Arkansas Agriculture Magazine | Summer 2021

Better Connectivity Capitol Experience: Meet Farm Bureau’s Jarrod Yates

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FE ATURES Guest Column Zippy Duvall | Page 3

Get to Know Jarrod Yates Rob Anderson | Page 6

Meet the 2021 YF&R Award Winners Jason Brown | Page 13

Federal Tax Proposals Jessica Richard | Page 16

COLUMNS

Policy Update Special Edition Arkansas Connectivity Summit Philip Powell | Page 18

Ag Law Update

Harrison Pittman | Page 32

COVER DESIGN

by Bryan Pistole n

2

SUMMER 2021

Edition 62

GuestCOLUMN Vincent “Zippy” Duvall, a poultry, cattle and hay producer from Greene County, Georgia, is the 12th president of the American Farm Bureau Federation.

By Zippy Duvall | President, American Farm Bureau Federation

twitter.com/@ZippyDuvall

The Challenges Facing Young Farmers

I

have been a farmer my whole life. Starting when I was just a young boy, I would help my dad around the farm, and as I got older, I took on more responsibility. I could often be found early in the morning in the barn, milking cows before school. I was fortunate to take over the family farm from my dad like he did and many others have for generations. When I was a young man, the average age of a farmer was 50 years old.

Today it is over 57 years old. That means there are fewer young people in agriculture – a troubling sign for the future of family farms.

There are many obstacles for young and beginning farmers: two of the most challenging are access to land and capital. We’re all familiar with the rapid increase in farmland prices that occurred between 2009 and 2014. Well, after several years of prices holding steady, farmland prices are quickly escalating again. Average cropland prices across the country rose 7.8% in the last year.

Most young farmers can’t afford their own land.

Instead, they must rent. While renting is better than having no land to farm at all, it can be incredibly unpredictable from year-to-year. And relying only on

“

rented land for your farm business means a bank is less likely to loan you money to expand your farm – whether that’s for equipment or other essential farm tools.

Current tax proposals in Congress present major roadblocks for the next generation.

Many young farmers are ready to continue the

family legacy, like I was

privileged to do. But current

tax proposals in Congress present major roadblocks

for the next generation and

could even mean the death

of many family farms. These proposals would eliminate

stepped-up basis and impose

capital gains taxes at death.

These changes would cause

family farms to face huge tax burdens, and potentially

force them to sell off the

farm piece-by-piece to pay

the taxes after a family

member dies. Most young

farmers would sink under

such hefty tax bills and

might just leave farming altogether.

Another challenge for young people in rural communities is access to broadband. It is tough to keep young people, farmers or not, in rural communities when there isn’t reliable and fast internet for them to stay connected to family and friends and access vital online resources. And as more of our business shifts online, young farmers need access to online resources to buy and sell

Current tax proposals in Congress present major roadblocks for the next generation.

”

continued on page 5>>

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ARKANSAS FARM BUREAU • SUMMER 2021

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ARKANSAS FARM BUREAU • SUMMER 2021

<<continued from page 3

livestock and other products, monitor their farms from anywhere, and use new technologies to maximize efficiency and improve sustainability.

As the average age of farmers continues to rise, it’s harder for young farmers to find each other to talk about their experiences and share ideas on how to succeed. That’s not to say that there aren’t many opportunities for those in my generation to take younger folks under their wing, but it’s just as important to connect with your peers. The Farm Bureau’s Young Farmers & Ranchers Program helps interested farmers collaborate and gain valuable leadership skills.

When I joined my county Farm Bureau’s YF&R program, I benefitted from a support network that understood some of the challenges I was

Arkansas Agriculture

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ARKANSAS FARM BUREAU • SUMMER 2021

facing. I made lifelong friends and gained invaluable leadership training to take me beyond my fencerows.

Young farmers bring many new ideas to the table and we should encourage them to share their ideas with all of agriculture. We are stronger when we work together. At the Farm Bureau, we are the Voice of Agriculture and to do this effectively we need farmers and ranchers of all ages and from all backgrounds in our organization helping to develop policy solutions. Doing so will ensure we represent all of the ways America’s farmers work to provide our world’s food, fiber, and fuel.

