In a stunning and convoluted decision, the U.S. Court of Appeals for the Eighth Circuit in St. Paul upheld an earlier district court decision that declared South Dakota's anti-corporate farming law, known as Amendment E, unconstitutional.
The Aug. 19 decision, combined with a January 2003 district court ruling which plugged Iowa's anti-corporate farming law, virtually declares open season on similar farm structure laws.
Currently, 14 states have such laws. Six of the toughest, however, are in Eighth Circuit -- Iowa, South Dakota, Minnesota, Missouri, North Dakota and Nebraska. (The Iowa decision is under appeal.)
Why the legal hubbub now over laws -- some of which are decades old -- to protect family farmers and the rural environment from corporate mercantilism and agribusiness interlopers?
Family farm advocates view the state-by-state march as part of an ongoing corporate assault to integrate family-owned farming assets into the global food machine.
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Frank James, a South Dakota farmer who is also an organizer for Dakota Rural Action, the main force behind the 1998 voter approved and now-dead Amendment E, explains it this way
"Amendment E opponents want it gutted because they say it discourages corporate capital from flowing into South Dakota agriculture. That's probably true to some extent. But we believe that corporate capital brings corporate control; you can't separate the two. South Dakota farmers don't need more corporate capital or control; they need more profit."
The three judge panel that tossed Amendment E for a second time didn't see it that way. Rather, wrote Judge Pasco Bowman, the South Dakota law "was motivated by a discriminatory purpose," to keep large livestock integrators like "Tyson Foods and Murphy Family Farms" out of the state.
As such, Bowman explained, Amendment E violated the "dormant Commerce Clause" of the U.S. Constitution which "is the negative implication of the Commerce Clause: states may not enact laws that discriminate against or unduly burden interstate commerce."
Legal scholar Roger McEowen, an associate professor of ag economics and ag law at Kansas State University, strongly disagrees. In a Sept. 5 article for the Agricultural Law Digest, McEowen argues that the dormant Commerce Clause "was never intended to eliminate the states' power to regulate local activity ...."
What that means, he explains, is that "a state may regulate transactions within its borders, but not those that occur elsewhere." Amendment E only applied to South Dakota, he says in a telephone interview; "not North Carolina or Arkansas."
Further complicating that legal debate, McEowen adds, is a "2001 Eighth Circuit decision in a Missouri livestock price reporting lawsuit that said the Commerce Clause could not be used to have state farming structure laws declared unconstitutional."
In essence, he says, "States are now faced with two competing Eighth Circuit decisions that say 'Yes, state laws that address farming structure violate the Commerce Clause' and 'No, state laws that address farming structure do not violate the Commerce Clause."
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Even more remarkable, McEowen concludes, the South Dakota decision did not even cite the Missouri ruling, known as Hampton Feedlot. "It's almost as if the court decided early on just to knock down Amendment E."
Curious, also, was the role the American Farm Bureau Federation played in the South Dakota court case.
The lawsuit to kill Amendment E was, in large part, initiated by the South Dakota Farm Bureau. As the lead plaintiff, it received big-time legal help from AFBF's big-time Chicago lawyers.
Moreover, in a friend of the court brief filed by AFBF itself to uphold the unconstitutionality of Amendment E, the nation's largest farm group said the district judge was wrong when he claimed Amendment E was important because it protected family farmers.
"The district court erred in concluding that the protection of South Dakota's family farmers is a compelling interest," noted the AFBF brief.
Protecting family farmers is not a compelling interest in states with strong anti-corporate farming laws? That's simply ridiculous.
With farm group cover like that, however, little wonder corporate integrators and global agribusinesses are picking off family farm-protecting laws across the nation one-by-one.
