Monday, January 10, 2022

“Top Ten” Agricultural Law and Tax Developments of 2021 – Numbers 4 and 3


As I pointed out in the previous articles in this series, agricultural law and agricultural tax law intersect with everyday life of farmers and ranchers in many ways.  Some of those areas of intersection are good, but some are quite troubling.  In any event, it points to the need for being educated and having good legal and tax counsel that is well-trained in the special rules that apply to agriculture.

This is the fourth installment in my list of the “Top Ten” agricultural law and tax developments of 2021.  The list is comprised of what are, in my view, the most important developments in agricultural law (which includes taxation that impacts farmers and ranchers) to the sector as a whole.  The developments primarily are focused on the impact to production agriculture, but the issues involved will also have effects that spillover to rural landowners and agribusinesses as well as consumers of agricultural products.

The Fourth and Third most important agricultural law and tax developments of 2021 – it’s the topic of today’s post.

4.    U.S. Supreme Court Says Equitable Apportionment Doctrine Applies to Underground Water. In Mississippi v. Tennessee, 211 L. Ed. 2d 230 (U.S. 2021) the facts of this case revealed that the city of Memphis, Tennessee gets its drinking water from the Middle Claiborne Aquifer. The aquifer lies beneath eight states, and wells extract water from the aquifer by pumping it to the surface which lowers the water pressure around each well’s location (“cones of depression”). Memphis has more than 160 wells that pump about 120 million gallons of water daily from the aquifer. The pumping caused a cone of depression in the part of Mississippi across the state line closest to the wells. Mississippi sued Memphis in 2005 claiming that the pumping wrongfully appropriated Mississippi’s groundwater. The trial court dismissed the case because the State of Tennessee wasn’t joined as an indispensable party.

The appellate court affirmed and also held that interstate aquifers are similar to interstate rivers and, as such, are subject to the doctrine of equitable apportionment which allows the U.S. Supreme Court to allocate rights in disputes involving interstate waters when one state sues another unless a statute, compact or other apportionment controls. Equitable apportionment provides that each state has an equality of right to use the waters at issue. As such, Tennessee was an indispensable party that couldn’t simply be added because the lawsuit was really between states.  That meant that the lawsuit should have been filed with the U.S. Supreme Court. Mississippi sought U.S. Supreme Court review, which was denied.

Note:   Under the Constitution and the Judiciary Act, jurisdiction over interstate controversies is original and exclusive to the Supreme Court.

In 2014, Mississippi sought approval to file a complaint with the U.S. Supreme Court claiming that the pumping had depleted Mississippi’s groundwater by altering the historic flow of the underground water which required Mississippi to drill deeper wells and use more electricity to get the water to the surface. Mississippi also claimed that it had absolute ownership of the groundwater in its state, even the water that crossed the border by flowing underground into Mississippi. As such, Tennessee’s pumping of groundwater was a tortious taking of its property. Mississippi claimed that equitable apportionment did not apply in the case, and sought $615 million in damages and injunctive as well as declaratory relief. The Supreme Court granted Mississippi’s request to file the complaint and appointed a Special Master to manage the case.

In late 2020, the Special Master recommended dismissal of the complaint with leave to amend. Against Mississippi's technical argument that the aquifer was distinct from the water it contained, the Special Master found that the aquifer is an interstate water resource and a single hydrological unit. The Special master also found that Tennessee’s pumping affected groundwater beneath Mississippi, disrupting the flow between Tennessee and Mississippi. Equitable apportionment was determined to be the only available remedy, but because the complaint did not seek equitable apportionment, the Special Master recommended the Supreme Court dismiss the complaint with leave to file an amended complaint to seek equitable apportionment.

In a case of first impression, the Supreme Court dismissed the case, but without leave to amend. However, the Court did rule on the application of equitable apportionment to the aquifer. The Court noted that it had, in prior cases, applied the doctrine to interstate rivers and streams and to disputes over interstate river basins. Such cases include interstate compact cases where the pumping of hydrologically connected groundwater reduced surface flows into downstream states. 

The Court determined, with little thorough legal analysis, that the water in the aquifer was sufficiently similar to the water in the other cases where it had applied the doctrine. The Court also rejected Mississippi’s absolute ownership argument noting that such argument would allow an upstream state to completely cut-off the flow to a downstream state.  Such a result would be contrary to the equitable apportionment doctrine. Because the Court determined that the aquifer was subject to equitable apportionment, the Court adopted the Special Master’s recommendation to dismiss the complaint.

