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VOLUME 16, NUMBER 10, WHOLE NUMBER 191 SEPTEMBER 1999

mark
Almond mar order
keting or advertising
der adver tising
Fi
assessments do not violate F rs
irst
Amendment
In September of 1999 the United States Court of Appeal for the Ninth Circuit issued
the most recent of its decisions involving mandatory advertising assessments and
marketing orders. Cal-Almond v. United States Department of Agriculture, 99
D.A.R. 9923 (Sept. 22, 1999).

INSIDE The issue in the case was whether the credit-back provisions of the Almond
Marketing Order advertising assessments constituted compelled speech and thus
violated Cal-Almond’s First Amendment rights. See generally 7 C.F.R. 981.441.
Pursuant to provisions of the Almond Order, almond handlers are charged a
• Clarifying the tonnage-based assessment to be used for the purpose of generically advertising and
Washington State promoting the sale of almonds. At the handlers’ option, they may receive a credit
against the assessment for qualified promotional activities designed to increase the
Right to Farm Act use of almonds. Cal Almond at 99 D.A.R. 9923, 7 C.F.R. §§ 981.441(a), 981.441(e)(4),
and 981.441(e)(2). The credit was reduced from a 100 percent credit to a two-thirds
• Prevented plantings credit beginning with the 1993-94 crop year. Id.
in crop insurance Cal-Almond petitioned the United States Department of Agriculture (USDA) for
review on the basis that the credit-back program constituted compelled speech in
• Trespassing livestock violation of its First Amendment rights. Relying on earlier authority, the Adminis-
trative Law Judge ruled in favor of Cal-Almond. See Cal-Almond v. USDA, 14 F.3d
and murder 429 (9th Cir, 1993)(Cal-Almond I). The subsequent appeal to the USDA’s Judicial
convictions: could Officer was stayed pending the United States Supreme Court’s decision in Glickman
a deficient fence v. Wielman Bros. & Elliott, Inc., 521 U.S. 457 (1997). (“Glickman”). In the Glickman
lead to a prison term case, the Supreme Court determined that mandatory assessments for tree fruits
for a livestock owner? were valid economic regulations. Subsequent to Glickman, the Ninth Circuit in Cal-
Almond III (remand of Cal-Almond I on certiorari from United States Supreme
Court) remanded to the district court with instructions to dismiss the First
Solicitation of articles: All AALA Amendment challenges to the advertising assessments. Cal-Almond, Inc. v. Dept. Of
Agric., no.94-17160 (9th Cir. 1997)(Cal-Almond III): USDA v. Cal-Almond, Inc., 521
members are invited to submit
U.S.1113 (1997)(Cal-Almond II). Cal-Almond at 99 D.A.R. 9923.
articles to the Update. Please in-
clude copies of decisions and leg-
islation with the article. To avoid C ontinued on page 2
duplication of effort, please no-
tify the Editor of your proposed
article.
gr
Condemnation of A g icultural
ricultur Securi
al Security
Area
Ar farmland
ea f armland
IN FUTURE Interstate Route 81 is a major trucking thoroughfare running through Pennsylvania’s
prime farmland. With the exception of Thanksgiving and Christmas, eighteen

I SSUES wheelers constantly roll across the area carrying tons of freight in every direction.
In late 1988, PennDOT proposed constructing a new Exit 7 interchange along
Interstate 81 in the Chambersburg area of Franklin County. This $5.8 million
improvement would provide additional access to Chambersburg and relieve traffic
congestion on the nearby I-81 interchange and Route 30, which sits about a mile
• Liability of a south of the intended location.1
landowner to Lamar and Lois White own a 26-acre farm contiguous to Interstate 81 in Greene
habitual trepassers and Guilford townships. The farm is in an Agricultural Security Area (ASA)2. An
Agricultural Security Area is designated by a statewide program designed to
conserve and protect and to encourage the development and improvement of
Pennsylvania’s agricultural lands for the production of food and other agricultural
products. To encourage participation in this program, numerous incentives are
offered. Landowners receive incentives in exchange for relinquishment of the right
Continued on page 2
CAL-ALMOND/CONTINUED FROM PAGE 1

Cal-Almond primarily contended that advertising programs compel Cal-Almond mond Board could “dictate” how the ad-
the Glickman analysis did not apply be- to engage in any actual or symbolic speech; vertising to receive the credit was con-
cause the credit restrained its ability to and whether the advertising programs ducted. The court noted the handlers had
communicate its message, and consti- compel Cal-Almond to endorse or finance the options of simply paying assessments;
tuted compelled speech. Id. at 9923. Cal- any political or ideological views that are directly advertising and attempting to
Almond’s assertion was that the “credit- not germane to the purposes for which receive credit; or advertising regardless
back” provisions compelled speech be- the compelled association is justified.” of whether they received credit. Cal-Al-
cause the Almond Board could determine Cal-Almond at 9924 citing Gallo Cattle mond at 9924. Cal-Almond also argued
which advertising was entitled to a credit Co.v. California Milk Advisory Board, that the requirement that the promo-
and could therefore “dictate” the conduct ____F3d___ (9th Cir.July 1999). tional seal be carried to receive the full
of the handlers’ advertising. The restraint In applying Glickman and the three- benefit of the advertising constituted
argument focused on a reduction in Cal- part test, the court noted that Cal-Al- “compelled” speech. However the court
Almond’s advertising budget. Cal Almond mond did not dispute that it was part of rejected this argument noting that they
99 D.A.R. at 9924-9925. an activity as an almond handler that were free to choose not to carry the seal.
The court reviewed the arguments of was already subject to a “regulatory Id. at 9924, citing; Gallo supra at __
Cal-Almond to determine if under the scheme” that substantially constrained F3d.___.
