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State and federal roundup

DISCHARGE. The debtors, husband and wife, leased farm land for several years.
The debtors sought farm operation loans from a bank which were guaranteed by the
FSA. The debtors wrote checks for the rent but the checks were returned for insufficient
funds. The debtor thought that the guaranteed loans would cover the rent checks, but

INSIDE the bank refused to lend more money until the debtor paid off the previous loan
balance. The rent remained unpaid when the debtors filed for Chapter 7. The landlord
had not filed a landlord’s lien, and the bank had the priority security interest in the
proceeds of crops grown by the debtors. The landlord sought a ruling that the claim
for unpaid rent was nondischargeable, under 11 U.S.C. § 523(a)(4), because the
• Ag law bibliography unfunded checks were a “debt for fraud or defalcation or both while acting in a fiduciary
capacity.” The court held that the rent claim was dischargeable because the debtors
• State Nutrient did not act as fiduciaries for the landlord when the unfunded checks were written. In
Management Act addition, the court held that the debtors were not shown to have stolen or embezzled
interpreted any of the landlord’s property through the writing of the checks; therefore, the rent
claim was dischargeable. In re Hermes, 340 B.R. 369 (Bankr. C.D. Ill. 2006).
• Federal Register CHAPTER 12 ELIGIBILITY. The debtors, husband and wife, owned a 3.8 acre farm
on which the debtors bred, boarded, trained and sold walking horses. The husband
claimed to spend 80 percent of each workday on the operation and the wife claimed
to spend 50 percent of each workday on the operation. The case does not mention any
outside income. A creditor objected to the Chapter 12 filing, arguing that the debtors
were not farmers because the debtors filed only federal income tax Schedule C for the
operation and did not file Schedule F. The court held that use of Schedule C did not
negate the other factors showing that the debtors were engaged in traditional farming
operations subject to the risks associated with other forms of farming. In re Buchanan,
2006 U.S. Dist. LEXIS 50968 (M.D. Tenn. 2006).
Solicitation of articles: All AALA FEDERAL FARM PROGRAMS
members are invited to submit articles CROP INSURANCE. In 2002, the defendants purchased crop revenue coverage
to the Update. Please include copies of insurance which continued through 2004 and covered their 2004 crop of soybeans on
decisions and legislation with the ar- leased farmland in Louisiana. The defendants leased 2,000 acres but were prevented
ticle. To avoid duplication of effort, from planting all but 41 acres. The defendants filed a claim with the plaintiff insurance
please notify the Editor of your pro- company, but the claim was denied because (1) the defendants did not file intended
posed article. acreage reports in 2003 and 2004; (2) the land was disked before the land could be
inspected by the plaintiff; and (3) the defendants did not plant and harvest at least the
same number of acres in the previous crop year. The defendant presented evidence
that two notices of the claim were filed with the plaintiff before the land was disked and
that the land was disked by the landlord when the defendants gave notice that they
In future issues: were not going to continue the lease. The claim denial was submitted to arbitration,
Proposed changes to and the arbitrator awarded the claim to the defendants. The court upheld the
2003 CAFO Clean Water Act arbitrator’s decision because (1) the defendants were not required to file intended
regulation acreage reports after the year of the initial application for insurance, even though the
defendants had provided sufficient information to the plaintiff as to the intended acres
for 2004; (2) the failure to obtain prior consent to destroy the planted acres by disking
was justified by the plaintiff’s failure to timely respond to the defendants’ timely claims;
and (3) although the defendants did not personally raise crops on the same number
of acres in 2003 as in 2004, the landlord had planted and harvested crops on those same
acres in 2003. The defendants also sought damages as allowed by the CRC policy and
federal crop insurance regulations. The court held that such damages were allowed
where the defendants prove that the damages were the result of a culpable failure of
the plaintiff to comply substantially with federal crop insurance law or regulations or
were the result of actions by the plaintiff beyond the scope of its authority. Farmers
Crop Insurance Alliance v. Laux, 2006 U.S. Dist. LEXIS 48717 (S.D. Ohio 2006).
FARM LOANS. The debtor had obtained loans from the FmHA, now the FSA, and
Cont. on page 2



defaulted on the loans. The loans were ited the defendant’s riding stables to prac- U.S. App. LEXIS 18224 (3d Cir. 2006), rev’g,
secured by mortgages on the debtor’s tice riding. The plaintiff was injured when 2005 U.S. Dist. LEXIS 12534 (D. Del. 2005).
farm. The debtor also failed to pay real the horse bit the plaintiff as the plaintiff
estate taxes, and a state tax lien was filed approached the horse, a horse which the PRODUCT LIABILITY
against the farm. The farm was sold at plaintiff had ridden before. The plaintiff STRAY VOLTAGE. The plaintiffs owned
foreclosure by the state for the amount of had observed the horse eating and had a dairy farm, and the dairy herd suffered
unpaid state taxes. No notice of the state waited until the horse had finished before from various health problems. The plain-
tax lien or foreclosure sale was given to approaching the horse. The defendant tiff investigated the herd’s feed, consulted
the FSA. However, the FSA became aware provided evidence that the plaintiff was with a nutritionist and a veterinarian, and
of the foreclosure but did not seek to aware that horses can kick and bite. The finally had the farm tested for stray volt-
foreclose its mortgage for several years. trial court dismissed the plaintiff’s suit for age. The defendant electric utility tested
Under Maine law, Me. Rev. Stat. Tit. 36, § negligence, holding that the plaintiff had the farm and found some ground voltage
943, the FSA mortgage was extinguished assumed the risk of the injury as part of the but indicated that the amount was below
three months after the FSA had actual natural risks of horseback riding. The ap- any “level of concern.” The plaintiffs hired
knowledge of the state tax lien and fore- pellate court affirmed. Tilson v. Russo, 818 an electrician who found substantial
closure. The person who purchased the N.Y.S.2d 311 (N.Y. Sup. Ct. 2006). amounts of stray voltage and installed an
farm at foreclosure argued that the Maine isolation transformer. The herd improved
law applied to extinguish the FSA loan as FEDERAL INCOME TAX but continued to have health problems.
