DTN writer Todd Neeley reported earlier this week that, “Courts can no longer automatically defer to federal agency interpretation of federal rules, but instead will be required to determine whether regulations are clear in the first place, the United States Supreme Court ruled last week.

“For farmers like Arlen Foster in South Dakota the ruling could provide an avenue for successfully challenging regulations.

“Foster has been battling a USDA wetland determination on a 0.8-acre tract of land since 2008. The tract was declared a wetland based on a USDA process Foster convinced the Supreme Court to review.”

Mr. Neeley explained that, “Foster told DTN on Monday he hopes the ruling will ‘rein in a lot of the ad hoc rule making.’

“Last week the Supreme Court issued a ruling in Kisor v. Wilkie, a case involving Vietnam War veteran James L. Kisor and a government denial of benefits. That case challenged an administrative law doctrine that gives broad powers to federal agencies in how they interpret regulations. The doctrine is known as ‘Auer deference.’

“The legal doctrine allows courts to defer to agency interpretations of regulations in legal challenges as long as they are not inconsistent with regulatory text. Interpretations of rules or laws such as the Clean Water Act are not subject to notice or the rulemaking process, making it difficult to challenge in court.”

Mr. Neeley noted that, “The court’s opinion released on June 26 talks about the need to limit the use of Auer deference.

“‘Auer deference is not the answer to every question of interpreting an agency’s rules,’ the court said. ‘Far from it. As we explain in this section, the possibility of deference can arise only if a regulation is genuinely ambiguous. And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.

“‘When it applies, Auer deference gives an agency significant leeway to say what its own rules mean. In so doing, the doctrine enables the agency to fill out the regulatory scheme Congress has placed under its supervision. But that phrase ‘when it applies’ is important — because it often doesn’t.‘”

The DTN article indicated that, “Foster’s case was cited in the Kisor petition as an example of why the court should hear the case. Foster appealed a decision by the Natural Resources Conservation Service to use a comparison site to make a wetland determination on his land.”

Bloomberg writers Deena Shanker and Lydia Mulvany reported today that, “For vegans, things have never been better: This Fourth of July, they can grill up their choice of plant-based burgers, sausages and hot dogs, dressing them with egg-free mayonnaise and dairy-free cheese—before finishing off with a scoop or two of cream-less ice cream.

“But not everyone is happy about it. State by state, meat and dairy industries have found sympathetic legislators and pushed for bills that restrict the way these products are labeled in stores, arguing that foods can only be called ‘milk’ if it’s the result of lactation and ‘meat’ if it’s from a slaughtered animal. This follows decades of relatively little resistance by the dairy industry amid a recent explosion of dairy-free milks made from soy, almonds, oats and a host of other ingredients.

“Now, the plant-based industry is fighting back.”

The Bloomberg writers stated that, “On Monday, vegan ‘meat’ maker Upton’s Naturals Co. and the Plant Based Foods Association, a trade group, sued Mississippi’s governor and commissioner of agriculture and commerce in federal court, arguing labeling restrictions violate their First Amendment right to free speech by preventing them from using the phrases consumers understand, like ‘meatless meatballs’ and ‘vegan chorizo.’

“Mississippi’s law, passed in March and effective on Monday, stipulates that plant-based foods cannot be labeled as meat or ‘a meat food product.‘ It doesn’t matter if the product also states on the label that it’s 100% vegan, plant-based or meatless: If the product uses the word ‘meat’ or another word that links it to the animal product it’s meant to substitute, then it will run afoul of the law. The legislation, the lawsuit says, is a direct result of lobbying by meat groups.”

Today’s article added that, “In response to the lawsuit, the Mississippi Department of Agriculture and Commerce said it has a ‘duty and obligation to the enforce the law’ and that it wanted to ensure that consumer in the state have ‘clear information on the meat and non-meat products they purchase.'”

A news release last week from USDA’s Risk Management Agency (RMA) indicated that, “The 2018 Farm Bill mandated changes to the treatment of cover crops for U.S. Department of Agriculture (USDA) programs, which add more flexibility to when cover crops must be terminated while remaining eligible for crop insurance. USDA’s Farm Service Agency (FSA), Natural Resources Conservation Service (NRCS) and [RMA] developed new guidelines and policy provisions to enact these changes, which will be available beginning with the 2020 crop year.

