Safe Harbor: The Proposed Cape Cod Seal Cull’s Illegality Under the MMPA, Ineffectiveness, and Cruelty

By: Ryan Clemens | JD/MEM at Vermont Law School and Yale School of the Environment

June 13, 2021

Joe Davies, Photograph of Harbor Seal Balancing on the Peak of a Rock, in Joe’s Retirement Blog, Blogger (Jan 29, 2006), https://joesretirementblog.blogspot.com/2016/01/more-harbor-seals-manomet-plymouth.html

Massachusetts fishers and residents currently feel that the state’s seal populations must be cut down. However, neither the Marine Mammal Protection Act (MMPA) nor its many exceptions would permit this overly simplistic solution, and rightfully so.

Several Massachusetts Cape and Islands fishers, business owners, and residents feel that the state’s coastline harbors too many seals.[1] Miriam Wasser reported that Cape Cod communities blame harbor seals (Phoca vitulina) and gray seals (Halichoerus grypus) for polluting water, preventing the Atlantic cod from recovering, and limiting tourism by enticing sharks to beaches.[2] In response, the communities proposed a seal cull to directly remove their perceived threat.

This proposed cull would not be the first for these seal communities. Up until the 1970s, New England systematically depleted seal populations: Massachusetts from 1888 to 1962 and Maine from 1891 to 1905 and 1937 to 1945 held bounties for seal noses, effectively crashing their populations.[3] Neither seal species is threatened or endangered any longer[4]; in fact, Wasser’s article cites a 2017 study placing Cape and Islands seal populations between 30,000 and 50,000.[5] Contextualized with recent history, an overabundance of seals is a misperception. Additionally, a restored, back-to-regular seal population is not only a good thing for the animals themselves, but also for Massachusetts’ larger ecosystem.

Top-down or predatory control is an important ecosystem balancer. Removing top-level predators through seal bounties[6] or, ironically, cod overfishing, causes “significant ecological change” as lower trophic levels grow unchecked and place disproportionate strain on the remaining ecological communities.[7] Restoring top-level predators and their facilitated “biological and functional diversity” is an important step “as a stabilizing force in ecosystems,” ultimately bolstering economically valuable fisheries like cod.[8] Beyond the scientific argument against seal culls, the MMPA flatly prohibits any such unnecessary and cruel action.

Since 1972, the MMPA is one of, if not the, most powerful legal protections for animals. The Act broadly prohibits the take and import of marine mammals.[9] Per the Act, “take” means “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill,” and “marine mammal” partly means mammals that are “morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia, Pinnipedia and Cetacea).”[10] As gray seals and harbor are both pinnipeds and morphologically adapted to the marine environment,[11] and culling seals plainly includes hunting, capturing, and killing them, or at least attempting to, the MMPA applies to and flatly prohibits a seal cull. None of the MMPA’s potentially relevant exceptions actually apply here, either.

First, fishers argue that seals deplete Atlantic cod stocks and inhibit their recovery.[12] The MMPA’s first exception permits takes to enhance the survival or recovery of a species or stock, after review and approval by the Marine Mammal Commission (MMC).[13] The take must be “likely to contribute significantly to maintaining or increasing distribution or numbers necessary to ensure the survival or recovery of the species or stock.”[14] This exception likely does not allow a seal cull, not only because “species or stock” likely refers to the marine mammal itself,[15] but also because a cull would not contribute significantly to increasing cod populations.

Even if the recovery of a species or stock refers to non-marine mammals, reducing Massachusetts’ seals would not restore cod. Preliminarily, a thousand or several thousand-seal cull would barely make a significant dent in their now several tens of thousands-large population.[16] Primarily, seals’ predation on and impact to cod are small: cod comprise 6% of their diet, compared to sand lance at 53%.[17] Instead, seals eat cod’s ecologically-similar groundfish and gadid competitors, flounders and hake, respectively 21% and 4%, yet do not prey upon lobster.[18] Seals’ top-down forcing[19] thus limits cod’s competitors while avoiding its crustacean prey, aiding the stock’s recovery. Cod also faces separate challenges to recovery, distinct from seal predation. Species like Atlantic herring preying on cod juveniles[20] and climate change increasing sea-surface temperatures[21] more likely cause Atlantic cod hysteresis, or the inability of a species to regain prior population levels. Again, seals consume a near-equal amount of herring to cod, limiting their predation and in small part benefitting the stock.[22] Overall, science indicates that seals do not limit cod’s chance at recovery, failing to fit within the MMPA’s first exception’s alternative interpretation.

The MMPA’s second exception permits takes during fishing activity. However, these takes during normal fishing activity must be incidental, authorized by a formal rulemaking proceeding,  “meet the requirements of the MMPA[,] and be consistent with the primary goal of protecting marine mammals.”[23] Here, a cull is both an intentional killing and plainly inconsistent with the goal of protecting marine mammals, excluding this exception. NOAA should nevertheless keep a keener eye out to avoid preexisting permit or permit application abuse, possibly for intentional “unintentional” seal kills if fishers’ resentment grows.

The third potentially applicable MMPA exception is broad but still does not allow a seal cull. The MMPA offers a general waiver “to determine when, to what extent, if at all, and by what means, it is compatible with this chapter to waive the requirements of this section so as to allow taking” consistent with “sound principles of resource protection and conservation” and based on “the best scientific evidence available and in consultation with [MMC].”[24] Again this exception does not apply to culls because wanton killing is plainly inconsistent with the seals’ protection and conservation. Moreover, even if restoring fish stocks is compatible, the best scientific evidence available does not support that reducing seal populations is actually a means to recover fisheries stocks.[25] The third exception fails too.

The final potentially applicable exception would not permit a seal cull either. The MMPA allows incidental taking by “citizens . . . other than commercial fish[ers]” if a full public comment period shows that a five or fewer year-span of takings will have a negligible impact.[26] This negligible impact exception does not extend to “incidental takings [that] are not merely a remote possibility but a certainty,” however.[27] Thus, a cull that guarantees fatal takings fails the negligible impact exception. And, as a final, minor note, the MMPA does allow a wide range of individuals to deter marine mammals, but all determent measures must not result in death or serious injury, explicitly contrary to a seal cull.[28]

In total, the MMPA most likely prohibits a seal cull or any form of harassment. Killing any seal in Massachusetts is thus illegal, ineffective, and unnecessarily cruel. Seals are innocent and environmentally important actors for their top-down ecosystem controls. The “seal-enticed,” increasing shark presence provides top-down ecological balancing too, even including naturally balancing the seal “nuisance.” Additionally, not only is there no evidence that sharks deter tourism,[29] but to editorialize, the Cape and Islands likely do not need much more traffic this year.[30]

Applying the MMPA to seals shows that the Act is one of the few yet likely most powerful de facto protection for animals, and thus an equally powerful tool in restoring the already stressed and ecologically depleted Atlantic Ocean. NOAA and the MMC however should expand stakeholder outreach efforts by engaging fishers and Cape residents in open, two-way dialogue to bolster faith in science, foster respect within and among our human community for seals, and ultimately to preempt any illegal seal culls. Before then, to aid and maintain the ocean’s health and natural resources, simply please leave the seals alone.

[1] Miriam Wasser, Seals on Cape Cod are More than Just Shark Bait, wbur (Aug. 2, 2019), https://www.wbur.org/earthwhile/2019/08/02/seal-culling-sharks-cape-cod.

[2] Id.

[3] Id.

[4] Nat’l Oceanic and Atmospheric Admin., Species Directory, https://www.fisheries.noaa.gov/species-directory/threatened-endangered (last visited May 19, 2021).

[5] Wasser, supra note 1.

[6] See id. (reporting that between 72,000 and 135,000 seals were killed for bounty in Massachusetts and Maine for bounty by the mid-20th century).

[7] Stephanie A. Boudreau & Boris Worm, Top-Down Control of Lobster in the Gulf of Maine: Insights from Local Ecological Knowledge and Research Surveys, 403 Marine Ecology Prog. Ser. 181, 182 (2010) (citing first HK Lotze & I. Milewski, Two Centuries of Multiple Human Impacts and Successive Changes in a North Atlantic Food Web, 14 Ecology App. 1428 (2004); and then RS Steneck et al., Accelerating Trophic-Level Dysfunction in Kelp Forest Ecosystems of the Western North Atlantic, 7 Ecosystems 323 (2004)).

[8] Kenenth T. Frank et al., Trophic Cascades in a Formerly Cod-Dominated Ecosystem, 308 Sci. 1621, 1622 (2005).

[9] 16 U.S.C. § 1371(a).

[10] Id. § 1362(6), (13).

[11] Analisa Berta & Morgan Churchill, Pinniped Taxonomy: Review of Currently Recognized Species and Subspecies, and Evidence Used for their Description, 42 Mammal Rev. 207, 222–24 (2012).

