17 groups call law unconstitutional-

It’s still hard to figure out why this sweeping bill criminalizing almost all public oversight of agriculture swept the Idaho legislature. At any rate, 17 plaintiffs are taking it on, perhaps because Idaho’s new ag gag statute is such a fat target (update, see their brief at the bottom)

The full list of the plaintiffs suing is  ALDF, PETA, ACLU, CFS, Farm Sanctuary, Farm Forward, Idaho Concerned Area Residents for the Environment (ICARE), Idaho Hispanic Caucus Institute for Research and Education (IHCIRE), River’s Wish Sanctuary, Sandpoint Vegetarians, Western Watersheds Project, journalist Will Potter, undercover investigations consultant Daniel Hauff, investigator Monte Hickman, Professor James McWilliams, investigative journalist Blair Koch, and the political journal CounterPunch.

Most of the media criticism of the law focused on what might become hidden behind closed doors at industrial farms, but not on the law criminalizing investigation by photography or audio of any aspect of Idaho agriculture from  apples to apricots, bees to beef.  Having a personal interest in landscape photography, I especially feared the bill because I could easily picture harassment when driving country roads between agricultural fields — the classic southern sheriff scenario transported northwestward. I’d get out of my vehicle to take a scenic of farm fields and clouds, the deputy sheriff drives up, “Are you taking pictures of cows or crop spraying?” Things go down from there.

One thing about the Idaho Legislature this session, they are not shy of overreach. Introduced was probably the worst religious freedom to discriminate bill in the country. Of course readers will recognize the bill to create a state agency to kill wolves. There is a bill nullifying all EPA regulations in Idaho because the EPA tried to regulate recreational dredge mining.  Here’s the story on dredging from a right-wing web site.  There was also the guns for campus bill, now signed into law.  Still being considered is a bill to let businesses build whatever they want without regard to other buildings or the neighborhood.

While Idaho’s media were slow to pick up on the ag gag bill, near the end they did. National media certainly caught it. Even Al Jazerra did a story. Here’s a “wire service” story today in Reuters about the lawsuit.  ACLU cites free speech in suit against Idaho’s ‘ag gag’ law. By Laura Zuckerman. Reuters.

– – – – –

Added on March 21, 2014

Here is the actual complaint filed by the plaintiffs against Butch Otter and Lawrence Wadsden, Idaho’s A.G.  Ag Gag Complaint.  They allege numerous violations of the First and Fourteenth Amendments to the U.S. Constitution and violation of several federal laws.

– – – – –

This week Idaho State Senator Jim Rice, R-Caldwell told the media that the video of  “animal abuse”  at Bettencourt Dairy (which started the controversy and the law) had been staged.  One of the plaintiffs, Mercy for Animals served him with a cease and desist lawsuit (from spreading falsehoods) before he was about to go on KIVI-TV news. Boise Weekly, which has done some of the best detailed reported about the bill, now law, reports. KIVI: Idaho Senator Served With Cease And Desist After ‘Ag-Gag’ Comments. By Harrison Berry.

Tagged with:
 
avatar
About The Author

Ralph Maughan

Dr. Ralph Maughan is professor emeritus of political science at Idaho State University with specialties in natural resource politics, public opinion, interest groups, political parties, voting and elections. Aside from academic publications, he is author or co-author of three hiking/backpacking guides.

45 Responses to Large suit to strike down Idaho’s new “ag gag” law (brief added)

  1. avatar Nancy says:

    Many thanks to all the plaintiffs!

  2. avatar Jim Wiegand says:

    There is something else that takes place on Ag land, The slaughter of eagles and other rare species with wind turbines. Thanks in part to gag orders written into contracts and the industry’s rigged or fraudulent mortality studies, over 90% of the species being slaughtered by wind turbines goes unreported. Your taxes and higher rates are paying these people handsomely for this destruction.

  3. avatar Jim Wiegand says:

    Goodhue County MN, defeated the wind industry and saved their eagles because they were going to make the developers and leaseholders accountable for their wind turbine slaughter that would have taken place on FARM LAND.

    They were unified and had a “take-no-prisoners” attitude about wind farm accountability. They knew this industry was full of con men and were not going to rely on the industry’s rigged studies.

    Part of their strategy was that they were going “use cameras” to monitor these turbines 24 hours a day. The eagles and other raptors killed would have been recorded and the culling of carcasses from the industry’s rigged studies would have been observed.

