Applications to LL.M. Program for Fall 2010

The LL.M. Program in Agricultural & Food Law at the University of Arkansas School of Law offers the nation's only advanced LL.M. degree in either agricultural law or food law & policy.

Agricultural Law can be defined as "the study of the network of laws and policies that apply to the production, marketing, and sale of agricultural products, i.e., the food we eat, the natural fibers we wear, and increasingly, the bio-fuels that run our vehicles." Because of the special nature of producing living products to meet society's critical need for food, a variety of special laws make up the core of agricultural law studies - laws that often are often quite different than the law studied in basic law courses. The topic What is Agricultural Law was the subject of a previous post reporting on a panel discussion at the American Association of Law Schools annual meeting.

While food law is essentially a big part of agricultural law, recent interest in our food system has greatly expanded legal interest in food labeling, food safety, and questions regarding the sustainability of our food system. We study all of these issues from the perspective of the farmer, the consumer, and whoever may be involved in between.

We have already admitted a number of candidates for Fall 2010. We still have places available and will be able to offer merit-based graduate assistantships to a limited number of those admitted. These assistantships provide a tuition waiver plus a small stipend.

Our nine month course of study attracts attorneys from throughout the United States and from abroad. While many of our students are recent law school graduates, others enter the program as experienced practitioners. Our alumni are among the leaders in the agricultural law and food law communities.

Interested attorneys and third year law students are encouraged to apply to the Program as soon as possible. Visit our website for more information and to obtain an application form. You are welcome to send me an e-mail at sas.susan@gmail.com with questions. And, you can call the LL.M. Program Office at 479-575-3706.

Corporate Farming Articles and the Nebraska Constitution

In an effort at shameless self-aggrandizement, I'm posting links to some recent work I've done.

Here is a recent article from the Drake Journal of Agricultural Law in which I evaluate corporate-farming measures in the wake of Jones v. Gale.

Here is a recent article from the Nebraska Law Review in which I critically examine the court's opinion in Jones v. Gale and the discriminatory-effects thread of dormant Commerce Clause doctrine.

Finally, I'd recommend to all this book on the Nebraska State Constitution. Nebraska's corporate-farming measure was created as an amendment to the state constitution. This book, however, is much broader, offering an entry-point treatise into the many provisions in our state constitution. We maintain an electronic update here.

America's New Farmers

The Drake Forum on America's New Farmers: Policy Innovations and Opportunities will be held March 4 and 5, 2010 at the L'Enfant Plaza Hotel in Washington, DC.


The goal of the Forum is

• to organize a national discussion on new and beginning farmer policy issues;
• to gather stakeholders from across the U.S. to identify and inventory innovative policies and projects at the federal, state, and local levels to support new farmers; and,
• to provide the Administration and Congress an agenda of ideas for developing a comprehensive campaign to support the next generation of American farmers.

Forum organizer, Professor Neil Hamilton states that the agenda is close to being finalized and that over fifty people from across the nation will participate as speakers, moderators and policy reporters. Professor Hamilton, Janie Simms Hipp, advisor to U.S. Secretary of Agriculture on Tribal Relations and Bill Murphy, Administrator, USDA Risk Management Agency will open the conference on March 4, and USDA Secretary Tom Vilsack has been invited to deliver the Opening Keynote Address, America’s New Generation of Farmers.

To learn more about the Forum, view the agenda, and to register please visit the Drake Agricultural Law Center website. Group rates for rooms at the L'Enfant Plaza Hotel are available up until February 10th.

Models of Local Food Distribution

The University of Wisconsin-Madison Center for Integrated Agricultural Systems (CIAS) and University of Wisconsin-Extension Agricultural Innovation Center just released their report, Scaling Up: Meeting the Demand for Local Food.

The report detailed their study of eleven models of regional food aggregation and distribution that are successful in linking local farmers with regional food chains.