[12] Wasser, supra note 1.

[13] 16 U.S.C. § 1371(a)(1).

[14] Id. § 1374(c)(4)(A).

[15] Id. § 1362(11) (“The term “population stock” or “stock” means a group of marine mammals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature.”).

[16] Wasser, supra note 1.

[17] Kristin Ampela, The Diet and Foraging of Gray Seals (Halichoerus Grypus) in United States Waters 56 (2009) (Ph.D. dissertation, New York University), https://d279m997dpfwgl.cloudfront.net/wp/2019/08/B2C6Waring-diet-and-foraging.pdf.

[18] Id. at 56, 166–67.

[19] See supra notes 6–8 and accompanying text.

[20] Coilin Minto & Boris Worm, Interactions Between Small Pelagic Fish and Young Cod Across the North Atlantic, 93 Ecology 2139, 2152 (2012).

[21] Camilla Sguotti et al., Catastrophic Dynamics Limit Atlantic Cod Recovery, 286 Proc. Royal Soc. B 20182877, 20182884 (2019).

[22] Ampela, supra note 17, at 56.

[23] 16 U.S.C. § 1371(a)(2); Kokechik Fishermen’s Ass’n v. Secretary of Commerce, 839 F.2d 795, 800 (D.C. App. Cir. 1988).

[24] 16 U.S.C. § 1371(a)(3)(A). The frequent references to principles of resource protection and conservation mean that the “[marine mammal] species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part, and, consistent with this major objective, they should not be permitted to diminish below their optimum sustainable population.” Id. § 1361(2).

[25] See supra notes 16–22 and accompanying text.

[26] 16 U.S.C. § 1371(a)(5)(A).

[27] Kokechik Fishermen’s Ass’n, 839 F.2d at 802.

[28] 16 U.S.C. § 1371(a)(4)(A).

[29] Wasser, supra note 1.

[30] Katie Johnston, On Cape Cod, Business Owners are Getting Ready for a Season of Record Crowds and Worker Shortages, Boston Globe (Apr. 6, 2021), https://www.msn.com/en-us/news/us/on-cape-cod-business-owners-are-getting-ready-for-a-season-of-record-crowds-and-worker-shortages/ar-BB1fmELG; Rick Sobey, Cape Traffic Ahead of the Summer Influx: Sagamore Bridge Lane Closures for Weeks, Boston Herald (Apr. 12, 2021), https://www.bostonherald.com/2021/04/12/cape-traffic-ahead-of-the-summer-influx-sagamore-bridge-lane-closures-for-weeks/.


About the Author

Ryan Clemens is a JD/MEM student at Vermont Law School and Yale School of the Environment from Massachusetts. He plans to first advocate for both conservation and stakeholder engagement and equity in the co-management of marine and coastal natural resources, and second to litigate for environmental quality, climate resiliency, and conservation within coastal development.

 

Filling U.S. Senate Vacancies in Vermont: Replacing Bernie Sanders Is Harder Than It Seems

By: Tyler Yeargain | Associate Director, Yale Center for Environmental Law and Policy

February 15, 2021

What if things had gone differently in 2020? There are countless ways to present the hypothetical—what if Pete Buttigieg had won Iowa outright, and walked away from the caucus with momentum?[1] What if Joe Biden hadn’t been endorsed by Congressman Jim Clyburn just before the South Carolina primary, preventing him from securing a landslide win in the state?[2] What if Elizabeth Warren hadn’t delivered a knockout blow to Mike Bloomberg on the debate stage, allowing his campaign to finish strong?[3] What if any of these things happened, resulting in Vermont’s own Bernie Sanders as the Democratic nominee for President in 2020? And what’s more—what if he won? Instead of the mittens memes from Inauguration Day,[4] we would’ve instead been gifted with countless meme-able moments from Bernie’s inauguration speech.

We also would’ve been confronted with a particularly sticky problem: how to replace Bernie in the Senate. Because the current Governor of Vermont, Phil Scott, is a Republican, he could’ve appointed a Republican as Bernie’s replacement. (He promised not to,[5] but he would’ve been under no obligation to keep that promise.) That could’ve shifted a 50–50 Democratic Senate to a 51–49 Republican Senate, at least until a special election could be held.

But wait. Some states—namely, Arizona, Hawaiʻi, Maryland, North Carolina, and Wyoming[6]require that a Senate vacancy be filled with a same-party appointment. Surely the same sort of requirement could’ve been imposed by the Vermont General Assembly, requiring Governor Scott to pick a Democrat to replace Bernie.

Yes and no. Yes, such a requirement could’ve been imposed. No, it likely wouldn’t have helped. There are a couple main problems with how this requirement likely would’ve utterly failed, or would’ve needed to be a tangled web of exceptions and asterisks, but it’s easy enough to unpack.

First, we need to understand how most same-party replacement systems work. While they’ve only been sparingly adopted at the federal level—and thus we don’t have much of a track record for how they play out—they’ve existed at the state level in some form or another for over a century.[7] These systems come in many different forms. As I’ve explained elsewhere, sometimes they give the appointing power to the governor, sometimes to a county commission, sometimes to the state legislature, and sometimes even to the state party directly.[8] But the Seventeenth Amendment to the Constitution makes this an easy question for U.S. Senate vacancies—the Governor is required to fill the vacancy.[9] So a same-party requirement could loosely require the Governor to simply appoint a member of the same party, or it could require the state party to give the Governor a list of potential candidates, a list from which they must pick one.

But that’s only half the battle. What does “same-party” mean? In many states, “party” is (implicitly) defined as the party that nominated the candidate at the most recent election; in many others, it’s defined as the party with which the candidate was associated or affiliated most recently.[10] (This distinction matters a lot for state legislators who switched parties.)

And so we immediately come to a problem in Vermont. In 2018, the most recent election for the Class I Senate seat that Bernie holds, he was nominated as a Democrat—but declined the nomination.[11] Moreover, Vermont is one of the few states that still allows fusion-ticket voting, which enables more than one party to nominate the same candidate.[12] In 2020, for example, Lieutenant Governor David Zuckerman was nominated for Governor by both the Democratic Party and the Progressive Party.[13] So building out a same-party requirement that focuses on nomination would suffer some serious problems.

But if the same-party requirement was imposed with respect to affiliation, we’d run into a similar problem. Because voters don’t register to vote in Vermont with a party,[14] the “same party” couldn’t be based on registration. It would have to instead be based on a candidate’s informal association or affiliation with a party. In Bernie’s case, there would be a pretty strong case that he is associated or affiliated with the Democratic Party—he ran for President twice as a Democrat, was nominated by the Democratic Party in 2018, and caucuses with the Democratic Party in the Senate.

Alternatively, a same-party requirement could include a special exception for “independent” or “unaffiliated” state legislators, a practice adopted by many states.[15] In states with these processes, there is a rainbow of varying options. In some cases, the Governor can appoint whomever they want; in others, they (or the appointing official) are required to appoint another independent; in others still, there is either no explicit procedure or the seat is explicitly left vacant.[16] Colorado employs the most unusual (and, in my view, the best) option: each independent candidate for the state legislature designates a “vacancy committee” that is tasked with picking their replacement should they be elected to office and then vacate their seat.[17]

Vermont could’ve adopted such a requirement, but retroactively requiring a successful independent candidate for office to name a “vacancy committee” is suspect—and could easily run afoul of the Seventeenth Amendment, which requires the Governor to make the appointment. It’s possible that the “vacancy committee” could act as a sort-of, makeshift political party and present the Governor with several different options.

Of course, it’s possible that all of these options are unconstitutional under the Seventeenth Amendment. That’s what Vikram Amar has repeatedly argued, for example.[18] Under Professor Amar’s view of the Seventeenth Amendment, the Governor’s power to appoint is virtually unlimited, and the only thing that the legislature can do is either grant them the power or deny them the power; it cannot condition the exercise of the power.[19] I personally disagree with this view,[20] but in any event, there’s no guidance from any federal court as to whether this is constitutional. No challenge to a same-party appointment system as applied to a U.S. Senate vacancy has ever been adjudicated,[21] and given the (relative) rarity of Senate vacancies,[22] it may never be adjudicated.

In any event, the fact that Bernie wasn’t elected President in 2020, or that he didn’t end up as President Biden’s Secretary of Labor,[23] shouldn’t obviate the need for Vermont to adopt a same-party replacement system for U.S. Senate vacancies. As recent news surrounding Senator Patrick Leahy’s health has demonstrated,[24] the unthinkable is always possible. And it’s incumbent on the Vermont General Assembly to plan for the unthinkable—and to avoid an outcome in which an untimely vacancy flips a Senate seat, and with it, control of the federal government.