    • avatar Yvette says:

      What is your point and what does wind turbines killing eagles have to do with videoing low income, and often, undocumented workers (illegals being taken advantage of by big-ag???) abusing factory animals that live their entire lives on a factory farm line?

      How many dairy cows have to get sexually abused, have their calves yanked from them right after birth and those calves, dragged, kicked, dropped, hit, kicked and killed; or maybe, they get shipped to the dark crates to produce veal, before people that support agriculture grow the cajones to actually stand up and say they don’t want cows sexually abused, or pigs living in gestational crates their entire lives?

      BTW, on that rant about eagles: Do you have the numbers on how many are killed by lead poisoning?

      • avatar Elk375 says:

        “o you have the numbers on how many are killed by lead poisoning?”

        Ask $3 he is an expert on lead poisoning.

      • avatar B. Gutierrez says:

        I think the point is that cameras were used to document birds being killed and that would be illegal under ag gag bills.

  4. avatar Louise Kane says:

    “I’d get out of my vehicle to take a scenic of farm fields and clouds, the deputy sheriff drives up, “Are you taking pictures of cows or crop spraying?” Things go down from there.”

    It would almost be funny …if it was not so true. My dad used to joke, its never so bad it can’t get worse. In Idaho this seems to be true.

  5. avatar LM says:

    Idaho seems to attract alot of (negative) attention. I hope Wy, UT, & CO are paying attention to this. What will happen in this election year with all of the lawsuits and controversy over animal welfare & wildlife management ? I know elections only change the players, but what would it take for Idaho to have a game changer ?

    • avatar WM says:

      How many wolves are in CO, and how many do you see CO, through its duly elected/appointed government official channels, formally requesting in the future?

      Ag-gag laws have been in focus there as well, though probably not as aggressive as this ID one. And even livestock consultant, CSU professor, Dr. Temple Grandin has something to say about them, here:

      https://www.commondreams.org/view/2014/03/04-6

  6. avatar Kathleen says:

    There are now seven ag-gag states: The first three (early 1990s): KS, ND, & MT. The next three: MO, UT, & IA (2012); the last, ID (2014). Both AZ & IN have bills pending in their 2014 legislatures.

    Last year, legislation was defeated in 11 states: AR, CA, IN, NE, NH, NM, NC, PA, TN, VT, & WY.

  7. avatar LM says:

    Somewhat off-topic but worth posting.

    Conservation: Report highlights 10 bills that have “languished” in Congress

    http://www.eenews.net/greenwire/2014/03/20/stories/1059996459

  8. avatar Ralph Maughan says:

    Today 3-21, I added the actual complaint of the case against Idaho’s new ag gag law.

    They assert that the law violates the First Amendment of the Constitution in a number of ways, the 14th Amendment, and Article VI of the Constitution (national supremacy) and several federal laws.

    • avatar IDhiker says:

      Reading the comments in the suit by Idaho legislators is simply amazing, rather disgusting and revolting. That people actually think like this is known to us all, but to read it in black and white is distressing.

      “Terrorists?” Somehow these people have confused compassion and empathy with evil, rather than the other way around.

      Legislatures have often passed measures that have been overturned. Passage does not mean legitimacy. My guess is that this one will be consigned into the, “dustbin of history.”

      Idaho continues to embarrass itself. That’s what apparently happens when one party totally controls the government. Imagine if similar thinking Republicans controlled the Federal government and presidency.

  9. avatar Theo Chu says:

    Hmmmm. This would lead one to wonder if maybe they have something to hide.

  10. avatar Alma Hasse says:

    Ralph,

    There is another aspect of this bill (now law) that you never hear anything about.

    Here in Idaho, all of the current exploration for natural gas (and now oil in Canyon County) is occurring on ag ground.

    What if I happen to be visiting the Birding Island North Wildlife Management Area when I spot a tanker truck backed up to the Payette River on private property not far from where I’m at on public property.

    I grab my digital camera and video camera and decide to investigate/document what they’re doing (they could be illegally drawing water from the river, or dumping their highly toxic, radioactive wastewater into the river.

    Under this law, my action would now be a punishable offense.

    I should also add that my organization– I.C.A.R.E.– is one of the plaintiffs in this lawsuit for the above reason, and many, many more.

    As a side note, the exploration and production of fossil fuels here in Idaho is quickly ramping up. If you’d like an update and everything that’s happening, just let me know and I’d be happy to fill you in!

    Alma

  11. avatar CodyCoyote says:

    Might I ask how ” Ag Gag” pertains to US Forest Service lands, since they are administered by an agency of the US Department of Agriculture.? Can we stretch it that far ? How can Ag Gag be legally applied to public lands where agriculture is implemented?