three-part test of Glickman,Cal-Almond’s the marketing of almonds. Cal-Almond With respect the third prong of the
First Amendment rights were abridged at 9924, citing Glickman at 521 U.S. 469 test, Cal-Almond argued that it “ideo-
or whether the assessment was a permis- and 7 U.S.C. Section 602(1). Cal-Almond logically” objected to the assessments
sible part of a “regulatory scheme” or was also noted as effectively conceding because the assessments supported ad-
economic regulation. Cal-Almond at 9924. that if the assessments were “purely vertising for “snack almonds” and it did
The three part test required that the mandatory,” they would be constitutional. not produce snack almonds. Cal-Almond
Court consider “whether the advertising Id. at 9924. at 9925. The court rejected this argu-
programs impose a restraint on Cal- The court in applying the first prong of ment finding that the standard was
Almond’s freedom to communicate any the three-part test found that Cal- whether the message was “germane” to
message to any audience; whether the Almond’s “freedom to communicate” was the purpose of the Almond order; i.e.
not restrained by a reduction in its adver- promoting marketing, consumption and
tising budget. Cal-Almond had argued distribution of almonds. Cal-Almond at
that the assessments reduced the amount 9925, citing Glickman at 521 U.S. 476, 7
of money available for advertising. The C.F.R. § 608c, Gallo __F.3d__. Here Cal-
Ninth Circuit noted that it had expressly Almond’s objections did not engender
rejected this argument in the Gallo case, any crisis of conscience; rather they
which followed the Supreme Court’s amounted to a question of the wisdom or
“plain statement” that a reduction in an effectiveness of the program and were
VOL. 16, NO. 10, WHOLE NO. 191 September 1999 advertising budget did not by itself equal thus not questions of constitutional im-
AALA Editor..........................Linda Grim McCormick
a speech restriction. 99 D.A.R. at 9924 port. Cal-Almond at 9925 citing Glickman
Rt. 2, Box 292A, 2816 C.R. 163 citing Gallo supra and Glickman at 521 at 521 U.S. 472.
Alvin, TX 77511 U.S. at 470. The assessments were therefore con-
Phone: (281) 388-0155
FAX: (281) 388-0155 In applying the second prong of the stitutional.
E-mail: lgmccormick@teacher.esc4.com test, the Ninth Circuit found —Thomas P. Guarino, Merced, CA
Contributing Editors: Drew Kershen, The University unpersuasive the argument that the Al-
of Oklahoma; Thomas Guarino, Merced, CA; Roger
McEowen, Kansas State University; Jeff Feirick, Penn
State University.
ASA farmland/Cont. from p. 1
to develop the farmland. Compensation ricultural Security Area Law by illegally
For AALA membership information, contact William is provided by the taxpayers.3 conducting tests on their land prior to
P. Babione, Office of the Executive Director, Robert A.
Leflar Law Center, University of Arkansas, In June 1994, the Whites received a obtaining Agricultural Lands Condem-
Fayetteville, AR 72701. notice from PennDOT informing them nation Approval Board (ALCAB) permis-
Agricultural Law Update is published by the that PennDOT might need to enter their sion. PennDOT responded by claiming
American Agricultural Law Association, Publication property to conduct surveys and tests for that they did not need the approval of the
office: Maynard Printing, Inc., 219 New York Ave., Des
Moines, IA 50313. All rights reserved. First class
the construction of a new Exit 7 inter- ALCAB because they were simply in-
postage paid at Des Moines, IA 50313. change. To build the proposed exit stalling a new exit and the ALCAB stat-
PennDOT would need to condemn all or ute exempted the approval.
This publication is designed to provide accurate and
authoritative information in regard to the subject a large portion of the White farm.4 Some- The first of two issues that the lawsuit
matter covered. It is sold with the understanding that time after receiving the notification of presented was: must the Pennsylvania
the publisher is not engaged in rendering legal,
accounting, or other professional service. If legal advice possible entry, the Whites refused entry Department of Transportation have Ag-
or other expert assistance is required, the services of to PennDOT employees, and PennDOT ricultural Lands Condemnation Approval
a competent professional should be sought.
Views expressed herein are those of the individual
made no further attempt to access the Board approval before it files a declara-
authors and should not be interpreted as statements of Whites’ property. tion of taking and seizes Agricultural
policy by the American Agricultural Law Association. In March 1999, PennDOT received Security Area farmland?
Letters and editorial contributions are welcome and approval from the Federal Highway Ad- The court began its decision by stating
should be directed to Linda Grim McCormick, Editor, ministration (FHA) to move forward with that Pennsylvania Statutes clearly em-
Rt. 2, Box 292A, 2816 C.R. 163, Alvin, TX 77511.
plans to construct a new Exit 7 inter- power PennDOT to condemn land for all
Copyright 1999 by American Agricultural Law change. The FHA approval meant that transportation purposes.6 But before con-
Association. No part of this newsletter may be
reproduced or transmitted in any form or by any means,
designers could draft final plans, acquire demning agricultural lands that are be-
electronic or mechanical, including photocopying, the right-of-way property and construct ing used for productive agricultural pur-
recording, or by any information storage or retrieval the interchange as early as Spring 2000.5 poses, PennDOT must request the
system, without permission in writing from the
publisher. In response to the FHA announcement, ALCAB to determine if there is a reason-
the Whites filed a lawsuit against able and prudent alternative to building
PennDOT in the Commonwealth Court, the highway on productive farmland.7
alleging that PennDOT violated the Ag- ASA farmland/Cont. on page 6

2 AGRICULTURAL LAW UPDATE AUGUST 1999
gr
Ag icultural
ricultur law
al la bibliogr
w bibliog aphy
raphy
Administrative law Regulation, 51 Admin. L. Rev. 323-341 (1999). Pesticides
Kelley, Recent Federal Farm Program De- Note, Casualties of the War on Tobacco: The Gardner, Invoking Private Property Rights
velopments, 4 Drake J. Agric. L. 93-140 (1999). Farmers, the Settlement and Possible Solu- for Environmental Purposes: the Takings Impli-
tions, 3 Drake J. Agric. L. 465-494 (1999). cations of Government-authorized Aerial Pes-
Agricultural law: attorney roles and ticide Spraying, 18 Stan. Envtl. L.J. 65-106
educational programs Hunger & food issues (1999).