to the purchaser. The court agreed and AUDITS. The IRS has published “MSSP Again, an independent electrician found
held that the purchaser held title to the Audit Technique Guide on Farming Op- stray voltage but the defendant found no
farm free of the FSA mortgage. United erations.” For this and other farm-related stray voltage. The plaintiffs sued for neg-
States v. Sayer, 450 F.3d 82 (1st Cir. 2006), IRS publications, see ligence, nuisance, strict liability and tres-
rev’g, 2005 U.S. Dist. LEXIS 2952 (D. Me. businesses/small/farmers/index.html pass for damage to the herd from stray
2005). voltage. Although the trial court dismissed
HORSES. The plaintiff was an experi- LABOR the claims for strict liability and trespass,
enced, life-long horseback rider and vis- EXEMPT EMPLOYEES. The plaintiffs the jury awarded damages to the plaintiffs
were crew leaders employed as salaried on the claim of negligence. The defendant
workers for the defendant. The plaintiffs initially raised an objection that the suit
supervised chicken catcher crews. The was barred by the six-year statute of limi-
plaintiffs’ duties included transporting the tation imposed by Wis. Stat. § 805.14(1)
catchers from their residences to the job because the plaintiffs did not exercise
location and back. The plaintiffs did not reasonable diligence in discovering the
hire or fire crew members but did report problem. The trial court included a jury
misconduct and crew performance. Al- instruction that provided that the plaintiffs
though the plaintiffs received annual sala- could be found negligent if they failed to
VOL. 23, NO. 7, WHOLE NO. 272 JULY 2006
AALA Editor..........................Linda Grim McCormick ries, the plaintiffs’ pay could be decreased exercise ordinary care to discover the
for non-worked hours. Vacation and sick source of the problem. The appellate court
2816 C.R. 163, Alvin, TX 77511
Phone: (281) 388-0155
pay were calculated using an hourly rate. held that this instruction was sufficient to
E-mail: The plaintiffs were not paid overtime when cover the issue of whether the six-year
the transportation duties caused work statute of limitations applied to the action.
Contributing Editors: Robert P. Achenbach, Eugene, OR;
John C. Becker, Penn State University; Drew Kershen, weeks to exceed 40 hours and the plaintiffs Because the jury found that the plaintiffs
University of Oklahoma. brought suit under the Fair Labor Stan- were not negligent, the six-year statute of
For AALA membership information, contact Robert dards Act, 29 U.S.C. §§ 206(a)(1), 207(a)(1), limitation did not apply. The defendant
Achenbach, Executive Director, AALA, P.O. Box 2025, for recovery of back overtime pay. The also objected to the trial court’s refusal to
Eugene, OR 97405. Phone 541-485-1090. E-mail
plaintiffs were first hired as hourly em- allow a specific jury instruction that other
ployees but were changed to salaried causes, such as poor herd management,
Agricultural Law Update is published by the American status in 2002. The defendant argued that could have caused the damages to the
Agricultural Law Association, Publication office: County
Line Priting, Inc. 6292 NE 14th Street, Des Moines, IA the plaintiffs were exempt from the over- herd. The court upheld the trial court,
50313. All rights reserved. First class postage paid at Des time provisions, under 29 U.S.C. § 213(a)(1), holding that the trial court’s comparative
Moines, IA 50313.
because the plaintiffs were executives. negligence instruction allowed the defen-
This publication is designed to provide accurate and The court reviewed the plaintiffs’ respon- dant an opportunity to argue that non-
authoritative information in regard to the subject matter
covered. It is sold with the understanding that the
sibilities under the definition of executive electrical factors caused the damages to
publisher is not engaged in rendering legal, accounting, or employee provided by 29 C.F.R. § 541.100. the herd. The defendant also argued that
other professional service. If legal advice or other expert The court found that the plaintiffs met the the damages should be limited to injuries
assistance is required, the services of a competent
professional should be sought. first three conditions: (1) paid on a salaried suffered after the plaintiffs notified the
basis; (2) having primarily management defendant that stray voltage was sus-
Views expressed herein are those of the individual
authors and should not be interpreted as statements of duties; and (3) customarily and regularly pected of causing the health problems.
policy by the American Agricultural Law Association. directed the work of other employees. The court held that there was no prece-
Letters and editorial contributions are welcome and
However, the court held that the plaintiffs dent for limiting damages in a stray volt-
should be directed to Linda Grim McCormick, Editor, 2816 were not executives because the plaintiffs age case to those occurring after notice.
C.R. 163, Alvin, TX 77511, 281-388-0155. did not meet the fourth requirement that Gumz v. Northern States Power Co., 2006
Copyright 2006 by American Agricultural Law the plaintiffs had the authority to hire, fire, Wis. App. LEXIS 634 (Wis. Ct. App. 2006).
Association. No part of this newsletter may be reproduced or discipline employees. The court found —Robert P. Achenbach, Jr. AALA
or transmitted in any form or by any means, electronic or
mechanical, including photocopying, recording, or by any that, although the plaintiffs had made re- Executive Director
information storage or retrieval system, without permission ports and recommendations about em-
in writing from the publisher.
ployees, all hiring, firing and disciplinary
actions were the sole authority of the
defendant’s administrators. Davis v.
Mountaire Farms of Delmarva, Inc., 2006


Agricultural law bibliography: 2nd quarter 2006 Liberty, Give and Take over Measure 37: Could Metro
Animals — animal rights Taylor, Brester & Boland, Hard White Wheat and Gold Reconcile Compensation for Reductions in Value with a
Student Article, There’s (Almost) No Place Like Home: Medal Flour: General Mills’ Contracting Program, 27 Rev. Regional Plan for Compact Urban Growth and Preserving
Kansas Remains in the Minority in Protecting Animals from Agric. Econ. 117-129 (2005). Farmland? 36 Envtl. L. 187-220 (2006).
Cruelty, 15 Kans. J. L. & Pub. Pol’y 125-157 (2005). Thompson & Jay, An Examination of Court Opinions on
Food and drug law the Enforcement and Defense of Conservation Ease-
Biotechnology Comment, A Tale of Two Systems: A Comparison ments and Other Conservation and Preservation Tools:
Akech, Developing Countries at Crossroads: Aid, Between U.S. and EU Labeling Policies of Genetically Themes and Approaches to Date, 78 Denv. U. L. Rev. 373-
Public Participation, and the Regulation of Trade in Modified Food, 15 San Joaquin Agric. L. Rev. 193-212 412 (2001).