[1] Domenico Montanaro, 3 Big Questions After the Iowa Results Meltdown, NPR (Feb. 4, 2020, 2:00 PM ET), https://www.npr.org/2020/02/04/802681380/what-the-iowa-meltdown-means-and-where-we-go-from-here (“[I]magine, for example, if on caucus night, it was known in prime time that Sanders and Buttigieg were the top two. And imagine what that would mean for Biden’s candidacy — and fundraising.”).

[2] Donna M. Owens, Jim Clyburn Changed Everything for Joe Biden’s Campaign. He’s Been a Political Force for a Long Time., Wash. Post (Apr. 1, 2020, 6:00 AM EDT), https://www.washingtonpost.com/lifestyle/style/jim-clyburn-changed-everything-for-joe-bidens-campaign-hes-been-a-political-force-for-a-long-time/2020/03/30/7d054e98-6d33-11ea-aa80-c2470c6b2034_story.html.

[3] Christopher Cadelago & Sally Goldenberg, Bloomberg Tumbles Heading into Super Tuesday, Politico (Feb. 27, 2020, 4:30 AM EST), https://www.politico.com/news/2020/02/27/bloomberg-super-tuesday-polls-117796.

[4] E.g., Lisa Rathke, Bernie Sanders’ Mittens, Memes Help Raise $1.8M for Charity, Associated Press (Jan. 27, 2020), https://apnews.com/article/bernie-sanders-mittens-memes-charity-3f8afd8e8a5a0b8b9709dd6d4d30ec13.

[5] Paul Heintz, Scott Says He Would Replace Sanders with Democrat-Affiliated Independent, Seven Days (Burlington, Vt.) (Oct. 23, 2020, 4:26 PM), https://www.sevendaysvt.com/OffMessage/archives/2020/10/23/scott-says-he-would-replace-sanders-with-democrat-affiliated-independent.

[6] Tyler Yeargain, Same-Party Legislative Appointments and the Problem of Party Switching, 8 Tex. A&M L. Rev. 163, 196 n.219 (2020), https://scholarship.law.tamu.edu/lawreview/vol8/iss1/6/. 

[7] Tyler Yeargain, The Legal History of State Legislative Vacancies and Temporary Appointments, 28 J.L. & Pol’y 564, 587–601 (2020), https://brooklynworks.brooklaw.edu/jlp/vol28/iss2/4/. 

[8] Id. at 602–10.

[9] U.S. Const. amend. XVII (amended 1913) (“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”).

[10] Yeargain, supra note 6, at 173–79.

[11] Sean Sullivan, Bernie Sanders Wins the Democratic Nomination. Just Don’t Expect Him to Run with It., Wash. Post (Aug. 14, 2018, 8:23 PM EST), https://www.washingtonpost.com/politics/2018/live-updates/midterms/live-primary-election-results/bernie-sanders-wins-the-democratic-nomination-just-dont-expect-him-to-run-with-it/?arc404=true/.

[12] Adam Morse & J.J. Gass, Brennan Ctr. for Justice, More Choices, More Voices: A Primer on Fusion 1–2 (Oct. 2006), https://www.brennancenter.org/sites/default/files/2019-08/Report_More-Choices-More-Voices.pdf.

[13] Jane Lindholm & Emily Aiken, Candidate Conversations: David Zuckerman Runs for Governor, VPR (Oct. 13, 2020), https://www.vpr.org/post/candidate-conversations-david-zuckerman-runs-governor#stream/0.

[14] Taylor Dobbs, How Will Bernie Sanders (Officially) Become a Democrat?, VPR (May 1, 2015), https://www.vpr.org/post/how-will-bernie-sanders-officially-become-democrat#stream/0.

[15] Tyler Yeargain, Third Wheeling in the Two-Party System: How Same-Party Replacement Systems Impede the Replacement of Independent and Third-Party Legislators, 123 W. Va. L. Rev. 393, 403–409 (2021).

[16] Id.

[17] Id. at 404–05, 418–21.

[18] See generally Vikram David Amar, Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?, 35 Hastings Const. L.Q. 727 (2008) (arguing that the Seventeenth Amendment precludes such requirements).

[19] Id. at 729–37.

[20] As does Professor Sanford Levinson, see generally Sanford Levinson, Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment, 35 Hastings L.Q. 713 (2008).

[21] The closest that a court got to reaching the issue was the Ninth Circuit in Hamamoto v. Ige, but the panel declined to reach the constitutional argument, concluding that the issue was moot. 881 F.3d 719, 723 (9th Cir. 2018) (per curiam).

[22] Appointed Senators (1913-Present), U.S. Senate, https://www.senate.gov/senators/AppointedSenators.htm (last accessed Jan. 27, 2021).

[23] Dan D’Ambrosio, President-elect Biden Explains Why He Passed on Sanders for Labor Secretary, Burlington Free Press (Jan. 8, 2021, 5:04 PM ET), https://www.burlingtonfreepress.com/story/news/2021/01/08/biden-decides-not-tap-sanders-labor-secretary/6601923002/ (“Biden said Sanders agreed that after the Georgia run-off, having a special election in Vermont to replace Sanders should he join Biden’s Cabinet was too risky.”).

[24] Burgess Everett, Leahy’s Hospitalization Shows Dems’ Majority Hangs by a Thread, Politico (Jan. 27, 2021, 11:26 AM EST), https://www.politico.com/news/2021/01/27/patrick-leahy-health-463080.


About the Author

Tyler Q. Yeargain is the Associate Director of the Yale Center for Environmental Law and Policy at Yale Law School. He graduated from the Emory University School of Law with High Honors in 2019 and subsequently clerked on the United States Court of Appeals for the Eleventh Circuit for Judge Lanier Anderson. His research focuses on the relationship between the formation of state government institutions and policy outcomes in a variety of areas—especially in criminal, election, and environmental law.

 

Multistate Employer Liability & Employee Welfare in the Absence of a Federal COVID-19 Health & Safety Rule

By: Christian D. Petrangelo | Attorney, Regulatory Compliance Specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc.

January 14, 2021

——

The “unprecedented” year of 2020—the year that COVID-19 took over the world—challenged society in ways not seen in many people’s lifetimes. In the United States, the federal government’s tepid and chaotic response failed to “flatten the curve” of the virus. Just one example is the federal Occupational Safety and Health Administration’s (OSHA’s) reluctance to issue a rule governing employer responses to COVID-19 to protect all workers in the American workplace.[1]

A Patchwork Approach to Addressing COVID-19 in the Workplace

In the absence of federal regulation, some states—including California,[2] Virginia,[3] and Oregon[4]—have begun filling in the gap via COVID-19 workplace emergency temporary standards (ETS). While the content of these state rules varies, employers may be required to conduct workplace exposure assessments, notify infected employees and others in proximity, allow employees to access their own medical records, create return-to-work procedures, enforce social distancing, and conduct sanitation and disinfection of the workplace.[5] A separate section of Virginia’s ETS contains requirements for hazards or job tasks considered “medium,” “high,” or “very high” exposure risks.[6]

For larger companies operating in both ETS and non-ETS states, this patchwork of state requirements presents a potential compliance problem, as well as a legitimate health and safety issue for employees. In the absence of a federal standard, could OSHA attempt to use an employer’s compliance with a state ETS to impute knowledge of a recognized COVID hazard in non-ETS states, through the General Duty Clause (GDC)? To consider this question, we must take a closer look at the GDC. 

The General Duty Clause & Employer Hazard Recognition

OSHA’s GDC states: “(a) Each employer – (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees . . . .”[7] The GDC is effectively a back-pocket enforcement mechanism for OSHA to use where no specific standard applies to the hazard or situation in question.[8]

To prove a GDC violation, OSHA must show that: “(1) a condition or activity in the workplace presented a hazard, (2) the employer or its industry recognized the hazard, (3) the hazard was likely to cause death or serious physical harm, and (4) a feasible and effective means existed to eliminate or materially reduce the hazard.” The agency also must establish that the employer knew, or could have known based on reasonable diligence, of the hazardous condition.[9]

So what constitutes a “recognized hazard”?[10] The Occupational Safety and Health Review Commission (OSHRC) found that “[a] hazard is deemed ‘recognized’ when the potential danger of a condition or activity is either actually known to the particular employer or generally known in the industry.”[11] The OSHA Field Operations Manual elaborates that a hazard may be recognized on the basis of employer, industry, or “common-sense” recognition.[12] Of these, employer recognition is the most likely to impact the question at hand.[13]

U.S. circuit courts and the OSHRC have weighed in on employer recognition. For example, the U.S. Court of Appeals for the Ninth Circuit found employer recognition where the employer had actual knowledge of a hazardous condition.[14] The Fifth Circuit held that employer recognition may be found “absent direct evidence of subjective belief” where the hazard is “obvious and glaring.”[15] Perhaps most importantly, the Sixth Circuit found that evidence of employer safety efforts is relevant to the question of hazard recognition.[16] However, the OSHRC “has been reluctant to rely solely on an employer’s safety precautions to find hazard recognition absent other ‘independent evidence.’”[17]

On employer safety efforts, OSHA may reference the following documents as evidence of employer recognition of a particular hazard: work rules,[18] company safety programs/policies,[19] handbooks, memoranda, standard operating procedures, operations manuals, collective bargaining agreements and contracts, Job Safety Analysis forms, safety audits, actual prior incidents, near misses known to the employer, injury and illness reports, or workers’ compensation data.[20] In addition, the OSHA Field Operations Manual states that compliance officers may look to prior federal or state OSHA inspection history involving the same hazard.[21]

Multistate Employer COVID Liability on the Cusp of the Biden Era

This high-level overview of current rules and precedent suggests that OSHA, via the GDC, could point to an employer’s safety policies implementing a state COVID ETS to impute knowledge of COVID hazards in non-ETS states. In particular, if a multistate employer has company work rules, safety procedures, and/or standard operating procedures addressing a state COVID ETS, then the employer could be obligated to protect employees in non-ETS states at a similar level. These preexisting rules, policies, and procedures could also be considered a feasible and effective means of abating COVID-related harm.

