Todd J. Janzen* ______

The use of cloud-based ag-data companies that have violated the Sherman agreed on a minimum price for fertilizer, software platforms is on the rise by Antitrust Act by sharing data and then it would be a clear case of price collusion. farmers, livestock producers, and using that information to raise prices. For By using ag-data pricing information ranchers. Nearly every company that sells, example, in US v. Container Corp. unknowingly entered by their farmers the markets, or buys goods from farmers, has shipping companies agreed to exchange result is the same. This could, therefore, developed a platform to capture price data among themselves, and this was also be considered price collusion. agricultural data. Even pure technology enough to violate the Act.3 The Container Container established that collusion does companies are now crowding a space that case is notable because it did not involve not require an agreement.6 was once left to niche players, attempting an agreement among competitors to fix The same result could occur if Alpha to deliver data analytics as a stand-alone prices – just an agreement to share data and Beta enter into a data sharing service to farmers. from which prices could be deduced.4 agreement that allows their farmers to That data sharing resulted in price From 175 year old agricultural legacy openly share data between their platforms. collusion.5 companies to the newest Silicon Valley Sharing data may seem like a benefit to ag-tech startup, all of these companies The exchange of ag-data could the farmer, as it eases data transfer, but have one thing in common—they all want likewise cause price fixing where the result could lead to higher prices. as much ag-data as possible to ensure companies with access to ag-data also Perhaps farmers share the same their platforms work. The more ag-data have access to competitors’ data. Here is a agronomist, who uploads data from both fed into the system, the better the hypothetical to illustrate. companies into the same platform. If analytics and services these companies Alpha and Beta can view this data as well, Alpha Fertilizer Company collects can offer to the farmer. the building blocks for price fixing have data from its growers about the been laid. As the ag-data space gets more types and prices of fertilizer crowded, the competition grows fiercer, Alpha's growers are applying. poultry growers have already and the need to squeeze profit out of Growers share this information filed a alleging that pricing data- captured ag-data increases. Will the desire with Alpha so that Alpha's sharing among integrators, even though to make money from farmers’ ag-data agronomists can make allegedly "anonymized," resulted in price cause some ag tech providers to push the recommendations for future fixing.7 Various poultry integrators report limits of anti-? This article plantings. to a data service company to track addresses two of those possibilities, “price industry trends. The poultry growers' suit Alpha's growers, however, also fixing” and “product tying.” is novel because the growers allege that upload data about types and prices price data shared with the data service Price fixing among competitors is of fertilizer purchased from other company does not contain pricing illegal under Section 1 of the Sherman fertilizer retailers, such as Beta information for individual farms, but Antitrust Act: Fertilizer Company. Alpha's instead “price” is determined by some employees can now view their Every contract, combination in the reverse engineering by the participants.8 competitors’ pricing and soon form of trust or otherwise, or Haff Poultry has yet to be decided, but it realize Alpha’s growers are paying conspiracy, in restraint of trade or foreshadows a modern application of the more for fertilizer from their commerce among the several Sherman Antitrust Act on ag-data competitor Beta Fertilizer States, or with foreign nations, is platforms. Company. declared to be illegal.1 Price fixing is not the only antitrust As a result, Alpha raises prices on The penalties for violating the pitfall for ag-data sharing platforms. its farmers knowing these Sherman Antitrust Act can be Companies that sell seed, equipment, and customers cannot get a better deal severe. Any person who makes a contract crop protection chemicals may find it from Beta. or conspires to restrain trade is guilty of a irresistible to bundle their ag-data felony, subject to a fine of up to $100 If Alpha and Beta had openly platforms with their traditional, more million and imprisonment up to 10 years.2 exchanged their pricing information and desirable agricultural products. For is full of examples of 3 US v. Container Corp., 393 US 333 (US 6 Id. 1969). 