From their website:

Robust local food systems offer social, environmental and economic benefits. Increasingly, wholesale buyers are demanding locally grown food and growers are looking for new regional markets. In order to meet the demand for locally and regionally grown food and move significant quantities of this food into markets such as restaurants, mainstream grocery stores and institutions, local food systems need to be scaled up or expanded from farmer-direct sales of small quantities of product to wholesale transactions. By scaling up, local food systems have the potential to borrow some of the economic and logistical efficiencies of the industrial food system while retaining social and environmental priorities such as sustainable agricultural practices and profitability for small- and mid-scale family farms and businesses.

The models provide examples of how this is being done, benefiting farmers, retailers and consumers.

Atrazine and Groundwater

A few weeks ago, there was a post linking to a moving personal story about atrazine use in agriculture and concerns about the potential cancer risk associated with chemical pesticides. This highly charged issue was in the news again this week, and the divide in the agriculture community was readily apparent.

In January, the Land Stewardship Project collaborated with the Pesticide Action Network in the publication of the report, The Syngenta Corporation & Atrazine: The Cost to the Land, People & Democracy.

According to this report:

Syngenta’s atrazine has become one of the most commonly detected pesticides in U.S. ground and surface water. Between 1998 and 2003, 7 million people were exposed to atrazine in their treated drinking water at levels above state or federal health-based limits. The U.S. Geological Survey found that atrazine was present in streams in agricultural areas approximately 80 percent of the time, and in groundwater in agricultural areas about 40 percent of the time.

Earlier this month, a number of commodity groups signed a letter to EPA Administrator Lisa Jackson stating that they were “troubled by the activist forces that seem to be guiding the very intensive and urgent re-evaluation (actually a re-re-evaluation) of atrazine despite its recently completed re-registration, which provided for its continued safe use.”

The farmers involved in the Land Stewardship Project report are deemed to be "activists" and "special interest groups." This is amusing in that this is also clearly what the commodity groups are - and I don't mean that in a derogatory sense. Organizations like the National Corn Growers Association exist to lobby for the interest of their members. The letter argues for a science-based approach, which seems to be what everyone says that they are asking for. It is just that each side reads the "science" differently.

I'd like the EPA to look at atrazine openly, honestly and without pressure from any interest group - including the chemical and agricultural industries. It is simply too hard for them to separate out economic interests. It is universally acknowledged that atrazine is in the drinking water consumed by many farm families and rural communities across the United States. They deserve an honest look at the health impact of that contamination.

Dr. King and Agricultural Law

Please consider the issues of discrimination and diversity and their impact on agriculture in honor of Dr. Martin Luther King, Jr.

For a reference to some of the resources available, see today's LL.M. in Agricultural & Food Law post.

CPRBlog: Atrazine, Syngenta's Confidential Data, EPA's Review, and the Five Stages of Grief

My colleague, Sandi Zellmer's, recent post at the Center for Progressive reform offers a compelling story about atrazine. I encourage you to read it.

Private Sector Rural Economic Development - An Example from Namibia

As part of my interest in rural development, natural resources management, and agricultural land use, I recently spent twelve days traveling to and around Namibia to research how its citizens market the rural landscape. More specifically, I was interested in the legal arrangements folks have used to help them develop agricultural operations (primarily ranches) into enterprises that encompass a variety of income streams. Below, I'll talk about Namibia and some of its history, the way in which ranchers have capitalized on the landscape and the wildlife there, and how that experience could be relevant to Nebraska's landowners.

Read the rest of this post . . . .