Hamilton, A Changing Agricultual Law for a Note, The Right to Food Exists Via Custom-
Changing Agriculture, 4 Drake J. Agric. L. 41- ary International Law, 22 Suffolk Transnat’l L. Public lands
58 (1999). Rev. 223-257 (1998). Mattix, The Debate Over Bioprospecting on
Kershen, Professional Legal Organizations the Public Lands, 13 Nat. Res. & Env’t 528-
on the Internet: Websites and Ethics, 4 Drake International trade 532,574 (1999).
J. Agric. L. 141-176 (1999). Buckingham, World Production Update: Why Salvo, The Declining Importance of Public
Wright, Networking Within the Agricultural Agricultural Lawyers Need to Know About In- Lands Ranching in the West, 19 Pub. Land &
Community, 4 Drake J. Agric. L. 1-4 (1999). ternational Trade Law, 4 Drake J. Agric. L. 5-40 Res. L. Rev. 103-112 (1998).
(1999). Rice & Souder, Pulp Friction and the Man-
Biotechnology Stewart & Johanson, The SPS Agreement of agement of Oregon’s State Forests, 13 J. Envtl.
Mattix, The Debate Over Bioprospecting on the World Trade Organization and plant pest L. & Litig. 209-273 (1998).
the Public Lands, 13 Nat. Resources & Env’t infestations: a Case Sudy of the 1997 Mediter- Souder, Is State Trust Land Timber Manage-
528-532,574 (1999). ranean Fruit Fly Outbreak in Florida, 14 Am. U. ment “Better” Than Federal Timber Manage-
Stewart & Johanson, Policy in Flux: The Int’l L. Rev. 1107-1127 (1999). ment? A Best Case Analysis, 5 W.-Nw. 1-43
European Union’s Laws on Agricultural Bio- Stewart & Johanson, Policy in Flux: The (1998).
technology and their Effects on International European Union’s Laws on Agricultural Bio- Stroup, Privatizing Public Lands: Market So-
Trade, 4 Drake J. Agric. L. 243-296 (1999). technology and their Effects on International lutions to Economic and Environmental Prob-
Trade, 4 Drake J. Agric. L. 243-296 (1999). lems, 19 Pub. Land & Res. L. Rev. 79-101
Commodities futures (1998).
Iavarone, Arbitration, Expediency and the Land reform
Demise of Justice in District Courts: Another Luna, Chicana/Chicano Land Tenure in the Sustainable & organic farming
Side of the Hedge-to-Arrive Controversy, 3 Agrarian Domain: On the Edge of a “Naked Hamilton, The Role of Law in Promoting
Drake J. Agric. L. 319-380 (1998). Knife”, 4 Mich. J. Race & L. 39-144 (1998). Sustainable Agriculture: Reflections on Ten
King, & Moylan, Hedge-to-arrive Contracts: Terraciano, Contesting Land, Contesting Years of Experience in the United States, 3
Jurisdictional Issues Under the Commodity Laws: Tenure Reform and Ethnic Conflict in Drake J. Agric. L. 423-432 (1998).
Exchange Act, 18 N. Ill. U. L. Rev. 481-496 Niger, 29 Colum. Hum. Rts. L. Rev. 723-764
(1998). (1998). Taxation
Harl, The Family-Owned Business Deduc-
Environmental issues Land use regulation tion: Still in Need of Repairs, 4 Drake J. Agric.
Comment, Watershed Management and Land use planning and farmland preser- L. 59-92 (1999).
Nonpoint Source Pollution: the Massachusetts vation techniques McEowen, Minimum Interest Rules and In-
Approach, 26 B.C. Envtl. Aff. L. Rev. 339-386 Note, How To Save America’s Depleting stallment Sales of Farmland Among Family
(1999). Supply of Farmland, 4 Drake J. Agric. L. 333- Members – What is a Fair Market Rate of
Moore, Agricultural Environmental Manage- 356 (1999). Interest For Gift Tax Purposes?, 16 Agric. L.
ment in New York, 16 Agric. L. Update 4-5, 6 Update 4-6 (April 1999).
(March 1999). Livestock and Packers & Stockyards Note, Conservation Easements: Minimizing
Note, The Struggle of Cities to Implement the Note, Manure Laws, Manure Regulations Taxes and Maximizing Land, 4 Drake J. Agric.
Safe Drinking Water Act in the Context of and Manure Application Agreements: Iowa Law L. 357 (1999).
Intergovernmental Relations, 3 Drake J. Agric. is Full Of It, 3 Drake J. Agric. L. 433-464 (1998).
L. 495-546 (1998). Uniform Commercial Code
Note, The Problem of Contaminated Water Organizational forms for agriculture (busi- Article Two
and the Need for Federal Action, 3 Drake J. ness law & development) Looney & Poole, Adhesion Contracts, Bad
Agric. L. 547 (1998). Incorporation Faith, and Economically Faulty Contracts, Drake
Richardson & Geyer, Ten Limitations to Pon- J. Agric. L. 177-196 (1996).