Note:   Because Mississippi had not sought leave to amend, the case was dismissed without leave to amend. However, in future cases, the Court said it would apply the doctrine of equitable apportionment to interstate aquifers where the aquifer involves multiple states with water flowing between the states and the actions of one state affects the portion of the aquifer below another state and there is no overriding statute, compact or other water sharing agreement between the states.

Implications for agriculture.  The application of the equitable apportionment doctrine apportions the benefits of the water use between or among the competing states.  The doctrine does not apportion the water itself. That is an important point as applied to agriculture.  Ag uses of water, compared to non-ag uses of water, generally involves the use of a greater volume of water with perceived lower economic value.  For example, in the case, the use of water from the aquifer by Memphis for drinking water and other municipal uses would have a higher economic value than the use for agricultural purposes in Mississippi  This, indeed, could be the reason that Mississippi did not argue for application of the equitable apportionment doctrine.  In addition, the Court, in a 1907 case, made clear that the geographical/hydrological origin of the interstate river has no significance on the apportionment.  The Court also restated this in the early 1980s.  That made Mississippi’s trespass and conversion theory quite weak.  Unfortunately, the Court didn’t provide any guidance on how states might consider equitable apportionment of groundwater when it is the only water supply source, and how the apportionment might affect hydrologically connected (and isolated) surface supplies. 

Note:  For an excellent article discussing other points of the case and interstate groundwater issues in general, see Griggs, “Interstate Litigation, State Reaction, and Federalism in the Age of Groundwater,” Rocky Mountain Mineral Law Foundation, proceedings of 65th annual Rocky Mountain Mineral Law Institute (2019).

3.    Supreme Court Says Government Cannot Force Private Property Owners to Allow Trespassing. In Cedar Point Nursery, et al. v. Hassid, et al., No. 20-107, 2021 U.S. LEXIS 3394 (U.S. Sup. Ct. Jun. 23, 2021), the lead plaintiff was a large strawberry growing operation in California, employing over 400 seasonal workers and about 100 full-time workers.  A California labor regulation, based on the California Agricultural Labor Relations Act of 1975 that gives ag employees a right to self-organize, grants labor organizations a “right to take access” to an ag employer’s property in order to solicit support for unionization.  Cal Code Regs., tit. 8, §20900(e)(1)(C).  Under the regulation, an ag employer must allow union organizers onto their property for up to three hours daily, 120 days per year.  In the fall of 2015, at 5 a.m., members of the United Farm Workers entered the plaintiff’s property without any prior notice being given.  They entered the plaintiff’s trim shed where hundreds of workers were preparing strawberry plants.  The organizers used bullhorns to stir up the workers and encourage them to join in a protest.  Other workers left the worksite.  The plaintiff filed charges against the union for taking access without notice.  In return, the union claimed that the plaintiff had committed an unfair labor practice similar to the claim it had made during the summer of 2015 against a California grower and shipper of table grapes and citrus. 

The ag businesses believed that the union would try to enter their properties again in the future, and sued claiming that the access regulation was an unconstitutional per se physical taking of an easement that was given, without compensation, to union organizers.  The trial court held that the regulation did not amount to a per se physical taking because it did not “allow the public to access their property in a permanent and continuous manner for whatever reason.”  Instead, the trial court held that the regulation was a non-physical taking to be evaluated under a muti-factor balancing test that the U.S. Supreme Court had set forth in the past. 

The appellate court affirmed, identifying the various types of non-physical takings and determining that the balancing test applied.  The U.S. Supreme Court agreed to hear the case and reversed.

The Supreme Court determined that an actual physical appropriation of private property was involved.  It was a per se governmental taking.  The Court noted that the regulation didn’t merely restrict the use of private property, it appropriated it for the use and enjoyment of third parties.  One aspect of property ownership is the right to exclude others, and the Court determined that the ability of the union to take access of a part of an ag operation’s private property took that right away.  In addition, the right of access, even though temporary, still constitutes a taking.  There was no benefit of the loss of a property right flowing back to the ag businesses. 

Note:   The distinction between an outright physical and a non-physical (regulatory) taking is not always clear.  But, the Court’s decision in Cedar Point Nursery is a clear indication that the loss of the right to exclude others, even on a temporary basis, when no benefit inures to the property owner, is a fundamental property right that will be classified and protected as a physical taking with no balancing test required.  Applied more broadly, the Court’s decision is a major victory for farmers and ranchers and other private property owners.


The next installment in this series will detail what I view as the two biggest developments in agricultural law and agricultural taxation in 2021.  Can you guess what they might be?

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