Recent Legislative and Regulatory Impacts on Minnesota Agriculture

Joe SmentekDirector of Public Affairs

Minnesota Soybean

Director of Public Affairs at Minnesota Soybean Started in 2013

City Kid Born and Raised in the suburbs of St. Paul

Environmental Attorney University of St. Thomas, Environmental Studies Hamline School of Law, Juris Doctor Pace School of Law, LL.M. in Environmental Law

Who is this guy?

Two Separate Entities that function as one Minnesota Soybean Research & Promotion Council

The Checkoff Research International Market Development Industry New Uses

Minnesota Soybean Growers Association Advocacy Membership

Minnesota Soybean

Spent five years as an assistant county attorney in small counties in Minnesota Handled Land Use Issues Handled Children in Need of Protection or

Services Matters Prosecuted Misdemeanors Prosecuted Felonies

Former Prosecutor

Farm Experience :

MN House and Senate both have Republican majorities.

Governor Dayton has two years left and has vowed to “not go quietly into the night”

Budget year. Shutdown, compromise, ???

Where we are at right now

Minnesota Department of Transportation announced a new standardized permit for ditch mowing.

Only applies to land abutting state roads.

Based on old law

Right of Way Mowing

160.232 MOWING DITCHES OUTSIDE CITIES.

(a) To provide enhanced roadside habitat for nesting birds and other small wildlife, road authorities maynot mow or till the right-of-way of a highway located outside of a home rule charter or statutory city exceptas allowed in this section and section 160.23.(b) On any highway, the first eight feet away from the road surface, or shoulder if one exists, may bemowed at any time.(c) An entire right-of-way may be mowed after July 31. From August 31 to the following July 31, theentire right-of-way may only be mowed if necessary for safety reasons, but may not be mowed to a heightof less than 12 inches.(d) A right-of-way may be mowed as necessary to maintain sight distance for safety and may be mowedat other times under rules of the commissioner, or by ordinance of a local road authority not conflicting withthe rules of the commissioner.(e) A right-of-way may be mowed, burned, or tilled to prepare the right-of-way for the establishmentof permanent vegetative cover or for prairie vegetation management.(f) When feasible, road authorities are encouraged to utilize low maintenance, native vegetation thatreduces the need to mow, provides wildlife habitat, and maintains public safety.(g) The commissioner of natural resources shall cooperate with the commissioner of transportation toprovide enhanced roadside habitat for nesting birds and other small wildlife.

ROW Mowing and Baling

From the U of M Extension ~2000 “Farmers need a permit to hay highway areas that MN

Department of Transportation (MN DOT) owns. Permits are not needed on roadways where only an easement is owned by MN DOT. The permit is free, and by contacting MN DOT and obtaining the permit, the farmer will be notified of any cutting restrictions that are due to herbicide use, wildlife habitat designation and/or calendar date restrictions. For contact information regarding the permit, visit: http://www.dot.state.mn.us/permits/. Roadways owned by county and local governments have their own regulations, and farmers should contact their County or Township to obtain any cutting restriction information prior to harvest.”

Road Mowing

Adjacent landowners have priority THIS MONTH

New Permit Requirements Insurance

~$300 to $400 Amber flashing lights

~$??? Safety vest and hard hat

Damage deposit ~$500 to $thousands

New Mowing Permit

Already Bills introduced to eliminate the requirements

Need to look at what ownership interests the state has on adjacent ditches

Working on fixes that will cover counties, townships and the state

Ditch Mowing and Baling

160.23 DESTRUCTION OF NOXIOUS WEEDS. Road authorities, including road authorities

of cities shall cause all noxious weeds on their respective highways and streets to be cut down or otherwise destroyed or eradicated as often as may be necessary to prevent the ripening or scattering of seed and other propagating parts of such weeds.

Noxious Weeds

Governor Dayton announced he wanted 50 foot buffer on all bodies of water. The idea came out of the DNR Pheasant Summit as a habitat booster.

Quickly changed to a “water quality” measure aimed at farming.

The Buffer bill did not make it out of committee. It was resurrected in the wee hours of the last day of the session.

The bill was very flawed and amended in 2016.

Buffers

MN Statute S103F.48ubd. 3. Water resources riparian protection requirements on public waters and publicdrainage systems. (a) Except as provided in paragraph (b), landowners owning property adjacent to awater body identified and mapped on a buffer protection map must maintain a buffer to protect the state'swater resources as follows:(1) for all public waters, the more restrictive of:(i) a 50-foot average width, 30-foot minimum width, continuous buffer of perennially rootedvegetation; or(ii) the state shoreland standards and criteria adopted by the commissioner under section103F.211; and(2) for public drainage systems established under chapter 103E, a 16.5-foot minimum widthcontinuous buffer of perennially rooted vegetation on ditches within the benefited area of public drainagesystems as provided in section 103E.021, subdivision 1. The buffer vegetation shall not impede futuremaintenance of the ditch.

Buffers

Buffer law requires 50 foot average with a minimum of 30 foot buffer or current shore land standards whatever is MORE restrictive. November 1, 2017 On DNR Public Waters

Buffer law requires 16.5 feet on ditches established under chapter 103E. November 1, 2018 DNR Maps should not include private ditches

Buffers

#1

Ben Potter

Buffer Law Problems

Some seed mixes used to grow habitat for bees and wildlife have been contaminated with an aggressive and prolific weed that can be a scourge for farmers, including those in Minnesota.

