In Hollis v. Hollis, the Texarkana Court of Appeals considered the question of who owned a ranch when mother and son disagreed.

Cattle in pasture / (Hannah Harrison/Texas A&M AgriLife)

Background 

This lawsuit involves an ownership dispute over a 304-acre ranch (“the Ranch”) in Titus County.  The Ranch was purchased in 1978 by Wayford and Reba Hollis, husband and wife. 

According to their son, Robert, there was an oral agreement between Wayford and Robert that Wayford would purchase the Ranch, and Robert would stock it with his cattle, manage the operations, and repay Wayford with all proceeds from the cattle sales. Robert claimed their agreement was that once the property lien note was paid off, Robert would own 1/2 interest in the Ranch, and he would inherit the other 1/2 interest at Wayford’s death. Robert’s wife, Sherry, testified that he told her of this oral agreement at the time it was made, and paperwork with the USDA signed by both parties indicated Robert and Wayford were 50/50 partners in the operation. 

Reba testified she and Wayford were close and discussed major decisions. She denied there was ever an oral agreement between Robert and Wayford and testified she had never heard anything about it.  Instead, she testified that she and Wayford purchased the Ranch because they did not have a retirement program. She says Wayford found the Ranch, and Robert was not involved in the conversation or decision to purchase. 

Robert said he brought his cattle to the Ranch and moved into the old house on the Ranch in 1980.  Reba said that Wayford purchased the cattle to put on the Ranch and denies that Robert brought his own cattle with him. She also denied that money from the cattle sales paid the note on the Ranch. 

Later, Robert and Sherry moved a trailer onto the Ranch.  When the herd grew to over 100 head, Robert leased additional land.  Cattle were sold primarily at the Hollis Family Production Sale, and the proceeds from the larger cattle sales went to Wayford.  Some smaller cattle sale income went to the Ranch’s business account to pay expenses.  Financial records show that Robert paid Wayford $823,785 in cattle income from 1978-2000. Wayford paid Robert a small salary from 1981-1999, totaling $185,785. 

The property lien was released in 1993.  Shortly after this, Robert and Sherry built a new $450,000 house on the property. Reba knew they were building a house before they broke ground, and she never objected, told them to stop, or claimed they were building on her property. Reba did, however, help hang wallpaper in the house.  After the house was built, Reba told Robert to survey off an area for the house and they would deed it to him. 

Their Ranch partnership was dissolved in 2000, and Robert said Wayford received the cattle located in Louisiana and Robert received the cattle on the Ranch and assumed $180,000 in notes related to the Ranch operation.  Reba denied this, claiming that Wayford intended to sell the Ranch prior to his death, and that he had a will prepared but did not say anything to her about an agreement with Robert about the Ranch. 

Wayford died in 2005.  His will left “all of the farm property and all improvements thereon situated and belonging, located in Titus County, TX” to Robert.  Robert said this language was his father keeping his word under their oral agreement.  Robert said when the will was read, he told Reba and his sisters that he already owned 1/2 the Ranch, and after the will, owned the full 100%.  Robert replaced the fence around the Ranch twice since Wayford’s death. 

Robert’s sister, Lisa, testified that Robert never mentioned an agreement when they met with the attorney after Wayford’s death.  She also testified she talked to Robert about Reba needing to sell some of the Ranch.  Robert said he did not want her to do that because it was how he made his living, and he wanted to leave it to his children.  He did not say anything about an agreement with their father to buy it. 

After Wayford’s death, Reba tried to sell the Ranch twice.  She executed a listing agreement in 2013, and said she did not really intend to sell it, but wanted to ascertain the value.  In 2015, she called Robert to tell him she would give him something for the house, but she intended to sell the Ranch because she needed money.  At that point, Robert and Sherry filed suit. 

Litigation 

Robert and Sherry filed a trespass to try title suit. 

The jury sided with Robert and Sherry finding: 

(1) Wayford and Robert entered into an oral agreement that Robert would manage the Ranch and pay Wayford all proceeds from sale cattle.  When the note was paid, Robert would own 1/2 of the Ranch and at Wayford’s death, he would get the other 1/2. 

(2) Robert and Sherry completed performance of the oral agreement by paying consideration, taking possession, and making permanent and valuable improvements on the Ranch. 

(3) Reba was bound by the oral agreement because her name was on the deed, she was aware of the agreement being performed, and she was aware of the improvements at the time they were made. 

(4) Reba received and accepted payment from the cattle sales with full knowledge or notice of the facts of the oral agreement. 

(5) Wayford fully complied with the oral agreement. 

(6) Robert and Sherry held peaceable and adverse possession and made use of the Ranch for 10 years after January 1, 1980. 

(7) Robert and Sherry committed acts after 1993 that unmistakably asserted a claim of ownership. 

(8) Robert and Sherry completed performance of the oral agreement in 1993. 

The jury awarded Reba $9,000 on her counterclaim of payment of taxes on the Ranch but dismissed Reba’s remaining claims. The court entered judgment for Robert and Sherry and ordered title be granted to them. 

Reba appealed. 

Court of Appeals Opinion 

The Texarkana Court of Appeals affirmed. 

Disjunctive Instruction

First, Reba argued that the jury should have had the two claims–ownership by oral agreement and ownership by adverse possession–submitted disjunctively.  She claimed these were mutually exclusive theories, and if the jury found an oral agreement, the jury could not also find adverse possession.  The court disagreed. 

The court explained that where an oral agreement is alleged, that does not automatically preclude a finding of adverse possession.  The fact that the initial entry may have been permissive does not preclude a claimant’s possession from becoming adverse at a later date.  Because of this, it was not factually consistent for Robert and Sherry to advance both the oral agreement and adverse possession causes of action. 

Adverse Possession Findings 

Next, Reba argued several insufficiencies related to the jury instructions on adverse possession.  However, because she failed to challenge that adverse possession findings, the errors of which she complained were harmless. In other words, the court rejected these claims on a technicality based on Reba’s appellate arguments. 

Limitation on Voir Dire 

Reba claimed that the court improperly limited her voir dire questions related to Sherry’s brother, a prominent businessman in the community. Robert and Sherry filed a motion to exclude mention or reference to Sherry’s brother.  The trial court granted that motion after it confirmed the brother would not be a witness in the case but allowed general questioning about whether jurors knew Sherry’s family members.  Reba claimed that her inability to question jurors about their knowledge of or relationship to the brother, she was unable to obtain an impartial jury.  The appellate court disagreed, finding that the court struck an appropriate balance between allowing Reba to ask questions while not informing the entire jury panel that Sherry was the sister of a prominent and influential person in the community.  Also, Reba did not propose a different method of inquiry to avoid the issues of which she now complained. 

Conclusion 

Thus, the trial court decision was affirmed, and title to the Ranch was ordered to be granted to Robert and Sherry.  Reba sought review at the Texas Supreme Court, but her petition was denied. 

Key Takeaways 

Although the appellate court opinion was based primarily on pleading issues and technicalities, the facts here illustrate several important takeaways. 

First, all agreements should be in writing.  A lot of argument, time, and money could likely have been avoided in this case had Wayford and Robert entered into a written agreement when the land was purchased.  This type of agreement would protect both sides from this type of litigation.  This is particularly important when agreements involve large sums of money or assets with high values, such as the land and cattle in this case.  

Second, it is important for landowners to remember if anyone is using your land who does not have an ownership interest in the land, legal action should be considered quickly.  Adverse possession law can result in loss of ownership of land if a landowner fails to act while a person uses their land without permission for a certain period of time (and other factors are met).  To the extent anyone is on your property without permission, take action to avoid this type of issue. 

Third, oral agreements about who will inherit at a person’s death are invalid.  Texas law does not recognize oral wills.  The fact that Wayford told Robert he would inherit the other half of the land at death would not, alone, have been enforceable.  Here, Wayford had a will that provided the same, which resulted in ownership being granted to Robert.  Without that will, however, that oral promise regarding the inheritance would have most likely been unenforceable. 