7 Haff Poultry, Inc. v. Tyson Foods, Inc., 1 15 U.S.C. § 1 (2017). 4 Id. 17-cv-00033-SPS (E.D.Okla. 2017). 2 Id. 5 Id. 8 Id. example, a farmer may want to purchase a Windows software.13 The District Court red tractor but use a green ag-data judge explained the four elements for a platform in the cab. The red tractor "tying" claim: (1) two separate ''products'' company can eliminate the green ag-data are involved; (2) the defendant affords its platform as a competitor if it requires the customers no choice but to take the tied purchaser to license the red ag-data product in order to obtain the tying product as a condition of purchasing its product; (3) the arrangement affects a tractor. substantial volume of interstate commerce; and (4) the defendant has Companies that have one desirable ''market power'' in the tying product product often require customers to market.14 The District Court determined purchase a second, less desirable product Microsoft was guilty of unlawfully tying in order to use the main product. Internet Explorer to Windows, restricting Occasionally, these sales tactics go too far competitor Netscape from competing for and either the federal Department of the web-browser market.15 Microsoft (DOJ) or competitors intervene by ultimately settled with the DOJ. filing anti-trust complaints against the manufacturer. These types of two-product The VW and Microsoft examples of sales are considered unlawful "tying unlawful tying should be warnings to ag arrangements" – where a company sells equipment manufacturers, retailers, and one product on the condition that a crop input suppliers. It may be tempting * Todd Janzen is the founder customer must purchase a second ("tied to artificially boost your subscription and President of Janzen Ag Law, product") which the purchaser ordinarily numbers by requiring farmers to sign up LLC, a law firm focused on the would not buy.9 Such tying arrangements for your ag-data platform when are a violation of the Sherman and purchasing goods, but the conduct may legal needs of the growing Clayton Antitrust Acts because they are also be illegal. agricultural industry and located in anti-competitive and restraints on trade.10 Ag-data platforms have exploded onto Indianapolis, Indiana. In the late 1970s, for example, an air- the market in recent years. When the Todd grew up on a diversified conditioner manufacturer sued novelty of these products wears off, ag- grain and livestock farm in south Volkswagen (VW) for an unlawful "tying tech competitors will find themselves arrangement" with its dealers.11 At the using every tool available to attract new, central Kansas and received his time, VW cars imported into the United and retain existing, subscribers. If history J.D. from Indiana University. He States lacked factory air conditioner (A/C) is any guide, this pressure will lead some now focuses his practice on diverse units, and thus dealers installed these units companies to test the antitrust protections issues facing ag businesses, for customers. When VW acquired an offered to farmers, livestock producers, A/C manufacturing company, VW and ranchers. Fortunately, history also including ag technology providers. pressured its dealers to use the VW-model provides us with ample case law Todd can be contacted at (317) A/C units. Another A/C manufacturer, to address these antitrust issues 855-9920 or [email protected]. Heatransfer Corporation, watched its when they arise. You can also follow him on market for A/C units in VW cars slowly ______erode (even though there was some Twitter @janzenlaw or his blog, Heatransfer units were superior). Janzen Ag Law Blog, at A determined that VW's dealer www.aglaw.us/janzenaglaw.com. franchise agreement unlawfully "tied" the VW A/C unit to VW cars, forcing dealers to use the VW unit, and unlawfully preventing Heatransfer from competing in the A/C market.12 Similarly, in 2000, the DOJ accused Microsoft of unlawfully "tying" the Internet Explorer web browser to

9 15 U.S.C. § 14 (2017). 10 Id. 11 Heatransfer Corporation v. 13 US v. Microsoft, 87 F. Supp. 2d 30 Volkswagenwerk, AG, 553 F.2d 964 (5th (D.C. Cir. 2000). Cir. 1977). 14 Id. at 47. 12 Id. 15 Id. at 51. AG LAW UDPATE – FALL 2017 Page 4

______GMO FOOD – MANDATORY LABELING IN THE UNITED STATES

by Drew Kershen* ______