Taking these steps will help secure the family farm’s future and American agriculture for the next generation. *

5

Get to Know JARROD YATES, Arkansas Farm Bureau’s Director of Public Affairs & Government Relations

By Rob Anderson 6

Arkansas Agriculture

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ARKANSAS FARM BUREAU • SUMMER 2021

I

n August, Jarrod Yates was hired as director of public affairs and government relations at Arkansas Farm Bureau. In his new position, Yates will lead the national affairs efforts on behalf of the organization and lobby the state’s Congressional delegation and assist in executing the political and legislative strategies

defined by the roughly 190,000-member organization.

A former chief of staff for Congressman Mike Ross, Yates, 40, has spent the past seven years helping lead governmental relations at Arkansas Blue Cross and Blue Shield, the state’s largest health insurance provider.

Yates spent four years as Ross’s chief of staff, simultaneously managing five offices and staff in Washington, D.C. and in the Fourth Congressional District.

“Jarrod brings a great understanding of Arkansas agriculture and the political landscape in Arkansas and Washington, D.C.,” said Stanley Hill, vice president of public affairs and government relations at Arkansas Farm Bureau. “Jarrod comes highly recommended and is very well respected at our State Capitol and in Washington, D.C., and he will be a great addition to our staff.”

We took some time to get to know Jarrod, his connection to agriculture and how it feels to become a part of the Arkansas Farm Bureau family.

Q JY

Tell us about your background – your family, your childhood and your connection to agriculture.

“I was born in Fayetteville, but moved to Prescott, when I was young, I went to middle school and graduated from high school in Prescott. My dad graduated from the poultry science department at the University of Arkansas, so right out of college he went into the poultry industry. He worked for Hudson Foods and then Tyson, so my dad was in the poultry business for as long as I can remember.

When I was a little kid in Fayetteville, we had

Arkansas Agriculture

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two chicken houses and cattle, and then when we moved to south Arkansas, we had cattle. I still have cattle in Prescott together with my brother and my dad.”

Q JY

ARKANSAS FARM BUREAU • SUMMER 2021

Growing up, what were you interested in doing for a career and how did you end up in politics?

“Growing up, law enforcement was something I was always interested in and that was what I was focused on in high school. But, you know, law enforcement can be a tough way to make a living. continued on page 8>>

7

<<continued from page 7

During my first year of college, Mike Ross, who was from our town and went to our church, decided to run for Congress. I was very apolitical at that point and didn’t know anything about politics, but I’d known Mike for a long time. He and his wife Holly, who was a pharmacist, owned the drugstore in town, and in high school – my senior year – I would deliver orders for them. I’d also sweep, mop the floor, whatever I could do. I showed up on time and did a good job, so when he decided to run, he was looking for people to work for him who were dependable and could be counted on and I fit the bill. That’s really how I got involved in that.”

Q JY

What was your time in Washington D.C. like and how would you describe your experience there?

“When I first went up there, it was very eye opening. I got to meet Senators and Representatives from all different parts of the country and saw how each one was fighting for their corner of America.

Q JY

What made it so rewarding?

“Our work was very constituent focused.

We helped a lot of small communities get grants that were needed – grants for the police department or for the fire department that they otherwise wouldn’t have been able to afford. So, for me, it was a way you could actually see things happen and that you were getting things done that benefited your neighbors and fellow Arkansans. It was where the rubber met the road, so to speak. We were also involved in things like developing Farm Bills, and the things that went into those bills directly impacted the farmers and ranchers in our state. Being a part of those national discussions on important issues was very gratifying as well.”

Q JY

What was the most valuable lesson you learned during your time in the nation’s capital?

What’s important to us in Arkansas and what we see and live through every day here, is one thing, and certainly what I was focused on, but I got see that there are people living in places like California or Oregon fighting for the industries that provide jobs in those states. In terms of the work and my 8

experience up there, it was really one of the most rewarding jobs I’ve ever had.”