Fourth, family members certainly can end up in legal disputes with each other.  At presentations, people are often shocked when friends or family members sue each other.  It happens more often than most people realize.  Even if you are entering into an agreement or contract with a family member, put it in writing to protect your legal rights and the relationship should things go wrong. 

The post Court Considers Ranch Ownership Dispute Between Family Members appeared first on Texas Agriculture Law.

The Texas Supreme Court recently issued an important decision in State of Texas v. JRJ Pusok Holdings, LLC, answering the question of whether a landowner may sue the State to repurchase property when a portion of the condemned property is no longer necessary for public use. 

Rural Highway / Photo via Evelyn Okay via Unsplash

Background 

Three landowners owned property in Tomball, Texas.  In October 2013, the State notified the landowners that it intended to acquire their property for a highway project.  As required by law, the State provided the landowners with a monetary offer of $496,120, the Landowner Bill of Rights, and a copy of the Texas Property Code Chapter 21, which governs eminent domain proceedings.  The Landowner Bill of Rights provides that if property is condemned and then the public use for which it was acquired is canceled, or no actual progress is made towards the project or the project becomes unnecessary within 10 years, the landowners may have the right to repurchase the property for the price paid to the owner by the condemner at the time the land was taken through eminent domain.  The landowners subsequently received a final offer from the State, which they did not accept.  In April 2014, the State petitioned for condemnation by initiating suit in Harris County.  Three weeks later, the State and the landowners settled on a value of $681,705 for the condemned land.  A special warranty deed conveyed the property to the State and provided that the landowners agreed not to “seek any additional compensation, damages, attorney’s fees, or expenses from the State of Texas.”  The State moved to nonsuit its condemnation petition, and the case was dismissed. 

Later, government officials decided to reroute the highway project, leaving part of the landowners’ condemned land unused.  When asked if the State planned to use the remaining portion of the property, the landowners were told that the land was surplus, and the State refused to sell it back to the landowners.  The landowners then assigned their rights to JRJ Pusok Holdings (“JRJ”) to pursue a repurchase claim. 

Litigation 

JRJ sued the State of Texas and the Department of Transportation Director, claiming violations of its repurchase rights under Property Code Chapter 21.  The State claimed sovereign immunity and lack of justiciability, and the trial court granted the State’s motion to dismiss. The Fourteenth District Court of Appeals in Houston reversed the dismissal of the repurchase claim, holding that Chapter 21 demonstrates the State’s waiver of immunity for repurchase claims.  The Court of Appeals also held that the property was acquired “through eminent domain” because the State filed a condemnation action.  The State petitioned the Texas Supreme Court for review, which was granted. 

Texas Supreme Court Opinion 

The Texas Supreme Court sided with JRJ on all issues in its majority opinion. 

Sovereign Immunity 

Sovereign immunity provides that a state cannot be sued in its own courts without consent, and even then, only by the manner indicated by that consent.  Generally, to waive immunity, consent must be found in a constitutional provision or a legislative enactment.  A statutory waiver must be effected by clear and unambiguous language. 

History of Repurchase Right 

The Texas Constitution recognizes two limits on the State’s eminent domain power: adequate compensation and public use.  The Legislature provides the process for adjudicating the adequate compensation the State must pay. 

In 1980, there was a significant shift on the issue of condemnation and sovereign immunity when the Texas Supreme Court recognized inverse condemnation claims in Steele v. City of Houston.  The Court held that the State had no immunity against condemnation claims when it takes property via eminent domain without paying just compensation. The Court based that decision on the idea that the Constitution authorizes compensation for the destruction of property and is a waiver of immunity for the taking, damage, or destruction of property for public use.  Since that time, the Court has understood the Takings Clause to authorize suit, regardless of any statutory provision. 

Next, in 2003, the Legislature created the statutory repurchase right in the Property Code.  This right was strengthened in 2007 when Texans passed a constitutional amendment expressly permitting the repurchase of property at the price of acquisition. Two years later, the Constitution was amended again, further limiting the meaning of public use. In 2011, the Texas Legislature amended Property Code Chapter 21 to set the repurchase right and price at the amount paid by the government at the time of the taking, not the current market value. 

Arguments 

The State argued that the statutes confer jurisdiction to courts over repurchase claims but do not grant immunity to pursue them against the State. The State argued that the right to repurchase is a statutory right not found in the Constitution. 

JRJ disagreed and argued that the statute authorizes relief associated with a waiver of sovereign immunity, including damages, for “all issues” in which the State occupied property under the authority of eminent domain. This, JRJ argued, is consistent with the Constitution’s authorization that the State offers a repurchase price valued as of the time of acquisition. 

Holding 

“We conclude that the State is not immune from repurchase claims.”  First, the legislature placed the repurchase statute within the law governing eminent domain, proceedings from which the State does not enjoy immunity.  Chapter 21 permits district courts to “determine all issues…in any suit…in which the State…is a party” and that involves a claim for property occupied by the State under eminent domain authority.  As the Court previously held, “the government is not immune from claims on the ‘back end’ after it takes property without compensation.”  The statute cannot be read consistently with the Constitution without the waiver of sovereign immunity.  The statutory language is more than merely jurisdictional. 

The Court then made an interesting point regarding profit from eminent domain.  “What the State loses is any appreciation in the property’s value between the time it was condemned and the repurchase.  But under the constitutional and statutory framework, the State was never entitled to profit from its eminent domain authority.  The People amended the Constitution to permit the landowner to recover the loss of that profit, with supporters aiming to minimize the speculative overuse of condemnation authority.  Any liability the repurchase right creates for the government is both limited and purposeful.” 

Finally, the Court reasoned that the repurchase right serves “virtually no purpose absent the waiver of immunity.”  The State and dissent contend that the repurchase statute is effective even without sovereign immunity because some private actors have the authority to condemn.  Initially, however, the repurchase right applied only to property acquired by a governmental entity, not that taken by private actors.  Where landowners cede their property to the State’s eminent domain power, which is limited by the public use requirement, that same requirement carries forward in subsequent claims. 

Repurchase Criteria 

Next, the Court considered whether JRJ’s repurchase claim met the Chapter 21 criteria. 

“Through Eminent Domain” 

The State contended it did not acquire the property “through eminent domain” as required by the repurchase statute because it settled upon the condemned value with the landowners.  Without a final judgment adjudicating the property’s value, the State claimed the property was not taken “through eminent domain.” 

The State turned to the dictionary for the definition of “through,” which means “by way of”; “passage into and out of a treatment, handling, or process” or “a function word to indicate means, agency, or intermediacy.”  The court reasoned, then, that the definition of “eminent domain” is the “inherent power of a governmental entity to take privately owned property, especially land, and convert it to public use, subject to reasonable compensation for the taking.” 

Thus, the Court wrote, the logical reading of “through eminent domain” is “by means of the State’s power to take private property for public use.”  The State’s reading would require the Court to swap the term “eminent domain” with “condemnation judgment.”  Eminent domain is not the process the State goes through; it is the State’s power.  A settlement as to the property’s value does not alter the acquisition of it “through eminent domain.”  The deed in this case indicated that the landowners conveyed the land because of the pending eminent domain proceedings.  The landowners did not sell the property on the open market to an arms-length buyer; rather, they surrendered their property in concession to the State’s power. 

“Once the state invokes its eminent domain power, landowners need not proceed to a judgment as to adequate compensation to preserve their repurchase right.  The State’s forced transfer via a condemnation suit is an exercise of its power to obtain the property “through eminent domain.” 

Portion of the Property 

The State claimed that Chapter 21 was inapplicable when only a portion of the property–not the entire property–is no longer necessary for public use.  The State pointed to the repurchase right referring to “the property,” pointing out it does not permit repurchase of a portion of the property.  But, as the Court noted, neither does it refer to repurchase of “the entire property.” A portion of the property is accurately described as “property.” 