Palmer amaranth was discovered in Minnesota for the first time after weed seeds were accidentally planted on conservation land, the Star Tribune (http://strib.mn/2ie85Qm) reported. Palmer is one of the most harmful weeds in the country for corn, soybeans and other row crops.

"It's probably the most significant agronomic weed that we've seen over the last 30 years," said Tony Cortilet, noxious weed program coordinator for the Minnesota Department of Agriculture.

Associated Press

Palmer Amaranth

#2-DNR maps Maps done and available on the DNR website. DNR has “fixed” some issues with the maps

Still an issue with “private ditches”

Huge problem with challenge process for public waters inventory issues.

Buffer Law Problems

#3- Alternatives As of today there is only one approved

alternative to the Buffer Law.

Farmers were promised alternatives and this wasn’t a one size fits all.

Buffer Law Problems

#4- Local implementation aid

Money for counties to help implement the buffer bill were vetoed along with everything else in the tax bill last session

Counties have little direction at this point on some key issues that leads to confusion and patchwork enforcement.

Buffer Law Problems

#5- The Federal Government (f) Nothing in this section limits the eligibility of a

landowner or authorized agent or operator of a landowner to participate in federal or state conservation programs, including enrolling or reenrolling in federal conservation programs.

Huge problem-This is not within the State’s power to control

Already seeing problems with program caps or funding being an issue

Buffer Law Problems

A regulatory taking exists when a government regulation limits the uses of private property to such an extent that the regulation effectively deprives the property owners of economically reasonable use or value of their property. The regulation does not have to formally divest the land owner of their title to the regulated land.

Takings

Is this a taking?

I Don’t Know.

Is this a taking

A regulatory takings determination is a balancing act between the government’s exercise of the traditional police power and land owner’s rights. The police power is the inherent state government power, to do what is reasonably

necessary to promote and protect public health, safety, welfare and morals.

There are numerous instances where SCOTUS have found that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land, and has repeatedly upheld land-use regulations that adversely affected recognized real property interests.

Government actions to regulate land use that may deprive a land owner of any economically viable use are deemed a taking. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), First English Evangelical Lutheran Church v. County of Los Angeles (1987).

Regulatory Taking

The test on what is a regulatory taking was laid out by SCOTUS in Agins v. City of Tiburon, 447 U.S. 255 (1980) The application of land-use regulations to a

particular piece of property is a taking only "if the ordinance does not substantially advance legitimate state interests ... or denies an owner economically viable use of his land."

Regulatory Taking

Lingle v. Chevron, 544 U.S. 528 (2005), the Supreme Court overruled the "substantially advance" criterion of a taking.

When government regulation is a taking of private property due to excessive regulation, the owner may initiate inverse condemnation proceedings to recover the just compensation.

Regulatory Taking

Going to depend on “facts” of the case

Land features

Economic value

Expectation

Regulatory Taking

Right now no buffer has been ordered and no land owner has been fined under the law

Therefore no one has suffered “damages”

Must have suffered “damages” before a case can be brought

Standing

Last session the Minnesota Legislature overwhelmingly passed tax legislation that would have provided tax relief to MN farmers.

The law would have reimbursed up to 40% of a farmers portion of property tax increases due to new school building projects.

Land Taxes

Provision is now in the Governor’s tax law proposal

Also very popular with legislators

Discussion on placing % back up to 50% as originally proposed before being lowered last year

Land Taxes

Many farmers, and other Minnesotans, saw a large increase in the premiums that they pay for health insurance.

Premium relief a key for both the Democrats and Republicans

Still issues with rural access and plan coverages

Healthcare

August 29th Governor Dayton Signed an Executive Order that restricted the use of Neonicotinoids.

The Minnesota Department of Agriculture convened a Pollinator Protection Team.

Executive Order 16-07 requires the Interagency Pollinator Protection Team to develop statewide pollinator goals and metrics, and report on the progress toward those goals as well as providing recommendations for pollinator policy, research needs, and budget.

Neonicotinoids

Click icon to add picture

Federal action obviously still impacts the state as well.

One Huge Wild Card now in play…

Federal Issues

Citing the confusion of Rapanos, on June 29 2015 the Corp and EPA did what they were asked to do 14 years earlier in the SWANCC case.

They promulgated a new 75 page rule attempting to clarify the scope of WOTUS which became final on August 28 2015.

The agencies used Kennedy’s test as the basis for the new rule but changed one key word. The test laid out in the rule changed and to or.

Current WOTUS Rule

Change in test means that the water body must impact the physical, biological, OR chemical integrity of the downstream navigable waterway.

Lowers the tests threshold from three hurdles down to one.

WOTUS Rule

Say I am inviting to the most amazing super bowl party you have ever seen.

One Catch. You MUST wear an NFL jersey that has White, Orange, and Black on it.

What are you going to wear?

NFL Party

Bengals.

NFL Party

Now, if I invited you to the same party, but you needed a jersey that had White, Black OR Orange on it.

What can you wear now?

NFL Party

Any jersey except the Seahawks.

NFL Party

WOTUS on to SCOTUS In February 2016, the 6th Circuit U.S. Court of

Appeals held it could hear a challenge to the new WOTUS rule. This type of challenge may not be among the types of actions for which jurisdiction is provided to US court of Appeals. The challengers suggest that the WOTUS rule does not “promulgate a standard of performance” nor does it “issue or deny a permit.” The Supreme Court will review this decision.

WOTUS

Click icon to add picture

Questions…