    I’m clueless…my state of Wyoming shot down Ag Gag last time around. But back in the 90’s we had a state Senate president named Frank Philp from Shoshoni who was a big sheep rancher. His pet legislation was to make it a serious crime to ” disparage agriculture” in any way. I of course called ‘Bullsh_t’ on that , in utter disparagement, inviting prosecution thereof. ( Would not the uttering of that time honored expletive be a disparagement of agriculture in all cases ? Sounds like it…)

    The Philp disparagement bill never made it to the floor. It had been drummed up as a direct legislative backlash to a University of Wyoming professor named Debra Donohue who wrote a noteworthy exposé nonfiction book about the shenanigans of public lands grazing. She got severely chastized coming and going for daring to say anything negative , even if truthful, about Ag in Wyoming. Welcome to 1890. Sounds like we’re still there.

    • avatar Alma Hasse says:

      Cody,

      The Idaho ag-gag law ABSOLUTELY would cover “agricultural operations” on both state AND federal owned lands. So if you or I were out hiking ON PUBLIC LAND, and saw Senator Siddoway (sheep rancher who leases federal land for pennies on the dollar to graze his sheep) or one of his employees, abusing their sheep, or over-grazing, or dumping illegal stuff into the nearby creek, and we began filming– that act, EVEN THOUGH WE WERE ON PUBLIC LANDS would be prosecutable under Idaho’s newly-minted ag gag law! That’s how over-reaching this law is.

      Hope this helps!

      Alma

      • avatar WM says:

        Alma,

        Can you point out which provisions of the law fit together to create a violation of the law (filming on or from public property which you otherwise have a right to occupy) to be a prosecutable offense?

        I am having difficulty reaching the same conclusion you do.

        • avatar Nancy says:

          Seems to be a few hits on that WM:

          https://www.google.com/search?hl=en&source=hp&biw=&bih=&q=ag+gag+bill+extends+to+public+lands%3F&gbv=2&oq=ag+gag+bill+extends+to+public+lands%3F&gs_l=heirloom-hp.12…1602.18417.0.20640.36.9.0.27.0.0.281.1963.0j1j7.8.0….0…1ac.1.34.heirloom-hp..30.6.1563.aiiY1oXUKPA

        • avatar WM says:

          Nancy,

          Now wait a minute before you draw a conclusion.

          This is a really crappy law, with some potential legal issues for sure, but I don’t see that it covers an instance of someone (but maybe not an employee of the offending agricultural production facility) being LAWFULLY on public land, and filming anything on that land that is also public, or filming anything on adjacent land public or private land, as being a prosecutable offense. Examples are the ones Alma gives above.

          On the other hand, if someone edits such information gained lawfully, in an untruthful way or false light, through narrative or setting something up to defame or otherwise injure an agricultural producer, there would be a problem.

          I DO SEE a lot of news media taking information, incorrect as it might be, from previous incorrect sources and republishing it. Your Google search proves that. Anything you read on the internet is truthful, right, especially my favorite, Huffingtonpost?

          That is why I asked the question of Alma to see if she really knows for sure, and why.

          This confusion may also apply to Ralph on his lead story (he doesn’t say what kind of “country road” in his example, above, and if it is a private road, maybe there is a problem, but if it is a public road on which he has legal right to travel, I don’t see a violation of the law.

          Please state how one reads the law in a way that results in a violation for Alma’s (or Ralph’s) scenario, with specific reference to applicable provisions (The text of the law is in the link to the Complaint, at the bottom of pages 5 and 6). Any takers?

          • avatar Nancy says:

            (b) “Agricultural production facility” means any structure or land,
            16 whether privately or publicly owned, leased or operated, that is being
            17 used for agricultural production.

            http://www.legislature.idaho.gov/legislation/2014/S1337.pdf

            • avatar WM says:

              So, then what? Don’t you have to be doing some prohibited act under the statute for the definition to apply?

              • avatar Alma Hasse says:

                Nancy, thanks for answering Cody’s question for me!

                Cody, I would also encourage you to read the brief that Ralph was kind enough to link to above) and I believe it will answer any other questions you may have.

                This ridiculous law will be overturned and Idaho taxpayers will be the ones footing the legal bill (as is usually the case).

                Let’s be honest here. This bill was designed to silence individuals/organizations (such as mine)who document suspect agricultural activities.