The question could then become whether “independent evidence,” such as managerial testimony, would be needed to corroborate this safety-policy evidence. In the event that federal OSHA or an equivalent state agency has conducted an inspection of the company’s premises in which COVID was discovered to be a hazard, this could also impute the necessary knowledge to the employer.

Therefore, large employers operating in both COVID-ETS states and other states should take the utmost precaution and aim to protect all of their employees at the more stringent state-ETS level to minimize liabilities. This confusing state patchwork of compliance requirements may not be around for long, of course. With a Biden administration poised to assume control of the federal government, an overarching OSHA COVID standard may be here sooner than we think.

—                                                                                                                                  

[1] While OSHA has not conducted any formal rulemakings on COVID-19, the agency has issued guidance documents clarifying how employers should handle the pandemic under current rules. See, e.g., Lee Anne Jillings & Patrick J. Kapust, Occupational Safety & Health Admin., Revised Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID-19) (2020) (clarifying that COVID-19 is a recordable illness under 29 CFR Part 1904), https://www.osha.gov/memos/2020-05-19/revised-enforcement-guidance-recording-cases-coronavirus-disease-2019-covid-19.

[2] Cal. Code Regs. tit. 8, § 3205–3205.4 (2020), https://www.dir.ca.gov/oshsb/documents/COVID-19-Prevention-Emergency-apprvdtxt.pdf.

[3] 16 Va. Admin. Code § 25-220 (2020), https://www.doli.virginia.gov/wp-content/uploads/2020/07/COVID-19-Emergency-Temporary-Standard-FOR-PUBLIC-DISTRIBUTION-FINAL-7.17.2020.pdf.

[4] Or. Admin. R. 437-001-0744 (2020), https://osha.oregon.gov/OSHARules/div1/437-001-0744.pdf.

[5] 16 Va. Admin. Code § 25-220-40 (2020) (using Virginia as an example).

[6] 16 Va. Admin. Code § 25-220-50–80 (2020). These heightened requirements address engineering controls, administrative and work practice controls, personal protective equipment (PPE), employee training, and infectious disease preparedness and response plans.

[7] Occupational Safety and Health Act of 1970 §5(a)(1), 29 U.S.C. § 654(a)(1), https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_id=3359&p_table=OSHACT.

[8] Occupational Safety & Health Admin., CPL-02-00-160, Field Operations Manual (FOM) (2016), at 4-16–4-17, https://www.osha.gov/sites/default/files/enforcement/directives/CPL_02-00-160_2.pdf.

[9] MPS Products Corp., No. 17-0372 (OSHRC Oct. 13, 2020), at 31, https://www.oshrc.gov/assets/1/18/17-0372_Decision_and_Order_DATED.pdf?11392 (emphasis added); Kimberly Stille, Occupational Safety & Health Admin., Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits (2018), https://www.osha.gov/laws-regs/standardinterpretations/2018-11-02; Field Operations Manual, supra note 8, at 4-10.

[10] OSHA has the burden of proving a “recognized hazard.” Adele L. Abrams, OSHA’s General Duty Clause: A Guide to Enforcement and Legal Defenses 3, https://www.assp.org/docs/default-source/standards-documents/osha’s-general-duty-clause—abrams.pdf?sfvrsn=89cdb147_2.

[11] Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2003, 1995-97 CCH OSHD ¶ 31,301, p. 44,014 (No. 89-0265, 1997).

[12] Field Operations Manual, supra note 8, at 4-12.

[13] Under industry recognition, OSHA has stated that state and local laws and regulations can be used to impute knowledge; however, the agency specified that these rules must “apply in the jurisdiction where the violation is alleged to have occurred,” which would not address the situation of multistate employers operating in ETS and non-ETS states. Field Operations Manual, supra note 8, at 4-13.

[14] Magma Copper Co. v. Marshall, 608 F.2d 373, 376 (9th Cir. 1979).

[15] Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317, 321 (5th Cir. 1984) (quoting Tri-State Roofing v. OSHRC, 685 F.2d 878, 880–81 (4th Cir. 1982)).

[16] Duriron Co. v. Secretary, 750 F.2d 28, 30 (6th Cir. 1984).

[17] Mid South Waffles, Inc., d/b/a Waffle House #1283, No. 13-1022 (OSHRC Feb. 15, 2019), at 8 (quoting Pepperidge Farm, Inc., 17 BNA OSHC 1993, 2007 (No. 89-0265, 1997)), https://www.oshrc.gov/assets/1/18/Mid_South_Waffles%5E13-1022%5EDecision_(Assembled)%5E021519%5EFINAL.pdf?8299.

[18] Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).

[19] Puffer’s Hardware, Inc. v. Donovan, 742 F.2d 12, 18 (1st Cir. 1984).

[20] Abrams, supra note 10.

[21] Field Operations Manual, supra note 8, at 4-12.


About the Author

Christian is an attorney and regulatory compliance specialist on Facebook’s Global Environmental, Health, and Safety team, via Milestone Technologies, Inc. Christian proudly served as Senior Managing Editor of the Vermont Law Review for Volume 36 (2011–2012). He holds a J.D. from VLS (2012) and a Master’s in Environmental Policy & Regulation from the London School of Economics (2009).

 

Supporting Vermont’s farmers and fledgling attorneys through the Vermont Legal Food Hub

By: Sophia Kruszewski| Vermont Law School, Center for Agriculture and Food Systems’ Clinic Director & Assistant Professor of Law

December 10, 2020

Vermont is known for its vibrant local food culture and small-but-mighty farm economy. Home to 6,800 farms, Vermont leads the nation in maple syrup production and ranks among the top 10 states for certified organic farms (in terms of both acreage and number of farms) and for local food sales. In 2016 alone, sales from Vermont producers directly to consumers, retailers, institutions, and local distributors like food hubs totaled $250 million. Vermont’s farm and food businesses also directly employ over 64,000 Vermonters; food manufacturing is the second-largest manufacturing industry in the state. Clearly, Vermont’s local food sector is a strong driver of the state’s economy.

The picture is not entirely rosy, however. Even before Covid-19 exacerbated low milk prices, Vermont dairy farms were in crisis. The average age of Vermont farmers is just under 56 years old and over 30 percent are over 65, presaging the significant degree of farmland that will change hands in the coming years. Whether that land remains in agriculture depends not only on having the next generation of farmers ready to step in, but also on whether land prices offer a competitive option for the exiting farmer, while still being affordable for the incoming one.

The vast majority of farms in Vermont are small, family farms; the average Vermont farm is 175 acres, significantly smaller than the national average of 441 acres. Strikingly, 72 percent of Vermont farms bring in less than $25,000 in average annual sales; only 16 percent have $100,000 or more in sales. What’s more, the average net cash farm income is only $26,215, well below the national average of $43,053, making it unsurprising that many farmers work additional off-farm jobs for some portion of the year.

Recently proposed and enacted Vermont legislation recognizes and seeks to overcome some of the varied challenges the agriculture sector faces. Act 83, which became law in 2019, calls for the Vermont Agency of Agriculture, Food, and Markets to lead in developing a report with recommendations to stabilize, diversify, and revitalize Vermont’s agriculture economy. (The report, presented to the legislature in early 2020, provides a comprehensive assessment of the need and opportunity by agricultural product, market, and issue.) Act 83 also established a legislative working group to explore how farmers can receive payments for the ecosystem benefits they produce on their farms. And a bill introduced in early 2020 would significantly expand the state’s purchasing of local food in schools and correctional facilities through numeric targets and reimbursements.