Genetically Modified Foods, 29 Fordham Int’l L. J. 265- (2006).
298 (2006). Comment, Downed Animals: Can Your Steak Stand Up Livestock and packers & stockyards
Comment, A Growing Controversy: Genetic Engineer- for Itself? 15 San Joaquin Agric. L. J. 39-61 (2006). Case Note, Beef Is Still What’s for Dinner after ...
ing in Agriculture, 17 Villanova Envtl. L. J. 265-283 (2006). Coutrelis, European Union Food Law Update, 1 J. Food (Johanns v. Livestock Mktg. Ass’n, 125 S. Ct. 2055, 2005)
Comment, Out of the Petri Dish and Back to the People: L. & Pol’y 493-516 (2005). , 10 Great Plains Nat. Resources J. 42-58 (2006).
A Cultural Approach to GMO Policy, 23 Wis. Int’l L. J. 283- Fortin, Is a Picture Worth More than a 1,000 Words?: Comment, Agricultural Accountability: The National
320 (2005). The Fourth Amendment and the FDA’s Authority to Take Animal Identification Plan, Confidentiality and the Free-
DeVuyst & Wachenheim, American Crystal Sugar: Photographs Under the Federal Food, Drug, and Cosmetic dom of Information Act, 15 San Joaquin Agric. L. Rev. 213-
Genetically Enhanced Sugarbeets? 27 Rev. Agric. Econ. Act, 1 J. Food L. & Pol’y 239-268 (2005). 234 (2006).
105-116 (2005). Hennessy, Slaughterhouse Rules: Animal Uniformity Houston, From the Farm to the Factory: An Overview
Mandel, The Future of Biotechnology Litigation and and Regulating for Food Safety in Meat Packing, 87 Am. of the American and European Approaches to Regulation
Adjudication, 23 Pace Envtl. L. Rev. 83-112 (2006). J. Agric. Econ. 600-609 (2005). of the Beef Industry, 1 J. Food L. & Pol’y 269-336 (2005).
Johnson & Swaim, The Food Safety and Inspection
Environmental issues Service’s Lack of Statutory Authority to Suspend Inspec- Marketing boards, marketing orders, marketing pro-
Case Note, A Demonstration in Regulating the Regu- tion for Failure to Comply with HACCP Regulations, 1 J. motion, & marketing quotas
lators, (Waterkeeper Alliance v. EPA, 399 F.3d 486, 2d Cir. Food L. & Pol’y 337-374 (2005). Comment, California Raisins: Compliance with the
2005), 10 Great Plains Nat. Resources J. 17-41 (2006). Kershen, Health and Food Safety: The Benefits of Bt- Federal Marketing Order and Uruguay Round Agreement
Comment, Cleaning the Air at the Dairy: Dairy Permit- Corn, 61 Food & Drug L. J. 197-235 (2006). on Agriculture, 15 San Joaquin Agric. L. Rev. 89-115
ting in the San Joaquin Valley and the Controversy Note, Food Safety vs. Promotion of Industry: Can the (2006).
Surrounding the Science, 15 San Joaquin Agric. L. Rev. USDA Protect Americans from Bovine Spongiform En-
235-254 (2006). cephalopathy? 2006 U. lll. L. Rev. 625-658 (2006). Patents, trademarks & trade secrets
Note, December 23, 1985: A TurningPoint in the Roberts, United States Food Law Update, 1 J. Food Calboli, Expanding the Protection of Geographical
Granting of Farm Subsidies under the Food Securities Act L. & Pol’y 517-546 (2005). Indications of Origin under TRIPs: “Old” Debate or “New”
of 1985 (Horn Farms, Inc. v. Johanns, 397 F.3d 472, 7th Stearns, Preempting Food Safety: An Examination of Opportunity? 10 Marquette Intell. Prop. L. Rev. 181-203
Cir. 2005), 13 Mo. Envtl. & Pol’y Rev. 171-191 (2005). USDA Rulemaking and Its E.coli O157:h7 Policy in Light (2006).
of Estate of Kriefall ex. rel. Kreifall v. Excel Corporation, Nicol, On the Legality of Gene Patents, 29 Melbourne
Estate planning/divorce 1 J. Food L. & Pol’y 375-432 (2005). U. L. Rev. 809-842 (2005).
McEowen, New Medicaid Rules Will Impact Estate Strauss, The International Regulation of Genetically Straub, Farmers in the IP Wrench–How Patents on
Planning for Long-Term Health Care, 23 Agric. L. Update Modified Organisms: Importing Caution into the U.S. Food Gene-Modified Crops Violated the Right to Food in
4-6 (3-2006). Supply, 61 Food & Drug L. J. 167-196 (2006). Developing Countries, 29 Hastings Int’l & Comp. L. Rev.
187-213 (2006).
Farm labor Forestry Wright & Pardey, Changing Intellectual Property Re-
Aliens Benhin, Agriculture and Deforestation in the Tropics: A gimes: Implications for Developing Country Agriculture, 2
Note, The H-2A Farmworker: The Latest Incarnation Critical Theoretical and Empirical Review, 35 Ambio 9-16 Int’l J. Tech. & Globalization 93-114 (2006).
of the Judicially Handicapped and Why the Use of (2006). Wright & Pardey, The Evolving Rights to Intellectual
Mediation to Resolve Employment Disputes Will Improve Property Protection in the Agricultural Biosciences, 2 Int’l.
Their Rights, 21 Ohio St. J. on Dispute Resol. 409-445 International trade J. Tech. & Globalization 12-29 (2006).
(2006). Comment, Government Subsidies for Small Grains
Farmers along the U.S.-Canadian Border: International Pesticides, herbicides, insecticides, fungicides, fer-
Child labor Implications, 23 Wis. Int’l L. J. 345-365 (2005). tilizers
Effland, Agrarianism and Child Labor Policy for Agricul- Manzella, The International Treaty on Plant Genetic Diaz & Dubner, On the Importance of Regulating the
ture, 79 Agric. Hist. 281-297 (2005). Resources for Food and Agriculture: Potential Mecha- International Trade of Pesticides: A Look at the Current
nisms for Ensuring Compliance and Resolving Disputes, Status of Conventional Wisdom (or Lack thereof) on the
Collective bargaining 36 Envtl. L. Rep. News & Analysis 10345-10363 (2006). Subject, 14 SE Envtl. L .J. 7-46 (2005).