Here, the State used 97% of the condemned property for the highway.  The remaining 3% became surplus within 10 years of its acquisition.  Once the State determines that property is no longer required for public use, as it did here, it must notify the landowner of the repurchase right. 

The State then argued it was difficult to determine a price for a partial repurchase.  “We are not persuaded,” wrote the Court.  The State offered to sell the 3% for fair market value, which indicates it is possible to value the land. The State can use the statutory directive setting the repurchase price as the price paid to the owner at time it was acquired. 

Jurisdiction 

Lastly, the Court held that Chapter 21 gives district courts and county courts of law concurrent jurisdiction in eminent domain cases, and a repurchase claim is, in fact, an eminent domain case. 

Conclusion 

Thus, the Texas Supreme Court affirmed the court of appeals’ judgment and remanded the case to the trial court for further proceedings. 

Concurring Opinion 

Justice Young filed a concurring opinion.  He agreed with the Court’s determination that sovereign immunity is waived as to repurchase claims.  He wrote separately because he believes that determining whether a statute waives sovereign immunity can and should be simpler than prior decisions suggest. 

First, he noted that the legislature’s intent to waive sovereign immunity must be clearly stated. “If sovereign immunity is waived, it is because the legislature clearly waived it–not because a court has read a waiver into a statute in a way that the legislature can later plausibly disclaim.” 

Second, it is the Court’s job to interpret the statute based on the text, context, and legislative history, to determine if the required clarity is present.  While an express waiver is the easiest way, it is not the only way the legislature can meet the clear indication of waiver. “Requiring clarity is not the same as requiring formulaic or magic words.” 

Third, applying this standard here, he found it is clear the legislature’s waiver of sovereign immunity in repurchase cases was “manifest, albeit not ‘express,’ from the start.” 

Fourth, he did not find it necessary to address other considerations included in the majority opinion. 

Dissenting Opinion 

Justice Hawkins authored a dissenting opinion which was joined by Justice Sullivan and Chief Justice Blacklock and was actually lengthier than the majority opinion.  For the sake of space and time, we are including only a high-level summary below.  

The dissent said that the majority finds waiver of immunity for repurchase claims despite “containing none of the statutory indicia that traditionally signal the waiver of immunity.”  It does not mention “waiver,” and it does not require the State’s participation in a case.  The majority admits the statutory scheme would still have some effect–in cases where property was taken by private actors–without the waiver of immunity.  Instead, the majority turns to the constitutional backdrop, the broader statutory context, and practical concerns to hold that immunity is waived.   The good news, the dissent wrote, is that today’s decision is limited to this particular statutory provision and its unique considerations, including the constitutional backdrop that makes it differ from every other statutory right.  This decision has no impact on any other statutes.  Regardless, the dissenting justices believed it was wrongly decided and would have issued judgment for the State dismissing the claim.  From a policy perspective, the dissent warned, courts have no business letting claims proceed against a state absent unmistakably clear immunity waivers because taxpayer dollars and separation-of-powers principles are on the line. 

Additionally, the dissent would find that even were sovereign immunity waived, the property was not acquired “through eminent domain,” a necessary requirement for the statutory repurchase right to apply.  Instead, the dissent wrote, this property “was acquired through a privately negotiated and mutually agreed upon sale, not eminent domain.”  The dissent pointed to language in the special warranty deed that says the property is conveyed “in order to avoid eminent domain proceedings…” as showing the acquisition was in order to avoid, not complete, eminent domain.  

Lastly, the dissent believed the case should be dismissed because it was improperly filed in the county court at law, not the district court. 

What Happens Next? 

The case will be remanded back to the trial court.  Because sovereign immunity is waived and the property was taken through eminent domain, the trial court will proceed with JRJ’s lawsuit against the State. 

Key Takeaways 

This decision is significant for Texas landowners for several reasons: 

1. Landowners may file suit against the State to repurchase property taken through eminent domain and not used for that purpose. 

1. This right to repurchase is available not only to landowners whose case resulted in a condemnation award by the court, but also to landowners against whom condemnation proceedings were filed and then settled.  I do think the question of whether this right is available to landowners who received and accepted an offer under the threat of eminent domain prior to a court action being filed remains unclear in this opinion. 

1. If land is taken by eminent domain and only a portion of the land is used for the designated public use, the landowner has the right to repurchase the unused portion of the land.  

1. County courts at law have concurrent jurisdiction with district courts to hear repurchase claims.  This means landowners can file suit in either court.  

The post Texas Supreme Court Rules on Right to Sue State to Repurchase Land Taken Through Eminent Domain appeared first on Texas Agriculture Law.

July 2026 may be the most active month I remember when it comes to agricultural law news.  We have chosen some of the most important stories to include below.

John Deere tractor working in farm field / Photo by Samuel Solcan on Unsplash

• FTC and John Deere reach settlement in right to repair antitrust lawsuit. The Federal Trade Commission (FTC), along with five states (AZ, IL, MI, MN, WI), have agreed to settle an antitrust lawsuit against John Deere.  The settlement will require John Deere to provide farmers and independent repair shops with the same equipment repair resources and software provided to John Deere dealers.  This will be done under the supervision of the FTC and the Plaintiff states for the next 10 years.  The timeframe may be extended if John Deere violates the terms of the settlement. This settlement comes on the heels of a $99 million class action settlement John Deere agreed to in April that included similar right to repair provisions. [Also see:  TDN Progressive Farmer article / Right to repair podcast episode]
• Settlement ends Endangered Species Act protections for dunes sagebrush lizard. The US Fish and Wildlife Service (USFWS) and the State of Texas have entered into a settlement that resulted in USFWS removing the Endangered Species Act (ESA) for the dunes sagebrush lizard, a reptile native to Texas’ Permian Basin. As part of the settlement agreement USFWS agreed to vacate the current listing and re-evaluate the lizard’s status under the ESA. [Also see: Texas Tribune article]
• Lawsuit filed challenging rescission of definition of “harm” under the Endangered Species Act. Environmental groups have filed suit challenging the Trump Administration’s rule to rescind the definition of “harm” under the Endangered Species Act.  The rule is set to go into effect in September.  The Plaintiffs say that the new rule “goes against the fundamental purpose and spirit of the statute itself.”  The Secretary of the Interior, on the other hand, says that the rule “will restore the definition of ‘harm’ to its original intent under the ESA…”
• Landowner sues Groundwater Conservation District in East Texas water fight. Companies owned by Dallas investor, Kyle Bass, have filed suit in federal court against the Neches and Trinity Valleys Groundwater Conservation District and its board members.  Bass’ companies own land within the District’s jurisdiction filed permit applications to drill 43 wells across their two ranches.  They claim that a moratorium passed by the District blocks them from seeking permits to develop beneath their land.  The moratorium, passed in May and set to end in October, pauses the acceptance of new nonexempt drilling, operating, and water transfer permit applications until the District is able to update its rules and management plan.  There are some exceptions for pending applications, permit renewal, replacement wells, and other activities that would not increase groundwater use.  The Plaintiff companies claim they are the only applicants impacted by this moratorium, which they believe constitutes an unconstitutional taking of their private property rights.  [Also see:  The Texan article / Texas Water Law Update podcast episode]
• Additional issues involving Groundwater Conservation Districts. Speaking of Texas Groundwater Conservation Districts, there were no shortage of news stories this month.  First, there are a number of Groundwater Conservation District proposals around the state.  In Northeast Texas, 15 counties are currently working to develop Groundwater Conservation Districts in their areas to protect groundwater from being taken and shipped out of Northeast Texas. Meanwhile, in Corpus Christi, State Representative Denise Villalobos says she plans to file legislation to abolish the Corpus Christi Aquifer Storage and Recovery Conservation District and replace it with an “independent groundwater conservation district.” Finally, the Blanco-Pedernales GCD has submitted a resolution seeking “legislative clarity on industrial water rights” as data center development looms in their area.  Specifically, they asked the Legislature for “clarification and protection regarding the regulation of datacenters and concentrated demand locations” and urged lawmakers to clarify that GCDs have the power to deny permits where “resources cannot sustainably support demand.”