Namibia is a large country with a relatively small population. It is roughly twice the size of California with about two million people. It achieved independence in 1990. It was a colony of Germany until World War I, and it was ruled by South Africa until independence. Much of the land in the country is privately owned, though there are significant parts of the country that remain governmentally owned. The governmentally owned land includes national parks (Etosha, The Namib Desert and the Sossusvlei (pictured below) are examples), the diamond mining area of the southern coast, and communal areas, which are somewhat like the reservations we have in the United States. Most of the landowners in Namibia are of German descent or Afrikaaners, who are of Dutch descent.
The privately owned land is cut up into "farms," which we would call ranches in the United States. Each farm has set borders encompassing about four to five thousand acres. Many landowners own more than one farm and use it in their operation. The operations are primarily geared at livestock production and, more specifically cattle. Many of the areas don't look all that different than landscapes you could find in the midwest (picture) There is no significant feeding industry in the country because there is little rain and insufficient crop production. The cattle are raised to slaughter weight on grass and typically sold into European markets.

Insofar as wildlife are concerned, landowners in Namibia may generally kill any game occurring on their property. Trophy hunting, selling game meat, and other economic activities related to game hunting must be done with a government permit. The permits are issued by a governmental agency and are limited to the farm for which the permit is issued. In the areas where I was located (mainly in the central and southern parts of the country), the game I saw include Gemsbok (Oryx, pictured immediately below), Kudu, Springbok (both pictured below), Cheetah, Leopard, Warthog, Zebra, Ostrich and Jackal (as well as some other birds that I can't recall the name of - they don't really care much about bird hunting in Namibia). Notably, there is a robust market for game meat in Namibia. In fact, one of the ranchers I met with said that they eat no beef in their household, opting instead for the game. And I noticed a lot of game meat in the supermarket and restaurants.

Because there is economic value in the game for the ranchers, they have an incentive to manage their properties in a way that increases the presence of game and maintains species' populations. Moreover, many ranchers are engaged in activities other than hunting that benefit from the presence of a diverse array of species. Many, for instance, market their landscape and the relative solitude of open spaces by running guest lodges. Thus, managing the landscape for species' benefit, as well as cattle, yields economic returns to the ranchers.

However, the scale of an individual operation is an insufficient area in which to effectively manage game from year to year. Unless the rancher wants to invest in a huge (and relatively expensive) fence and operate a "game farm" within its borders, it makes more sense to allow the game to cross property boundaries as they always have. And with many species there is little choice to do otherwise, given the size of the animal's habitat needs. But this poses significant problems. The fact that game don't respect our boundaries eliminates many of the opportunities to profit. There is no guarantee from year to year that the game will come to the ranchers' land. And there is no guarantee that the neighbors will compensate the rancher for the benefits they reap from his management practices, let alone contribute to the species management.

Given the boundary and scale problems, many ranchers have formed what they call "conservancies". Basically, the ranchers join together in an association at a scale where game management becomes feasible and effective. These associations range in size from 250,000 acres to nearly one million acres. The landowners forming these associations write up a document outlining their goals and the activities they will undertake to achieve these goals. Most of the goals relate to game populations. Thus, the landowners, for example, may agree to conduct three game counts over the course of a year. They then meet annually to discuss how many of the existing population can be consumed for trophy hunting or other uses during the ensuing year on each ranch. The goal, of course, is to maintain the game populations at whatever level the group decides is appropriate, given the ranching activity, forage availability, likely rainfall, and species' health. Once the group agrees on these quotas, they forward their information to the agency in charge of permits. To the extent permits need to be issued (for example for meat hunts, meat sales after a culling operation, catch and sell, trophy hunts, etc.), there is an informal understanding with the government agency to issue the permits.

Interestingly, there has been an ongoing push for legislation that would formalize the permitting arrangement with the landowner associations and limit the level of government oversight. After all, the ranchers argue, there is no permitting required to raise cattle, and they do just fine in managing that species. Nonetheless, there has been some resistance to a wholesale relinquishment of game management to the private sector.

The viability of these sorts of associations in the grasslands of the midwest is something that I am considering. Many parts of Namibia resemble the grasslands of the US (see the picture below), and there is much we can learn from Namibia, and vice versa. For instance, we have never left much of anything to the private sector when it comes to wildlife management. Namibia is proof that the private sector, and more specifically, privately owned lands, can be a positive force in wildlife management, provided the incentives are there. Financial returns can also follow for landowners and others in rural areas.