In addition to public policy, affordable legal services play an important role in sustaining and growing Vermont’s local food sector. Lawyers can assist with a wide range of farm business needs including: farm transfer and acquisition; business and estate succession planning; legal entity formation; drafting and reviewing contracts; advising on employee classification and compliance with labor laws; liability and risk management; and navigating the increasingly complex web of federal, state, and local regulations that apply to food and farm businesses. Indeed, farm and food clients share much in common with other clients seeking business and legal advice. Yet, many small-scale farmers and food entrepreneurs may be unfamiliar working with an attorney or unable to afford one, even when transactional legal counseling could significantly benefit their businesses. That’s why, in January 2020, Vermont Law School’s Center for Agriculture and Food System launched the Vermont Legal Food Hub. This new program seeks to overcome some of these barriers and help bridge the gap between the agricultural and legal sectors. Not only does the Vermont Legal Food Hub offer free support to our state’s farmers and food producers, but also it can open new doors for VLS students and graduates.

A joint initiative between CAFS and Conservation Law Foundation (CLF), this innovative program connects farmers, food entrepreneurs, and food system organizations across the state with free legal services, building on a regional program that Dean Jennifer Rushlow started while head of Food & Farm at CLF. The first Legal Food Hub launched in 2014 in Massachusetts. Since then, Hubs have opened in Maine, Rhode Island, Connecticut, and Vermont, connecting over 500 participants across the region with free legal support and leveraging over $3M in pro bono assistance. To be eligible for free assistance, applicants must meet certain income eligibility requirements and go through an intake process, after which they are connected with a skilled attorney who practices in that area of the law.

Not only does this program provide a much needed service, increasing access to legal assistance for low-income food and farm businesses, but also it is providing unique opportunities for VLS students and alumni to build food and agriculture law practices. The Legal Food Hub now has over 160 firms in its regional network of volunteer attorneys; 20 of those are in Vermont, including CAFS’ Food & Agriculture Clinic, and including many VLS alumni.

CAFS operates the Vermont Hub, and since we launched in January 2020, we have placed over twenty cases with participating law firms. Farmers have comprised 60% of our placements, nonprofits 30%, and food entrepreneurs 10%. Across all categories of participants, assistance selecting and forming a legal entity is by far the most commonly identified legal need, accounting for over 70% of all requests. Other common legal issues that have come in through the Hub relate to land use and real estate, contracts, intellectual property, and employment and labor.

While we have placed many of these cases with our ever-growing network of volunteer attorneys, we also place some cases in CAFS’ Food and Agriculture Clinic, providing an opportunity for students to work with local food clients on a range of transactional and regulatory matters. For example, we worked with a food hub navigating food safety regulations and licenses at the state and federal level. We reviewed a contract agreement for a farmers’ association that rents out conservation equipment so farmers can plant seeds with minimal disturbance to the soil. We provided consultation on a trademark matter for a nonprofit that works to increase access to and availability of local food through marketing, aggregation, and distribution. And students enrolled in the Spring Food and Agriculture Clinic will have the opportunity to work with a group of Vermont processors exploring options for establishing a collaborative business model that enables them to share processing and marketing infrastructure.

Not only do these experiences enable students to build their issue-spotting, legal reasoning, client counseling, and other legal and professional skills, but also they provide invaluable opportunities to build relationships within the community. As we see it, providing direct legal services complements our Clinic’s other more policy-oriented work. Not only do we get to give back to those who work tirelessly to feed us, but also we can identify areas of the law where additional legal resources or policy solutions are needed, fueling our work as advocates for the community and world.


About the Author

Sophia Kruszewski is the Center for Agriculture and Food Systems’ Clinic Director and an Assistant Professor at Vermont Law School. In addition to directing the Food and Agriculture Clinic, Professor Kruszewski oversees the Vermont Legal Food Hub, a joint initiative between CAFS and Conservation Law Foundation that matches eligible Vermont farmers, food entrepreneurs, and food system organizations with free legal services. Prior to joining the faculty at VLS, Professor Kruszewski was a Senior Policy Specialist with the National Sustainable Agriculture Coalition. In that capacity, she advocated for federal agriculture policy reform at the legislative and administrative level, and developed expertise in the impacts of federal law and policy on farm viability. While a student at VLS, Professor Kruszewski clerked for the White House Council on Environmental Quality, interned with the Honorable Judge Paul L. Friedman of the Federal District Court for the District of Columbia, was a researcher for the Institute for Energy and the Environment and the Center for Agriculture and Food Systems, and served on the editorial staff of the Vermont Law Review.

A New Vision for IRAC: Applying a Restorative Justice Methodology to Legal Analysis

By: Robert Sand | Vermont Law School, Founding Director, Center for Justice Reform 

November 20, 2020

Generations of law students have learned the IRAC method of legal analysis. IRAC: Issue – Rule – Apply – Conclude. IRAC provides a consistent and straightforward way to analyze legal disputes in all areas whether property, torts, contracts, criminal law, or anything else typically studied in law school. The clarity of IRAC informs legal reasoning, the practice of law, and judicial decisions. For all its straightforward simplicity, IRAC is also remarkably reductionist.

Noted Norwegian criminologist Nils Christie writes: “Training in law is training in simplification. It is a trained incapacity to look at all values in a situation, and instead to select only the legally relevant ones, that is, those defined by the high priests within the system to be the relevant ones.”

Perhaps Christie goes too far, denying the power of the law to effect change. Yet, he is correct about the reductionist nature of the law and, by extension, legal education. Human disputes, and the harm at their root, are complex, messy, emotionally laden matters. We have developed a legal system to place a framework around all that messiness and in the process have lost, perhaps, some of our humanity.

Consider criminal law. An individual is harmed. How do we respond? We outsource that harm and the attendant obligations to the government. The harmed party may have a small voice in shaping the outcome, yet the available responses are largely constrained, packaged, and limited to some prefabricated options. And what about the person who caused the harm? The system encourages silence and denial until, if there is an apology, it seems entirely self-serving. And what about real acceptance of responsibility and amends? Our system imposes punishment (pain) to teach people they are not supposed to cause harm to others. The system is so reductionist we don’t even concern ourselves with the counterproductivity of state-inflicted pain. Nor do we provide a meaningful way for the party who caused the harm to make things right.

But maybe there is another way or, at least, an additional way. What if IRAC stood not only for Issue-Rule-Apply-Conclude but also for Injured (Harmed) – Responsibility – Amends – Change? We would ask:

  1. Who has been Injured or harmed?
  2. Who is Responsible for the harm?
  3. How can the responsible party make Amends?
  4. How can the overall response lead to positive Change?

Let’s look at each of these questions:

Question 1: Who has been Injured or harmed? Our response must include giving the immediately harmed party (the victim) a real voice in influencing case outcomes. Often victims are more interested in getting answers to questions, an assurance the harm will not reoccur, and a meaningful apology than they are in seeing punishment. And injury and harm run more deeply and profoundly than the elements of the criminal offense. Harm and injury ripples to family members, friends, and community. A just response addresses a much broader scope of harm than we currently consider. Every time the state intervenes an opportunity arises to consider the immediate harm and broader, systemic issues and injustices that contribute to harmful behavior. We squander this opportunity and obligation for deeper reflection and engagement.

Question 2: Who is Responsible for the harm? This inquiry involves a complexity lost in our current system. A Responsible party caused something but also has duties and obligations attendant to the harm caused. Consider the word “responsible” and its dual meaning. A responsible person caused an outcome. A responsible person is also someone to whom an obligation is imposed. A person can be both responsible for causing the harm and responsible for repairing it. Other than occasionally paying restitution, most people convicted of an offense are relieved of any obligation to make amends. While they are deemed responsible for causing harm, they are denied the duty and responsibility of putting things right.

A deep consideration of responsibility necessarily involves probing into forces that influence conduct. This does not relieve the individual of personal accountability but does introduce historic and contemporary forces that shape behavior. We cannot completely divorce immediate actions from the historic inequities and systemic injustices perpetrated by legal and other institutions in this country.

Question 3: How can the responsible party make Amends? The reductionist nature of our response barely asks what the responsible party can do to make things right. They become passive actors in a system that imposes something on them rather than requiring affirmative restorative actions by them. Bizarrely, taxpayers bear the weight of financial sacrifices to sustain prisons, providing a setting where no affirmative action is imposed on the responsible party. This is not to suggest that incarceration is easy. It is brutal, violent, and dehumanizing — an environment uniquely ill-suited for positive personal growth. The state imposition of consequences divests the responsible party of the important ability to try to reset the balance with the party they harmed.

Question 4: How can the overall response lead to Change? With remarkable shortsightedness, we rarely ask whether the imposition of punishment will create a net societal improvement. We punish without regard for the fact that punishment, especially incarceration, often leads to increased criminality. Incarceration is a criminogenic risk factor for further offending behavior. Instead, why are we not focusing on responses that yield a net improvement in health, safety, personal well-being, and satisfaction for the people most directly harmed?