• Parties agree to temporary injunction in issue with improperly disposed of wind turbine materials. The State of Texas and two companies it sued for the improper disposal of wind turbine blades, nacelles, and other materials in Nolan County, Texas.  The parties agreed to, and the court has approved a temporary injunction in the case.  The injunction prevents the companies from accepting shipments of these materials and requires them to begin cleaning up two facilities in Sweetwater.

• Article highlights effect of Texas v. New Mexico settlement on Southern New Mexico farmers. You may recall that in May, the US Supreme Court approved a settlement in the decades long dispute over a compact governing the Rio Grande River between Texas and New Mexico.  The agreement requires New Mexico to purchase groundwater pumping rights from voluntary sellers over the next 10 years.  KRWG recently wrote an article highlighting how this settlement may impact farmers in Southern New Mexico.  Speaking of the United States Supreme Court and interstate water disputes, the Court has agreed to hear a lawsuit filed by Nebraska against Colorado over Colorado’s use of water in the South Platte River allegedly in violation of a century-old compact between the states.

• US Supreme Court to hear pipeline eminent domain fee case. Speaking of cases that will come before the high Court, the Justices will hear argument in Hoffmann v. WBI Energy Transmission, Inc., a case posing the question of whether North Dakota landowners can recover attorney’s fees after a natural gas pipeline acquires their property through federal eminent domain. The real issue is which laws should apply—state law, which allows attorney’s fee recovery, or federal law.  At issue is approximately $380,000 in fees.  The trial court sided with the landowners and ordered the company to pay the fees, but the United States Court of Appeals for the Eighth Circuit reversed. The landowners filed a Petition for Certiorari, which was granted.  [Also see Pipeline & Gas Journal article]

• Texas agricultural producers continue facing threats from New World screwworm and pasture mealybug. It has been a difficult summer for many agricultural producers in Texas. The state is currently dealing with both New World screwworm cases as well as another invasive pest, the pasture mealybug.  This pest poses a threat to pastures, hayfields, and forage resources.  Thus far, the pasture mealybug has been confirmed in 70 Texas counties. [Also see:  AgriLife Today article]

• Registration is open for the 2026 American Agricultural Law Association Symposium in Dallas, TX! If you are an ag lawyer or a law student interested in ag law, you cannot miss this event in Dallas this November!  We have worked hard on the agenda and are excited about our educational sessions, networking receptions, and more.  The room block is filling up quickly, so don’t wait to book your hotel and get registered for THE ag law event of the year!

Upcoming Programs

Next week, I will be in College Station for the Beef Cattle Short Course.  You can find our Texas Agriculture Law booth on the second floor of the MSC (on your way to lunch), and we would love for you to stop by to chat, see info about our upcoming programs and resources, and get a coupon code for our online courses!  On Tuesday, I will be hosting the Landowner Rights Session starting at 1:30 in Rudder Theatre.  Our topics will include eminent domain and transmission lines, farm and ranch estate planning, and water law.  You know—nothing like choosing the most controversial topics in the state to cover in one session!  If you are at Short Course and see me, please come say hi.  I love meeting you all!

As always, you can check out the Upcoming Programs tab for a complete list of where I’m headed next.

The post July Monthly Round Up appeared first on Texas Agriculture Law.

I was honored to be a guest on the Texas Agricultural Land Trusts’ podcast, Beyond the Fence Line.  I got to have a great conversation with TALT CEO, Chad Ellis, about estate and succession planning, legacies, myths that are out there on the topics and more.

You can listen to our full conversation here.

For those of you interested in more info on estate and succession planning, this is also a common topic on my own podcast! Check out the playlist of all of our Ag Law in the Field episodes on this important topic here.

The post Podcast Appearance – Beyond the Fence Line: Building a Plan for the Future appeared first on Texas Agriculture Law.

Owning Your Piece of Texas
December 7, 2026
Caldwell, Texas

Ranchers Leasing Workshop
December 8, 2026
Bryan, Texas

The post New Dates Announced for Owning Your Piece of Texas and Ranchers Leasing Workshop appeared first on Texas Agriculture Law.

The last few years have been difficult for many agricultural producers.  The combination of high input costs and low crop prices for many commodities have been a stark reality for many producers across the country.  Data shows that the number of farm bankruptcies across the South are increasing.

Recently, the Southern Extension Economics Committee published a paper called Surviving the Farm Economy Downturn: 2026 Update.  This paper features 24 articles providing information for landowners and agricultural producers to help them make decisions in the current economic climate.  From price outlooks to trade, labor to lending, crop insurance to alternative land uses, this publication walks through a number of considerations that may be helpful in planning for the future.

To download a PDF version of the publication, click here and then click on “Paper.”

The post Surviving the Farm Economy Downturn appeared first on Texas Agriculture Law.

The Texas Supreme Court recently issued an important opinion in Boerschig v. Rio Grande Electric Cooperative with regard to implied electrical line easements and the scope thereof. 

Photo by David Leveque on Unsplash

Background 

In 1945, ranchers in Southwest Texas formed a non-profit Rio Grande Electric Cooperative (RGEC) to provide electricity to Co-op members in rural areas.  RGEC has condemnation authority and now serves eighteen counties in Texas and two counties in New Mexico.   

In 1947, RGEC acquired a document titled “Right of Way Easement” that gave an unspecified corporation the right to place, construct, operate, repair, maintain, relocate, and replace an electric transmission distribution line or system on 5,684 acres owned by the Clamp estate.  The document provided that only single poles and appurtenances to form the least possible interference with farming operations, so long as it does not materially increase the cost of construction.  The document was signed by Ogden Dooley, the executor of the estate, but was never recorded in the real property records.  Shortly after that, RGEC built an electric distribution line crossing 1.6 miles of the tract described in the document. 

In 2002, John Boerschig bought the U-Bar ranch in Kinney, which includes the Clamp estate property.  The line could be seen on the property and was marked on a survey prepared for Boerschig’s purchase.  In 2021, RGEC notified Boerschig it planned to bulldoze part of the easement, upgrade the line, and move a portion of the line.  Boerschig asked RGEC for a copy of the applicable easement.  It produced several express easements but none that covered the route at issue.  He offered RGEC the right to buy a second easement to build a line elsewhere on his property, but RGEC refused. 

Boerschig sued RGEC for trespass.  RGEC filed a counterclaim seeking a declaratory judgment that RGEC had a valid express easement or, alternatively, had obtained a prescriptive easement or an easement by estoppel. It attached a copy of the Dooley signed document that was found in RGEC files after the dispute began.  Boerschig had never seen the document.   

The parties agreed to allow construction of the line on the same footprint of the original line during the litigation, subject to Boerschig reserving his pending trespass claim.  The new line was completed in 2014 and included 60 poles rising 37 feet in the air and carrying 7 wires on 2 crossarms.  (The prior line included 20 poles, 30 feet above the ground carrying 4 wires on 1 crossarm.) 

Lower Court Decisions 

The case went to a jury trial.  Boerschig testified that the new poles interfered with his farming, ranching, and hunting operations.  It made it more difficult to pull equipment with his tractors, he stopped haying one field because there were 6 poles where previously there had only been 1, and his foreman testified he saw cows collide with the poles and fewer deer congregating around them.  Boerschig called the new line an “eyesore” and testified it decreased the value of his property.  RGEC testified that there was nothing  in the new line that would interfere with Boerschig’s use of the land. 

In a 10-2 verdict, the jury found RGEC had no written easement or easement by adverse possession.  The jury did find, however, that RGEC had an easement by estoppel across the powerline route.  The jury also found that the construction of the updated powerline did not exceed the scope of the easement by estoppel. 

Boerschig appealed, arguing there was insufficient evidence to support an easement by estoppel.  The San Antonio Court of Appeals affirmed. 

Texas Supreme Court Opinion 

The Texas Supreme Court affirmed in part and reversed in part. [Read opinion here.]   