Namibia's associations, however, have their problems. In general, they increase the value of individual ranchers' properties. However, there is always the possibility that individuals will withdrawal from the association, choosing instead to capitalize on the benefits of the surrounding landowners' management activities without contributing at all to the overall enterprise. Or the landowners may sell their property, leaving the choice of joining to a new owner who may ride along with the association for free. In the United States, we have the ability to create obligations that inure in the title to real estate and bind both present and future owners. We do that, for instance, with many residential housing developments (e.g. gated communities) in urban areas, which often involve associations. My work is considering how that aspect of American law can be used to avoid some of the problems that Namibian associations have encountered. Leases to an association are another option. In the end, we have an array of useful property law tools that landowners can use to create associations. And those tools can be used to helps landowners engage in the sort of cross-border enterprise that has worked fairly well in Namibia.

We also permit hunting somewhat differently than they do in Namibia. However, for reasons that would take too long to explain here, I tend to think that wholesale changes to our game laws are unnecessary. Landowners' ability to exclude hunters and others from their property and their ability to charge a fee for access make the differences in permitting somewhat irrelevant, provided enough permits are issued to effectively manage the population of the relevant species.

Finally, it should be noted that there are many different ways of doing business in this area and many more details that I have left out. There is one more aspect of these associations that is interesting. Many conservancy members in Namibia are perfectly content to raise cattle on their land without running guest farms or hunting operations. They remain part of the conservancy, however, for a couple of reasons. One is the desire to be a good steward of the game and landscape where their community exists. The most successful conservancies, after all, are comprised of landowners who see themselves as part of a larger community. Being a good neighbor is important. Additionally, and probably more importantly, even the passive member gets economic benefits from his membership. Sometimes they sell access to the property to third-party outfitters or neighbors who want to bring people onto the property for hunting or hiking or whatever. And one can structure the enterprise so that the association (owned by the landowners) pays dividends to the owners.

In the end, I think this is an interesting example of how agricultural lands can be used in ways that generate alternative revenue streams for landowners and ranch families. It has for some ranchers in Namibia, like the Pack family pictured below. If you are interested in this sort of thing, have questions, or would like to visit Namibia, give me a call or drop me an e-mail.

Join me for a book discussion

A few months ago, Oxford published When Cooperation Fails: The International Law and Politics of Genetically Modified Foods, an interesting new book by Gregory Shaffer and Mark Pollack. Today, Opinio Juris is hosting a one-day book discussion about the book, with yours truly as a guest blogger. Please join the conversation--it should be fun!

AALS Open Source Program: Food, Law, & Values

At the American Association of Law School's Annual Meeting in New Orleans, there will be a special open source program presented on Food, Law & Values. This program will be held on Friday, January 8, 4:00 – 6:00 p.m.

The agenda for the program, provided by organizer Professor Donna M. Byrne, William Mitchell College of Law is as follows:



Food Production beyond Technology: Risks, fears, environment, and labor
4:00 – 4:50

Moderator: Bret C. Birdsong, University of Nevada, Las Vegas, William S. Boyd School of Law

A program on food law would naturally begin with food production. Increasingly, consumers are interested in how food was produced, demonstrating that food production is more than agricultural and scientific techniques. Food production raises value-laden questions of identity, personal autonomy, and concern for culture. In addition, advancing technology implicates uncertainty and risk. This panel presents several points of focus on values in food production, approaches to risk and uncertainty in food production, and the appropriate roles for governmental intervention.

Panelists:

• Stephanie Tai, University of Wisconsin Law School – Food safety regulation development and confined animal feeding operation (CAFO) siting management may seem to be widely disparate subjects, but Professor Tai will bring these together by focusing on the tensions between public participation and scientific expertise in these two different contexts. Rather than providing normative recommendations regarding these issues, however, the focus is on recognizing the implications of public participation structures for the epistemic nature of the scientific information used by agencies in reaching their regulatory decisions.