On July 29, 2016, President Barak • The U.S. federal government, definition is not crystal clear. The Obama signed into law the National through developed and Secretary of Agriculture will need to Bioengineered Food Disclosure issued by the Secretary of Agriculture, clarify in the regulations whether Standard.1 The 2016 law amended the has exclusive power and control over bioengineering is broad or narrow. Agricultural Marketing Act of 1946 labels for bioengineered foods. More precisely, the Secretary will by adding Subtitle E (National need to address specifically whether • The federal law has exercised Bioengineered Food Disclosure various genome editing techniques – expressed, field preemption of food Standard) and Subtitle F (Labeling of for example ZFN, TALEN, CRISPR labeling. Consequently, states and Certain Food).2 The law requires the and others – result in foods that must other subordinate political U.S. Secretary of Agriculture to draft be labeled. If the Secretary reads the cannot adopt any regulations to implement the law definition narrowly, the federal different or additional label within two years.3 Thus, by July 29, labelling law would not apply to foods requirements. Their laws must be 2018, the United States will have a created, developed, and bred through identical to the federal requirements. mandatory labeling requirement for genome-editing techniques that are bioengineered food. Regarding the third point about replacing, to a large degree, rDNA federal preemption, the federal law techniques. The Trump Administration has preempts requirements related to vowed to meet the statutory deadline The federal definition of labels. The federal law explicitly for regulations, but has indicated that “bioengineering” states: “The term states that it does not preempt any food manufacturers will likely be ‘bioengineering’… refers to a food ... “remedy created by a State or Federal given a transition time beyond the two that contains genetic material that has statutory or right.”5 years for bringing their food labels been modified” through whatever Thus, if a food manufacturer into compliance. Indeed, the law techniques the Secretary determines mislabels a bioengineered food, or if explicitly gives small food are bioengineering.8 Due to the word the food is for some reason manufacturers (to be defined by the “contains,” a strong argument exists adulterated, regulators and consumers forthcoming regulations) at least one that the mandatory labeling law does will seek their remedy under other year after before their not apply to refined processed oils or state or federal statutes or through labels must comply.4 to plants (and their resulting foods) suits. The federal from which genetic material added by Three Certain Consequences mandatory labeling law itself does not bioengineering has been removed. contain any remedies or penalties, and Although the regulations have yet These refined processed oils and non- the Secretary of Agriculture does not to be proposed, much less adopted, bioengineered plants do not contain have any authority to recall a food on three certain consequences of the law genetic material that has been the basis that the food manufacturer’s can be stated: modified. The Secretary needs to label does not comply with the address explicitly the meaning and • The United States will have Secretary’s regulations for labels on consequences of the word “contains” mandatory labeling of bioengineered bioengineered foods.6 food (more commonly known as in the definition of the term Major Issues for Clarification in genetically modified or genetically “bioengineering.” the Regulations engineered food). The federal law expressly The federal law defines the term commands the Secretary to determine “bioengineering.”7 However, the the “amounts of a bioengineered 1 S. 764, 114th Cong. § 2 (2016). substance” that can be in a food for 2 Id. 5 Id. at 5. 3 Id. 6 Id. 4 Id. 7 Id. at 1. 