                The intended (I believe anyway) consequences are that no one can speak out against or document what very well may be illegal activities without fear of being prosecuted.

                Here’s some additional food for thought. Let’s take worker safety issues. This law makes it illegal for legally hired employees (which, by the way, was the case of the employee who video-taped for Mercy For Animals in the Bettencourt Dairy case of animal abuse) to document illegal activities that they see.

                If I am hired by a factory farm and I see obvious worker safety issues and take video to document those safety issues, I am in violation of this law!

                This is why the AFL/CIO and Idaho Building Trades Council have both requested that the court allow them to file Amicus Briefs in support of our lawsuit. http://www.kmvt.com/news/latest/250987441.html

                Bottom line, this is a terrible law, put in place to protect a few bad actors, that does so at the expense of most of Idaho’s good producers!

                My two cents. Alma

              • avatar WM says:

                Alma,

                You mistake me for Cody, however our question is generally the same).

                I may agree with you on other points of this law, but not the examples you give above.

                And, the document is not a “Brief.” It is a “Complaint” generally outlining the claims of the plaintiffs that they want the Court to hear. There has been no briefing done yet. That comes later in the litigation process.

                Again, let me ask you how you reached the legal conclusion that a citizen taking pictures/videos on public lands (which they are not otherwise excluded from) can be in violation of this law?

                Forgive the candor here, but I think you just don’t know what you are talking about.

              • avatar JB says:

                The only provision I can see that would be cause for alarm is:

                ” (e) Intentionally causes physical damage or injury to the agricultural production facility’s operations, livestock, crops, personnel, equipment, buildings or premises.”

                As far as I can tell “injury” here is not defined. The typical legal definition of “injury” includes “damages to reputation”. So if I’m reading this correctly, if someone were to vidoetape livestock production on public land with the intent of damaging the producers reputation, then they would be in violation of the law?

                If I’m reading this correctly, that provision would seem to conflict with the Constitution’s protection of free speech?

            • avatar WM says:

              JB,

              For the sake of discussion,I will take the other side of that argument and say injury refers ONLY to “physical” injury, to the physical items of the facility’s operation which are listed, and only to those listed items (reputation and “non-bodily or other personal injury or advertising” injury are not among them, and there are civil defamation laws to deal with those alleged injuries).

              Furthermore, the statute should be construed against the drafter for ambiguity. If it meant injury other than physical injury to those items it would so state.

              I am not sure there is any provision in the statute that prevents a person lawfully on public land from taking pictures of whatever type, even if the land and the cattle on it is under a public grazing lease, or if a photographic image is taken from public land, of private activity on private land.

              As a visitor to federal, state or other public land which is not “exclusively” leased to somebody to the point of EXCLUDING you, you have a right to be there and to exercise your First Amendment freedoms to take photographs of what you see.

              But the law has so many other problem areas.

          • avatar Yvette says:

            Come on, WM. This has already happened in Utah when Amy Meyer, standing on a >b<public street corner filmed an even at a slaughterhouse. She was arrested and charged based on Utah’s new ag-gag law even though the charges were quickly dropped.

            This gets far too close to a totalitarian/fascist type state. How can anyone, that claims to be American, and stand for the supposed ‘freedoms’ this country was built upon even hint at defending these bills?

            • avatar WM says:

              Yvette,

              ++How can anyone, that claims to be American, and stand for the supposed ‘freedoms’ this country was built upon…++

              I would suggest there is a fair amount of middle ground that neither side wants to explore. Do also consider that what advocates are doing as private citizens in their investigative efforts approaches other Constitutional freedoms – illegal searches and seizures. Some advocates are advancing information gathering techniques (theft of documents, employment under false pretenses, covert recording), which, if law enforcement did it, would require a search warrant signed by a judge.

              It is a complicated area that affects lots of interests.

              The law is also a deterrent from industrial espionage, where somebody comes on to your property for the purpose of obtaining proprietary information that may aid competitors in that business. There are, of course, other laws on the books in most states to address this. It is just one more layer of protection, which goes too far.

              As for your example of some person filming – she was arrested then charges were dropped – OK, so she wasn’t violating the law. Sometimes law enforcement doesn’t always initially understand what they are to enforce. I wasn’t aware of this event in UT, by the way. Here is a pretty good summary of it, but do note that witnesses said she was trespassing on the private property which gives another basis for the arrest:

              http://www.thenation.com/article/175506/charged-crime-filming-slaughterhouse

              I said I didn’t support this law. It simply goes too far. That does not mean, however, that some parts are not needed to protect businesses and individuals from some of our other protected rights and freedoms. The fact that the subject area involves how we as society treat livestock, what we put in our bodies for food, health and safety in the workplace, the ability to report environmental violations, and even use and treatment of illegal workers makes it all the more difficult to find the proper balance point. The law, as written, has what is called a savings clause, so there is a possibility court action will result in the bad stuff being taken out, while some residual remains.