Estate planning/divorce der on Farm Limited Liability Companies, Drake
R. Bellatti & S. West, Estate Planning For J. Agric. L. 197-214 (1999). Water rights: agriculturally related
Farms and Other Qualified Family-owned Busi- Mondau, The American Indian Agricultural
nesses pp. 404 + 25 appendices, tables, indi- Patents, trademarks & trade secrets Resources Management Act: Does the Win-
ces (Warren, Gorham & Lamont 1999). S. Eberhardt, H. Shands, W. Collins & R. ters Water Bucket have a Hole in It?, 3 Drake
Lower (eds.), Intellectual Property Rights III, J. Agric. L. 381-422 (1998).
Finance and credit Genetic Resources: Access and Property Rights Tarlock, The Creation of New Risk Sharing
Brown, The State Regulation of Agricultural (Crop Sciences Society of America, Madision Water Entitlement Regimes: the Case of the
Credit, 3 Drake J. Agric. L. 305-318 (1998). WI, 1998). Truckee-Carson Settlement, 25 Ecologoy L.Q.
Schneider, Financing the Agricultural Op- Note, Intellectual Property Protection and Its 674-691 (1999).
eration: Recent Developments and Current Impact on the U.S. Seed Industry, 4 Drake J.
Trends, 4 Drake J. Agric. L. 215-242 (1999). Agric. L. 297-332 (1999). If you desire a copy of any article or
Van Overwalle, Patent Protection For Plants: further information, please contact the Law
Food and drug law a Comparison of American and European Ap- School Library nearest your office.
Comment, Herbal Garden of Good and Evil: proaches, 39 Idea J. L. & Tech. 143-194 (1999). — Drew L. Kershen, Professor of Law,
the Ongoing Struggles of Dietary Supplement The University of Oklahoma, Norman, OK

AUGUST 1999 AGRICULTURAL LAW UPDATE 3
livestoc
T respassing li vestock
vestock and mmur
urder
ur convictions:
der con deficient
victions: could a def icient
prison
fence lead to a pr for
ison term f livestoc
or a li vestock
vestockoowner?
wner?
By Roger A. McEowen

A concern of livestock owners is their The defendant argued that her conduct occasions and had investigated tech-
potential liability when livestock escape constituted merely a negligent omission niques designed to train the dogs to at-
an enclosure and injure another person to confine the dogs and that, therefore, tack individuals upon command.
or their property. Typically, the focus is she should have been charged with invol- On the morning of the boy’s death,
on the livestock owner’s civil liability for untary manslaughter rather than sec- neighbors had noticed the defendant’s
damages caused by the escaped livestock, ond-degree murder. Under Kansas law, dogs running loose in the neighborhood.
with the rules of liability varying de- involuntary manslaughter, a lesser-in- However, the dogs later returned to their
pending upon the jurisdiction where the cluded offense of second-degree murder, fenced enclosure.
animals are located.1 is defined as the “unintentional killing of Later that morning, the decedent’s
In most states, an injured party must a human being committed recklessly.”13 mother dropped the decedent and his
establish that the livestock owner negli- Second-degree murder is defined as the younger brother off at a school bus stop
gently failed to keep the animals en- “killing of a human being committed un- near the defendant’s residence. While
closed.2 In other jurisdictions, primarily intentionally but recklessly under cir- waiting for the bus, the younger brother
the western range states, landowners cumstances manifesting extreme indif- noticed that the defendant’s dogs were
are required to construct fences around ference to the value of human life.”14 digging at the fence. When the dogs even-
their property before damages can be In an earlier case,15 the Kansas Su- tually escaped their enclosure, they ran
collected from the owner of trespassing preme Court determined that the sec- toward the boys, who climbed up into a
livestock.3 But, even in some of these ond-degree murder provision16 was dis- tree in a neighbor’s yard to safety. The
western jurisdictions, there is a blend of tinguishable from involuntary man- defendant’s three dogs surrounded the
“open range” and “fence in” rules.4 slaughter, 17 and upheld the statute tree and barked at the boys for several
Under the North Dakota statute, for against a constitutional void-for-vague- minutes before leaving. The decedent, in
example, if livestock injure a motorist in ness challenge. In particular, the court spite of the protests of his younger brother,
a grazing area, the livestock owner is not determined that second-degree murder got down out of the tree and followed in
liable.5 If a motorist is injured outside a requires a conscious disregard of the the direction that the dogs had gone to
grazing area, the livestock owner must risk, sufficient under the circumstances, see what the dogs were doing. When the
be shown to have been negligent.6 to manifest extreme indifference to the school bus arrived a few moments later,
In still other states, the fact that an value of human life. Conviction of second- the younger brother got out of the tree,
animal has escaped its enclosure creates degree murder requires proof that the ran to the bus stop, gathered up the bags
a rebuttable presumption that the live- defendant acted recklessly under circum- and instruments that the boys were car-
stock owner was negligent.7 In a highly stances manifesting extreme indifference rying, and got on the bus. The boy told the
questionable opinion, the Nebraska Su- to the value of human life. Less extreme bus driver that his brother had gone after
preme Court applied the doctrine of res recklessness is punishable as manslaugh- the dogs. Shortly thereafter, the dece-
ipsa loquitur in a livestock trespass case.8 ter. Therefore, the court concluded that dent was found dead, having been mauled
The decision has been roundly criticized.9 the language of the second degree mur- by the defendant’s dogs.