This new version of IRAC brings the real world into the classroom and by extension to justice systems and beyond by discussing the complexity of harm and its ripple effects, the systemic injustices that permeate law and society, and creates a space and place for a broad array of voices. Law school classes could consider the two forms of IRAC sequentially, probing first into the new version and then drilling down more narrowly into the traditional version. This dual inquiry, while taking more time, makes the study of law a deep contemplation of human interaction as much as a consideration of rules.

A new vision for IRAC needs a new vision of justice. As Professor Lindsey Pointer of the VLS National Center on Restorative Justice asks: “Why is Lady Justice blindfolded, armed with a sword, and on a pedestal?” Maybe she should use all the senses, sit or walk among the people, and carry a first aid kit not a weapon.

I went to law school in the 1980s. My father went to law school in the 1950s. Our first-year courses were almost identical. I suspect the method of conducting classes and analyzing cases was the same then as in the 1980s as it is today. The world has changed dramatically in the past 70 years. Let’s bring IRAC into this century and transform and humanize legal education and the practice of law.


About the Author

Professor Robert Sand (VLS ’87) is the former elected Windsor County State’s Attorney, a prosecutorial position he held for 15 years.  He is the founding director of the VLS Center for Justice Reform which houses the Master of Arts in Restorative Justice degree and the Professional Certificate in Restorative Justice. Sand is the High Bailiff-elect for Windsor County, a constitutional office with a grand title but few identified responsibilities. Click here for a full bio.
 

Case Commentary: McGirt v. Oklahoma (2020)

By: Andrew Cliburn | Vermont Law School, JD Candidate 2021

November 20, 2020

When the Supreme Court issued McGirt v. Oklahoma1 last summer holding that Congress never disestablished the Muscogee (Creek) reservation—a reservation that encompassed most of modern-day Tulsa, Oklahoma—the reaction was profound.2 Indigenous leaders, lawyers, journalists, and others celebrated the Court’s full-throated affirmance of Muscogee (Creek) sovereignty.3 The majority opinion, authored by Justice Gorsuch, was the latest in an emerging line of Supreme Court cases upholding treaties the North American tribes made with the United States.4

In contrast, the reaction among some of Oklahoma’s non-Indigenous population was decidedly not as positive.5 Some groups in Oklahoma called on Oklahoma’s congressional delegation to introduce legislation to “fix” McGirt.6 Given the widespread reaction and controversy surrounding the case, it is important to understand the question the Court sought to answer in McGirt, and how, precisely, it did so.

The question in McGirt was straightforward enough: did the wrong sovereign convict Jimcy McGirt?7 In 1997, Oklahoma convicted McGirt—an enrolled member of the Seminole Nation—of heinous crimes involving the sexual exploitation of a minor, sentencing him to a draconian 1000 years.8 However, McGirt maintained that his crimes occurred not in Oklahoma, but on the Muscogee (Creek) reservation, and this fact—if true—meant that Oklahoma had no right to try him for these particular crimes. This is so because in 1885, Congress passed the Major Crimes Act (“MCA”), arrogating to itself the sole authority to try certain crimes committed by “Indians”9 in “Indian Country.”10 In 1948, Congress amended the MCA to define Indian Country as, in part, reservations.11 Thus, if McGirt’s crimes really did take place on the Muscogee (Creek) reservation, the wrong sovereign convicted him.

The Muscogee (Creek) Nation and the United States signed a treaty in 1832 guaranteeing the tribe that its reservation “would be secure forever.”12 Soon after, the United States government forcibly marched the Muscogee (and others) in a series of removals from the southeast to what would become the State of Oklahoma 80 years hence.13 These removals are now collectively known as the Trail of Tears.14 In the decades following the tribe’s removal from their homelands, the United States continued to impose new treaty terms on the Muscogee. For example, a new treaty term diminished the reservation boundaries in 1866.15 However, the Court held, at no point was the reservation disestablished by treaty or by an act of Congress.16 In 1871, Congress summarily stopped treaty-making with Native Americans.17

When interpreting treaties with tribes, Courts must apply special canons of construction.18 This is because the relationship between the tribes and the United States is unique.19 For example, grants of land are grants from tribes to the United States, not vice versa.20 Moreover, the United States owes tribes heightened responsibilities generally known as the “trust responsibilities” because—as the Supreme Court long ago held—the tribes are “domestic dependent nations.”21 Moreover, the United States drafted the treaties in English. Consequently, since 1832, the Supreme Court has recognized that it should ordinarily resolve any ambiguities in treaties in the tribes’ favor as a result of a prudential understanding that the tribes were in a subordinate negotiating position.22 Flowing from the contours of this relationship then are a series of interpretive canons the Supreme Court has developed to answer questions arising in Indian Country.

The majority’s answer to the question of whether Congress ever disestablished the reservation was a resounding “no,” and it arrived at this answer using the canon requiring Congress to clearly express itself if it intends to disestablish a reservation.23 Indeed, the Court seemed to go further by discarding factors of the previous disestablishment test developed in Solem v. Bartlett, 465 U.S. 463 (1984).24

This brief summary cannot be the place where one develops the full implications of McGirt. As the reader might intuit by this point, the decision is hard to fully understand without much context. Suffice it to say, federal Indian law is a fascinating, important, and very much alive area of the law.


1 140 S.Ct. 2452 (2020).

2 Julian Brave NoiseCat, The McGirt Case is a Historic Win for Tribes, Atlantic (July 12, 2020), https://www.theatlantic.com/ideas/archive/2020/07/mcgirt-case-historic-win-tribes/614071/.

3 Id.

4 E.g., Herrera v. Wyoming, 139 S.Ct. 1686 (2018) (holding that statutes establishing the State of Wyoming and the Bighorn National Forest did not extinguish treaty-secured aboriginal hunting rights).

5 Barbara Hoberock & Randy Krebhiel, Oklahoma Conservative Group Wants Tribal Boundaries Gone, Tulsa World (Oct. 19, 2020), https://tulsaworld.com/news/state-and-regional/govt-and-politics/oklahoma-conservative-group-wants-tribal-reservation-boundaries-gone/article_5ff72b0e-0a5f-11eb-9ee3-afcf85c16b89.html.

6 Id.

7 McGirt v. Oklahoma, 140 S.Ct. 2452, 2459 (2020).

8 Id. at 2459 (Roberts, C.J., dissenting).

9 In this context “Indian” is a legal term of art. A person who is an Indian belongs to a federally-recognized tribe, and as such is entitled to certain benefits flowing from the government-to-government relationship between the tribal nation and the United States federal government. Carol E. Goldberg, et al., American Indian Law: Native Nations and the Federal System 137 (7th ed. 2015) [hereinafter American Indian Law].

10 Congress took this action after the Supreme Court held in Ex Parte Crow Dog, 109 U.S. 556 (1883) that the federal government had no criminal jurisdiction over tribal members. Id. at 85.

11 The MCA also defined Indian Country as “dependent Indian communities” and allotted lands held in trust title outside of reservations. Id. at 150–58.

12 McGirt, 140 S.Ct. at 2459

13 Trail of Tears, Museum of the Cherokee Indian, https://www.cherokeemuseum.org/archives/era/trail-of-tears (last visited Oct. 19, 2020).

14 McGirt, 140 S.Ct. at 2459 (“On the far end of the Trail of Tears was a promise.”).

15 Id. at 2461.

16 Id. at 2474. Though beyond the scope of this summary, Congress possesses—by fiat—the power to unilaterally abrogate signed treaties between the tribes and the United States. This power is known as congressional plenary power. See Hillary M. Hoffmann, Congressional Plenary Power and Indigenous Environmental Stewardship: The Limits of Environmental Federalism, 97 Or. L. Rev. 353, 358 (2019).

17 American Indian Law, supra note 9, at 78.

18 American Indian Law, supra note 9, at 204.

19 See, e.g., Exec. Order No. 13,175, 65 Fed. Reg. 67,249 (Nov. 9, 2000) (describing the unique government-to-government relationship between the two sovereigns).

20 American Indian Law, supra note 9, at 204.

21 Cherokee Nation v Georgia, 30 U.S. 1, 10 (1832).

22 Worcester v. Georgia, 31 U.S. 515 (1832).

23 McGirt v. Oklahoma, 140 S.Ct. 2452, 2462–63 (recounting the canon that the Supreme Court will not “lightly infer” reservation disestablishment, that Congress must “clearly express its intent” to disestablish, and collecting cases where Congress’s language did disestablish reservations).

24 See, e.g., Oneida Nation v. Vill. of Hobart, 968 F.3d 664, 668 (7th Cir. 2020) (“We read McGirt as adjusting the Solem framework to place a greater focus on statutory text.”).

 


About the Author

Andrew came to VLS in 2018 after becoming interested in public lands issues in his home state of Utah. His primary interests are natural resources law, property law, land use law, environmental law, and federal Indian law. He will be clerking for Justice Karen R. Carroll of the Vermont Supreme Court after graduating in May 2021.