There was sufficient evidence to find an easement by estoppel. 

Generally speaking, easements must be in writing and recorded to be legally enforceable.  There are some types of implied easements, where the court may impose an easement if certain factors are present even though there is no written document.  One such implied easement is an easement by estoppel. 

In order for an easement by estoppel to be granted, the person seeking the easement must show: (1) the owner of the burdened estate represented that an easement would be conveyed; (2) the easement holder believed that representation; and (3) the easement holder relied upon that representation to their detriment. The first two elements, representation and belief are fixed at the time of transfer.  If the reliance on the representation terminates later, the estoppel terminates as well. 

The jury had evidence that the Dooley document granted an easement for an electric line, the RGEC’s practice was only to build lines where it believed it had an easement covering the route, RGEC built the line in 1947 and maintained it for 65 years continually and without objection.  Boerschig did not introduce contrary evidence at trial to dispute the representation made by the Dooley document or RGEC’s reliance on it.  Instead, he argues that the Dooley document is not sufficient evidence of a representation because it is not a valid written easement.   

The court disagreed.  “A writing that fails as an express easement can be some evidence supporting the representation element of an easement by estoppel.” An imperfectly memorialized written easement is relevant to show the intent of the parties.  Several other courts, including courts in other states and two Texas appellate courts have reached that same conclusion.  Further, the Dooley document provided detailed and specific use of the easement to construct and maintain a powerline, which RGEC did do for 65 years, indicating its reliance on the easement.  

Boerschig also relied on the bona fide purchaser statute, which essentially provides that a subsequent purchaser is not bound by prior instruments if they purchase without notice.  The most efficient way to provide such notice is by recording encumbrances in the deed record.  That was not done here.  However, purchasers with actual notice of an encumbrance have no injury, even if the encumbrance was not recorded in the deed records.  Boerschig admitted he had actual notice of the powerline when he purchased the ranch both from visual inspection and the survey.  He is presumed to have purchased to this property subject to the visible encumbrance.  

The Dooley document constituted evidence of a representation, RGEC’s actions indicated its belief that there was a valid easement, and it relied on the representation in constructing the line and maintaining it for 65 years. 

RGEC’s use exceeded the scope of the easement by estoppel. 

Having concluded that RGEC did have an easement by estoppel, the next question was whether their use complied with the scope of that easement.  Boerschig claimed that the line upgrades exceeded the scope of the easement as a matter of law.  

Scope of an easement by estoppel 

For a written express easement, the scope is determined by the parties’ intentions included in the granting document. The language included in the easement document governs the scope of this type of easement. 

For an easement by estoppel, however, there is no such recorded writing to rely on when determining the scope of an easement.  These easements are strictly construed and courts view easements by estoppel as a last resort.  The court noted that a person relying on an easement by estoppel “runs a substantial risk that the enforcement will be either unavailable or narrower in scope than a comparable express easement.”  The purpose of an easement by estoppel, and thus the scope of such an easement, is limited to preventing injustice by protecting the easement holder’s reliance interest.  The scope of an easement by estoppel is fixed by the use that created it.  In summary, the scope of an easement by estoppel is limited to the representations made by the landowner and is narrowed by the easement holder’s actual use of the easement in reasonable reliance, and narrowed again if the land has been subsequently sold by the purchaser’s notice  of the representations or uses at the time of purchase.  

This means that an easement holder seeking to change the actual existing use must provide evidence of the landowner’s specific representations about the nature and extent of the permitted use. The easement holder must also show evidence of the landowner’s specific representations about the nature and extent of the permitted use. Evidence that a subsequent purchaser had knowledge of a current use does not establish knowledge that the easement’s scope would cover a greater degree of future use. 

In making this determination, the judge or jury may not speculate about the unexpressed purpose of an easement or whether a change was foreseeable, more burdensome, or different in type or character. 

“The right to own property is fundamental, natural, inherent, and inalienable and its protection is one of the most important purposes of government. Courts are not free to give away more of a landowner’s property rights whenever they feel that the societal benefit of an expended use outweighs its burden on the landowner.  That judgment is for the other branches of government and entities on which they have conferred condemning authority, and our Constitution demands that the landowner be compensated when a greater easement is taken.” 

An easement by estoppel includes “only activities—such as access, repairs, and maintenance of the area—that are reasonably necessary to fairly enjoy the usage rights defined by the representations, reliance, and knowledge.” 

Application to this Case 

RGEC’s only reliance was on the Dooley document’s representation of an easement to build and maintain a lower voltage electric distribution line that consisted of between 17-20 poles, each standing 30 feet above ground, and carrying 4 wires on a single crossbar.  “Allowing RGEC to maintain that use is sufficient to prevent injustice.” RGEC offered no evidence showing that replacing the line with many more and larger poles, wires, and crossarms were necessary to protect RGEC’s investment and reliance on the Dooley document.  

Additionally, the court considered whether Boerschig had actual or constructive notice of facts indicating that the easement would authorize RGEC to triple the number of poles and nearly double the number of wires. The only evidence of Boerschig’s notice was him seeing the original line.  There was not evidence he had any notice regarding any potential increase in the scope of the easement.  

Tripling the number of poles and adding additional wires was not an activity reasonably necessary to RGEC’s continued use and enjoyment of the line.  The purpose of the upgrade was to serve new customers in anticipation of future growth. No one was seeking to shutdown the line or prevent RGEC from continuing its original use and maintenance of the line.  

Thus, the easement by estoppel was not broad enough to allow for the line upgrades. RGEC entered Boerschig’s property and upgraded the line without his consent, which constitutes trespass. 

Concurring Opinion 

Justice Hawkins wrote a concurring opinion noting that there are some close calls related to the scope of an easement and trespass that may be proper only for a jury.  This case, however, was not one of those.  He noted that RGEC’s expansion was “plainly broader than necessary to protect Rio Grande’s reliance interests from its original investment in the land in the 1940s.”  Second, the expansion went beyond any notice Mr. Boerschig had when he purchased the land.  He noted that “all we hold is that these particular facts go so far beyond the proper confines of an easement by estoppel that courts must find a trespass as a matter of law.” 

Dissenting Opinion 

Justice Bland filed a dissenting opinion in which Chief Justice Blacklock, Justice Lehrmann, and Justice Huddle joined. 

The dissent began with a review of the history surrounding rural electric cooperatives.  The opinion then recounted the evidence from the case including a video showing field planted only on either side of the line’s route and no farming or haying in the area under and around the line even prior to the upgrade.   

The dissent then reviewed the burdens of proof at issue in the case.  It was RGEC’s burden to prove an easement existed, which RGEC successfully did.  The burden for the trespass claim, however, was on Mr. Boerschig.  The jury found that Mr. Boerschig failed to carry this burden, answering the question of whether RGEC’s use of the property exceeded the scope of the easement with “no.”   

With regard to the scope of an easement by estoppel, the dissenting justices note that under common law, the “manner, frequency, and intensity of an easement’s use may change over time to accommodate technological development” so long as the changes fall within the purposes for which the easement was created.  The dissent said the majority ignored this approach and the scope of what is necessary to use land for a powerline, focusing instead on the existing poles and wires when the line was built.  The right to use land per an easement by estoppel includes ancillary rights such as the right to make necessary repairs.  The dissent offered an example of a line destroyed by a fire—would the majority declare the reliance terminated rather than allow for repair and replacement of the line? 

The dissent wrote that the facts regarding scope of use were disputed.  The jury found RGEC did not exceed the scope of its authority.   The majority took that decision away from the jury.  Further, the dissenters note, there are many “similarly imperfect easements that undergird rural Texas’s infrastructure.”  The dissenters voiced concern that by classifying every upgrade as a trespass, even if the face of a jury verdict to the contrary, the majority hands a “windfall” to landowners. Instead, the dissenting opinion would rule that the easement right acquired by RGEC must be accompanied by the right to make repairs and improvements along the route.  The jury is the proper body to determine whether such repairs or improvements are necessary to continue the use of the easement.  