Comment, Mandatory Mediation and Conciliation in Strauss, Genetically Modified Organisms in Food: A Goodhue, Fennimore & Ajwa, The Economic Impor-
California, 15 San Joaquin Agric. L. Rev. 117-141 (2006). Model of Labeling and Monitoring with Positive Implica- tance of Methyl Bromide: Does the California Strawberry
tions for International Trade, 40 Int’l. Law. 95-119 (2006). Industry Qualify for a Critical Use Exemption from the
General & social welfare Methyl Bromide Ban? 27 Rev. Agric. Econ. 317-335
Comment, Workers’ Compensation Reform and the Land reform (2005).
Future of the Disabled Farm Worker in California, 15 San Ankersen & Ruppert, Tierra y Libertad: The Social
Joaquin Agric. L. Rev. 143-167 (2006). Function Doctrine and Land Reform in Latin America, 19 Public lands
Tulane Envtl. L. J. 69-120 (2006). Stimpert, Counterpoint: Opportunities Lost and Oppor-
Farm policy and legislative analysis Shriver, Rectifying Land Ownership Disparities through tunities Gained: Separating Truth from Myth in the Western
Domestic Expropriation: Why Recent Land Reform Measures in Ranching Debate, 36 Envtl. L. 481-529 (2006).
O’Brien, World Trade Organization and the Commodity Namibia Are Unconstitutional and Unnecessary, 15
Title of the Next Farm Bill, 23 Agric. L. Update 1-7 (4-2006). Ttransnat’l L. & Contemp. Prob. 419- 455 (2005). Rural development
Riekhof & Sykuta, Politics, Economics and the Regu- Kirk, The Area of Potential Effect under Regulations
lation of Direct Interstate Shipping in the Wine Industry, Land use regulation Promulgated by the American Council for Historic Pres-
87 Am. J. Agric. Econ. 439-452 (2005). Land use planning and farmland preservation ervation, 23 Agric. L. Update 4-5 (5-2006).
techniques Note, “The Loss in by Bones”: Protecting African
Farmer-processor bargaining—production contracts Bernasek, Oregon Agriculture and Land-Use Planning, American Heirs’ Property with the Public Use Doctrine, 14
Peck, State Regulation of Production Contracts (Na- 36 Envtl. L. 165-175 (2006). Wm. & Mary Bill of Rights J. 387-414 (2005).
tional AgLaw Center Publications) 2006 http:// Jay, Third Party Enforcement of Conservation Ease-
Cont. on page 7 ments, 29 Vt. L. Rev. 757-797 (2005).


State Nutrient Management Act interpreted
By John C. Becker (DEP) and the Pennsylvania State Conser- intensive agricultural activity. Section
vation Commission (PSCC). 804.7 states:
Nutrient Management Planning is a topic Currently, the landowners operate a Intensive Agricultural Activity
that has garnered significant attention at “partial”, “all in/all out” hog raising opera- Intensive agricultural activities in-
the state and federal level over the past 15 tion. In the “all in/all out” method, a farmer clude, but are not limited to, mushroom
years. A number of states addressed this raises hogs from birth to maturity before farms, poultry and egg production, and
issue before the federal government di- selling them. The “all in/all out” method dry lot farms, wherein the character of
rected its attention to the subject. In the consists of three stages. The landowners the activity involves a more intense use
2003 proposed changes to the Clean Wa- currently house 3,500 to 4,000 young pigs. of land than found in normal farming
ter Act’s CAFO regulations, comprehen- They do not, however, possess sufficient operations.1
sive nutrient management planning was facilities to “finish” all pigs born on the a. Intensive agricultural activi-
introduced at the federal level. Burkholder subject property. As a result, the landown- ties shall not be located within one thou-
v. Richmond Township is the first appellate ers’ operation is a “partial,” rather than a sand five hundred (1,500) feet of an-
level decision that interprets “total”, “all in/all out” hog raising opera- other zoning district or existing resi-
Pennsylvania’s Nutrient Management tion. dence located within the Agriculture or
Act. Burkholder v. Zoning Hearing Board of As a “partial”, “all in/all out” operation, any other zoning district.
Richmond Township and Richmond Township, the landowners sell approximately half of b. A minimum lot size of five (5)
Cross Appellants; 2006 Pa. Commw. LEXIS the pigs born on their property as “feeder” acres is required for intensive agricultural
388, July 14, 2006. The decision is signifi- pigs at eight to ten weeks of age at a activities; which shall be so located on the
cant for its support of a major component substantially lower price than could be lot as to provide front, side, and rear yards
of that law, namely the preemption of obtained for “finished” pigs. The landown- of one hundred (100) feet. The maximum
inconsistent local regulations by state regu- ers seek zoning relief to expand their height of [a] building used for intensive
lations. In Burkholder, the issue of pre- operation from a “partial” to a “total”, “all agricultural use is thirty-five (35) feet or
emption received little attention from the in/all out” hog raising operation so they two and one-half (2-1/2) stories, excluding
litigants. Rather the Township defended can “finish” all pigs born on this property. appurtenances.
its local ordinance on grounds that the Expansion to a complete “all in/all out” c. Commercial composting is pro-
Nutrient Management Act, by its own operation will enhance the health of the hibited. Any on-site composting shall be
terms, did not apply to the facts of the case landowners’ herd and will result in finan- limited for use on premises on which
which, if it were a successful argument, cial gain for the landowners. Because all of such composting is made and produced.
would have avoided the premption result. the pigs would remain on the property d. Solid and liquid wastes shall be
As the case summary describes, Com- until “finished,” the overall population disposed of daily in a manner to avoid
monwealth Court decided that the Nutri- would increase to approximately 5,300 creating insect or rodent problems, or a
ent Management Act did apply to the facts pigs. public nuisance. No emission of nox-
of the case and, therefore, preemption In order to expand their operation, the ious, unpleasant gases shall be permit-
was applied in favor of the landowners. landowners propose to construct two new ted in such quantities as to be offensive
The dissent points out the Township’s facilities. More specifically, the landown- outside the lot lines of the tract occupied
position was viewed as having some merit. ers seek to construct a 68-foot by 202-foot by an intensive agricultural user.
How will this case fare if it is appealed to building that would house approximately e. Dry lot feeding stations shall
the Pennsylvania Supreme Court? 1,750 pigs during the “finishing stage” be permanently paved.