8 See Id. that food to be a bioengineered food.9 modification “could not otherwise be efficaciousness of consumer access to Thus, the Secretary will determine the obtained through conventional disclosure through electronic or threshold below which a food breeding or found in nature.”11 The digital links.15 If the study indicates manufacturer will not have to label AquAdvantage® salmon is a faster consumers will not have adequate the food as bioengineered. Obviously, growing Atlantic salmon modified access, the statute then states that “the if the Secretary sets a high threshold, with genes taken from Pacific salmon Secretary, after consultation with food such as in Japan or Korea, fewer species. The food manufacturer, retailers and manufacturers, shall foods will carry the mandatory label. AquaBounty, will have to determine provide additional and comparable If the Secretary sets a low threshold, whether its salmon could be created options to access the bioengineering such as in the European Union, many through conventional breeding or disclosure.”16 Thus, depending upon more foods will carry the mandatory whether it could be found in nature. the consumer study and upon label. consultations with the food industry, Depending on that determination, the precise manner and means by One major exemption from the the AquAdvantage® salmon is a which electronic and digital disclosure mandatory label exists in the federal “bioengineered” salmon that must will take place is yet to be settled. law. The Secretary must issue a carry the mandatory label or is not a that prohibits a mandatory “bioenginnered” salmon. Of course, After the Secretary has developed label on a food solely because the AquaBounty may voluntarily label its the text, symbol, and (as appropriate) food comes from an animal that salmon to indicate its modified origin electronic and digital disclosures, food consumed a bioengineering feed or so long as the label is not false or manufacturers have the statutory other bioengineered substance.10 misleading.12 permission to adopt the disclosure Consequently, meat, milk, eggs, and option that the manufacturer wants to The Disclosure Label other animal products produced with use for their bioengineered food bioengineered feed will not carry a The Secretary has the obligation to products.17 Small food manufacturers mandatory label. develop precisely the physical will also have the option to use a appearance and wording of the label. telephone number with accompanying With one exception, bioenginnered The law authorizes the Secretary to language saying that calling the animals are in the developmental develop a textual label, a symbol number will get more information stage but not yet on farms and label, and an electronic or digital link about the bioengineered food.18 The ranches. Once bioengineered animals label.13 law explicitly excludes very small and their food products reach the food manufactures (to be defined by consumer food market, these animals Regarding the electronic or digital the regulations) and food retail and their foods must carry the link, the statute clearly authorized 14 establishments (e.g., restaurants) from mandatory label. electronic or digital links. But the law mandated that the Secretary mandatory labeling of bioengineered The one exception is the fast- 19 conduct a study, to be completed by foods. growing salmon, known as the July 29, 2017, about the Organic Foods and the Non- AquaAdvantage® salmon, that US GMO label regulatory agencies have approved for sale to consumers. Whether this 11 Id. at 1. The federal law contains a 12 salmon must carry the mandatory The AquAdvantage salmon faces an additional labeling hurdle. Due to a rider label depends upon whether it is to appropriations bills, the salmon cannot 15 Id. at 3. Note that In the fall 2016, the “bioengineered” as defined in the reach US consumers until the FDA Secretary signed a contract with a statute. The statute has two elements approves special labeling. As of consumer research company to conduct September 2017, FDA has not taken that study and to report before July 29, to the definition: modified through action on this mandate. Moreover, it is 2017. The study is not completed as of rDNA techniques and the unclear how the FDA and the USDA April 2017. labeling obligations will coordinate, 16 Id. mesh, or conflict. 17 Id. at 2-3. 9 Id. at 2. 13 Supra.note 1 at 2. 18 Id. 10 Id. 14 Id. 19 Id. at 3. AG LAW UDPATE – FALL 2017 Page 6 provision stating that a food certified orchards. This expansion of the as organic under the U.S. National “Process Verified Program,” for Organic Program is sufficient to allow absence labeling, is an interesting, a claim regarding the absence of legally untested consequence of the bioengineering for organic food.20 mandatory food labeling law. The USDA NOP has now explicitly When the Secretary ultimately authorized organic food releases the bioengineered food label manufacturers to place on their foods regulations, it is reasonable to expect the label “Non-GMO” or other similar additional interesting, untested claims. Food manufacturers now are consequences of the mandatory food adding the absence label “Non-GMO” labeling law. Be ready to learn much to their certified organic food more no later than early August 2018. products.