• Guadalupe T. Luna, Northern Illinois University College of Law – Agricultural laws affect more than food. Professor Luna will discuss globalization of the agricultural workforce and its impact on domestic Indians and the Purepecha Indians from Mexico. The Purepecha are farmworkers residing on the Cahualla Indian Reservation in California and in difficult housing conditions. The immediate intent is not to lay blame on the tribe housing the farmworkers; but to illustrate how agricultural laws are directly harming both groups with further attendant harm on the environment of an Indian nation.
  

• Dean James Ming Chen, University of Louisville, Louis D. Brandeis School of Law -- The mass marketing of foods derived from organisms modified through recombinant DNA technology has put extreme pressure on the interpretation and implementation of the United States' basic food safety law, the venerable Food, Drug & Cosmetic Act. In its classic form, the FD&CA reflects its Progressive and New Deal roots. It vests enormous trust in a specialized agency, the Food and Drug Administration, which is presumed to have nonpareil expertise over food safety. The political reality of GM foods, however, has placed the FD&CA and its implementation by the FDA in severe tension with the Organic Foods Production Act and with commercial speech doctrine. Fear about food is one of the most deeply seated forms of behavioral protection against the natural world. It is precisely here, where food comes into contact with notions of good and evil, that the classic regulatory state must take its stand. The FDA's regulation of foods using rDNA technology upholds the best of the Progressive regulatory tradition and deserves to survive the challenge posed by the OFPA, the revived commercial speech doctrine, and contemporary consumer distrust of governmentally supervised review of science and safety.

• Marne Coit, Coit Consulting, Fayetteville, Arkansas – Local food systems and sustainability. For people who work in agriculture, there is often a tendency to view one's work as either helping farmers or as helping consumers. A dichotomous viewpoint such as this is not necessarily productive. In particular, when thinking about sustainability, it is more productive to use a systems approach, and to think about these issues in a way that takes farmers, consumers, the environment, culture, and ethics into consideration. One model that seeks to accomplish this is that of local food systems, a model which works to meet the needs of both farmers and consumers in a sustainable manner. This model has become increasingly popular in recent years.
  

The Role of Governments – Labels, Regulation, Economy, and Safety
4:55 to 5:25

Moderator: Donna M. Byrne, William Mitchell College of Law

The Obama administration seems to be taking a more aggressive approach with respect to controlling the food industry through increased regulation. States and local governments are also taking a more pro-active approach. One area where regulation has an obvious role is labeling. Food labeling should be a way to provide consumers with the opportunity to make decisions about what they eat - decisions that may be based not only on safety or nutrition but on other factors such as social or economic issues. But, how can the law better assure that food labels serve these larger purposes? How do other countries address these issues?

Panelists:

• Margaret E. Sova McCabe, Franklin Pierce Law Center -- the relationship between scientific certainty, food label claims, and consumer information. Professor McCabe will use the gluten-free definition as an example of how Congress asked FDA for a definition in the FALCPA, but that FDA interprets this mandate to require comprehensive review of the status of science on celiac disease as well as product testing.

• Neil D. Hamilton, Drake University Law School – A perspective from the Obama/Vilsack administration. Professor Hamilton chaired the Iowa Food Policy Council for six years under then Governor Vilsack and is now serving as an informal adviser to him and USDA on various issues - including the new Know Your Farmer Know Your Food effort as well as the People's Garden project.

• Thomas Wilson, Alabama A&M University School of Agricultural & Environmental Sciences – A view from across the pond. Professor Wilson started the online Food Law Certificate Program at Michigan State and was chair of the Institute of Food Technologists food law committee for a year as well. More recently Professor Wilson has lived in Europe working with the Food Directorates in the Netherlands.