(finishing building). Landowners propose
The facts to construct the finishing building directly In October 2002, the landowners filed an
The Burkholders purchased a 57-acre above a nine-foot deep manure storage application with the Richmond Township
triangular shaped property in 1993 from pit. Zoning Hearing Board (ZHB) seeking spe-
Stephen Burkholder’s parents who previ- In addition, the landowners seek to con- cial exceptions for the proposed facilities
ously subdivided a larger tract of 152 acres struct a 70-foot by 42-foot addition to the pursuant to Section 804.7 of the ordinance.2
into the 57-acre parcel and one other par- end of an existing farrowing and nursery In their amended application, the land-
cel. The entire 152-acre tract, including the building. The addition would enable the owners asserted, among other things, the
property, lies within the Township’s Agri- landowners to consolidate their existing, 1,500-foot setback requirement was in-
cultural Security Area (ASA) under the separate nursery and farrowing opera- valid because it conflicted with the NMA’s
Agricultural Area Security Law (AASL) tions into one building. Temporary ma- less stringent setback requirements.
and is subject to an agricultural conserva- nure storage would occur in shallow pits The ZHB issued a 2-1 decision rejecting
tion easement. directly below the addition. all of the landowners’ requested relief.
Beginning in 1957, the elder Burkholders Because of the triangular-shape of the The landowners appealed. Without taking
conducted a hog raising operation over property, the landowners propose to lo- additional evidence, the trial court affirmed
the entire 152-acre property. The present cate both structures less than 1,500 feet in part and reversed in part. The trial court
landowners assumed control of the op- from adjoining residential properties and/ addressed Landowners’ contention that
eration in 1985 and continued to conduct or zoning district boundaries. This aspect the NMA preempts the 1,500-foot setback
the operation on the property. The land- of the proposal is the basis for much of the requirement contained in Section 804.7 a.
owners’ current operation is subject to the litigation. Accordingly, the trial court determined
Nutrient Management Act (NMA) and its Under the terms of the Richmond Town- that to the extent Section 804.7 a. of the
implementing regulations. Notably, the ship Zoning Ordinance of 1998, the pro- ordinance regulates manure storage fa-
landowners maintain a nutrient manage- posed expansion is an “Intensive Agricul- cilities, it is more restrictive than the NMA,
ment plan approved by the Pennsylvania tural Activity.” To engage in this type of and it is in conflict with the NMA and its
Department of Environmental Protection activity in the R-A zoning district, the land- regulations.
owners are required to obtain a special
exception. Section 804.7 of the ordinance The issue
John C. Becker is Professor, Agricultural Eco- sets forth five criteria an applicant must The trial court framed the issue: Are the
nomics and Law, Penn State University. satisfy to obtain a special exception for an landowners’ proposed finishing building


and addition considered “manure stor- tions apply to landowners’ proposed struc- approximately 24 inches deep. N.T. 6/10/
age facilities” under the NMA’s regula- tures? To answer this it is necessary to 03 at 54. The storage pit would function as
tions? If the proposed buildings are “ma- consider whether the proposed finishing a concrete vault that contains the manure
nure storage facilities” under the regula- building and addition are “manure stor- that falls through the slatted floor. Id. As
tions, then the issue turns to whether the age facilities.” As noted, a “manure stor- with the proposed Finishing Building, all
Richmond Township ordinance is incon- age facility” includes a “portion of a ... aspects of the storage and removal of the
sistent with or more stringent than the facility, utilized for the primary purpose of manure are regulated in accordance with
NMA regulation of them as “manure stor- containing manure.” The regulation also Landowners’ approved “nutrient manage-
age facilities” and subject to the NMA cites several specific examples of manure ment” plan. N.T. at 90-92.
preemption provision, 3 P.S. section 1717. storage facilities, including “component Like the landowners’ proposed finish-
reception pits” and “containment struc- ing building, the proposed addition falls
Discussion tures built under a confinement building.” within the broad language of the “manure
Are these buildings “manure storage As to the proposed finishing building, storage facility” definition, as it too is a
facilities”? the landowners propose to construct this portion of a facility utilized for the primary
On its face, the NMA’s “preemption” building in order to enable them to finish purpose of containing manure. See 25 Pa.
provision expressly prohibits local regu- all pigs born on the property. The floor of Code § 83.201. Like the containment struc-
lation of the “construction, location or the finishing building would be slatted to ture beneath the finishing building, the
operation of facilities used for storage of allow droppings from the pigs to fall into a manure storage reception pit beneath the
animal manure ... if the municipal ordi- large storage pit situated directly below addition falls squarely within the
nance or regulation is in conflict with [the the building. F.F. No. 18. The manure stor- regulation’s cited examples. Id. Because
NMA] and [its] regulations ...Former 3 P.S. age pit would be nine feet deep as mea- the containment structure below the addi-
§ 1717. The NMA’s regulations define a sured from the slats to the floor of the pit, tion is utilized for the primary purpose of
“manure storage facility” as: with a total capacity of approximately containing manure, the NMA applies and
A permanent structure or facility, or 500,000 gallons. F.F. No. 19. It would collect preempts application of the ordinance’s
portion of a structure or facility, utilized all manure generated from the hogs con- setback to the addition.
for the primary purpose of containing fined in the finishing building. N.T. 4/1/03 at The ZHB denied the landowners’ re-
manure. The storage facility of a waste 77. All aspects of the storage and removal quests for special exceptions for the pro-
management system is the tool that of the manure are regulated within the posed finishing building and addition based
gives the manager control over the approved nutrient management plan en- solely on its determinations that the pro-
scheduling and timing of the spreading tered into by the landowners in accor- posed structures did not comply with Sec-
or export of manure. Examples include: dance with the NMA. N.T. at 90-92. tion 804.7a. of the ordinance’s setback
liquid manure structures, manure stor- Based on these characteristics, the land- requirement. Based on the Common-
age ponds, component reception pits owners’ proposed finishing building quali- wealth Court’s determination that the NMA
and transfer pipes, containment struc- fies as a “manure storage facility.” Clearly, and its regulations preempt Section
tures built under a confinement build- the building’s manure storage pit is “por- 804.7a.’s setback requirement as applied
ing, permanent stacking and composting tion of a facility ... utilized ... for the primary to the finishing building and the addition,
facilities and manure treatment facili- purpose of containing manure.” See 25 Pa. the court concluded the landowners are
ties. The term does not include the ani- Code § 83.201. Indeed, the manure stor- entitled to special exceptions to construct
mal confinement areas of poultry age pit falls squarely within the specific both buildings.