In addition, the USDA- Agricultural Marketing Service for years has had a marketing program * Drew L. Kershen, is an Earl called the “Process Verified Sneed Centennial Professor of 21 Program.” In light of the federal Law Emeritus, at the University of law, the USDA has begun to verify Oklahoma, College of Law. the process presented by individual food manufacturers that assures that Professor Kershen taught no bioengineered techniques or agricultural law for thirty-plus ingredients exist in a particular food. years. Beginning in 1997, he Under the Process Verified Program, focused his research, writing, and some food manufacturers have begun speaking on agricultural bio- to add the words “Non-GMO” to their technology law and policy. labels. Professor Kershen retired from teaching in 2012. The USDA apparently considers the process-verification program to allow this absence label even though the federal label law states that food manufacturers cannot use a Non- GMO label “solely because the food is not required to bear” a bioengineered disclosure.22 Thus, food manufacturers are using the process verified program to gain a non-GMO label for food products (e.g., orange juice) when, in fact, there are presently no genetically modified oranges in farmers’ commercial

20 Id. at 5-6. 21 See USDA, Process Verified Program, https://www.ams.usda.gov/services/auditi ng/process-verified-programs (last visitated Oct. 15, 2017). 22 Supra Note 1 at 5. AG LAW UDPATE – FALL 2017 Page 7

______INTRODUCTION TO THE UNIVERSITY OF ARIZONA NATURAL RESOURCE USERS LAW AND POLICY CENTER by Joe Willis* ______The University of Arizona’s James E. “Having represented agricultural interests primarily co-taught by Richard Morrison, Rogers College of Law and the College of all of my career, I know there have never Esq. and Joe Willis, Esq. Celeste Steen, Agriculture and Life Sciences (CALS) been enough agricultural and Esq. is the instructor of record. Ms. Steen Cooperative Extension System (CES) there has always been an issue of is UA’s legal responsible for all have partnered to launch a Natural affordability. I believe this clinic can CALS land and as well as a Resource Users Law and Policy Center provide the solution.” Rogers College of Law professor of (NRULPC). The Center was the first of its The University will start a selection practice. kind in the nation. The overarching aims process for the Natural Resource Users With the creation of the Natural included collaborating with stakeholders Law & Policy Center Director Resource Users Law and Policy Center, and mentoring student clinicians and as soon as the ongoing Natural Resource the University of Arizona offers a fellows to address the currently unmet Users Law Clinic director search is resource as well as a model to the legal needs of ranchers, farmers, miners completed. agricultural community across the United and others whose business involves the Until a NRULPC Executive Director States. The membership of AALA is use of natural resources. is hired, John Lacy, Esq., director of the invited to events such as the Second The collaboration includes a Natural Global Mining Law & Policy Program Annual Global Mining Law Summit: Resource Users Public Interest Law Clinic and longtime professor of practice at the “Building Capacity for Mineral affiliated with the NRULPC to provide a University of Arizona Rogers College of Development with Native Americans and mechanism for client advocacy in addition Law, will serve as NRULPC Coordinator. Indigenous Communities: A Two-Way to the three classical Land Grant Professor Lacy is shareholder in the firm Street.” The Summit will be held October University missions of education, research of DeConcini McDonald Yetwin & Lacy 20, 2017. and cooperative extension that the P.C., where his practice has focused on NRULPC will deliver. The Clinic will mining and natural resource law. As also provide real-word experience for law director of the Global Mining Law and CALS students. The Clinic, which Program he has led the development of a will communicate closely with the full on-line masters level curriculum in NRULPC including our Taskforce, helps mining law for lawyers (LLM) and non- businesses, most often run by families, lawyers (MLS). See individuals or small entities in Arizona, https://law.arizona.edu/global-mining- deal with a wide array of legal and law-program. The program also puts on a regulatory issues including land, conference