              ____________
              Mark L.,

              Drones over private property may be trespassing, and if one has image or sound recording devices on board, it would seem to fit the crime “of interference with agricultural production.”

              • avatar Mark L says:

                So, taking this one step farther…
                How would using google earth, or other satellite images to prove a case work? At what point is the photographer no longer ‘on property’? And if using common airspace for a drone is a violation, I can see other implications for the state.

              • avatar WM says:

                Mark L.,

                Thinking out loud here, it seems that Google Earth imagery is supplied largely by the government (satellites, USDA-NRCS, NOAA, etc.) and is already in the public domain. It is certainly not real-time and some imagery gets replaced only every several years. YOU didn’t take the images, by the way.

                Seems to me some wealthy 1%er a couple years ago got nailed with some unapproved dock work and seabed dredging next to his seaside mansion, comparing Google Earth images as they changed over a couple years.

                Regarding taking images from a place that is legal under the law, for example, if one climbs on the top of a car, roof of a building, or uses a ladder, a balloon on a tether, or a drone that does not invade or violate the vertical plane extending upward from the private property boundary being imaged, that would not seem to violate this law.

                Laws governing use of drones/hovercraft is a new area, and not without its problems, so there might be other laws now or in the future that might apply.

                And, the number of products with greater range and increased payload just keep popping up. Here is one that seems quite sophisticated for reasonable cost, and can stay in the air for up to 25 minutes, with over a 1/2 mile line of sight range (This manufacturer even offers a copter that is compatible with GOPRO cameras, which some people already have):

                http://www.bhphotovideo.com/bnh/controller/home?O=&sku=999838&gclid=CPPc54zurb0CFa1j7AodNWEACw&Q=&is=REG&A=details

              • avatar Mark L says:

                So if images/film are taken from a ‘government commons’ they would not be opposed. Hmm. What if the photographer put the images into a commons? Or they were taken from an aircraft in FAA airspace? Even odder, law enforcement use of dash cameras on a private residence in Idaho? Wow, interesting legal issues from this law.

              • avatar WM says:

                You might find this interesting. There are limits as to how – low or high – those vertical property rights might extend before being considered a trespass, nuisance, or a taking if the government does it. The Congressional Research Service has a very recent position paper on just where the FAA might be headed with regulation of drones in the future – recreational drone flyers- being a separate category, following Congress’ enabling legislation on regulation of UAV’s or drones in 2012.

                Interesting USSC decision penned by Justice Douglas in 1946, United States v. Causby, which sets the tone.

                http://www.fas.org/sgp/crs/natsec/R42940.pdf

            • avatar WM says:

              More news on drones per topher’s news article.

              Here is the statute referred to there – a law passed by the ID Legislature last year – generally a warrant required to gather information by drone (unmanned aircraft), and no use of drones to obtain information on agriculture (and persons/other activities) unless consent is given:

              http://legislature.idaho.gov/legislation/2013/S1067.pdf#xml=http://http://legislature.search.idaho.gov/isysquery/9dd21e45-2826-45e3-bebc-7141f767420b/1/hilite/

              ++ 2-21-214
              (2)No person, entity or state agency shall use a drone or other un-manned aircraft to conduct surveillance of any individual, property owned by an individual, farm or agricultural industry without the consent of that individual, property owner, farm or agricultural industry….”

              Guess it doesn’t matter on whose property the drone is flying when gathering information, it is apparently in violation of the statute.

              Looks like this is a companion statute to the ag-gag law. They are certainly compatible in approach and intent.

    • avatar LM says:

      Whatever happened to Debra Donohue ?

Calendar

March 2014
S M T W T F S
« Feb   Apr »
 1
2345678
9101112131415
16171819202122
23242526272829
3031  

Quote

‎"At some point we must draw a line across the ground of our home and our being, drive a spear into the land and say to the bulldozers, earthmovers, government and corporations, “thus far and no further.” If we do not, we shall later feel, instead of pride, the regret of Thoreau, that good but overly-bookish man, who wrote, near the end of his life, “If I repent of anything it is likely to be my good behaviour."

~ Edward Abbey

%d bloggers like this: