NMCGA Presidents Letter

by José Varela López

Dear Fellow Members and Industry Supporters,

I’d like to start off where I closed last month’s article. As you’ll recall, we had just learned that the New Mexico Court of Appeals had rendered a decision that the Workers’ Compensation Act which excluded farm and ranch laborers from mandatory coverage was unconstitutional and also allowed claims to be filed retroactively back to 2012 when coverage was not even contemplated under state statute.

Since then we have learned that the Workers’ Compensation Administration is of the opinion that the Court of Appeals decision became effective at the time the order was signed. Therefore it is their contention that all agricultural entities who meet the three-person threshold under the Act are required to have workers’ compensation insurance in place already. At this point in time it is unknown whether having friends or neighbors help out with gathering or branding cattle requires you to be covered, but I think it’s important for everyone to speak with their insurance agent to ensure that you are not putting your business at risk.

Meanwhile, a Writ of Certiorari asking the New Mexico Supreme Court to review the Court of Appeals ruling has been filed by the agriculture defendants in the case. We will know within a month whether the Supreme Court accepts the case or not. Should they take the case, all of agriculture will need to come together to file an amicus brief.

Should they not take the case we as an industry will make information available to our members about strategies and insurance products that should help attenuate the additional costs that will come to bear. We are already researching a number of different options that should decrease the uncertainty surrounding this mandate.

Another litigation effort that is underway deals with the newly published Waters of the U.S. (WOTUS) Rule promulgated by the Environmental Protection Agency (EPA) and Army Corps of Engineers. The initial lawsuits were filed in various U.S. Federal Courts around the country the afternoon of June 29th, the same day the Rule was printed in the Federal Register. Over twenty states filed suit that day with several other states filing a few days later. A number of industry groups from the Western U.S. who represent private property owners, including NMCGA, also joined the litigation over the vast expansion of the Clean Water Act which brings virtually every arroyo, acequia, pond or puddle under the jurisdiction of the EPA. Apart from the unfathomable power grab and private property infringement it appears that the EPA was heavily involved in soliciting massive amounts of pro-WOTUS comments by reaching out to green groups through social media, something that agencies are supposed to be prohibited from doing.

Yet another case of government doing something inappropriate is the designation of national monuments by the President of the United States that are inconsistent with the Antiquities Act of 1906 which calls for monuments to be “the smallest area compatible with the proper care and management of the objects to be protected.” I sincerely doubt that the language in the Act which talks about protecting “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” referred to imposing a restrictive designation on hundreds of thousands of acres at a time.

However, that is what happened again on July 10 when nearly 1 million acres of predominantly federally managed land in Nevada and California became new national monuments adding to the nearly 260 million acres that have already received such a designation under the current administration. Not only are these massive monuments contrary to the intent of the Antiquities Act of 1906, but they are created in spite of strong opposition from impacted industry groups and local governments and completely disregard the property rights of those trapped within a monument boundary. Unfortunately there is a lot of time left for the administration to add to the list of national monuments and thus the suffering of the same rural communities that grow the protein our nation depends on.

Not everything is negative though. The good news is that it’s County Fair time in New Mexico.           

Hasta pronto,

José Varela López