each year, and the environment, tourism, water, announcement for this year's mining employment, trade, food safety and conference appears below. security, and economics. These issues are CALS Extension specialist and often difficult to resolve without the Marley Endowed Chair for Sustainable advice of private legal counsel; which Rangeland Stewardship, Professor George many natural resource users cannot Ruyle will work with Professor Lacy as afford. The CES statewide reach, along the CES NRULPC liaison. Professor * Joe Willis is a shareholder at with other affiliated facilities, will ensure Ruyle is an internationally renowned Schwabe, Williamson & Wyatt the Center can serve clients throughout expert on appropriate and rational long- focusing on Natural Resources, Arizona. The NRULPC, the CES and term natural resource use; he also served Real Estate, and Construction. Joe CALS, and the College of Law will on the previous NRULPC executive provide information resources for the director search committee. received his J.D. from the Clinic. One of the NRUPLC’s major goals is University of Oregon School of Private donors have funded the Clinic to promote the law as a career options to Law and is admitted to practice in director. There remain opportunities for students doing degrees associated with Oregon, Washington State, and those would like to support the natural resource use. The first class for development of the Center to promote the undergraduate students (in CALs, the federal courts. wise use of natural resources to help with Rogers College, and any other UA For over 40 years, Joe has helped funds for programming and special college) is “ACBS/LAW 411: An property owners in condemnation projects. Introduction to Agricultural Law and proceedings, handling over 1,000 AALA member, Richard Morrison, Policy for the Modern Day Natural cases, and recovering money for attorney, Salmon, Lewis and Weldon Resource User”. This course, which is clients in inverse condemnations. PLC., shared his thoughts about the shared between CALS’ School of Animal Center saying “I am very excited about & Comparative Biomedical Sciences and Joe can be reached at (503) 796- the development of this center,” said the Rogers College of law, will be 2929 or by email at [email protected]. ______AGRICULTURAL LAW BIBLIOGRAPHY – 2ND QUARTER, 2017

by Drew Kershen* and the National Center for Agricultural Law** ______

Administrative Law Energy Issues Child Labor

Denny, Worosz & Wilson, The Importance of Kesan, Yang & Peres, An Empirical Study of Student Article, Planting the Seed for Change: Governance Levels in Alternative Food Networks: the Impact of the Renewable Fuel Standard Protecting Washington's Most Vulnerable The Case of Red Meat Inspection Rules, 81 (RFS) on the Production of Fuel Ethanol in theWorkers, 15 SEATTLE J. for SOCIAL RURAL SOCIOLOGY 601-634 2016 U.S, 2017 UTAH L. REV. 159-206 JUSTICE 193-227 2016

Note, Encouraging Climate Adaptation through Environmental Issues Collective Bargaining Reform of Federal Crop Subsidies, 91 N.Y.U. L. REV. 1684-1718 2016 Note, Agricultural Drainage and the Des Gould, Some Reflections on Contemporary Moines Water Works Lawsuit, 22 DRAKE J. Issues in California Farm Labor, 50 UC Student Article, Farmers Plead the Fifth: Is the AGRICULTURAL L. 109-134 2017 DAVIS L. REV. 1243-1278 2017 Plea against the Mandate to Reserve Raisins in Horne v. Department of Agriculture Legitimate?, Note, Allies and Adversaries: A Look into the General & Social Welfare 36 J. NATIONAL ASSOCIATION Relationship between Herbal Medicines and 602-637 the Environment, 28 GEORGETOWN Comment, You Are the Employer even if 2016 ENVIRONMENTAL L. REV. 693-712 2016 You’re Not: Joint Employment Under the Migrant and Seasonal Agricultural Worker Biotechnology Note, Protecting Kentucky’s Honey Bees: Protection Act, 25 SAN JOAQUIN What’s Killing the Buzz, Why It Matters, and AGRICULTURAL L. REV. 90-114 2016 Glas & Carmeliet, The European Court to Rule on What We Can Do to Help, 9 KENTUCKY J. Milestone in European GMO : The EQUINE, AGRICULTURE & NATURAL Note, Deficiencies in the Agricultural Labor Legal Classification of Mutagenesis in Plant RESOURCE L. 269-296 2017 Market, 9 KENTUCKY J. EQUINE, Breeding, 16 BIO-SCIENCE L. REV. 91-104 AGRICULTURE & NATURAL RESOURCE 2017 Pollans, Drinking Water Protection and L. 297-316 2017 Agricultural Exceptionalism, 77 OHIO Menon & Jha, National Biosafety System for STATE L. J. 1195-1260 2016 Farm Policy and Legislative Analysis Regulating Agricultural Biotechnology in India, 14 