“I think I would say the most valuable lesson I learned is that any one person can make a difference. I know that’s kind of cliché, but if you are willing to put in the work, you can do things on a national level that make an impact in your own backyard and across the country.

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ARKANSAS FARM BUREAU • SUMMER 2021

I know people can feel disenfranchised and frustrated with government – whether it’s local, state or national – and there’s a ton of bureaucracy and a ton of problems. There’s truth in all of that, but at the same time, that’s not reason enough not to work hard and to try to make changes and move the ball forward. “

Q JY

Do you have a particular favorite memory or something that stands out from your time there?

“There were a ton, really. For a guy from a town of 3,000 people with two stop lights, the whole experience was amazing. That said, one memory that stands out was a Congressional picnic at the White House when George W. Bush was president. We sat on the White House lawn and had a great conversation with President Bush about Razorback football.

It highlighted again for me what’s possible.

If you work at making a difference and dedicate yourself to something, you will find yourself in some pretty amazing and memorable situations.”

Q JY

Could you give us some more details about your personal connections to agriculture?

“Growing up where I did and with my dad’s involvement in agriculture, I had a lot of connections. When I was in high school, Hudson

Arkansas Agriculture

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ARKANSAS FARM BUREAU • SUMMER 2021

Foods had “company farms” – that was part of their businesses model – and they had five of these company farm complexes with 10 broiler houses on each. Every summer in high school I worked on one of those farms. I’ve done a little of everything – hauled hay for money, raised cattle and pulled calves. When I was in D.C., a Farm Bill came through that I was a legislative assistant on, so I got to know the chairman of the House Ag Committee at the time, Collin Peterson of Minnesota. During the process, he came to Arkansas several times and I drove him all over the state to meet with farmers.”

Q JY

What are you most excited about in terms of your role at Arkansas Farm Bureau?

“What’s most exciting to me is that Farm Bureau is kind of the culmination of my career path. The agriculture business put the food on my family’s table my entire life and then I spent most of my adult life in public service and government affairs work, and this is the intersection of those two things. I’m passionate about ensuring the rural way of life. I think that folks in the rural areas – the folks who raise family there, go to school there – are an important part of our country. If we don’t have those folks living in rural parts of the state where agriculture is prominent, then agriculture starts to go away. continued on page 10>>

9

<<continued from page 9

As more and more people move to population centers, those areas get a louder voice. So it’s important for us to be a loud voice for folks in rural areas.”

It’s early, as far as that’s concerned, but those discussions have already begun, and as we get into next year, the intensity of those discussions will only increase. So, we will be looking at how to shape that next Farm Bill based on the priorities that our members have told us will be important.”

Q JY

How was your first visit to D.C. on behalf of Arkansas Farm Bureau?

“It was good. There’s still a lot of COVID-19 restrictions in place and partisanship is pretty thick in the air up there, but it was great meeting with the Arkansas delegation. They work well together, and I think we’re fortunate to have that because it gives us strength.

We’re in a small state, so we have a smaller delegation, but just because we have a small delegation does not mean we’re not influential in D.C. We have a ranking member on the House Committee on Natural Resources and we have the ranking member on the Senate Ag Committee. Those are important positions for the country, so we’re fortunate in Arkansas that, out of a six-member delegation, we have members in such important roles.”

Q JY

What are your goals, vision and objectives going into 2021?

“One of the big things on the horizon for us will be the Farm Bill.

10

Q JY

What are some key issues at the federal level right now?

“Right now, they’re doing the $3.5 trillion reconciliation budget bill, and within that tax policy changes are being discussed – changes to the estate tax and the stepped-up basis on the inheritance tax. These are the changes that could have a negative impact on farmers, so that’s important. It’s a moving target, though, because they’re changing minute to minute, it seems.”

Q JY

What else should people know about you? Any particular hobbies or interests?