“‘USDA is working to quickly implement the 2018 Farm Bill to better serve our customers,’ said Bill Northey, USDA Under Secretary for Farm Production and Conservation. ‘These new guidelines are not being issued as a result of the current nationwide weather issues, but will provide more flexibility for our customers who want to plant cover crops to meet their production and conservation goals for their farms.’

“Producers now know up front that insurance will attach at time of planting the insured crop. Cover crop management practices are covered by Good Farming Practice provisions, and the guidelines are no longer a requirement for insurance to attach. Additionally, with these changes, NRCS is now recognized as an agricultural expert resource for cover crop management systems.”

The RMA update added that, “Cover crops have the potential to provide multiple benefits in a cropping system. To learn more about cover crop termination guidelines, selection tools and more, visit the NRCS Cover Crops and Soil Health webpage and RMA Cover Crops webpage.”

This week, Wall Street Journal writers Ruth Bender and Ben Dummett reported that, “Bayer AG on Wednesday bowed to pressure from investors, saying it would seek outside help and review its approach in the legal battle with thousands of cancer patients who blame the herbicide Roundup for their illness.

“The chemicals and pharmaceutical giant said it would create a special committee of eight supervisory board members to monitor Roundup lawsuits and consult with management on legal strategies.

Associated Press writer Hannah Grabenstein reported yesterday that, “A legal advocacy organization has filed a lawsuit in federal court challenging an Arkansas state law that farm organizations have used to shield themselves from undercover investigations by animal rights groups.

“Lawyers for the Animal Legal Defense Fund and other animal rights organizations filed the suit Tuesday against state Rep. DeAnn Vaught and her husband, who own a pig farm, and Peco Foods, an Alabama-based poultry farm with Arkansas facilities.

“The suit argues that the 2017 law, which was sponsored by Vaught and bars undercover investigations at private businesses like large farms, violates the First Amendment to the Constitution by banning a form of speech.”

The AP article noted that, “The lawsuit also claims that the wording of the law is too broad. As written, it prohibits a person from gaining access to a ‘nonpublic area of a commercial property,’ and in any way capturing or recording damaging information, wording that lawyers say would prohibit a parent from documenting problems at a daycare or a customer from recording illegal conduct in the backroom of a store.

“A federal judge struck down a similar Iowa law in January, though Republican Gov. Kim Reynolds signed a different law in March that prosecutes people who conduct undercover investigations.”

“Federal courts have ruled against other ‘ag-gag’ laws in Idaho, Utah and Wyoming, and litigation is ongoing in North Carolina,” the AP article said.

Earlier this month, Bloomberg writers Deena Shanker and Lydia Mulvany reported that, “Miyoko Schinner is a perfect illustration of the American dream. To the U.S. dairy industry, however, she is something altogether different.

“A Japanese immigrant, Schinner started a small company that blossomed into a wildly successful vegan cheese maker, one with the potential to do for dairy alternatives what Beyond Meat is doing for beef substitutes. Her business, Miyoko’s Kitchen, began in 2014 as an e-commerce platform, trading on the popularity of her vegan cheese cookbook. After one weekend in which she received $50,000 worth of orders, Schinner knew her 40-pound batches wouldn’t be enough to satisfy demand.

“So she figured out how to make 1,500 pounds an hour, raised $25 million and built a 30,000 square-foot facility in Petaluma, California. ‘It was very difficult to scale,’ said Schinner, now 61. Making dairy alternatives out of ingredients like cashews and rice miso doesn’t always work as planned.”

The Bloomberg writes explained that, “Until recently, the U.S. dairy industry had been relatively quiet about the proliferation of non-dairy products that use words like ‘milk’ or ‘cheese.’  But lately it’s been pushing back. Wisconsin, which calls itself America’s Dairyland, is one of the biggest dairy producers in the country. It’s also America’s biggest maker of actual butter.

“So when it came to the kind of ‘butter’ Schinner makes, Wisconsin and its powerful dairy lobby decided to draw the line.”

The article noted that, “[Dire circumstances in the dairy farm economy] have led some in the dairy industry, most notably lobbying groups like the National Milk Producers Federation, to campaign against alternative dairy products—specifically their use of dairy terms on labels. Changing consumer tastes are regularly cited as a chief cause of dairy’s slow demise, but vegan products using labels such as ‘milk’—or in this case, ‘butter’—are seen by the milk lobby as misleading consumers to unfairly steal market share.”