Domestic INTERNATIONAL J. BIOTECHNOLOGY 151- Student Article, Sugar, Politics, and the 169 2016 Destruction of Florida's Natural Resources: Note, Data Privacy and Protection in the The Problem with Constitutional Agriculture Industry: Is Federal Regulation Saravanan, The Biotechnology Regulatory Amendments, 18 FLORIDA COASTAL L. Necessary?, 18 MINNESOTA J. L. Authority of India Bill 2013 – A Threat to the REV. 89-111 2016 SCIENCE & TECHNOLOGY 309-342 Safety of India’s Food and Farming, 35 2017 BIOTECHNOLOGY L. REP. 269-289 2016 Estate Planning/Divorce International Sax, Biotechnology and Consumer Decision- Note, Divorce & Farmland: What is the Best Making, 47 SETON HALL L. REV. 433-486 Solution?, 22 DRAKE J. AGRICULTURAL Comment, Seed Banks and their 2017 L. 89-107 2017 Sprouting Need for Stricter Contracts, 47 CALIFORNIA WESTERN Sax, Contours of GMO Regulation and Labeling, Farm Labor INTERNATIONAL L.J. 81-108 2016 19 SMU SCIENCE & TECHNOLOGY L. REV. 413-418 2016 Aliens Financee and Credit

Smyth, Genetically modified crops, regulatory Griffith, The Power of a Presumption: Castleton, The Mandatory and delays, and international trade, 6(2) FOOD & California as a Laboratory for Unauthorized Conciliation Act: A Partisan Remedy ENERGY SECURITY 78-86 2017 Immigrant Workers' Rights, 50 UC DAVIS L. Disguised as a Resource for Neutral REV. 1279-1322 2017 , 25 SAN JOAQUIN AGRICULTURAL L. REV. 1-16 2016 Otieno, Agricultural Investments: The Comment, Cowboys Gone Rogue: The New Frontier of Abuse and Bureau of Land Management's Food and Drug Law the Place of Development Agencies, 12 J. Mismanagement of Wild Horses in light FOOD L. & POLICY 141-162 2016 of its Removal Procedures of 'Excess' Aguirre, Contagion without Relief: Wild Horses, 37 NORTHERN ILLINOIS Democratic Experimentalism and Smyth, Genetically modified crops, UNIV. L. REV. 371-400 2017 Regulating the Use of Antibiotics in regulatory delays, and international trade, Food-Producing Animals, 64 UCLA L. 6(2) FOOD & ENERGY SECURITY 78- Rural Development REV. 550-601 2017 86 2017 Comment, Putting the Heart Back in the Card, The Paradox of Clean Food and the Livestock and Packers & Stockyards Heartland: Regional Land Bank Initiatives Food Safety Modernization Act: for Sustainable Rural Economies, 69 Understanding the FDA's Preventive Sanders, Ag-gag Free Detroit, 93 U. ARKANSAS L. REV. 1055-1100 2017 Controls for Human Food Rule, 19 SMU DETROIT MERCY L. REV. 669-690 SCIENCE & TECHNOLOGY L. REV. 2016 Symposium, Cultivating New Urban 381-395 2016 Communities: Urban Agriculture and Student Article, Agroterrorism, Community Gardens, 43 FORDHAM Note, "So Close, yet So Far": The United Resilience, and Indoor Farming, 23 URBAN L. J. 195-421 2016 States Follows the Lead of the European ANIMAL L. 103-140 2016 Union in Mandating GMO Labeling, But Cahn & Segal, You Can't Common What Did It Go Far Enough? 40 FORDHAM Marketing Boards, Marketing Orders, You Can't See: Towards a Restorative INTERNATIONAL L.J. 625-746 2017 Marketing Promotion, & Marketing Polycentrism in the Governance of our Quotas Cities, 195-245; Note, The Recent Enactment of National Mandatory GMO Labeling Law: Superior Comment, Organized Robbery: How Ela, Urban Commons as Property to a Voluntary Labeling Scheme but Federal Marketing Orders Amount to Experiment: Mapping Chicago's Farms unlikely to End the Labeling Controversy, Unconstitutional Takings Without Just and Gardens, 247-294; 40 SEATTLE UNIV. L. REV. 821-840 Compensation, 25 SAN JOAQUIN L. 2017 REV. 67-89 2016 Haber, CED after #OWS: From Community Economic Development to Sax, Contours of GMO Regulation and Patents and Other Anti-authoritarian Community Counter- Labeling, 19 SMU SCIENCE & Rights in Agriculture institutions, 295-376; TECHNOLOGY L. REV. 413-418 2016 Note, Geographical Indicators: A Rising Miller, Financing Local Food Factories, 377-403; Sunstein, On Mandatory Labeling, with International Trademark Dispute between Special Reference to Genetically Europe's Finest and Corporate America, Witt, Towards a Human Right to Food: Modified Foods, 165 UNIV. 34 ARIZONA J. INTERNATIONAL & Implications for Urban Growing in PENNSYLVANIA L. REV. 1043-1095 COMPARATIVE L. 159-185 2017 Baltimore City, Maryland, 405-421. 