“Well, I’m an avid duck hunter. I’ve got a daughter at Fayetteville, who’s a sophomore at the University of Arkansas. And then my son just turned 15 and he plays travel baseball, so I follow him around a lot and that’s what I spend a lot of time doing right now. In summer, I don’t have time to play golf or anything because I’m usually somewhere at a baseball field.” *

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Meet the 2021 YF&R Award Winners

By Jason Brown

T

The Bearden Family

The Dixon Family

his summer at Arkansas Farm Bureau’s Officers and Leaders conference in Hot Springs, the organization recognized outstanding young farmers and ranchers in Arkansas between the ages of 18 and 35. Recognition is given for innovation, excellence in farming and ranching operations, and outstanding leadership abilities. This year, two outstanding couples were selected to receive the major Young Farmers and Ranchers honors, the Excellence in Agriculture Award and the Achievement Award.

The YF&R Excellence in Agriculture Award recognizes the accomplishments of individuals or couples who do not earn the majority of their income through farming, but who are involved in farming and Arkansas Farm Bureau. Individuals considered for this award are evaluated on their understanding of agricultural issues, as well as leadership, achievements and involvement in Arkansas Farm Bureau and other organizations.

The YF&R Achievement Award recognizes young farmers and ranchers in Arkansas who have excelled in their farming and ranching operations and exhibited outstanding leadership abilities. The award is designed for an individual or couple involved in full-time production agriculture with a majority of their income subject to normal production risks. continued on page 14>>

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YF&R 2021 Excellence in Agriculture Award

<<continued from page 13

The 2021 Excellence in Agriculture Award winners were John Michael and Rachel Bearden.

The Beardens operate on a farm that has been in Rachel’s family for seven generations, longer than Arkansas has been a state.

The Friendship (Hot Spring County) couple now owns their own section of the family farm property along the Ouachita River where they have their cow/ calf operation, some timber acreage and raise cattle, sheep and performance horses. John Michael also has a hay business and serves as the Malvern High School agriculture teacher, while Rachel is the Hot Spring County Extension agent.

John Michael attributes his desire to farm to his time at Southern Arkansas University in Magnolia.

“For me, a switch went off in college. Being able to work on the SAU farm taught me that this was what I wanted,” said John Michael. “I was able to grow and learn through college and when me and Rachel started dating and we started building our own place, we knew this is where we needed to be.”

The couple started their cow/calf operation with heifers from Rachel’s father’s herd shortly after getting married. They now raise their two-year old daughter Lexi Grace on the farm, making her the eighth generation to grow up there.

14

The Beardens see the cow/calf operation as a team effort, with John Michael taking responsibility for feeding and Rachel overseeing herd health and management. Though they both call Lexi Grace “boss.”

“We’re glad that we get to raise our daughter to get to do the same things I was lucky enough to be raised to do and she gets to grow up in the world of the family farm too,” Rachel says.

The two have invested in the community around them by hosting area youth at the farm, teaching the value of hard work and the ins and outs of working with animals. Their passion for community and agriculture earned them their spot as winners of this year’s YF&R Excellence in Agriculture Award.

“Agriculture is not just our jobs. It’s what we do every day and, when you look at the world and the people involved in agriculture, I think society needs more of those kind of people,” Rachel says when asked about her family’s lifestyle and work. “When you look at folks involved in agriculture, they are folks who value family and hard work and they know that you get out of it what you put into it and you have to do a hard day’s work to get those results.”

As winners of the Excellence in Agriculture Award, the Beardens received an $11,000 cash prize and a trip to the 2022 American Farm Bureau Convention to compete for the national award. *

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YF&R 2021 Achievement Award

A major move paid off with a major honor for 2021 Achievement Award winners James and Ashton Dixon. James established Dixon Farms in 2013 when he purchased a five-house operation in Magnolia. Eight years later, the Dixons left their hometown and moved to Hindsville, where they purchased a new farm and home just two months before winning the YF&R Award.

County, but the two are committed to a life in agriculture.

“It was different to pick up roots and leave everything we’ve ever know, and I don’t think either one of us would have done that on our own,” Ashton says of the move. “But, that’s kind of how we complement each other, so we jumped in with both feet together and whatever life brings, we’ve got each other’s back.”