A recent Kansas Supreme Court deci- der statute18 described a kind of culpabil- The defendant later told police that
sion11 raises the concern that a livestock ity different in degree but not in kind she let the dogs out into their enclosure
owner could not only be held liable civilly from the ordinary recklessness required approximately an hour before the
for damages escaped livestock cause, but for manslaughter. decedent’s death, then took a sleeping
could be prosecuted criminally for invol- The defendant in Davidson19 argued pill and went to sleep on the living room
untary manslaughter or unintentional that her conduct, as a matter of law, did couch. When the defendant was told that
second degree murder if the escaped live- not rise to the level of recklessness neces- her dogs had attacked a boy, the defen-
stock cause another person’s death. sary to support a conviction for second- dant revealed that she was aware that
In State v. Davidson,12 the Kansas Su- degree murder. The jury disagreed, de- the decedent and his brother would later
preme Court upheld a county district termining instead that the defendant’s be at the bus stop and that the boys
court jury’s conviction of unintentional conduct involved an extreme degree of teased her dogs whenever they came
second-degree murder against an owner recklessness. around her property so that the dogs
of Rottweiler dogs. The dogs killed an The Kansas Supreme Court, in barked and got aggressive when the boys
eleven-year-old boy in April of 1997. Davidson 20 discussed at length the were in the area.
Evidence introduced at trial demon- defendant’s conduct with respect to the The defendant told police that she and
strated that the dogs were enclosed be- dogs from the time the defendant ac- her husband had discussed putting a
hind an inadequate fence in the quired ownership of the dogs. The court chain on the gate to the fenced enclosure
defendant’s yard, and that the defendant noted that the dogs had escaped their because the dogs repeatedly escaped. At
had been warned repeatedly that the enclosure in the defendant’s yard on nu- the time of the decedent’s death, there
dogs were out of control, escaping fre- merous occasions and that the defendant was no chain on the gate. The fence was
quently and frightening people in the was aware of the escapes. The court also a six-foot tall chain-link fence with posts
neighborhood. noted the dogs’ history of aggressive be- sunk in concrete. However, over the course
havior–chasing children on bicycles, fight- of time, the posts had widened because of
ing with other dogs, and scaring resi- pressure being put on the gate while the
Roger A. McEowen is Associate Professor dents in the neighborhood. Likewise, the latch was in the closed position. The
of Agricultural Law at Kansas State Uni- court noted that the defendant had failed resulting gap was sufficient to allow the
versity, Manhattan, KS and is a member to properly care for the dogs on certain dogs to escape.
of the Kansas and Nebraska Bars.

4 AGRICULTURAL LAW UPDATE AUGUST 1999
On appeal, the only issue before the conveniently ignored the troubling fact eas (N.D. Cent. Code § 36-11-07 (1997)).
5
Supreme Court was whether the state’s that the decedent along with his younger Id.
6
evidence was sufficient to support the brother were safely in a tree away from See, e.g., Hassan v. Brooks, 566
jury’s determination that the defendant’s the dogs and that the dogs had retreated N.W.2d 822 (N.D. 1997) (strict liability
degree of recklessness supported the con- out of sight from the boys before the rule inapplicable in situations involving
viction of second-degree murder. Thus, decedent climbed down out of the tree to injury to motorists not occurring within a
the court, in focusing exclusively on the search for the dogs.29 grazing area).
7
defendant’s conduct that the court be- Given the younger brother’s plea that See, e.g., 29 A.L.R. 4th 431 (1997).
8
lieved contributed to the decedent’s death, the decedent remain in the tree, the Roberts v. Weber & Sons, Co., 248
determined that the defendant could have decedent was clearly aware of the danger Neb. 243, 533 N.W.2d 664 (1995).
9
reasonably foreseen that the dogs could posed in searching for the dogs. How- See, e.g., McEowen and Harl, Prin-
attack or injure someone as a result of ever, despite such knowledge, the dece- ciples of Agricultural Law, §§ 11.11[1]
what she did or failed to do with respect dent recklessly chose to leave the safety (1999); Harl, “Res Ipsa Loquitur For
to the dogs.21 Consequently, the court of the tree and search for the dogs. It was Animals on the Highway?”, 8 Agricul-
affirmed the district court’s conviction of this act of the decedent that ultimately tural Law Digest No. 19, Oct. 3, 1997, pp.
second-degree murder, determining that and directly resulted in his death. Conse- 145-146.
10
the evidence was sufficient to support quently, the defendant’s admittedly reck- State v. Davidson, No. 81,243, 1999
the jury’s verdict that the defendant killed less conduct was not a sufficiently direct Kan. LEXIS 395 (Kan. Sup. Ct. Jul. 9,
the boy unintentionally but recklessly cause of the decedent’s death to hold the 1999).
12
under circumstances showing extreme defendant criminally liable therefore. No. 81,243, 1999 Kan. LEXIS 395
indifference to the value of human life.22 Reckless conduct is only one element of (Kan. Sup. Ct. Jul. 9,1999).
13
The prosecution admitted that there the crimes of involuntary manslaughter Kan. Stat. Ann. § 21-3404(a) (1997).
14
was no precedent in Kansas for convict- and unintentional second-degree mur- Kan. Stat. Ann. § 21-3402(b) (1997).
15
ing a person of homicide for a killing der. In each case, the defendant’s reckless State v. Robinson, 261 Kan. 865, 934
committed by the person’s dogs, and could conduct must be a direct cause of the P.2d 38 (1997).
16
not cite a single case in any jurisdiction killing. When a defendant acts recklessly, Kan. Stat. Ann. § 21-3402(b) (1997).
17
where a dog owner had been convicted of to whatever degree required under the Kan. Stat. Ann. § 21-3404(a) (1997).
18
second-degree murder for killings com- applicable statute, most courts tend to Kan. Stat. § 21-3402(b).
19
mitted by their dogs. carefully scrutinize the circumstances of No. 81,243, 1999 Kan. LEXIS 395
The court referenced a Florida case23 the death before concluding that the cir- (Kan. Sup. Ct. Jul. 9,1999).