Similarly, the dissent writes that when Mr. Boerschig purchased the property, he did so with actual knowledge of the line.  That knowledge, not merely that there were a certain number of poles and lines, but that the line route was operational and required maintaining and operating as a powerline route.  

In conclusion, the dissenters wrote: “Boerschig made his best case to a jury of his neighbors that Rio Grande’s power line upgrade—to include extra poles to improve the safety and reliability of electrical service—was outside the scope of Rio Grande’s easement.  His neighbors simply did not believe him.  The Court does.  It is not, however, our role to supplant the jury’s credibility determinations.” 

The post Texas Supreme Court Opinion Addresses Scope of Easement by Estoppel appeared first on Texas Agriculture Law.

Happy Monday!  We hope everyone is having a great summer.  While many folks are taking time off and vacation, that has not been the case for agricultural law news around the country.  Let’s look at some of the biggest stories for the month of June.

* United States Supreme Court issues ruling in Monsanto v. Durnell finding state law labeling claims pre-empted.  Last week, the United States Supreme Court issued its decision in Durnell v. Monsanto.  You read about this case previously here.  The Court ruled that Mr. Durnell’s state law failure to warn claims are preempted by federal law.  We had a complete blog post and a short summary of the decision here.

* New World Screwworm confirmed in Texas.  There have been several cases of New World Screwworm confirmed in Texas and one case in New Mexico.  We wrote a blog post and recorded a video discussing some of the legal and regulatory issues to keep in mind.  We also collected our main sources of trusted information in one link tree for you to easily access.

* United States Supreme Court approved settlement in long-running Texas v. New Mexico water case.  For over a decade, we have followed a lawsuit involving Texas’ claims that New Mexico was violating a compact to allocate waters of the Rio Grande.  You can read more background here.  This month, the United States Supreme Court approved a settlement in the case.  As part of the settlement, New Mexico farmers along the Rio Grande will have to cut groundwater usage.

*USDA issues guidance on new payment limitation and eligibility rules.  The USDA recently released guidance for implementing the payment limitation and eligibility provisions included in the One Big Beautiful Bill Act, including the significant changes to how qualified pass through entities like LLCs are treated.  Kristine Tidgren at Iowa State wrote a great article summarizing the new guidance.

 * Article on data centers.  I enjoyed this article by Cahil Murchison discussing data center development in Texas.  An important point he makes (and one I have been telling people on an almost daily basis) is that there are currently absolutely no Texas laws dealing specifically with data centers.

* Department of Homeland Security published guidance for dairy farms seeking H-2A labor.  DHS issued guidance for dairy producers clarifying that dairies can be eligible to hire temporary or seasonal labor under the H-2A visa program, even though dairy cows typically require milking and care year-round.  The application will be evaluated under the same criteria as other H-2A visa applications, and seasonal or temporary need must be described.

* The US Fish and Wildlife Service agrees to revoke listing for dunes sagebrush lizard.  The US Fish and Wildlife Service has agreed to revoke the Endangered Species Act listing of the dunes sagebrush lizard.  This settles a lawsuit that was brought by the State of Texas challenging the listing in 2024. This revocation and settlement must be approved by the federal judge in the case.  The Center for Biological Diversity has filed a request to intervene to oppose the USFWS plan to revoke the protections.

* Objections filed to Roundup Settlement. Earlier this month, a Missouri federal judge rejected attempts by settlement opponents to have the proposed settlement transferred to a California federal court. Instead, he ruled the case will remain in Missouri State Court.  That decision has been appealed to the United States Court of Appeals for the Eighth Circuit.

* Dairy checkoff challenged in court.  Three Wisconsin dairy farmers have filed suit against the USDA claiming that the dairy checkoff program is unconstitutional. The producers claim that their checkoff funds (15 cents/hundredweight of milk) are being used to support a private non-profit that has an ESG agenda. They claim being forced to support this ESG-based speech violates their First Amendment rights.

* Settling a farm estate is never simple.  Farm Progress recently published an article highlighting why settling farm estates is never simple.  He raised good points and offers some important considerations.

* The importance of written contracts.  Brent Dore recently published a great article discussing oral contracts under Texas law.  He outlines when oral contracts can be valid, the problems with them, and how best to protect yourself…get it in writing!

Upcoming Presentations

I have a number of upcoming speaking engagements.  You can see my full list here.

Additionally, for the lawyers in the crowd, registration is now live for our 2026 American Agricultural Law Symposium in Dallas, TX!  It will be a great event, and you do not want to miss it.  Join us November 5-7 at the Fairmont in Dallas.

The post June Monthly Round Up appeared first on Texas Agriculture Law.

The United States Supreme Court issued its decision in Monsanto v. Durnell, holding state law failure-to-warn claims were preempted by federal law.  [Read Opinion here.]  Justice Kavanaugh wrote the majority opinion.  Justice Thomas wrote a concurring opinion, and Justice Jackson authored a dissent in which Justice Gorsuch joined. 

Photo via Jonathan Cooper

Quick Summary 

I know some of you are not going to read the lengthy explanation included below.  Here is the quick summary of the decision: 

Mr. Durnell sued Monsanto in state court claiming failure-to-warn because Roundup does not contain a cancer warning.  Monsanto argued these claims were preempted by federal law. 

The Supreme Court decided in a 7-2 opinion written by Justice Kavanaugh that state law failure-to-warn claims are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  The Environmental Protection Agency (EPA) considers all of the potential health and environmental risks prior to approving a herbicide label. FIFRA includes a preemption provision prohibiting states from imposing any labeling requirements “different from or in addition to” those required by FIFRA.  Here, Mr. Durnell’s failure-to-warn claim would require a cancer warning that is not included on the label approved by the EPA under FIFRA.  The Court found this requirement to be in addition to or different from the FIFRA requirement, so the state law failure-to-warn claim was preempted by federal law. 

For a medium-length summary from SCOTUSblog, click here. 

Background 

Monsanto is a subsidiary of Bayer AG that manufactures and distributes Roundup, a glyphosate-based herbicide.  In 1974, the EPA first registered glyphosate-based herbicide products and approved Roundup’s label with no cancer warning.  The EPA has repeatedly re-evaluated glyphosate and has concluded it is unlikely to cause cancer.  

John Durnell filed suit in Missouri state court against Monsanto claiming after using Roundup for 20 years, he was diagnosed with non-Hodgkin’s lymphoma.  One of his specific legal claims was a state law claim for failure-to-warn in which he alleged Monsanto failed to include a cancer warning on Roundup’s label. 

In response, Monsanto argued his state law failure-to-warn claim was preempted by FIFRA.  Specifically, Monsanto explained that federal law requires it to use the EPA-approved label for Roundup, which does not include a cancer warning.  Mr. Durnell’s state law claim would impose a labeling requirement “in addition to or different from” the label required by the EPA under FIFRA and, therefore, FIFRA expressly preempts Mr. Durnell’s failure-to-warn claim. 

Lower Court Rulings 

At trial, the jury sided with Mr. Durnell on his failure-to-warn claim, rejecting Monsanto’s preemption argument.  They awarded Mr. Durnell $1 million in damages.  The Missouri Court of Appeals affirmed the verdict.  

Monsanto sought review from the United States Supreme Court on the issue of preemption of the state law failure-to-warn claim.  Federal courts of appeal and state courts have come to different conclusions on this issue, and the United States Supreme Court agreed to hear the case to resolve the circuit split on this question. 

Applicable Law 

FIFRA requires pesticides be registered with the EPA.  Before issuing a registration, the EPA conducts a review of the pesticide and its proposed label that manufacturers are required to submit with their registration application.  A proposed label must include any necessary warning statements.  

FIFRA mandates a label cannot be “misbranded.”  A “misbranded” label is one that contains any “false or misleading “ statement or that does not contain a “warning or caution statement which may be necessary and adequate to protect health and the environment.”   The statute defines “protect health and the environment” as protecting against “any unreasonable adverse effects on the environment” including “any unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and benefits of the use of any pesticide.”  