houses, horse stalls, freestall barns or examples of manure storage facilities cited
bedded pack animal housing systems. in section 83.201, which include “manure Holding
25 Pa. Code § 83.201 reception pits” and “containment struc- Accordingly, the Commonwealth Court
tures built under a confinement building.” affirmed the trial court’s determination
Section 83.351 of 25 Pa. Code contains a The Township concedes the manure pit that the NMA preempts the local setback
variety of siting criteria for manure stor- itself is the type of containment structure requirement as applied to the proposed
age facilities. Of particular import here, contemplated by the NMA. It challenges finishing building and reversed the trial
the siting criteria include setback require- the proposed finishing building above the court’s determination that the NMA does
ments for manure storage facilities from pit, claiming the building exists for the not preempt the local setback require-
surface water bodies, wells, sinkholes, purpose of housing the pigs and is inciden- ment as applied to the proposed addition.
property lines and public water supply tal or unrelated to the manure storage By reversing the trial court, the Common-
sources. More particularly, section 83.351 functions. Contrary to this assertion, the wealth Court concluded that the addition
imposes setback requirements of 100, 200, finishing building is utilized as a confine- was a “manure storage facility” and that
and 300 feet. 25 Pa. Code § ment structure that holds the pigs in a NMA regulations applied to it. As they
83.351(a)(2)(iv)(A)-(F), (v)(A)-(G). Read in fixed location, which ultimately facilitates applied to it, the NMA regulations pre-
its entirety, the most stringent setback the gathering of the manure in a contain- empted inconsistent and more stringent
requirement for a “manure storage facil- ment structure underneath the building. local regulations. The landowners are
ity” contained in the NMA’s regulations is In short, because the containment struc- entitled to special exceptions to construct
300 feet. ture underneath the finishing building is both buildings.
Section 804.7a. of the ordinance imposes used for the primary purpose of contain- In a dissent by two members of the
a setback requirement of 1,500 feet from ing manure, the NMA applies and pre- seven-member court, Justice Rochelle
“another zoning district or existing resi- empts application of the ordinance’s set- Freidman drew a different conclusion on
dence located within the agriculture or back requirement to the proposed finish- the pivotal question of whether the finish-
other any other zoning district.” Clearly, ing building. ing building and addition met the defini-
the 1,500-foot setback requirement con- With regard to the proposed addition, tion of a “manure storage facility.”
flicts with and is more stringent than the this building would house the operation’s In her view, although the “portion” of
setbacks imposed by the NMA regula- farrowing and nursery area and would the finishing building under the animal
tions. To the extent Section 804.7a. at- also have a slatted floor. ZHB Hearing, 6/ confinement area is a “manure storage
tempts to regulate manure storage facili- 10/03, N.T. at 53-54. The base of the struc- facility,” the animal confinement area it-
ties, it is preempted by the NMA. ture, below where the pigs are housed, self is not a “manure storage facility”
Does the NMA and its attendant regula- would consist of a concrete pit that is Cont. on p. 6


Nutrient Management Act/Cont. from p. 5 ment area of the addition would “not” fall who has the authority to impose other
because its primary purpose is not the within the definition. (Trial Ct.’s op. at 17.) setbacks and how can these setbacks be
storage of manure. Her view is based on Judge Friedman concluded that the con- inconsistent with “minimum standards”?
the record from the zoning hearing board finement area of the addition is not a Establishing standards and allowing state
and on language of the regulation itself. “manure storage facility,” and, thus, the and local governments to impose tighter
The record reflects that the purpose of regulation governing the location of “ma- controls is not unknown in environmental
a finishing building is to house pigs from nure storage facilities” does not apply to law and regulation. In the Nutrient Man-
the time they are eight- to ten-weeks old it. Because the addition is not a “manure agement Act the intent was to establish
until they are five- to six-months old, or storage facility” subject to 25 Pa. Code § state standards and accept no deviation
approximately 250 pounds, and ready for 83.351, section 804.7a of the ordinance from them.
sale. The landowners sought to build their may regulate its distance from zoning
new finishing building in order to: (1) cre- district lines and existing residences. Act 38 and its non-application to this case
ate a more economic and efficient “all in/ Interestingly, even if the confinement This case was filed before Act 38 of 2005
all out” operation by eliminating the need areas of the finishing building and addition was passed in July, 2005. The court noted
to sell any of their pigs as feeder pigs; and were themselves “manure storage facili- that under Act 38, the NMA re-codified the
(2) improve the health of the pigs by mov- ties,” Judge Friedman went on to say she legislative intent, judicial construction,
ing them less and by keeping them in clean perceived no conflict between 25 Pa. Code administration or implementation and it
and dry rooms at all times. Given these § 83.351 and section 804.7a of the Ordi- was to be the same as that which existed
stated purposes for the finishing building, nance. before Act 38.
none of which relate to manure storage, The regulation at 25 Pa. Code § 83.351a(2) After the case was submitted to the
Judge Friedman could not conclude that requires that “manure storage facilities” Commonwealth Court, Attorney General
the “primary” purpose of the finishing be located, at a “minimum”, 100- to 300- Tom Corbett sent a letter to Richmond
building is to store manure. Therefore, feet from property lines and specified Township. The attorney representing the
she could not conclude that the finishing water sources.3 Section 804.7a of the ordi- Burkholder’s attempted to have the letter
building, “as a whole” is a “manure stor- nance requires that “intensive agricul- added to the record before the Court. The
age facility.” tural activities” be located 1,500 feet from communication consisted of two letters
Her view is that containment structures zoning district lines or existing residences. from the Office of Attorney General in
built under a confinement building are Because section 804.7a pertains only to which the Attorney General stated “Rich-
separate and distinct from the confine- the distance of an “intense agricultural mond Township Ordinance No. 81-2000
ment building itself. Although the contain- activity” from zoning district lines and unlawfully prohibits or limits a normal
ment structures are “manure storage fa- existing residences, “not” the distance of agricultural operation in violation of Act 38
cilities,” the confinement building is “not” “manure storage facilities” from water of 2005, 3 Pa. C.S. §§ 311-318, the [NMA] ....”
