On April 16, 2024, the U.S. Supreme Court ruled that property owners could pursue their inverse condemnation claims against the State of Texas under the federal Takings Clause through the existing Texas state law. Many people understand the government has the power to take our land for public good as long as it pays just compensation. Sometimes, the government forgets to ask for that land in advance and takes the property anyway. These are called “inverse condemnation” or “Takings” cases. In such a case, the landowner must initiate proceedings to force the government to pay for the land taken ..read more

Indiana House Enrolled Act 1003 changes the way we litigate administrative appeals. This will impact confined feeding challenges, permit modification appeals, and other regulatory decisions by our the Indiana Department of Environmental Management (IDEM). Lady Justice considering an administrative appeal First, HEA 1003 does away with the Office of Environmental Adjudication (OEA). For years, the OEA was the “ultimate authority,” or the body who considered administrative appeals related to an IDEM decision. To consolidate government resources, the OEA has essentially been folded into the Offi ..read more

In the Midwest, we’ve historically had more than enough water for everyone. Agricultural, industrial, and residential uses have all developed more or less peacefully (at least in terms of access to water). This usually meant a laissez-faire approach to state and local water regulation. But 2024 may be the year that challenges the status quo. The proposed Limitless Expansion Advanced Pace (LEAP) district in central Indiana is a 9,000-acre state-supported industrial project in Boone County. The Indiana Economic Development Corporation (IEDC), a quasi-government agency, has been working to attrac ..read more

The headlines about PFAS are everywhere from agricultural news websites to Good Morning America. But what should farmers and rural landowners be worried about when it comes to PFAS? From a real property standpoint, the biggest potential PFAS problem facing agriculture will likely be biosolids (assuming your farm is not impacted by a military base). “Biosolids” generally refers to the solid matter left at the end of the wastewater treatment process. Biosolids can be incinerated, landfilled, or—far more likely—land-applied. According to the EPA, something like 51% of the nation’s biosolids are a ..read more

Before this spring, I had never been to Asia. In April, my Agricultural Leadership Program (ALP) Class 18 traveled to South Korea and Laos. The two countries cannot be more different. Laos is very much still developing, suffers even today from historic bombing campaigns, labors under a strict communist government, and is hot hot hot. So, my top five takeaways from Laos: First, Laos is a country that is very much still developing. Laos is dependent on foreign investment (mostly from China, Vietnam, Thailand, and more recently, the United States). Subsistence farming is still the way of life fo ..read more

One area of law refuses to stay consistent from year to year—Waters of the United States, or WOTUS, for frequent fliers. The Supreme Court decided the Sackett case for a second time this past summer, limiting federal jurisdiction over wetlands. After the decision, the relevant federal agencies (Environmental Protection Agency and Army Corps of Engineers) enacted a final rule amending the January 2023 version of the Revised Definition of Waters of the United States, effective September 8, 2023. The current amended rule purports to revise the regulatory text to comport with the Court’s decision ..read more

May 2023 was a busy month for agriculture before the Supreme Court of the United States. The Court narrowed the reach of the Clean Water Act in Sackett v. EPA by limiting what wetlands are considered Waters of the United States (WOTUS). Spoiler alert: only wetlands that are indistinguishable from traditional WOTUS are covered by the Clean Water Act. I’ve written about Sackett before, because this isn’t the first time the case came before the Justices. In short, the Sacketts backfilled a small lot here Priest Lake, Idaho to begin construction on a house. The EPA sent a compliance order, claimin ..read more

As part of the Indiana AgriInstitute Ag Leadership Program, I was happy to (finally) get the chance to take our class’s international trip at the end of April. We were originally set to go to Asia in February/March 2020…which for obvious reasons did not happen. But we eventually got our adventure, and what a journey it was! We first traveled to South Korea. After approximately one million hours on the plane, we touched down in Incheon, a port city about an hour from Seoul. Korea imports 2/3 of its food supply and the United States is the largest source of these imports. The US and SK signed KO ..read more

State and federal courts have long held that a constitutional taking may occur from government-induced flooding. The Indiana Supreme Court recently handed down a unanimous decision explaining how courts should analyze permanent and temporary takings by flood waters. This decision is important to landowners, private property rights groups, and farm operators. In Town of Linden v. Birge, the local government installed a water retention pond, subsurface drainage tile, and a grated manhole as part of a project intended to reduce town flooding. The manhole and some of the drainage tile were located ..read more

Carbon capture and storage involves storing carbon thousands of feet below ground—often below farms, fields, and rural landscapes. But who owns the pore space so deep underground? State legislatures around the country have been trying to address this question, with some noted successes and failures. Protecting private property rights—even deep underground private property rights—is an important issue. So who is protecting your underground property rights? In Greek mythology, the god of the underworld was Hades. He was assisted in his duties by his faithful three-headed guard dog Cerberus. Lan ..read more