The article added that, “Senators Tammy Baldwin of Wisconsin, a Democrat, and Jim Risch of Idaho, a Republican, are pushing the Dairy Pride Act, which would require the FDA to create a system of stricter nationwide enforcement for product labeling and the use of certain words. Under the proposal, labeling something ‘milk,’ for example, must mean the product comes from a ‘hooved mammal.‘ A bipartisan House version has also been introduced by Representative Peter Welch, a Democrat from Vermont, and has 33 cosponsors.”

The Associated Press reported recently that, “Winter hit U.S. honeybees hard with the highest loss rate yet, an annual survey of beekeepers showed.

“The annual nationwide survey by the Bee Informed Partnership found 37.7% of honeybee colonies died this past winter, nearly 9 percentage points higher than the average winter loss.

“The survey of nearly 4,700 beekeepers managing more than 300,000 colonies goes back 13 years and is conducted by bee experts at the University of Maryland, Auburn University and several other colleges.”

The AP article indicated that, “Bees pollinate $15 billion worth of U.S. food crops. One-third of the human diet comes from pollinators, including native wild bees and other animals, many of which are also in trouble, according to the U.S. Department of Agriculture.

“‘We should be concerned on multiple levels,’ said University of California, Berkeley, agricultural social scientist Jennie Durant, who has a separate study this week on loss of food supply for bees.

“Year-to-year bee colony losses, which include calculations for summer, were 40.7%, higher than normal, but not a record high, the survey found.”

“For more than a decade, bees have been in trouble with scientists blaming mites, diseases, pesticides and loss of food,” the AP article said.

Dan Browning reported in today’s Minneapolis Star Tribune that, “The former manager of a western Minnesota grain elevator whose longtime embezzlement bankrupted the business and cheated its 200 member-farmers out of millions of dollars to pay for his exotic big-game hunting trips was sentenced Friday in Fergus Falls to eight years in federal prison.

“Jerome ‘Jerry’ Hennessey, 56, worked for the Ashby Farmers Cooperative Elevator Co. for nearly 30 years, rising to its general manager. His skillful options trading initially helped the co-op recover from a precarious financial position, his lawyers said in court documents. But it didn’t last.

“Since 2003, Hennessey had been writing checks from the business to cover his personal expenses for big-game hunting, jewelry, furniture, clothing, entertainment, travel, real estate and improvements to his home and hunting cabin. He also used the co-op’s money to buy all-terrain vehicles and to pay property taxes and large balances on his credit cards.”

The Star Tribune article noted that, “Hennessey concealed the payments as legitimate expenses for the co-op, figuring he could cover them from his trading activities, his lawyers said. He couldn’t. He eventually obtained a line of credit of about $7 million for the co-op by misrepresenting the amount of grain it had in storage and used that account to cover $5,338,922.21 that federal prosecutors say he stole from his employer before last August, when the bank called the co-op’s line of credit due, exposing the fraud.

“Hennessey disappeared for two months before turning himself in to federal authorities in December. He admitted the embezzlement and his failure to report $3.5 million in income between 2011 and 2017, resulting in a loss of $1.2 million in revenue to the IRS and $400,000 to the Minnesota Department of Revenue.

“The advisory sentencing guidelines suggested a prison term of 78 to 97 months, supervised release of one to three years, and a fine of $25,000 to $250,000. Hennessey agreed not to appeal the prison sentence if it does not exceed 97 months and the government agreed not to appeal if it’s at least 78 months.”

Last week, Bloomberg writers Tim Loh and Naomi Kresge reported that, “Bayer AG will pump about 5 billion euros ($5.6 billion) of its research and development budget into alternatives to its weedkiller glyphosate over the next decade as it battles more than 13,000 lawsuits claiming the herbicide causes cancer.

“Trying to ease concerns about the controversial compound, the German chemical and drug company said it will seek more public feedback during the coming safety certification process in Europe. Bayer wants to offer farmers new products to combat weeds while standing behind glyphosate-based Roundup, which it acquired via its $63 billion purchase of Monsanto.

The Bloomberg article explained that, “Bayer is working to rehabilitate its image as it battles a wave of U.S.-centered litigation that has spread to other countries such as Australia. Last month, the German company suffered a third straight trial loss over claims that exposure to Roundup caused cancer, prompting some analysts to raise their estimates for settling the litigation to as much as $10 billion.

“The 5 billion euros in spending on new herbicides over the next decade does not represent new money. It’s part of Bayer’s existing 2.5 billion-euro annual budget for crop science research and development, spokesman Tino Andresen said. The company expects more growth from seeds and digital farming businesses in coming years, where innovation is expected to yield greater rewards.”