a “manure storage facility.” This interpre- sources and property lines, Judge Fried- The Township moved to strike the post-
tation of “under a confinement building” is man concluded that section 804.7a does submission communication, asserting the
consistent with another part of the defini- not apply to “manure storage facilities” letters are irrelevant, and Pa. R.A.P. 2501
tion that states that a “manure storage and therefore, can not be more stringent does not provide the appropriate proce-
facility” may be a “portion” of a structure” than the NMA regulations. Interestingly, dure by which to share the Attorney
utilized for the primary purpose of con- as this case was being decided, the state General’s opinions with this court.
taining manure. Nutrient Management Act regulations The Commonwealth Court granted the
The ZHB made no finding as to whether were being considered for revision. The Township’s application to strike. More
the addition would have a manure storage language in section 83.351a. was not re- specifically, the court said “[the] letters
pit beneath it. The trial court specifically vised in this process. Should the thrust of from the Attorney General’s Office do not
found that the addition would “not” be the dissent’s interpretation been ad- specify the sections of the Ordinance that
built over a manure storage pit but, rather, dressed in the amendment process? violate the NMA. Thus, it is unclear whether
“would utilize existing storage pits.” Based Judge Friedman interprets the word the Attorney General is of the opinion that
on this finding, the trial court concluded “minimum” in section “a” as applicable to the specific section of the Ordinance at
that, inasmuch as “the addition is being all of the standards that appear in section issue here violates the NMA.”
built separate from the pits, it cannot be 83.351. “Minimum” appears in the first Therefore, the action of the Attorney
considered to be primarily utilized for major heading of the section, but the sub- General played no part in the decision of
manure containment purposes.” Never- section that creates the NMA setbacks is the case.
theless, without any discussion, the ma- in section 351a(2). Is the meaning of “mini- The Commonwealth Court’s comments
jority opinion of the Commonwealth Court mum” to be limited only to section “a” and are enlightening as they seem to indicate
states, “Temporary manure storage would have no application to a(2)? Did the draft- the court will impose an obligation on the
occur in shallow pits directly below the ers of section 83.351 make an unfortunate Attorney General to specify the nature of
addition.” In Judge Friedman’s view, the selection of words when describing what his objection to local regulations when
Commonwealth Court, as an appellate they wanted to accomplish? reviewing action he takes under ACRE.
court, cannot make up its own findings of More troubling would be the situation in As the first appellate decision interpret-
fact. which Judge Friedman’s interpretation is ing the NMA, this case is important to all
The addition would be built over “a accepted. If her interpretation is adopted, livestock producers and community offi-
reception pit which is connected by a trans- a conflict would certainly arise as to how cials.
fer pipe to the actual manure storage the preemption provision of the Nutrient
[facility],” (R.R. at 280a), and, if there had Management Act could be applied? Since Key unanswered questions
been such a finding, there would be no the preemption provision is grounded on The Burkholder property was located
question that “component reception pits the offending regulation being inconsis- within an Agricultural Security Area, some-
and transfer pipes” fall within the defini- tent with or more stringent then the Nutri- times referred to as an “Agricultural Dis-
tion of “manure storage facility.” How- ent Management regulations, how could trict.” Within such an Area or District,
ever, because the trial court found that its those questions be answered if it is deter- what obligation does the Township accept
primary purpose would be “the furrowing mined that the setback requirements in regarding future support for agriculture in
and weaning of young piglets,” and “not” the regulations are only minimum set- that Security Area, or District? By adopt-
the containing of manure, the confine- backs? If they are minimum setbacks, ing the 1500 feet setback requirement,


Nutrient Management Act/Cont. from p. 6 legislative intent, judicial construction or
was the Township fulfilling its obligation to administration and implementation of the Fed. Register 7/15-8/9
the agricultural producers who sought the [NMA].” COOPERATIVES. The CCC has adopted as
Security Area designation? If the Town- 3
Section 83.351 provides: (a) The mini- final regulations amending the regulations
ship was not fulfilling its obligation, what mum standards contained in this section governing Cooperative Marketing Associa-
consequence would flow to the Township? apply to new manure storage facilities tions to provide that a CMA is no longer
The Burkholder land was subject to a constructed and existing manure storage required to distribute Marketing Assistance
conservation easement that limited the facilities expanded as part of a plan devel- Loan (MAL) and Loan Deficiency Payment
future use of the land to agricultural pro- oped for a CAO. (LDP) proceeds directly to members of the
duction uses. Therefore, the economic (1) Manure storage facilities shall be CMA within 15 days of receipt of such pro-
viability of the Burkholder Farm was criti- designed, constructed, located, operated, ceeds from CCC. The new regulations allow
delayed payment under deferred payment agree-
cal to its future under limited use opportu- maintained, and, when no longer used for
ments between the CMA and its members. 71
nities. That being the case, does Burkholder the storage of manure, removed from Fed. Reg. 42749 (July 28, 2006).
have grounds to argue that the local com- service, to prevent the pollution of surface CROP INSURANCE. The FCIC has issued
munity must assist him in finding a profit- water and groundwater, and the offsite proposed regulations amending the fresh mar-
able use? Since profitability of any use is migration of pollution, by meeting the ket sweet corn crop insurance provisions of
subject to a large number of factors that standards contained in the Pennsylvania the common crop policy to allow for the
can affect economic performance, how Technical Guide, except if these standards expansion of fresh market sweet corn cover-
can achievement of the community’s ob- conflict with this subchapter. age into more areas where the crop is pro-
ligation be correctly measured? Can the (2) In addition to complying with para- duced, when provided in the actuarial docu-
Burkholders undertake a “risky” venture graph (1), manure storage facilities shall ments and when it is marketed through direct
in search of profitability and must the be designed and located in accordance marketing. This change will be applicable for
Community support their efforts? with the following criteria: … the 2008 and succeeding crop years. 71 Fed.