20
where the defendant’s manslaughter con- cumstances are to be attributed to the No. 81,243, 1999 Kan. LEXIS 395
viction was upheld for the killing of an- defendant.30 Unfortunately, that did not (Kan. Sup. Ct. Jul. 9,1999).
21
other person by the defendant’s dogs. happen in this case. The defendant’s primary argument
The applicable Florida statute, however, The implications of Davidson31 for farm- on appeal was that the state failed to
conditioned the crime of manslaughter, ers and ranchers could be profound. Ar- prove foreseeability.
22
in part, on the person killed by the guably, a charge of unintentional second- See Kan. Stat. Ann. § 21-3402(b)
defendant’s animal “taking all the pre- degree murder could apply to a livestock (1997).
23
cautions which the circumstances may owner whose livestock escape an enclo- Munn v. State, 158 Fla. 892, 30 So. 2d
permit to avoid such animal.”24 sure and cause another person’s death. 501 (1947).
24
The court also cited a North Carolina It would seem that the potential for Fla. Stat. Ann. § 782.12 (1941).
25
case where the defendant’s two Rottweil- criminal liability should be limited to State v. Powell, 109 N.C. App. 1, 426
ers had killed a jogger and the defendant’s situations where a livestock owner has S.E.2d 91 (1993).
conviction was affirmed on appeal.25 become aware of an animal’s vicious pro- 26
No. 81,243, 1999 Kan. LEXIS 395
Again, however, the defendant’s conduct pensities and has failed to take further (Kan. Sup. Ct. Jul. 9,1999).
27
was determined to be the proximate cause action to restrain such animal or the The jury did, indeed, convict the
of the victim’s death. animals have repeatedly escaped from defendant of endangering a child. That
This raises a troubling aspect of their enclosure and wandered onto a determination was not appealed.
Davidson.26 Neither the trial court nor public roadway. 28
Involuntary manslaughter, under
the Supreme Court addressed the issue Criminal liability should not apply Kansas law, is a lesser included offense
of what actually constituted the direct where the decedent’s actions are the di- of unintentional second-degree murder.
29
cause of the boy’s death. Clearly, the rect cause of the decedent’s death (such Admittedly, the issue was not before
evidence was sufficient to support a con- as where the decedent exits the automo- the Supreme Court on review.
viction of a child endangerment.27 How- bile to photograph the livestock that had 30
See, e.g., Commonwealth v. Root, 403
ever, a serious question arises as to already moved off of the road and is Pa. 571, 170 A.2d 310 (1961) (defendant’s
whether the second-degree murder con- subsequently killed by the animals). But, conviction of involuntary manslaughter
viction was appropriate under the facts apparently that would not be the case in for death of opponent in highway auto
of the case. Kansas. race reversed; opponent’s reckless act of
Unlawful or reckless conduct is only passing in dangerous manner superced-
one ingredient of the crimes of involun- ing cause of death).
1 31
tary manslaughter or unintentional sec- See generally McEowen and Harl, No. 81,243, 1999 Kan. LEXIS 395
ond-degree murder.28 Another essential Principles of Agricultural Law, § 11.11[1] (Kan. Sup. Ct. Jul. 9,1999).
and distinctly separate element of the (1999).
2
crime is that the unlawful or reckless See, e.g., 29 A.L.R. 4th 431 (1997).
3
conduct charged to the defendant be the Id.
4
direct cause of the death in issue. Both Some states, such as North Dakota,
the trial court and the Supreme Court have statutorily designated grazing ar-

AUGUST 1999 AGRICULTURAL LAW UPDATE 5
ASA farmland/Cont. from page 2
Prevented
Pr evented plantings
The Agricultural Lands Condemnation Eminent Domain Code, but PennDOT
Approval Board was created to protect must pay the Whites for any damage crop
in cr insurance
op insurance
productive agricultural land from con- caused by the testing. The Eminent Do- In Snell v. Glickman, ,No. 98-2190, 1999
demnation. The board is comprised of six main Code is clear and ALCAB approval U.S. App. LEXIS 6034 (10th Cir. Apr. 2,
members consisting of the Director of the is not a prerequisite to PennDOT’s right 1999), the plaintiff was a dryland wheat
Office of Policy and Planning, the Secre- to enter the farmland for the purposes of farmer in New Mexico in a region that
taries of Agriculture, Environmental Pro- public planning studies. had been affected by drought conditions
tection, Transportation and two active In conclusion, Pennsylvania recognizes for the previous three to four years. The
farmers appointed by the Governor with that once farmland is lost, it is gone plaintiff did not plant a wheat crop after
the advice and consent of a majority of forever. To slow the conversion of farm- determining that the moisture level in
the Senate. The Secretary of Agriculture land into housing or industrial develop- the soil was too low and would likely
is the chairman. The board has jurisdic- ments, Pennsylvania enacted the ALCAB. cause a wheat crop to not mature and the
tion over land condemned for highway The court held that the ALCAB must be land to suffer wind erosion. The plaintiff’s
and waste disposal purposes. Once faced provided the opportunity to look for a neighbors did plant wheat and their crops
with a dispute, the board has sixty days way to save productive ASA farmland failed to mature resulting in severe wind
in which to determine whether there is a proposed for condemnation. Pennsylva- erosion to their land. The plaintiff ap-
feasible and prudent alternative to the nia also recognizes that changes not even plied to recover crop insurance benefits
proposed condemnation.8 contemplated twenty years ago can and on the basis that the drought prevented
Pennsylvania Department of Trans- do become a reality. These changes re- him from planting his wheat crop. Cover-
portation argued to the court that the quire looking at all possible options, in- age under the policy was provided for
ALCAB has no jurisdiction over cluding the condemnation of ASA farm- “prevented plantings,” defined in part as
PennDOT’s power to condemn farmland land. Each survey conducted protects the inability “to plant the insured crop
because the Exit 7 project was simply a taxpayers from wasting the limited re- due to an insured cause of loss that is
widening of an existing road. In section sources available to state and local gov- general in the area (i.e., most producers
106(d)(1) of the ALCAB, the statute pro- ernment. The court’s ruling provides in the surrounding area are unable to
vides that board jurisdiction does not PennDOT the ability to conduct tests plant due to similar insurable causes).”