The family received a $35,000 cash prize and a trip to the 2022 American Farm Bureau Convention in Atlanta to compete for the national award. The prizes were courtesy of the Southern Farm Bureau Casualty Company. *

The Madison County couple has six broiler houses on 44 acres, where they expect to grow 5.7 million pounds of chicken in 2021. The couple plans to raise five flocks annually. They also will remove and sell roughly 1,400 tons of litter per year between flocks.

James grew up around the poultry business, having been raised around his grandparents’ farm.

Ashton credits the success of Dixon Farms to James’ intense work ethic, noting the occasional all-nighter shift and relentless focus to succeed as a young farmer.

“I’m super proud of him,” she says of James. “My dad used to say, ‘You’re never going to find someone with the same work ethic that you have,’ … I’m really blessed that I did.”

Ashton acknowledges that the couple took a leap of faith when they left Magnolia for Madison Arkansas Agriculture

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Feral Hogs In Havana

Don’t tell Mark Clark of Havana, Arkansas, that it’s just and harder to get,” Clark said. “Now I realize that when you a hog and nothing to worry about. Clark and neighboring shoot a hog the only thing you’re getting is some personal landowner Larry Lane have been fighting back feral hogs on satisfaction. You’re not going to control them through shooting their properties since a leaseholder on nearby acreage released and hunting.” some for recreational hunting more than a decade ago. Thanks House has been working with Clark and Lane for the last to the help of dedicated trappers through the United States six years, and has removed hundreds of hogs from within a Department of Agriculture’s Animal and Plant Inspection mile of Clark’s property in that time. It’s taken many long Service and a change in control tactics, they’ve finally managed nights and dedicated effort, but with House’s help and trapping to see some results. equipment, Clark is expecting his first corn crop on one of his “When the hogs first showed up, we thought they wouldn’t fields in more than a decade. be too much of an issue and even a little fun to hunt on the “The last time I was able to pull corn off this field was 2010, side,” Clark said. “But it didn’t take long before they started but it’s looking promising this year,” Clark said. showing the damage they were capable of.”

Clark and Lane were the first two landowners to sign up Clark says hogs began to destroy all of the corn, wheat and with USDA/APHIS Wildlife Services since it was able to hire rice he tried to grow within a few years of being placed near his trappers dedicated to removing feral hogs on private land in property. He and Lane stepped up their hunting efforts, but Arkansas, all free of charge. the hogs had already become so prevalent in the surrounding “That’s the first question I get when we hear from a new property that even controlling the damage was a losing battle. landowner, ‘How much does this cost?’” House said. “But it’s “It got to the point where we were out every night after our 100 percent free. All we ask is for the landowners to cooperate work was done, patrolling for hogs and shooting them on site,” with us to help make our efforts as effective as possible.”

Clark said. “I’m not exaggerating when I say we were spending Clark says he’s thankful he jumped on the opportunity as fast up to 60 hours each week killing hogs and they were still as he could. getting into our crops.”

“Jon is helping a lot of others in our area too, but they’re a So when Jon House, Wildlife Biologist with APHIS Wildlife few years behind us,” Clark said. “We learned the hard way Services, told them he’d help control their hogs but they’d have that it takes a lot of effort trapping and working with APHIS to stop shooting them, Clark and Lane were beside themselves.

Wildlife Services to make a difference. I’ve seen pigs that would But that is a key component to successful trapping. scatter at the sound of our trucks, wouldn’t come to bait unless “You want to shoot every hog you see, but when you shoot it was fresh from a field and jump fences and gates like they 22 making all the others that get away a little smarter Arkansas Agriculture | ARKANSAS FARM BUREAU • SUMMER 2021 one you’re were nothing.

And they say it’s just a hog.”

Jon, Mark, Clark (Mark’s nephew), and Larry stand in front of the first corn that’s survived their feral hog problem in more than 10 years.

40

0

Attention Landowners: The free feral hog control program is available to landowners throughout the state through APHIS Wildlife Services at 501-835-2318.

For more information on how to control feral hogs on your property, go to www.agriculture.arkansas.gov/ arkansas-department-of-agricultureservices/feral-hog.

