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Silage vs. Curtilage: More on the EPA's Flyover Controversy

Todd Janzen   By Todd J. Janzen, Partner, Plews Shadley Racher & Braun LLP

The web has been abuzz the last few weeks with articles and editorials about the Environmental Protection Agency's (EPA) use of aerial flyovers to look for violations of the Clean Water Act on Nebraska and Iowa feedlots. The issue exploded online when someone described the EPA's actions as using "military drones" to spy on farmers. Even Fox News and The Daily Show picked up on this story. (Both incorrectly reporting, as far as I am aware, since no drones are used by EPA, just a Cessna and a really good camera). I too, have been in the middle of this discussion, thanks to a couple of popular blog posts and a trip last week to speak to the Nebraska Cattlemen on environmental issues and property rights.

There have been a number of analogies used to justify the EPA's use of aerial surveillance. For example, the DEA or state police fly over rural areas looking for illegal marijuana fields; state police routinely use airplanes to clock highway speeders; and the USDA uses of aerial photography to measure field sizes to insure compliance with farm programs. Isn't the EPA's aerial investigation the same thing?

Not exactly. It depends on what the EPA is photographing. In Dow Chemical Co. v. U.S., Dow challenged the EPA's authority to conduct aerial surveillance under the Clean Air Act of one of its factories, after it learned that the EPA had flown over at 1200 feet to photograph interior portions of the plant. The US Supreme Court held that the use of aerial photography was within EPA's statutory authority, because the Clean Air Act provided that the EPA has a "right of entry to, upon, or through any premises." In addition, the Court held that the EPA needs no explicit statutory provision to employ methods of observation commonly available to the public.

The test of whether aerial surveillance goes too far and violates one's right to privacy under the Fourth Amendment is two-fold: First, a person must have exhibited an actual (subjective) expectation of privacy in the property searched; and second, the expectation must be one that society recognizes as "reasonable." Katz v. U.S., 389 U.S. 347, 361 (1967). If both elements are present, the government can still search the premises, but it must first obtain a warrant. (I have not read anywhere that the EPA obtains warrants before conducting aerial flyovers).

In deciding the Dow case, the Supreme Court distinguished searches between the "curtilage" of one's home and the "open fields" nearby. "Curtilage" is the "area immediately surrounding a private house." People have a reasonable expectation of privacy in their home and its curtilage. On the contrary, the Fourth Amendment does not protect the privacy of individuals in areas "out of doors in fields, except in the area immediately surrounding the home." The Court ultimately found that the Dow factory was an industrial complex, more like an open field than the curtilage of one's private residence. The EPA's aerial surveillance was constitutionally allowed.

This does not mean that our courts would approve of the EPA's use of similar aerial surveillance tactics against Midwestern farms. These farms often include both feedlots and residential homes on the same property.* In other words, it is difficult to photograph the open field without also photographing the curtilage of the farmer's home. That makes this situation different than Dow. It also makes the EPA's flyovers different than police flyovers looking for marijuana in remote fields, or the police's clocking of speeders using airplanes above public highways, or the USDA's photographing of unpopulated farm fields.

There is a difference between silage and curtilage.

Special thanks to Ryan Leagre for his research on this project.

*I have not seen any of the photos taken by EPA to determine whether curtilage was photographed along with manure lagoons, silage piles, feedlots, etc.

Todd J. Janzen, a partner at Plews Shadley Racher & Braun LLP, represents buyers and sellers of commercial and industrial properties and other business assets in transactional, regulatory compliance and business litigation matters.  Todd also assists landowners with cost recovery and environmental clean up efforts.  He has a vibrant agricultural law practice and is a founding member and past chair of the Indiana State Bar Association's Agricultural Law Section. Todd serves as the General Counsel to the Indiana Professional Dairy Producers, an organization representing more than 200 dairy farmers in Indiana, and is a frequent author and speaker on agricultural law and commercial real estate topics.

Read more at Janzen Ag Law Blog by Todd Janzen.

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