apply to widening roadways of existing allowing for change in the future, but The local Farm Service Agency denied
highways, and the elimination of curves PennDOT’s authority is not unfettered the plaintiff’s claim, and the plaintiff
or reconstruction on existing highways.9 and is tempered by ALCAB approval. appealed to the USDA’s National Ap-
According to PennDOT, the Exit 7 project Jeff Feirick, Graduate Research peals Division (NAD). The NAD hearing
was a simple widening of an existing Assistant, The Agricultural Law officer denied the claim, noting that the
highway. The court disagreed. It found Research and Education Center, Penn plaintiff’s concern for conservation was
that the work proposed on Exit 7 was State University, Dickinson School of secondary with respect to the terms of
clearly outside the scope of the exception Law the crop insurance policy. Because the
because it involved the addition of an plaintiff’s neighbors were able to and did
interchange with new ramps and connec- plant wheat, the plaintiff did not meet
1
tor roads. The court held that PennDOT Plans Approved for New I-81 Exit 7 the insurance criteria for “prevented
must seek ALCAB approval before it can Interchange, Carlisle Pa. Sentinel, Mar. plantings.” The hearing officer’s decision
file a declaration of taking. 27, 1999, at B-1. was upheld in a subsequent administra-
2
The second issue addressed was: can 3 Pa. Cons. Stat. Ann. §§ 901 et. seq. tive appeal.
the Pennsylvania Department of Trans- (West 1988). On appeal to the Tenth Circuit, the
3
portation conduct tests on Agricultural 3 Pa. Cons. Stat. Ann. § 902 (West plaintiff claimed that the “prevented
Security Area farmland proposed for con- 1988). planting” provision in the policy was
4
demnation before getting approval from Farm Bureau Files Amicus Curiae In unreasonable because it required the
the Agricultural Lands Condemnation Exit 7 Lawsuit, Pennsylvania Farm Bu- plaintiff to violate sound conservation
Approval Board (ALCAB)?10 reau Country Focus, Sep. 1999, at 16. practices to be eligible to recover under
5
The court in deciding this issue looked Plans Approved for New I-81 Exit 7 the policy. The court upheld the adminis-
to section 1-409 of the Eminent Domain Interchange, Carlisle Pa. Sentinel, Mar. trative findings on the basis that the
Code (EDC).11 Section 1-409 provides that 27, 1999, at B-1. plaintiff had not demonstrated that the
6
prior to the filing of the declaration of 71 Pa. Cons. Stat. Ann. §§ 513(e)(1) insurance program’s general reliance on
taking, a condemnor is authorized to (West 1990). what other farmers do as a measure for
7
enter onto property for the purposes of 71 Pa. Cons. Stat. Ann. §§ 106(b) determining whether planting is “pre-
conducting public planning studies.12 (West 1990). vented” was unreasonable or not in ac-
8
However, one restriction implemented in 71 Pa. Cons. Stat. Ann. §§ 106 (a), 106 cordance with law.
the EDC contains a ten-day notification (b) (West 1990). —Roger A. McEowen, Kansas State
9
period. Therefore, PennDOT must wait 71 Pa. Cons. Stat. Ann. §§ 106(d)(1) University
ten days after notifying the Whites be- (West 1990).
10
fore entering the land and conducting the 71 Pa. Cons. Stat. Ann. § 106 (West
tests. 1995)
11
Entry onto land to conduct a survey 26 Pa. Cons. Stat. Ann. § 1-409 (West
may cause damage to the land. The Emi- 1997)
12
nent Domain Code acknowledges this 26 Pa. Cons. Stat. Ann. § 1-409 (West
and provides a landowner compensation 1997)
for any damages incurred from the land
study. The court found that PennDOT
was entitled to enter the Whites’ prop-
erty without ALCAB approval for testing
and planning purposes pursuant to the

6 AGRICULTURAL LAW UPDATE AUGUST 1999
Clarifying
Clar Farm
ifying the W ashington State Right to Farm Act
In 1979, Washington state enacted its on court that the statute could not apply biguous language in the statute along
Right-to-Farm Act. Wash. Rev. Code Ann. since the Buchanan farm allegedly was with the Legislature’s finding and pur-
§§ 7.48.300- .310 & .905 (West 1992). The in operation before Defendants’ activi- pose, it becomes clear the nuisance im-
act provides that agricultural activities ties. The Buchanans then argued that, munity should be allowed only in those
conducted on farmland and forest prac- even if the Defendants could rely on the cases where the nuisance suit arises be-
tices, if consistent with good agricultural Act, the Buchanans could still seek dam- cause of urban encroachment into an
and forest practices and established prior ages in their nuisance action pursuant to established agricultural area.