Help stop the spread of feral hogs throughout Arkansas. Download the app Survey 123 to report observed and removed feral hogs.

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Hogs cause $19 million in damages annually in Arkansas.

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51 23

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103 60

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100-199

166

200-399 400+

696

The task force has removed

685

138

7,229 feral hogs

since January 1, 2021.

Arkansas Feral Hog Eradication Task Force

Go to https://bit.ly/arferalhog or scan the QR code to access the Arkansas feral hog survey.

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RG21039 Smittys Ad Arkansas Agriculture_Layout 1 7/14/21 1:57 AM Page 1

LEGAL NOTICE If you purchased Super S Supertrac 303 Tractor Hydraulic Fluid, Super S 303 Tractor Hydraulic Fluid, Cam2 ProMax 303 Tractor Hydraulic Oil, and/or Cam2 303 Tractor Hydraulic Oil from Tractor Supply Company (including Del’s Feed & Farm Supply), Orscheln Farm and Home, Rural King, and/or Atwood Stores between December 1, 2013, and the present, a Class Action Lawsuit and Settlement with the Four Retailer Defendants Could Affect Your Rights READ THIS NOTICE CAREFULLY. YOUR LEGAL RIGHTS MAY BE AFFECTED WHETHER YOU ACT OR DO NOT ACT. A federal court authorized this notice. This is not a solicitation from a lawyer.

The purpose of this notice is to inform you that a $7,200,000.00 class-action settlement (the “Proposed Retailer Settlement”) has been reached with the four Retailer Defendants in a lawsuit regarding the sale and use of Super S Supertrac 303 Tractor Hydraulic Fluid, Super S 303 Tractor Hydraulic Fluid, Cam2 ProMax 303 Tractor Hydraulic Oil, and/or Cam2 303 Tractor Hydraulic Oil (“303 THF Products”). The Proposed Retailer Settlement settles claims against Retailer Defendants Tractor Supply Company, Orscheln Farm and Home LLC, Rural King, and Atwood, together with each of their affiliates, divisions, subsidiaries, and assigns (collectively referred to as “Retailer Defendants”) that were asserted in a Multi-District Litigation (“MDL”) lawsuit. Plaintiffs believe that the primary claims in the MDL are against Smitty’s Supply, Inc. and CAM2 International, LLC (collectively referred to as “Manufacturer Defendants”), and those claims are proceeding in the MDL and have not been settled.

The Proposed Retailer Settlement may affect your rights. For comprehensive information about the lawsuit and settlement, including the longer notice of settlement and the Retailer Settlement Agreement and Release with the precise terms and conditions of the Retailer Settlement, please see www.303tractorhydraulicfluidsettlement.com or call 1-866-742-4955. You may also access the Court docket in this case through the Court’s Public Access to Court Electronic Records (PACER) system at www.mow.uscourts.gov/ or by visiting the office of the Office of the Clerk of Court, United States District Court for the Western District of Missouri, 400 E. 9th Street, Kansas City, Missouri, 64106, between 9:00 a.m. and 4:00 p.m., Monday through Friday, excluding Court holidays. The MDL lawsuit is titled In Re: Smitty’s/CAM2 303 Tractor Hydraulic Fluid Marketing, Sales Practices, and Product Liability Litigation, MDL No. 2936, Case No. 4:20-MD02936-SRB, pending before the Honorable Judge Stephen R. Bough in the United States District Court for the Western District of Missouri. Please do not telephone the Court or the Court Clerk’s Office to inquire about the Proposed Settlement or the claim process.

In the MDL lawsuit, Plaintiffs allege (1) that the Manufacturing Defendants’ 303 THF Products did not meet the equipment manufacturers’ specifications or provide the performance benefits listed on the product labels, (2) that the 303 THF Products were made with inappropriate ingredients, including used transformer oil, used turbine oil, and line flush, and (3) that use of the 303 THF Products in equipment causes damage to various parts of the equipment. Because of the used oil and line flush contained in the 303 THF Products, Plaintiffs allege that those 303 THF Products should not be used as tractor hydraulic fluid and that the fluid should be flushed from equipment systems if one can afford the cost of doing so.