 

Case Summary: Kansas v. Glover (2020)

By: Theophilus Agbi | Vermont Law School, JD Candidate 2022 & Université de Cergy-Pontoise, DJCE Candidate 2022

August 28, 2020

Synopsis:

Kansas v. Glover is a 2020 decision that deals with how much evidence law enforcement needs to support a traffic stop under the Fourth Amendment.[1] In this case, a Kansas Deputy Sheriff ran a license plate check of a passing pickup truck.[2] This check revealed that the registered owner was Charles Glover, and that Mr. Glover’s license was revoked.[3] At the time of the license plate check, the Deputy Sheriff did not know who was driving the vehicle. He assumed that Mr. Glover was driving.[4] Relying solely on the information gleaned from the license check, the Deputy Sherriff pulled the truck over.[5] Upon pulling the vehicle over, the Deputy Sheriff confirmed that the current driver was Mr. Glover and issued him a ticket.[6]

At trial, Mr. Glover challenged the ticket arguing that the Deputy Sherriff did not have sufficient evidence to support the initial traffic stop.[7] Deputy Sherriff admitted that he “assumed” that the registered owner was also the current driver, even though he had no evidence to support that.[8] Mr. Glover argued that this assumption was not enough to support the reasonable suspicion standard,[9] which says that officers need “a particularized and objective basis for suspecting the particular person stopped of criminal activity.”[10] A “mere hunch” does not support reasonable suspicion.[11]

Procedural History:

The Kansas Trial Court, agreed with Mr. Glover and found that an officer cannot simply assume the registered owner is the present driver without having other corroborating evidence.[12] On Appeal, the Trial Court’s ruling was reversed. Later, the Kansas Supreme Court reversed the Court of Appeals holding and affirmed the Trial Court’s decision.[13] The State appealed the Kansas Supreme Court’s ruling at the United States Supreme Court.

 

DISPOSITION OF U.S. SUPREME COURT: Reversed and remanded.

In an 8-1 decision, the Supreme Court reversed the Kansas Supreme Court. Justice Clarence Thomas, delivered the majority opinion to which Chief Justice Roberts and Justices Breyer, Alito, Kagan, Gorsuch, and Kavanaugh joined. Justice Kagan issued a concurring opinion to which Justice Ginsburg joined. Justice Sotomayor delivered the dissenting opinion.

 

MAJORITY HOLDING & REASONING:

The majority found that the officer had enough evidence to support the traffic stop under the Fourth Amendment.[14] The majority held, that “when [an] officer lacks information negating an inference that the owner is the driver of the vehicle, the [traffic] stop is [constitutional].”[15] In other words, the Court is saying that officers are allowed to infer the registered owner is also the current driver until they find evidence to the contrary. The majority notes that the reasonable suspicion standard “is an ‘abstract’ concept that cannot be reduced to ‘a neat set of legal rules.’”[16] Since reasonable suspicion “depends on the factual and practical considerations of everyday life on which reasonable and prudent men . . . act,”[17] officers can rely on commonsense inferences.[18] In this case, the majority considered the Deputy Sherriff’s inference that the registered owner was the current driver as a commonsense one.[19] Since the Deputy Sherriff did not find any evidence to the contrary, the majority found his actions constitutionally permissible.[20]

Through this ruling, the Supreme Court affirmed that reasonable suspicion can be satisfied by inferences drawn either from professional expertise or common sense.[21]

 

CONCURRENCE:

While Justices Kagan and Ginsburg join the majority, they do so on slightly different grounds. These two Justices are not prepared to unequivocally adopt the “common sense” inference. For these Justices, the pivotal fact was that Mr. Glover’s license was “revoked” rather than suspended.[22] Under Kansas law, a driver’s license is only revoked after a driver has committed “serious or repeated driving offenses.”[23] In contrast, Kansas will suspend licenses “for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.”[24] Since a revoked license indicates the registered owner has “shown a willingness to flout driving restrictions,” [25] it is more likely than not that such a driver would continue driving even without his/her license.[26] This higher probability supports the officer’s common sense inference that the registered owner is also the present driver.[27]

Justice Kagan states unequivocally, that she would have not sided with the majority, if the license had been suspended.[28] Since suspended licenses can result from unrelated driving infractions, a suspended license does not support a higher probability that the driver would flout driving laws.[29] For Kagan, under this circumstance, the common sense inference “would not much differ from a ‘mere hunch.’”[30] As a mere hunch, the officer’s commence sense inference would not support reasonable suspicion.[31]

 

DISSENT [Justice Sotomayor]:

Justice Sotomayor’s dissents for a few reasons. First, she argues that this new common sense standard, is no different than a mere hunch, which is precisely what the Court previously held as insufficient to support reasonable suspicion.[32] Reasonable suspicion is supposed to be based on “perspectives and inferences of a reasonable officer viewing ‘the facts through the lens of his police experience and expertise.’”[33] Second, Justice Sotomayor finds that the majority opinion “flips the burden of proof.”[34] Rather than obliging the State to produce evidence that justifies its action, the majority allows the State to act so long as there is an absence of evidence.[35] Finally, Justice Sotomayor dissents because this lack of evidence means that officers do not have to tailor their suspicion to the conduct of the individual.[36] Without this requirement, officers are given “free rein to stop a vehicle involved in no suspicious activity simply because it is registered to an unlicensed person . . . [and officers are absolved] from any responsibility to investigate the identity of a driver where feasible.”[37]

Justice Sotomayor rejects Justice Kagan’s distinction between revoked and suspended licenses on the grounds that the laws in other jurisdictions may vary from those in Kansas.[38] Meaning that in other places non-driving related offences could cause a driver’s license to be suspended, revoked, or both. Without this distinction, Justice Kagan’s argument falls apart and the “common sense inference” becomes nothing more than a mere hunch.[39]

 


[1] Kansas v. Glover, 140 S.Ct. 1183, 1186 (2020).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Glover, 140 S.Ct. at 1186.

[7] Kansas v. Glover, 422 P.3d 64, 66 (2018) (“The driver moved to suppress evidence obtained during the stop, arguing the officer did not have reasonable suspicion of illegal activity when he stopped the car.”).

[8] Glover, 422 P.3d at 66.

[9] Id.

[10] Glover, 140 S.Ct at 1187.

[11] Id.

[12] Glover, 422 P.3d at 66.

[13] Id.

[14] Kansas v. Glover, 140 S.Ct. 1183, 1186 (2020).

[15] Glover, 140 S.Ct at 1186.

[16] Id. at 1190.

[17] Id. at 1188.

[18] Id..

[19] Id. (“[Based on the facts,] Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.”).

[20] Glover, 140 S.Ct. at 1191(“Here Deputy Mehrer possessed no exculpatory information––let alone sufficient information to rebut the reasonable inference that Glover was driving his own truck––and thus the stop was justified.”).

[21] Glover, 140 S.Ct at 1189.

[22] Id. at 1192.

[23] Id.

[24] Id.

[25] Id.

[26] Glover, 140 S.Ct. at 1192.

[27] See id. (agreeing with the majorities reasoning in her explanation of how things would be different if the driver’s license was suspended rather than revoked).

[28] Justice Kagan writes “I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws . . . . [F]or example, if Kansas had suspended rather than revoked Glover’s license.”Id.

[29] Id.

[30] Id.

[31] Id.

[32] Glover, 140 S.Ct. at 1194–95.

[33] Id. at 1195 (quoting Ornelas v. United States, 517 U.S. 690, 699 (1996)).

[34] Id.

[35] Id. at 1195–96.

[36] Id. at 1195.

[37] Id. at 1196.

[38] Id. at 1198.

[39] Justice Kagan in her concurrence admits that if the facts of this case were the same but instead the license had been suspended then “[she] suspect[s] that any common sense invoked . . . would not much differ from a ‘mere hunch . . . .’” [39] Glover, 140 S.Ct. at 1193.

 


About the Author

Theo is earning his American and French law degrees through the dual degree program established between Vermont Law School and University of Cergy Pontoise in Paris. He received a B.A. in American Jurisprudence and French from Amherst College. As a 2L he participated in the Vermont Law School Entrepreneurship and Legal Lab (VLSELL), and worked in the civil litigation department at Dinse Knapp and McAndrew. During the summer of 2020, he worked as summer associate at Morgan Stanley. He also volunteered with VLSELL and the Vermont’s Small Business Development Center (SBDC) to educate small business owners impacted by Covid-19 on the CARES Act.