to surrounding nonagricultural and a 1992 amendment to the statute. The court bolstered its reliance on the
nonforestry activities, are presumed to The federal court issued an order par- narrow position by explaining that pub-
be reasonable and shall not be found to tially granting Defendants’ motion for lic policy considerations also require a
constitute a nuisance unless the activity summary judgment. The court dismissed narrow application of the Act. They found
has a substantial adverse effect on the some of the Buchanans’ negligence and that the protection afforded by the nui-
public health and safety. In 1992, the trespass claims, but withheld ruling on sance exemption is similar to a prescrip-
Washington Legislature added: “Noth- the nuisance claim, finding that there tive easement. A farmer who partici-
ing in this section shall affect or impair was a question of interpretation of pates in farming activities that poten-
any right to sue for damages.” Washington’s Right to Farm Act. tially interfere with the use and enjoy-
In Buchanan v. Simplot Feeders Lim- Before the Washington Supreme Court ment of adjoining land, gives notice to an
ited Partnership (Simplot) and IBP, Inc. addressed the certified question, it com- urban developer who subsequently lo-
(IBP), 952 P.2d 610 (Wash. 1998), the mented on the distinct, yet related, ques- cates next to the farm. The Right-to-
Buchanans, farmers, sued their neigh- tion of whether Defendants may properly Farm Act provides a quasi easement
bors, Simplot and IBP, conducting farm- rely on the Right-to-Farm Act in defense against urban developments to continue
ing activities, in federal court alleging of this nuisance action. An agricultural those nuisance activities. This quasi ease-
nuisance, trespass and negligence. The activity is presumed to be reasonable and ment is obtained more easily under the
United States District Court for the East- shall not constitute a nuisance when: (1) Act than if the farm were required to
ern District of Washington certified a the activity does not have a substantial meet the strict requirements for a pre-
question for the Washington Supreme adverse effect on public health and safety; scriptive easement.
Court because there are no relevant (2) the activity is consistent with good If an agricultural activity interferes
Washington authorities that deal with agricultural practices, laws, and rules; with the use and enjoyment of an adjoin-
the issue. The question is whether the and (3) the activity was established prior ing property, it is properly characterized
1992 amendment to the Washington to the surrounding nonagricultural ac- as a nuisance and the activity may be
Right-to-Farm Act limits application of tivities. protected under the Right-to-Farm Act.
the balance of the section to actions seek- The court had to decide if the third If, on the other hand, the agricultural
ing extraordinary relief? condition applied because both parties activity interferes with the neighbors’
The Buchanans own and operate a 320- were agricultural activities. The court actual possession of their property, and if
acre farm near Pasco, Washington. They examined the language of the statute and the activity physically damages the prop-
have farmed and lived on the land since the Legislature’s finding and purpose. erty, then the action qualifies as a tres-
1961. In 1969, a small cattle-feeding op- First, the court determined that in the pass and damages may be recovered.
eration opened on the land to the south- first sentence of the statute the Legisla- The Washington Supreme Court held
east of the Buchanan farm. Simplot pur- ture clearly states what the Act is de- that the language of the certified ques-
chased the feedlot in the fall of 1992. In signed to protect: “the legislature finds tion merely refers to a plaintiff’s ability
1970 a small meat processing plant be- that agricultural activities conducted on to seek damages in other causes of action,
gan operation on the property to the farmland and forest practices in urbaniz- such as trespass. Assuming Defendants
southeast of the Buchanan farm. IBP ing areas are often subjected to nuisance can rely on the Right-to-Farm Act as a
purchased the facility in 1976. lawsuits, and that such suits encourage defense, the 1992 amendment does not
The Buchanans allege Simplot’s opera- and even force the premature removal of allow the Buchanans to seek nuisance
tion now holds over 40,000 cows and the lands from agricultural uses and damages for the foul odors allegedly ema-
since 1992 has resulted in a significant timber production.” Wash. Rev. Code Ann. nating from Defendants’ property.
increase of flies and bad odors. They also § 7.48.300 The Legislature was concerned In the dissent, Justice Alexander points
allege that IBP has significantly expanded that farmlands in urbanizing areas are out that the federal court did not ask the
its meat processing and rendering plant prematurely being closed to agricultural Washington Supreme Court to answer
since 1993 resulting in a significant in- use because of nuisance lawsuits in those more than one federal question.
crease in foul and obnoxious odors cross- urbanizing areas. The Act is designed to Alexander felt the court should avoid
ing onto the Buchanans’ farm and resi- protect farms from nuisance lawsuits giving answers that were not asked for.
dence. Under the trespass action, the brought by new residents. The majority disagreed with Justice
Buchanans complained of flies and ma- The second sentence of the statute is, Alexander. In Rettkowski v. Department
nure dust which were damaging the “it is therefore the purpose of Wash. Rev. of Ecology, 910 P.2d 462, 466 (Wash.
Buchanans’ crops. Under the nuisance Code Ann. §§ 7.48.300-7.48.310 and 1996), the Court decided that when a
claim, they complained of the foul and 7.48.905 to provide that agricultural ac- statute is clear and unambiguous on its
obnoxious odors. tivities conducted on farmland and forest face, there is no need to resort to methods
As to the nuisance claim, Simplot and practices be protected from nuisance law- of statutory construction. The majority
IBP argued to the federal court that their suits.” Id. The Defendants focused on, felt there was sufficient need to clarify
operations were exempt from nuisance the second sentence alone, claiming that the ambiguous section of the statute.
suits under the Washington Right-to- it broadly offered nuisance protection —Jeff Feirick, The Agricultural Law
Farm Act because the Act declares that from all agricultural activities. The court Research and Education Center,
agricultural activities, which create odors, refused to accept this argument because Penn State University,
do not constitute a nuisance. The the court felt the Defendants had read Dickinson School of Law
Buchanans disputed the Defendants’ re- this sentence out of context with the rest
liance on the Act, arguing to the federal of the statute. When analyzing the am-

AUGUST 1999 AGRICULTURAL LAW UPDATE 7