The EPA has issued regulations to carry out this mission, including regulations that specify the required content and label placement of precautionary statements like cancer warnings.  

In summary, before registering a pesticide, the EPA evaluates the pesticide and its proposed label, and must make a number of determinations, including the proposed label contains all warnings necessary and adequate to protect human health and the environment, and the label is not false or misleading. EPA approving a registration means the EPA believes the pesticide is not misbranded, it does not contain any false or misleading information, and it does not omit a necessary warning.  

Once a pesticide is registered and the label is approved, the EPA requires the manufacturer to use the approved label.  Changes to the label must be approved by the EPA.  Failure to use the approved label can result in criminal and civil penalties for the manufacturer. Even after the label is approved, manufacturers are required to inform the EPA about additional information related to adverse effects of their products, and the EPA may also request additional information from the manufacturer.  

Finally, FIFRA includes a preemption clause titled “Uniformity” that prohibits States from imposing “any requirements for labeling or packaging in addition to or different from those required under FIFRA.  

Supreme Court Opinion 

The United States Supreme Court reversed in a 7-2 decision authored by Justice Kavanaugh.  

State law claim is a labeling requirement. 

The Court noted the law makes clear and the parties agree state law tort duties constitute state labeling requirements.  Mr. Durnell’s failure-to-warn claim is based on a common law failure-to-warn claim, which qualifies as a labeling requirement because those rules set the standard for product labeling.   

The question, then, is whether the Missouri failure-to-warn claim, which would require a cancer warning on the Roundup label, imposes a labeling requirement that is “in addition to or different from” the requirements under FIFRA.  The Court said the answer was yes.  

FIFRA sets forth the pesticide labeling approval process.  A pesticide manufacturer must use the EPA-approved label or face potential criminal or civil fines. The EPA has repeatedly approved the Roundup label without a cancer warning.  The Missouri failure-to-warn claim would require a cancer warning be added to the label.  That requirement, the Court held, is “in addition to” and “different from” Monsanto’s federal-law labeling requirements.  

Precedent reinforces the Court’s conclusion. 

The Court cited Bates v. Dow Agrosciences LLC, which included an example of how FIFRA’s preemption clause operates.  If EPA required a “caution” designation on a label, and a state law failure-to-warn claim targeted the label for saying “caution” rather than “danger,” the state law claim would be preempted by FIFRA.  Bates distinguished the example from the claims in Bates, which were based on the product’s efficacy.  The EPA does not review efficacy claims as part of the registration process, but it does thoroughly review safety claims.  Thus, safety claims are preempted, while efficacy claims are not.   

In Durnell, the Court explained, safety claims are involved. The EPA’s registration determination reflects EPA’s judgment that the label is not false, misleading, and is not lacking necessary warnings.  Thus, any claims that would impose additional or different labeling requirements are preempted.  

The Court turned to Riegel v. Medtronic, a case involving the Medical Device Amendments (MDA), which function nearly identically to FIFRA’s preemption clause. Like the EPA is required to do under FIFRA, the MDA requires the FDA to consider safety requirements to approve devices.  Thus, state law claims based on safety-related concerns are preempted by the MDA. Allowing Mr. Durnell’s state law tort claim to overcome FIFRA preemption would impact more than just pesticides and herbicides but would impact the MDA and several other statutes containing nearly identical preemption language.   

The Court rejected Mr. Durnell’s arguments. 

Next, the Court rejected Mr. Durnell’s four arguments. 

First, Mr. Durnell argued the state law failure-to-warn claim, like FIFRA itself, simply requires manufacturers to include adequate warnings to protect human health and not to include false or misleading statements.  The Court held that argument “operates at far too high a level of generality and disregards the central and comprehensive role that EPA performs in making labeling determinations under FIFRA’s registration provisions.”   FIFRA expressly affords preemptive force to federal requirements imposed under FIFRA. These constitute “requirements” under federal law.  

Second, Mr. Durnell claimed that the EPA’s regulations and procedures for registering pesticide labels exceed its authority under FIFRA.  The Court said this was “incorrect” and noted FIFRA expressly directs the EPA to register pesticides and to determine if labeling complies with FIFRA’s requirements.  

Third, Mr. Durnell argued because the statute provides no registration shall be construed as a defense for the commission of any other offense under FIFRA, registration cannot serve as a defense to a state tort suit.  The Court said this argument would “effectively erase FIFRA’s express preemption clause.”  The text of this provision applies only to defenses for FIFRA violations, not state tort violations.  Further, Mr. Durnell’s reading of the regulations was incorrect.  The regulations required a manufacturer to use the EPA-approved label. Mr. Durnell said Monsanto should have unilaterally changed its label to include a cancer warning. The EPA does not bring misbranding actions when a manufacturer is using an approved label.  Instead, only if new safety information came to light, the EPA may gather additional information and take action if it were to find the current label misleading.  That did not happen here. Additionally, Monsanto was not relying merely on the fact that its product is registered as complete defense; instead, Monsanto was relying on the EPA’s determination that cancer warnings are not required for Roundup.  

Fourth, Mr. Durnell raised concern over new safety information that arises after the EPA has registered a label.  There is, the Court explained, a process for manufacturers to provide additional safety information, and they are required to do so.  Additionally, the EPA keeps abreast of new safety developments and is able to request additional information about a product. Additionally, third parties can bring this type of information to the EPA for consideration.  

Conclusion 

FIFRA demands uniformity and expressly preempts state labeling requirements that are “in addition to” or “different from” federal labeling requirements.  Mr. Durnell’s state law failure-to-warn claim would require a cancer warning on Roundup’s label.  This warning would be “in addition to” or different from” the label required by the EPA.  FIFRA expressly preempts Mr. Durnell’s claim.  The case was reversed and remanded.  

Concurring Opinion 

Justice Thomas wrote a concurring opinion.  He joined the Court’s opinion in full but wrote separately to address “some of the underlying constitutional infirmities” of FIFRA.  

First, he said FIFRA exceeds the commerce clause because, in his view, the Commerce Clause “does not allow Congress to regulate agriculture or manufacturing activities entirely separate from commerce.”  He pointed out FIFRA regulates not only manufacturers, but consumers as it addresses who may own and how they may use products that were purchased locally at a store down the street for use in his or her backyard.  He believes FIFRA is “unconstitutional in many applications.” 

Second, he said FIFRA “raises questions about Congress’ ability to delegate core legislative power to the EPA.”  Congress improperly delegated core legislative power to the EPA.  

Third, he wrote agency action cannot preempt state law as it is beyond the scope of the Supremacy Clause.  

Dissenting Opinion 

Justice Jackson authored a lengthy dissenting opinion, which was joined by Justice Gorsuch. 

Failure-to-warn claim is equivalent to FIFRA requirements 

Justice Jackson explained Mr. Durnell’s failure-to-warn claim is not “in addition to or different from” FIFRA’s mandates.  Instead, she said, it is “equivalent” to FIFRA’s key labeling requirement, the misbranding prohibition.  Further, she noted the state law claim does not conflict with any other FIFRA requirement because the EPA’s registration of a pesticide and approval of its label does not create a labeling requirement under FIFRA.  

The dissent explained FIFRA expressly limits States’ authority to regulate pesticide labels, but it does not eliminate that authority.  Instead, it preempts only those state requirements for labeling or packaging that are “in addition to or different from” the federal requirements. Thus, equivalent state law claims—or claims where a violation of the state law also constitutes a violation of FIFRA—are not preempted. 

The dissent reasoned the “requirements” under FIFRA’s misbranding provision and Missouri state law failure-to-warn claim are the same.  The EPA did not set specific requirements for label warnings related to chronic risks like cancer.  Absent federal law requirements, “a state law duty that imply parallels FIFRA’s misbranding prohibition is not preempted.”   