The Manufacturer Defendants have denied the allegations and claims of wrongdoing, and the claims against those Manufacturer Defendants are ongoing. The Retailer Defendants deny any allegations and claims of wrongdoing on their part. The Court has not decided who is right or made a final ruling on Plaintiffs’ claims. Plaintiffs and the Retailer Defendants have agreed to the Proposed Settlement as to the Retailer Defendants’ liability to avoid the risk and expense of further litigation.

You may be a member of the Retailer Settlement Class if you purchased the above-listed 303 THF Products from December 1, 2013, to the present from Tractor Supply Company (including its Del’s Feed and Farm Supply locations), Orscheln Farm and Home, Rural King or Atwood. If you are a member of the Retailer Settlement Class, you may need to submit a Class Membership Form to be eligible for benefits, and you also may be eligible to submit a Repair/Parts/Specific Equipment Damage Claim Form. Please see www.303tractorhydraulicfluidsettlement.com for a copy of the Class Membership Form and Repair/Parts/Specific Equipment Damage Claim Form or call 1-866-742-4955 to request a Class Membership Form and Claim Form be mailed to you. The deadline to file your claim is December 29, 2021. In order to maximize efficiency, proceeds from this Retailer Settlement will be held for distribution at such a point in time after monies, if any, have been received in settlement or judgment for the Litigation Class claims against the Manufacturer Defendants. Please be patient and check the website for updates.

If you do not want to be legally bound by the Proposed Retailer Settlement, you must exclude yourself by December 29, 2021. If you do not exclude yourself, you will release any claims you may have against the Retailer Defendants, as more fully described in the Retailer Settlement Agreement. You may object to the Proposed Retailer Settlement by December 29, 2021. The Long Form Notice, available at www.303tractorhydraulicfluidsettlement.com or upon request, explains how to exclude yourself or object.

The Court will decide whether to approve the Proposed Retailer Settlement at the Final Fairness Hearing on January 6, 2022, at 1:30 p.m. Class Counsel also will ask that the Court award up to $2,300,000.00 in attorneys’ fees, $300,000.00 in expenses, and an incentive payment of $500 for each of the class representatives. The amounts awarded for attorneys’ fees, expenses, and incentive awards come out of the Retailer Settlement Class Fund. This date for the hearing may change; see www.303tractorhydraulicfluidsettlement.com

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Ag LawUPDATE Harrison M. Pittman is director of the National Agricultural Law Center, which is part of the University of Arkansas System Division of Agriculture. The Center serves as the nation’s leading source of agricultural and food law research and information and deals with legal issues around the country that impact agriculture at the state and federal levels.

A

by Harrison Pittman

busy legal year continues, with decisions at both the state and national level making waves in agriculture.

The State Plant Board remains a lightning rod for controversy and legal action and the Waters of the U.S. drama continues with the Biden Administration announcing its intention to overturn action taken by the Trump Administration, leading to concern in the agriculture community.

Here are some more details on these and other recent actions: New Lawsuit Over State Plant Board As reported here last quarter, the Arkansas Supreme Court issued a landmark decision on May 6 (McCarty v. Arkansas State Plant Board) which held that at least nine Arkansas State Plant Board (ASPB) member positions (out of a total of 18) were unconstitutional because those members are appointed by private entities. In so doing, the court stated “In a case where there is an unconstitutional delegation of legislative power to a private entity, there can only be one remedy – the removal of unconstitutionally appointed board members. Accordingly, we reverse and remand with specific instructions for the circuit court to remove the unconstitutionally appointed Board members.”

Subsequently, the trial court removed the nine members of the ASPB who are elected by private entities. That decision was not appealed, but in August a new lawsuit was filed challenging composition of the ASPB under Act 361 of 2021 in light of the holding in McCarty. Act 361 changed the law regarding the composition of the Plant Board to allow private entities to nominate – rather than elect – persons to the Governor. Under Act 361, the Governor would then appoint members from those nominated, subject to confirmation by the Arkansas 32

Senate. Act 361 was not yet in effect at the time of the McCarty decision.