The Township ordinance established a Reg. 42770 (July 28, 2006).
setback from an “Intensive Agricultural The FCIC has issued proposed regulations
Activity.” While the intent of the measure Ag law bibliography/Cont. from page 3 amending the common crop insurance regula-
is clear, how would one go about deter- tions; northern potato crop insurance provi-
mining if a proposed facility met the re- Torts and insurance sions, northern potato crop insurance quality
quirement or did not meet it? From what Comment, Medicaid Third-Party Liability and Claims endorsement, northern potato crop insurance
for Restitution: Defining the Proper Role for the Tort processing quality endorsement, potato crop
point is the 1500 feet measured: a corner
System in Regulating the Food Industry, 1 J. Food L. & insurance certified seed endorsement, north-
of a building involved in the activity; the
Pol’y 433-492 (2005). ern potato crop insurance storage coverage
“center of mass” of the activity; from a endorsement, and the central and southern
property line? Since the measurement is Comment, Dust in the Wind: Will New Environmental
Regulations Mean More Liability Claims? 15 San Joaquin potato crop insurance provisions to provide
taken from the activity to either an exist- policy changes and clarify existing policy
ing residence or another zoning district, Agric. L. Rev. 63-87 (2006).
Klass, Bees, Trees, Preemption, and Nuisance: A New provisions to better meet the needs of the
the ordinance refers to several factors insureds, and to reduce vulnerability to fraud,
Path to Resolving Pesticide Land Use Disputes, 32 Ecol.
that are beyond the control of the pro- L. Q. 763-820 (2005). waste and abuse. The changes are intended to
ducer, such as Burkholder, raising the Munzer, Plants, Torts and Intellectual Property in apply for the 2008 and succeeding crop years.
question of why Burkholder should be Properties Of Law: Essays In Honor Of Jim Harris (T. 71 Fed. Reg. 42761 (July 28, 2006).
subject to them if he has no way to control Endicott, J. Getzler, E. Peel eds. 2006) FARM AND RANCH LANDS PROTEC-
them? TION PROGRAM. The Natural Resources
Uniform Commercial Code Conservation Service has issued interim final
The term “normal farming operation” Article Nine (security interests) regulations amending the Farm and Ranch Lands
is one that has taken on a distinct meaning Meyer, Kansas’s Unique Treatment of Agricultural Protection Program at 7 C.F.R. Part 1491 to
under a variety of laws, including the Liens, 53 U. Kan. L. Rev. 1141-1213 (2005). clarify (1) fair market value definition; (2) pro-
Pennsylvania’s “Right to Farm” law and gram eligibility as to forest lands; (3) the nature
Municipalities Planning Code. In this ordi- Water rights: agriculturally related of the real property rights the United States is
nance, the local community is attempting Aiken, Hydrologically-Connected Ground Water, Sec- acquiring and how it will exercise those rights;
tion 858, and the Spear T Ranch Decision, 84 Neb. L. Rev. (4) compliance with Department of Justice Title
to exert its influence by using the term to
962-996 (2006). Standards; (5) exercising United States’ rights;
refer to farming operations that are at a
Chaffin, Loss of Integrity May Mean Loss of the Farm: (6) the implementation of federal appraisal re-
less-intensive scale. This would seem to quirements required by the Uniform Reloca-
change the meaning considerably from False Statements Made in Federal Water Subsidy Appli-
cations and the Doctrine of Judicial Estoppel, 15 San tion Assistance and Real Property Acquisi-
what has developed and make the term tions Policies Act of 1970; (6) impervious
Joaquin Agric. L. Rev. 1-37 (2006).
subject to local, rather than state interpre- surface limitations on the easement area; and
Comment, Groundwater: Uniform Control of a Critical
tation. (6) indemnification requirements. 71 Fed. Reg.
2 and Limited Resource, 15 San Joaquin Agric. L. Rev. 169-
The NMA, originally enacted in 1993, 192 (2006). 42567 (July 27, 2006).
was repealed and recodified as Act 38 in Note, Doctrinal Anachronism?: Revisiting the Practi- NATIONAL ORGANIC PROGRAM. The
July 2005. Landowners submitted their cably Irrigable Acreage Standard in light of International AMS has issued proposed regulations amend-
special exception application in October Law for the Rights of Indigenous Peoples, 22 Ariz. J. Int’l. ing the USDA National List of Allowed and
2002 with amended applications filed in & Comp. L. 691-728 (2005). Prohibited Substances regulations to add 13
January and July 2003; thus, the 1993 ver- If you desire a copy of any article or further information, substances, along with any restrictive annota-
sion of the NMA applies here. As a result, please contact the Law School Library nearest your office. tions, to the list of substances allowed for
all references to the NMA in this opinion The National AgLaw Center website < http:// organic livestock production. The list of ap-
are to the 1993 version. Notably, Section 4 > http://www.aglaw- proved substances for livestock production
of Act 38 indicates, with certain enumer- assn.orghas a very extensive Agricultural Law Bibliogra- can be found at 7 C.F.R. 205.603. Note that
ated exceptions, “any difference in lan- phy. If you are looking for agricultural law articles, please some substances are allowed only for specific
guage between [Act 38] and the [NMA] is consult this bibliographic resource on the National AgLaw uses, such as cleaning equipment. 71 Fed. Reg.
intended only to conform to the style of the Center website. 40623 (July 17, 2006).
— Drew L. Kershen, Professor of Law, The —Robert P. Achenbach, Jr.,
Pennsylvania Consolidated Statutes and
University of Oklahoma, Norman, OK AALA Executive Director
is not intended to change or affect the


2006 CONFERENCE. There is an error in the 2006 conference brochure. Under the Conference Hotel section
it states that the conference guest room rate is available three days before and three days after the conference.
That is incorrect. There is a very limited room block for two days before and one day after the conference and
both blocks are full so the conference guest room rate is available only on Thursday, Friday and Saturday.
Remember that the room block expires on September 18, 2006 so reserve your room today. Savannah is very
popular in October so rooms may get scarce for the conference dates. See for more
conference details and the latest program.

NOMINATIONS FOR ANNUAL SCHOLARSHIP AWARDS. The Scholarship Awards Committee is seeking
nominations of articles by professionals and students for consideration for the annual scholarship awards
presented at the annual conference. Please contact Jesse Richardson, Associate Professor, Urban Affairs and
Planning, Virginia Tech, Blacksburg, Virginia 24061-0113,(540) 231-7508 (phone) (540) 231-3367 (fax) email:

Robert P. Achenbach, Jr,

AALA Executive Director
P.O. Box 2023, Eugene, OR 97402
Ph 541-485-1090; FAX 541-302-1958