Sod As Agriculture Preview

TURFGRASS SOD AS AGRICULTURE

HOW ( AND WHY ) FEDERAL AND STATE POLICY

APPLIES

FARM PROTECTIONS TO SOD PRODUCTION

Information presented in this guide with regard to legal rulings on turfgrass sod’s status as agriculture were gathered through a search of various federal, state, and local guidelines. It is not intended to be presented as an exhaustive list and there may be additional instances in various legal rulings not presented in this text. If you have additional instances of legal rulings on turfgrass sod and would like them included in future revisions of this guide, please contact Dr. Casey Reynolds at creynolds@TurfgrassSod.org.

Advocacy Considerations

Across the U.S. many states by legislation have defned agriculture with varying specifcity to type of production. When generic, generalized production such as “crops,” “livestock,” “poultry,” and dairy,” are ofered. When specifed, ofen a longer list of products are listed following the catch-all “including.” In disputes between individuals and government regulators, or between individuals, courts are challenged to interpret the meaning of terms and phrases in statutes and administrative codes as binding expressions of public policy. When guided by defnition of words expressed in the statute, the court’s matching of a particular activity to its broad category exemption or exclusion is simple. However, when a particular defnition does not expressly include a target agricultural product, the court must look to the “intent” of the legislature to fnd an implication that the target commodity be included in the defnition of “agriculture” or “farming ”

In a regulatory dispute, courts strive to discern the public policy intent of the legislature who drafed the statute which authorizes the regulation. Te courts must decide if a certain type of business, land use or product belongs in a list –ofen beginning with “including”–of arguably similar items. When a statute or regulation specifcally identifes a certain type of business, this is not difcult. Where statutes and their regulations are vague, a solid advocacy approach should focus on how sod/turfgrass production has all the characteristics of farming other agricultural products. As the 6th Circuit Court of Appeals1 stated in Barks v. Silver Bait, LLC (802 F.3d 856 [2015]), a case concerning worm farming in the agricultural labor context: “’Agriculture’” is an expansive concept, and “farming” is only marginally more precise. Dictionaries provide useful insight into their common usage.”

Defnitions of agriculture and farming in dictionaries are helpful in expressing the “plain meaning” of a word or phrase because such defnitions include the production components which apply to

Judicial Interpretation

All federal and state courts follow what are known as “canons of construction” when reviewing statutes to discern “legislative intent,” which is paramount in applying the public exercise of policy through codifed law.

One such cannon is the maxim expressio unius est exclusio alterius (“the inclusion of one thing implies the exclusion of another”) which courts apply to assist in determining actual legislative intent which is not otherwise manifest (i.e. where “sod” or “turfgrass” are not specifcally mentioned). Where used, courts are quick to note that this maxim should not be employed to override or defeat a clearly contrary legislative intention. Under this rule, when legislative intent is in question, an appellate court may be persuaded to presume “the contrary legislative intent” to include sod is arguably found when it is not singled out for exclusion in statute or regulation. In other words, when the legislature expressly includes descriptive terms, it intends to exclude any items not expressly included in the descriptive list. General terms defned by dictionary (above) should not be considered exclusionary but inclusive. In addition, such a rule should also be defeated by the term “including” next to a list of like items. Generally, courts will only look past the language of a statute when the language in the statute is ambiguous.2 At that point, courts will generally allow consideration of the legislative history of the statute, and will exclude a particular item from inclusion in a statute only upon a fnding that a particular item was discussed for exclusion in the legislative record (or rulemaking process). However, arguably the words “agriculture” and “horticulture” are not ambiguous terms as courts have stated. For example, as the Kansas Supreme Court stated: “the phrase ‘encouragement of agriculture and horticulture’ is composed of words of ordinary and approved usage, not technical in any sense; that it is not ambiguous, and therefore no resort should be had to any administrative construction that might have been placed upon it.”3

Turfgrass Sod as a Crop

From time to time, courts must apply basic logic to the question of whether a farm element is personal property or real property. Tis question arises in various farm contexts – for example, for tax purposes classifcation of a greenhouse as a fxture to real property rather than a moveable item of personal property. Another example is when land is sold with growing (cultivated) sod, a court must determine whether the sod is normal growing grass (“fructus naturales”) and part of the realty, or whether a commercial product that may be severed and retained by the seller (“fructus industriales”). One court case provides illumination of the logic applied to the argument that sod is a crop and not a natural part of real estate.

In the Michigan case of Barron v. Edwards (45 Mich.App.210, 1973), a court of appeals noted the distinction between fructus naturales and fructus industrials:

Apart from statutes or peculiar circumstances requiring a contrary conclusion, it is stated in many cases that those products of the earth which are annual, raised by yearly manurance and labor, and which owe their annual existence to cultivation by man, may be treated as personal chattels, for some purposes at least, even while still annexed to the soil and irrespective of their maturity. Conversely, and also in the absence of statutory provisions or peculiar circumstances requiring a contrary conclusion, fructus naturales — grasses growing from perennial roots and, according to some courts, the fruit or other products of trees, bushes, and plants growing from perennial roots — are regarded as realty while they are unsevered from the soil.” (Barron at 214)

Te court concluded that, on the facts of the case (but consistent with all sod production):

Here the sod owed its existence to yearly fertilizing and cultivation by man. It is also signifcant that plaintif raised this sod on several prior occasions and apparently treated it as a commercial product. Thus, this sod cannot be considered “growing grass” as the plaintif contends. We therefore hold that the sod in the instant case was personalty.