 

Essential Growth: A Brief Look into the H-2A Visa Program that Will Carry U.S. Agriculture Through the Pandemic

By: Jessica Griswold | Vermont Law School, JD Candidate 2021 

August 27, 2020

On August 20, 2020, the U.S. Department of Homeland Security (DHS) issued a temporary final Rule, Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities (the “August 20 TFR”), announcing a further extension of H-2A guest-worker visas.[1]

The DHS first issued Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due to the COVID-19 National Emergency (the “April 20 TFR”), which initially allowed temporary H-2A workers to extend their employment in response to COVID-19 disruptions to the U.S. food and agriculture sector during the summer growing season.[2] As the “continued disruptions and uncertainty” of the pandemic bleed into the fall agricultural season, the DHS has exercised its authority—under section 102 of the Homeland Security Act of 2002 (HSA) and section 103(a) of the Immigration and Nationality Act (INA)—to amend the April 20 TFR as a matter of national security.[3]

Here, the August 20 TFR provides that the DHS will continue allowing H-2A workers who have valid temporary labor certifications from the Department of Labor (DOL) to begin working for a new employer after the U.S. Citizen and Immigration Service (USCIS) receives an extension of stay petition on their behalf. [4]

Generally, the H-2A Visa Program allows U.S. employers to hire nonimmigrant foreign nationals seeking agricultural work on a “temporary or seasonal” basis when U.S. workers are not available to fill the jobs.[5] In the absence of a national emergency, H-2A visas are valid for a maximum limit of three years, though most are typically valid for no longer than one.[6] To apply for an H-2A visa, nonimmigrant workers seeking temporary agricultural work must have a job offer from a U.S. employer.[7]

Further, U.S. employers who wish to recruit and hire temporary agricultural workers from other countries must petition for a Temporary Labor Certification (TLC) from the DOL, which requires employers to show that: (1) there are not enough willing, able, and qualified U.S. workers available to fill the jobs when and where employers need them; and (2) employing foreign nationals for temporary agricultural work will not adversely affect the wages or working conditions of U.S. agricultural workers.[8] This requires a series of lengthy procedural steps and paperwork on part of the employers and the recruiters and petitioners they hire to bring nonimmigrant workers into the U.S.[9]

In the age of the coronavirus pandemic—and always—agricultural workers are essential to U.S. food security and the American economy. Here, the DHS’s effort to facilitate nonimmigrant entry into the U.S. for temporary agricultural employment despite the current administration’s ban on immigration highlights the critical role of farmworkers in maintaining the nation’s food supply. Thus, creating a stronger avenue for legal migration to the U.S. serves to benefit our nation during COVID-19 and beyond.[10]

According to the most recent National Agricultural Workers Survey (NAWS) Research Report, 69% of farmworkers that the DOL interviewed and hired in FY 2015–2016 were born in Mexico, and 83% of all farmworkers were Hispanic.[11] The NAWS does not include H-2A workers in its survey sample.[12] Notably, the U.S. Department of State (DOS) issued over 200,000 H-2A visas in FY 2019.[13] On average, each temporary agricultural worker in the H-2A visa program maintained employment in the United States for six months.[14] Although the gradual expansion of the H-2A program likely played an important role in lessening illegal immigration to the United States from Mexico, H-2A visas still fill only 10% of farm labor.[15]

Moreover, Congress should amend the H-2A visa program to mitigate the bureaucratic complexity that is packed into the program’s 200+ rules.[16] As it exists, the H-2A visa program ensures that employers will provide workers with the required wage rate in their state, housing, transportation, and workers compensation.[17] Also, the employer must guarantee the worker a total number of work hours equal to at least three-fourths of the workdays in each 12-week period.[18] Nevertheless, the power imbalance between employers and H-2A employees has led to intolerable violations of workers’ legal rights that commonly go unchecked.[19]

In addition, many migrant and seasonal agricultural are subject to challenges such as: “hazardous work environments; poverty and insufficient support systems; inadequate or unsafe housing; limited availability of clean water and septic systems; inadequate healthcare access; continuity of care issues; lack of insurance; cultural and language barriers; fear of using healthcare due to immigration status; and lack of transportation.”[20] Notably, less than half of farm workers have healthcare.[21] This unacceptable fact is especially problematic during a pandemic, and even more so as coronavirus infections among farmworkers increase.[22] Further, demanding better working conditions puts H-2A workers at risk of deportation.[23] Because temporary agricultural workers may only acquire H-2A visas at the request of a U.S. employer, they often remain focused on getting the job done regardless of living and working conditions.[24]

Simply put, the H-2A should require U.S. employers to provide migrant workers with fair living and working conditions—at minimum.

In sum, Extending H-2A visas in response to the COVID-19 national emergency creates additional opportunities for nonimmigrant workers in the U.S. and supports the nation’s food supply. However, the H-2A program itself is in need of drastic reform.

 

———

[1] Temporary Changes to Requirements Affecting H-2A Nonimmigrants Due To the COVID-19 National Emergency: Partial Extension of Certain Flexibilities, 85 Fed. Reg. 51304 (Aug. 20, 2020) (to be codified at 8. C.F.R. pts. 214, 274) [hereinafter August 20 TFR].

[2] Id.

[3] August 20 TFR, supra note 1, at 51304–51305.

[4] Id.

[5] Immigration and Nationality Act, 8 U.S.C. §1101(a)(15)(H)(ii)(a) (2018).

[6] 8 C.F.R. §214.2(h)(5)(iv)(A) (2020).

[7] H-2A Program for Temporary Agricultural Workers, Center for Global Development, https://www.cgdev.org/sites/default/files/archive/doc/migration/H-2A_Fact_Sheet8.6.pdf, (last visited Aug.23, 2020).

[8] 8 U.S.C. §1188(a)(1).

[9] See 20 C.F.R. §§ 655.121, 655.130, 655.135(d), 655.135(g), 655.143, 655.144(a), 655.150, 655.153, 655.154, 655.161(a) (providing the procedural requirements for U.S. employers to obtain a Temporary Labor Certification and bring foreign nationals into the U.S. on a temporary or seasonal basis to perform agricultural work).

[10] Janeen Madan Keller & Thomas Ginn, Including Immigrants is Good Policy Not Just During the Pandemic, but Afterwards Too (June 29, 2020), https://www.cgdev.org/blog/including-immigrants-good-policy-not-just-during-pandemic-afterwards-too.

[11] Trish Hernandez & Susan Gabbard, JBS Int’l, Findings from the National Agricultural Workers Survey (NAWS) 2015-2016: A Demographic and Employment Profile of United States Farmworkers, rsch Rep. No. 13 1 (2018), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWS_Research_Report_13.pdf.

[12] Id. at i.

[13] Daniel Costa & Phillip Martin, Coronavirus and farmworkers: Farm Employment, Safety Issues, and the H-2A Guestworker Program (Mar. 24, 2020), https://www.epi.org/publication/coronavirus-and-farmworkers-h-2a/.

[14] Id.

[15] David J. Bier, H-2A Visas for Agriculture: The Complex Process for Farmers to Hire Agricultural Guest Workers, Cato Inst., Immigration Rsch & Pol’y Brief No. 17 1 (2020), https://www.cato.org/sites/cato.org/files/2020-03/IRPB-17-update-4.pdf.

[16] See Id.(describing the H-2A program as “bureaucratically complex”).

[17] H-2A: Temporary Agricultural Employment of Foreign Workers, U.S. Dep’t. Labor, https://www.dol.gov/agencies/whd/agriculture/h2a#.

[18] Id.

[19] Centro de los Derechos del Migrante, Inc., Ripe for Reform: Abuses of Agricultural Workers in the H-2A Visa Program, 6 (2020), https://cdmigrante.org/wp-content/uploads/2020/04/Ripe-for-Reform.pdf.

[20] Rural Migrant Health, Rural Health Info. Hub, https://www.ruralhealthinfo.org/topics/migrant-health#msaw, (last visited Aug. 23, 2020).

[21] U.S. Dep’t. Labor, National Agricultural Workers Survey 17 (2017), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/NAWSPAD_Codebook_2003_2016.pdf.

[22] Coronavirus Infections Among Farmworkers on the Rise, Legal Services Corp. (June 12, 2020), https://www.lsc.gov/media-center/blog/2020/06/12/coronavirus-infections-among-farmers-rise.

[23] Louis Velarde, How one visa program keeps America fed, The Washington Post (June 17, 2020),  https://www.washingtonpost.com/​video/​national/​how-one-visa-program-keeps-america-fed/​2020/​06/​17/​ac3be98d-1ed1-4d4c-8dc7-85cbbeecb5fc_​video.html.

[24] Id.


About the Author

Jessica is a 2021 JD candidate at Vermont Law School (VLS). She has a B.S. in Marketing and a Master of Business Administration Degree (M.B.A.) from the University of Massachusetts, Dartmouth. The Agriculture and Food Systems specialization drew her to VLS and over the last 2 years, she has worked as a student clinician for the Center for Agriculture and Food Systems and spent summer 2020 working as a legal intern for the Center for Science in the Public Interest.

 

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