She offered three examples.  Assume a state mandated pesticides causing moderate skin irritation to bear the word “WARNING.”  That law would be preempted by FIFRA because the EPA regulations require labels for products causing moderate skin irritation to bear the word “CAUTION.”  That state labeling requirement is different from (and conflicts with) the EPA regulation. 

On the other hand, if a state seeks to hold a manufacturer liable for failing to label a pesticide with the same warning words  federal regulations require, the application of the state law would not be preempted because the state requires the same warning, not one that is different or in addition to the FIFRA requirements.  

Lastly, suppose a State wants to ensure pesticides are properly labeled and contain all necessary warnings to protect against unreasonable risk to humans and the environment.  The State either enacts a statue that makes manufacturers liable for failing to provide these necessary warnings, or it relies on the existing tort regime to reach the same result. Either way, the state law scheme “merely duplicates” FIFRA’s necessary and adequate warning requirements and is, therefore, not preempted.  

Based on this understanding, the dissenting justices believe “it is easy to see that Durnell’s failure-to-warn claim…does not trigger preemption under FIFRA.”  Missouri’s failure-to-warn law punishes the sale of unreasonably dangerous products like pesticides without adequate warning of the danger.  This has the same practical effect as FIFRA’s misbranding prohibition.  Mr. Durnell’s claim does not impose any labeling requirement in addition to or different from FIFRA.  The standards prescribed by federal and state law are equivalent. 

FIFRA’s misbranding provision remains a requirement.  

FIFRA provides registration of a herbicide is prima facie evidence its label complies with FIFRA requirements.  But prima facie evidence is not conclusive evidence.  Thus, when faced with a misbranding charge, registration is not a complete defense. Considering this, a pesticide may be registered but still misbranded.  The dissent explained it is the combination of the registration process and the misbranding prohibition that dictates the contents of the label.  

The dissent pointed to a situation in 1999 when the EPA approved a Roundup label that did not include any warning the product could leak.  The EPA determined, after the label was approved and the product was registered, that the product could leak or spray onto the user when used in accordance with the label.  The EPA imposed civil penalties on Monsanto for distributing or selling a misbranded product, even though they were using the approved label.  

FIFRA’s misbranding provision remains a requirement manufacturers must follow even after the EPA’s registration of a pesticide.  A state law failure-to-warn claim that imposes identical requirements as the misbranding provision is not preempted.  

The dissent also noted the misbranding provision makes clear that registration alone does not create a labeling requirement under FIFRA.  The product’s label must be both approved and not misbranded.  The focus, then, is not merely on the label as approved by the EPA, but on the label as required under FIFRA, which includes the misbranding requirement.  Thus, FIFRA’s misbranding provision applies to pesticides.  When a state-law requirement, such as a failure-to-warn claim parallels that misbranding requirement, the state law requirement can apply to the registered pesticide.  

Monsanto’s position cannot be squared with Bates and Riegel involved in a different statute. 

Next, the dissent explained Bates makes clear, contrary to Monsanto’s argument, that a registered pesticide can be misbranded.  Critically, Bates explained the difference between a registration decision for a particular pesticide and the statutory language and regulations that apply to misbranding standards.  The dissenting justices also read Bates distinction between claims of efficacy and claims of safety as irrelevant, essentially claiming it was dicta and not critical for the primary holding.  Riegel, the dissent explained, involves a completely different statute that has no misbranding provision like the one at issue in FIFRA. Additionally, Riegel did not involve parallel claims, such as the ones here.  

The dissent would reject the implied preemption claim as well. 

Although the majority did not address the implied preemption claim since it ruled the claim was expressly preempted, the dissent did consider and reject the implied preemption argument.  Monsanto can “easily comply with both federal and state law by stopping sales of Roundup.  Under FIFRA it is unlawful to sell a misbranded pesticide. Under Missouri failure-to-warn law, manufacturers have a duty not to sell products made unreasonably dangerous by inadequate warnings. Far from being incompatible, both federal and state law require Monsanto to stop selling its pesticide if the label lacks adequate warnings.”  Additionally, to keep marketing the product, Monsanto could simply add a cancer label.  To the extent it needs approval from the EPA to do so, which the dissent contests, it could simply submit an application for the amended registration.  

The post US Supreme Court: Failure-to-Warn Claims Preempted by FIFRA appeared first on Texas Agriculture Law.

This article was co-authored with Kara Matheney. 

With summer officially here, many folks are spending more time outside and on their land. Whether landowners are working cattle, fixing fence, hosting guests, or just enjoying time with family or friends, this time of year often brings a number of legal questions along with it. 

I have been getting quite a few similar questions over the last several weeks, so I thought it might be helpful to walk through a few common legal issues that tend to pop up this time of year and highlight a few things to keep in mind. 

Photo by Collin on Unsplash 

Trespass and Keeping People Off Property 

As the weather warms up, it is not uncommon for landowners to notice more people out and about. This might include hunters scouting for the fall, folks looking to fish or birdwatch or similar activity, or simply people wandering onto property without permission. 

Under Texas law, a person commits criminal trespass if they enter property without consent and have notice that entry is forbidden. That notice can come in several forms, including signs, fencing, or even the use of purple paint markings on posts or trees. 

One thing I am often asked is whether landowners should post signs or use purple paint. The short answer is that both methods have the same effect, but the key is to make sure that markings comply with statutory requirements and are visible.  We have a blog post describing this in detail here. 

If keeping people out is a concern, now is a good time to review this law and get notice posted. 

Fence Law  

Summer also tends to be a busy time for fence repair and installation. With that comes questions about who is responsible for building or maintaining a fence. 

For those folks spending the summer building fences, it is critical for landowners to confirm property lines prior to putting in the time, effort, and expense of building a fence.  With regard to costs of fencing, in Texas, there is generally no law requiring a neighboring landowner to share in the cost of building a fence on a boundary line unless the neighbor agrees to do so.  

Another common issue related to fencing is escaped livestock. Texas operates under a mix of open-range and closed-range laws, depending on the county and the type of roadway at issue. In open-range areas, the burden is typically on the landowner to fence animals out, meaning there is no obligation for a livestock owner to fence his or her animals. In closed-range areas, the livestock owner must fence animals in and may be liable for damage caused if they escape under certain circumstances.  These questions often depend heavily on local law and specific facts, so it is important to understand how the county where the land is located is classified.   

To learn more about Texas fence law, click here. 

Agritourism and Hosting Guests 

Summer is also a popular time for hosting guests on rural land. This might include hunting leases, day hunts, youth programs, or other recreational activities. 

Texas law does offer certain liability protections to landowners who open their property for agritourism or recreational uses, but those protections are not automatic. For example, the Texas Agritourism Act provides limited liability in certain circumstances if specific warning signs are posted or written agreements are obtained from participants.  Similarly, the Texas Recreational Use Statute and the Texas Farm Animal Liability Act are protections of which all landowners need to be aware to ensure compliance.   

Additionally, having adequate liability insurance is critical for all property owners in Texas.  Take the time to review the coverage for any land and ensure all activities you have going on are covered. 

Final Thoughts 

Summer on the farm or ranch is a busy and enjoyable time, but it is also a good opportunity to take a step back and think through some of these legal considerations. 

A few simple steps can go a long way: 

• Check your fences and boundary markings 

• Make sure your signage is up to date 

• Determine the open-range or closed-range status of your property 

• Review any agreements with guests or leaseholders 

• Stay aware of local rules that may affect your operation 

• Review your liability insurance policy 

These are the types of issues that may not seem urgent until they are. Taking a little time now can help avoid bigger headaches down the road. 

We also have a great handbook, Owning Your Piece of Texas: Key Laws Texas Landowners Need to Know, that discusses these issues and more that Texas landowners need to consider. 

 If you have questions about any of these topics, feel free to reach out to your local Extension office or contact me. I always appreciate hearing what issues folks are dealing with on the ground. 

The post Summer on the Farm or Ranch: Legal Issues to Keep in Mind appeared first on Texas Agriculture Law.