Food Law, Food Law Scholarship and where we go from here.
5:30 – 6:00

Moderator: Stephanie Tai, University of Wisconsin Law School

One of the driving notions behind the open-source program idea is to get folks together who often think about disparate things that bear some relation to food law. Although many scholars have been writing about food law for a long time, others are moving into the area from other disciplines. This panel will provide a chance for us to discuss, albeit briefly, where we, as legal scholars, see our particular niche (or niches) in the development/transformation of food policy.

Panelists:

• Susan Schneider, University of Arkansas School of Law – From agriculture to food. The LL.M. program at the University of Arkansas School of Law now includes food law courses in its curriculum and recently changed its name to LL.M. in Agricultural & Food Law. When is agricultural law food law? Professor Schneider's recent scholarship calls for a reassessment of agricultural policy to reflect a closer connection to food policy goals and environmental sustainability. The shift in focus to consumer-driven issues with value-laden agricultural implications is bringing food law issues into the spotlight.

• Bret C. Birdsong, University of Nevada, Las Vegas, William S. Boyd School of Law – Critical Rice Theory. What is the role of the academy? Are we asking the right questions? The food choices that are available to us as individuals and collectively are bound up with our system of food law. Law shapes and informs those choices, and the food system shapes and informs the law. The enterprise for legal scholars should be to explore the interlinking web of law and food, taking into account the wide array of values that food and food production systems implicate, and suggest improvements that can help to transform the system into one that is more balanced, just, and sane.

Large Panel -- Where do we go from here? Any or all can chime in.

Sustainable South Carolina Local Food Systems Workshop

This announcement came in from Beth Crocker, J.D. Drake University School of Law, LL.M. Agricultural Law, University of Arkansas School of Law. Beth serves as Counsel for the South Carolina Department of Agriculture and has been instrumental in their impressive local foods campaign. Note the January 8 Registration deadline for this workshop.

Sustainable South Carolina
Local Food Systems Workshop
January 29, 2010
8:00 a.m. until 4:30 p.m.
Hilton Columbia Center
924 Senate Street
Columbia, South Carolina

Currently the demand for locally-produced foods in South Carolina is much greater than the supply, creating tremendous economic opportunities for local farms and markets and also consumers interested in a more healthy diet. This workshop will address local food policies in South Carolina from farm to fork, looking at all aspects of food policy in South Carolina including sustainable production, distribution and consumption trends and why a sustainable food system is advantageous to South Carolina. The goal of the workshop is to explore challenges and opportunities leading to the development of sustainable food systems for South Carolina, including key economic, environmental, food distribution and health aspects that are critical to sustainable, local food systems. The result of this workshop will be a set of written guiding principles for achieving a more sustainable, local food system in South Carolina.
The registration deadline is January 8, 2010. More information and registration details can be found on the South Carolina Department of Agriculture Food Policy Counsel website.

NY Students Reveal Mislabeled Food Through DNA Testing

Not everyone reads the details on their food labels. And there is a lively debate about how much information to provide to consumers, how to provide that information, and how much our "storied food" tells a true story. However, I recently read about the exposure of real food fraud, thanks to a New York high school DNA testing project. Two students uncovered some mislabeling of the most overt sort. Stuff that was just not what it was supposed to be.

Through DNA testing the students found food labeled as sturgeon caviar that was in fact Mississippi paddlefish; "sheep's milk cheese" that made from cow's milk; "smelt" that was Japanese anchovy; and "venison dog treats" made from beef.

The LA Times blog, Booster Shot picked up the story and quoted the students report:

"We do not know where or why the mislabeling occurred, but most cases appeared to involve substitution of a less expensive or less desirable item, suggesting the possibility of deliberate mislabeling for economic gain. We also think mislabeling is a serious problem because certain individuals have allergies or dietary restrictions regarding certain foods. ... Like a powerful flashlight, DNA exposes hidden identities of living and once-living things. We look forward to more explorations!"

There are, of course, a couple of good aspects to the story. First, what a great way to introduce students to the power of information and of science. Second, what a good way to catch mislabeling. My guess is that companies may be less hesitant to cheat if they worry about getting caught.