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Court fight over Ag Security Act is over

By: Sean Ellis
Published in Blog on  November 30, 2018

By Sean Ellis

Idaho Farm Bureau Federation

BOISE – The four-year court battle over the Idaho Agricultural Security Act, known as the “ag-gag” law by opponents, is basically over and will not head to the U.S. Supreme Court. 

The only issue yet to be fully ruled on in the case is the fight over attorney’s fees, Boise attorney David Claiborne told a couple hundred people Nov. 28 during the Idaho-Eastern Oregon Seed Association’s annual meeting. 

Claiborne helped defend the law on behalf of the state’s farming industry during the court fight.

Four of the law’s five provisions were upheld by the 9thCircuit Court of Appeals last January, although the court did strike the law’s ban on secret video or audio recordings of agricultural production facilities.

Claiborne said the court ruled that provision was an infringement on free speech because the facility’s owners would be choosing one type of speech over another.

“We argued that shouldn’t apply to private property, but the court avoided that issue,” he said.

However, the appeals court did uphold a provision of the law that makes it a crime to obtain employment with an ag facility through misrepresentation or threats with the intent to cause economic or other injury to the facility’s operations, livestock, crops, owners, equipment, buildings, premises, business interests or customers. 

Someone convicted of that crime could face up to one year in jail and be held liable to pay restitution to the victim in an amount equal to twice the damages they caused.

The appeals court upheld four of the law’s five provisions, including one that makes it a crime to obtain records of an ag facility through force, threat, misrepresentation or trespass.

Although the prohibition on secretly making video or audio recordings of an ag facility’s operations was struck, “The remainder of the law survives and provides some important protections for your industry,” Claiborne said. 

Former Rep. Gayle Batt, a Republican from Homedale, who carried the bill in the House, said the law’s supporters are thrilled with the success of the case.

Though the ban on secret recordings got all the headlines, “There was a lot more to the legislation than the media gave us credit for,” she said. “This was about all of agriculture and being able to protect them as employers and their private property rights.”

“We were able to maintain a large portion of that legislation,” Batt said. “We tried to articulate so many times that the legislation was more than just videotaping.”

The bill was crafted by the state’s dairy industry after an undercover animal activist in 2012 secretly obtained video footage that showed cows being abused at a dairy near Twin Falls. 

Footage from the video was turned into commercials and posted on the internet. Dairy industry officials claimed animal rights groups tried to use the footage to unfairly damage the dairy’s interests and put it out of business.

Five people involved in the abuse were immediately fired by the dairy’s owner when he was informed of it and he made all 500 of his employees watch the video and sign a zero-tolerance statement against animal abuse. He also installed cameras around the installation to prevent further abuse.

The Twin Falls prosecuting attorney’s office said there is no evidence that the dairy’s owner or management had any knowledge or involvement in the incident.

A large swath of Idaho’s farming and ranching industry supported the bill, which passed the Idaho Legislature in 2014 by a combined vote of 79-24.

The law was defended in court by the Idaho attorney general’s office.

During the court battle, friend of the court briefs in support of the law were filed by Idaho Dairymen’s Association, Food Producers of Idaho and Idaho Farm Bureau Federation. 

“This legislation was not just about the dairy industry,” Batt said. “This was about agriculture across the board.”

After being signed into law by Gov. Butch Otter in February 2014, it was immediately challenged in court by Animal Legal Defense Fund and a coalition of animal rights groups, media interest and labor organizations. 

U.S. District Judge Lynn Winmill found the law unconstitutional in an August 2015 ruling and threw it out. 

That ruling was appealed to the 9thCircuit by the Idaho attorney general’s office and that court, in a January 2018 ruling, reinstated four of the law’s five provisions. 

The law’s opponents filed a motion for declaratory judgement after that ruling, sending it back to Winmill.

They argued the provision that makes it a crime to use misrepresentation to gain employment on an ag facility should not apply to investigative journalists that seek to reveal animal abuse or other wrongdoing at ag facilities.

Winmill denied that motion for declaratory judgement in May.

Claiborne said the case will not be appealed to the U.S. Supreme Court.

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