In this new lawsuit, the plaintiffs assert that Act 361 does not cure the constitutional problems of the Arkansas State Plant Board in light of McCarty.

Specifically, the plaintiffs in the latest action allege that Act 361 is unconstitutional insofar “as private entities were given the exclusive right to nominate half of the seats on the ASPB. Put simply, the Governor is bound by statute to appoint those nominated by private industry associations.”

The litigation is still at an early stage but will very likely find its way back before the Arkansas Supreme Court, with the outcome at both the trial court and the Arkansas Supreme Court impossible to reliably predict at this time. The outcome has implications for the future composition of the ASPB as well as any state law in which private entities nominate potential members for appointment by the Governor.

Arkansas Agriculture

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ARKANSAS FARM BUREAU • SUMMER 2021

Clean Water Act & WOTUS Believe it or not, there is a new development in the ongoing saga over what constitutes “waters of the United States” under the federal Clean Water Act. The term “waters of the United States” (WOTUS) is essential to the CWA because it determines which waterbodies receive CWA protection and, therefore, fall under the jurisdiction of the EPA or U.S. Army Corps of Engineers.

The term is not defined in the text of the CWA, but is has been defined via federal regulations in different ways since 1972.

days later, EPA announced that both it and the U.S. Army Corps of Engineers will cease implementation of the Trump Administration rule and will, at least for the time being, interpret WOTUS consistent with the regulatory regime that was in place before issuance of the 2015 rule under the Obama Administration. For more detailed background, see Arizona Court Vacates WOTUS Rule and Waters of the United States: Timeline of Definitions, both available (among numerous other WOTUS resources) on the National Agricultural Law Center website.

Pesticides The world of pesticide litigation and regulation seems to be continuing at a breakneck pace. This includes activity in regards to dicamba, glyphosate, and paraquat.

Another key example is chlorpyrifos. As reported here last quarter, the Ninth Circuit Court of Appeals ordered the EPA to revoke all tolerances for chlorpyrifos, or, alternatively, to modify the tolerances to conform with federal law. Since last quarter, EPA has published a final rule to revoke all tolerances for residues of chlorpyrifos.

While the final outcome is still some time away, the EPA announcement signals a dire future for the availability of chlorpyrifos for much of agricultural production. For a more detailed discussion of this decision, see Ninth Circuit Finds Chlorpyrifos Tolerances Unlawful and EPA Announces Decision to Revoke Chlorpyrifos Tolerances, both available on the National Agricultural Law Center website. *

In 2015, the Obama Administration issued a new rule that changed the definition of WOTUS. The Trump Administration later repealed and replaced the 2015 rule, issuing a new rule that has been in effect since June of 2020. Both rules were followed by numerous lawsuits filed throughout the U.S. The Biden Administration has announced its intention to repeal and replace the Trump Administration rule. Against this backdrop, on August 30, a federal district court in Arizona issued an order vacating the Trump Administration rule and remanded it back to EPA for further review. Despite the large volume of legal actions that have been filed in recent years with differing outcomes, the decision out of Arizona is especially noteworthy because it is the first time that a court has vacated the WOTUS rule. A few

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ARKANSAS FARM BUREAU • SUMMER 2021

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COVID-19 TREATMENTS IF YOU TEST POSITIVE FOR COVID-19, YOU MAY BE ELIGIBLE TO RECEIVE MONOCLONAL ANTIBODY THERAPY.

Monoclonal antibodies (MAB) are used to treat mild or moderate COVID-19 in some adult and pediatric patients. This therapy uses proteins that mimic your body’s immune response to fight off harmful viruses and can prevent patients from developing severe symptoms of COVID-19 and being hospitalized. MABs work best when started soon after symptoms develop.

Talk with your primary care provider as soon as possible after testing positive or visit healthy.arkansas.gov or call 1-800-803-7847 to see if you are eligible for MAB therapy.

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