Federal Recognition

Article Six of the U.S. Constitution proclaims the legal authority granted to the federal government –by the words and phrases of that document –to be the “supreme law of the land.” However, the powers granted the federal government are by defnition limited: states remain sovereign governments under our federalist system and have authority to regulate many matters concerning agriculture and land use. Terefore, the federal government’s ability to proclaim the legal status of turfgrass sod as agriculture is limited to those matters in which it has authority to bind the states and chooses to do so. Indeed, Congress ofen uses its constitutional authority to pre-empt state action on various matters concerning agriculture when it so chooses. Examples include pesticide manufacture and labeling, many aspects of labor, and of course federal tax collection and interstate transportation.

Tat said, under a practical tradition called “cooperative federalism,” many federal statutes are handed of to the states to implement and enforce. In this scheme, states pass their own statutes and interpretative regulations on how to fulfll their role. Sometimes, the federal statute’s regulation will defer to state defnitions on what constitutes agriculture or farming for protections ofered by federal law. Where the state has not made a clear defnition including turfgrass sod, the federal defnition likely controls, and unless the federal law has specifcally deferred to the state to determine the legal status of turfgrass sod, the federal determination should be controlling.

Tere are several legal contexts in which states have sole authority, primarily concerning land use, property taxation and state revenue collection. Tese are explored later in this document.

Following are several major areas of federal law impacting turfgrass production where federal statutory and regulatory defnitions and administrative rulings apply farm protection policy to turfgrass sod production.

State Statutory Defnitions

State statutory law –the public policy expressed by elected state legislatures –is flled with various defnitions of terms recognizable to the application of the particular policy. Te terms “farming’ and “agriculture” are defned in several types of laws, ranging from sales tax exemptions, reduced property taxes, authorization for farmland preservation programs, and right-to-farm laws meant to defend against nuisance lawsuits. Invariably, one or more of these defnitions of agriculture will include “sod” or “turf” production. Ofen, state codes contain a title devoted to agricultural policy and regulations, to which a generic defnition of agriculture is applicable throughout the statutory title. Such defnitions expressed by these laws focus on production in farming, and sod –raised and harvested from land with the accoutrements of farm production –agricultural land, water use exemptions, farm equipment purchased through agricultural fnance systems, and labor provided through agricultural exemptions and programs – fts alongside vegetable, grain and other crops traditionally seen as “farming.” Below is a survey of generic state defnitions –organized by topic –and how they include turfgrass sod production in the defnition of farming and agriculture.

References

[1] Te 6th Circuit Court of Appeals includes the states of Tennessee, Michigan, Ohio, Kentucky, as well as Puerto Rico and the U.S. Virgin Islands

[2] See Bailey Nurseries, Inc v Comm’r of Revenue, 2002 Minn Tax LEXIS 11 (2002)

[3] State ex rel. Boynton v. Wheat Farming Co., 137 Kan. 697, 714 (1933)

[4] See https://www.uscourts.gov/four-digit-national-associationnaics-codes.

[5] See https://www.naics.com/sic-codes-counts-division/?div=A

[6] See https://siccode.com/sic-code/0181/ornamental-foriculturenursery-products

[7] See https://www.congress.gov/bill/115th-congress/house-bill/2

[8] See https://www ams usda gov/content/usda-introduces-newnational-quarterly-sod-report

[9] For example, see https://www.nass.usda.gov/Publications/ AgCensus/2017/index.php

[10] See https://uscode.house.gov/view.xhtml?path=/prelim@title16/ chapter41&edition=prelim

[11] See https://www.federalregister.gov/ documents/2020/08/05/2020-17087/hours-of-service-of-driversturfgrass-producers-international-application-for-exemption

[12] See https://www federalregister gov/ documents/2020/11/24/2020-25971/hours-of-service-of-driversdefnition-of-agricultural-commodity

[13] See https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/fles/docs/ Administrative_Ruling_119.pdf

[14] NJ Department of Agriculture, Economic Development Strategies (2005). Available at https://www.nj.gov/agriculture/ conventions/2005/economicstrategies.pdf

[15] See Bd. of Trs. v. Anderson, 2007-Ohio-1530 (frewood selling); Siebenthaler Co. v. Beavercreek Twp., 2009-Ohio-6595 (growth of plant material, landscaping services, and a retail garden-store business); Terry v. Sperry, 130 Ohio St. 3d 125 (winery)

[16] Available at https://revenue alabama gov/wp-content/ uploads/2017/10/Alabama_Agricultural_Guide.pdf

[17] Farming and New Jersey Sales and Use Tax (NJ Dept. of Agriculture, September 3, 2008). Available at https://njf.org/ wp-content/uploads/2013/07/farmingsalesandusetaxguide.pdf