2017 Pesticides, Herbicides, Insecticides, Sustainable & Organic Farming Winters, Less May Be More: Reading into Fungicides, Fertilizers Bowling, Why Did the Organic Chicken FDA's Labeling Requirements, 19 SMU Cross the Road? To See the Proposed SSCIENCE & TECHNOLOGY L. REV. Note, Weeding the Garden of Pesticide Livestock Welfare Rules in the National 419-430 2016 Regulation: When the Marijuana Industry Organic Program, 9 KENTUCKY J. Goes Unchecked, 65 DRAKE L. REV. EQUINE, AGRICULTURE & Hunger & Food Security Issues 223-253 2017 NATURAL RESOURCE L. 221-236 2017 Note, Vermont Food Access and the Public Lands "Right to Food": Using the Human Right Goeringer & Suri, Community Supported to Food to Address Hunger in Vermont, Babcock, Illegal Marijuana Cultivation on Agriculture: How Do Maryland Operators 41 VERMONT L. REV. 177-207 2016 Public Lands: Our Federalism on a very Manage Legal Risks?, 9 KENTUCKY J. Bad Trip, 43 ECOLOGY L. Q. 723-779 EQUINE, AGRICULTURE & International Trade 2016 NATURAL RESOURCE L. 211-219 AG LAW UDPATE – FALL 2017 Page 10

2017 JOAQUIN AGRICULTURAL L. REV. 17-38 2016 and Insurance Griggs, The Political Cultures of EldenBrady, Family Farms Versus Irrigation and the Proxy Battles of Factory Farms: Preemption of Local Interstate Water Litigation, 57 Ordinances under Michigan's Right to Ag Law Update NATURAL RESOURCES J. 1-73 2017 Farm Act, Why the Current Preemption The official newsletter of the American Standard Doesn't Work and What Needs Student Article, Thirsty for a Solution: Agricultural Law Association to Change, 33 WESTERN MICHIGAN Promoting More Efficient Water Use in Editor UNIV. COOLEY L. REV. 333-366 2016 the West, 20 UNIV. DENVER WATER Edward E. Cox L. REV. 65-89 2016 Agricultural Law Update is published by Marzen, Insurance Coverage and Custom the American Agricultural Law Association. Farming, 9 KENTUCKY J. EQUINE, If you desire a copy of any article or Copyright 2017 by American Agricultural AGRICULTURE & NATURAL further information, please contact the Law Association. All rights reserved. No RESOURCE L. 191-210 2017 Law School Library nearest your part of this newsletter may be reproduced or transmitted in any form or by any means, office. The National AgLaw Center Note, Ensuring Indemnity: Why Insurers electronic or mechanical, including website: photocopying, recording, or by any Should Cease the Practice of Depreciating http://www.nationalaglawcenter.org information storage or retrieval system, Labor, 22 DRAKE J. AGRICULTURAL without permission in writing from the has a very extensive Agricultural Law L. 65-87 2017 publisher. Bibliography. If you are looking for This publication is designed to provide Redick, Liability Prevention for agricultural law articles, please consult accurate and authoritative information in Agricultural Biotechnology, 22 DRAKE this bibliographic resource on the regard to the subject matter covered. It is J. AGRICULTURAL L. 31-64 2017 National AgLaw Center website.o distributed with the understanding that the publisher is not engaged in rendering legal, Trade Regulation/Antitrust accounting, or other professional service. If * Drew L. Kershen, Professor of Law, legal advice or other expert assistance is Monica, Agricultural Antitrust Liability: The University of Oklahoma required, the services of a competent What about the “Reasonable Farmer?”, 22 Norman, OK. professional should be sought. DRAKE J. AGRICULTURAL L. 1-30 Views expressed herein are those of the individual authors and should not be 2017 *The National Agricultural Law interpreted as statements of policy by the Center at the University of Arkansas, American Agricultural Law Association, its Williams, Zhao & Williams, The OPEC Fayetteville, AR. Learn more about officers or its members. Letters and editorial of Potatoes: Should Collusive the Center at contributions are welcome and should be directed to: Agricultural Production Restrictions Be http://nationalaglawcenter.org/. Immune from Antitrust Law Edward E. Cox, Editor, 105 W Van Buren, PO Box 518 Enforcement?, 11 VIRGINIA L. & Centerville, IA 52544 BUSINESS REV. 399-450 2017 ph. 641-856-3251 e-mail: [email protected] Water Rights: Agriculturally related For AALA membership information, Comment, Unilateral Curtailment of contact: Water Rights: Why the State Ware Maureen Kelly Moseman, Resource Control Board Is Overstepping Executive Director American Agricultural Law Association its , 25 SAN JOAQUIN PO Box 241555 AGRICULTURAL L. REV. 115-135 Omaha, NE 68124 2016 402-915-3166 email: [email protected] Comment, Walking on a Slippery Slpte: Desperate Farmers Turn to Oil AALA on the web: www.aglaw-assn.org Wastewater to Irrigate Drought Stricken Crops, 25 SAN JOAQUIN AGRICULTURAL L. REV. 39-66 2016 Comment, Groundwater Managed: California Takes its First Step towards Groundwater Sustainability, 25 SAN AG LAW UDPATE – FALL 2017 Page 11