Farmers v. Colorado
A group of ag employers that represent several commodities across the state have filed a lawsuit against the state of Colorado seeking a preliminary injunction of the access provisions of the so-called Farm Workers Bill of Rights, provisions they call in their filing “more onerous” than California provisions recently ruled unconstitutional. In Farmers v. Colorado, the plaintiffs are challenging statutory provisions, recently adopted by the Colorado General Assembly and signed into law by Gov. Jared Polis as part of Senate Bill 21-087, which authorize uninvited parties to enter the plaintiffs’ farms and ranches, as well as the farms and ranches of other Colorado agricultural employers, is a violation of the Fifth Amendment.
The provisions allow access to private property at a variety of times by “key service providers” who can access the property for an almost unlimited variety of reasons. In the filing, Bruce Talbott, a peach grower in Palisade, Colo., said Talbott Farms’ food safety plan, and its related compliance programs, are of utmost importance to its operation. The operation is subject to periodic Good Agricultural Practices (GAP) and Good Handling Practices (GHP) audits conducted under the supervision of the Colorado Department of Agriculture and in accordance with the United States Department of Agriculture Fresh Produce Audit Verification Program. None of these standards are compatible with having unannounced key service providers coming onto Talbott Farms’ properties at any location and at any time. The Colorado Access Provisions therefore threaten Talbott Farms’ ability to continue achieving outstanding scores on GAP and GHP audits, which could adversely affect its business operations. Talbott Farms is in the process of undertaking an additional auditing regimen based on Global Food Safety Initiative benchmarks. Passing this audit is critical to the farm’s ability to sell its produce to regional and national grocery retailers. It includes requirements that are not compatible with the Access Provisions’ authorization of service providers coming onto farm property in search of employees with whom they wish to meet.
The term service provider is broad and can also include union activists. This was the case in a Supreme Court case in California cited in the suit. In a June 2021 decision, the Supreme Court upheld private property rights in Cedar Point Nursery v. Hassid. The Supreme Court affirmed that the government cannot force people to allow third parties to trespass on their property.
According to court documents, in 2015, union activists entered Cedar Point Nursery where workers were tending to strawberry plants. Shouting into bullhorns, the activists pressured farm workers to join the United Farm Workers union.
According to the Pacific Legal Foundation, the farm owner, Mike Fahner, didn’t grant permission to the union to come onto the property and was unaware of their plans to enter. Fahner wasn’t legally allowed to tell them to leave because of a California law that allows union activists to enter private property to recruit members. The Supreme Court ruled in favor of Cedar Point and other farmers, but also in favor of farm workers who shouldn’t be accosted by unwanted messages or visitors while they’re at their workplace.
In comparison to the California access rights are, according to the filing, less violative of private property rights. The California regulation expressly excludes dairy barns, milk houses, poultry hatcheries, enclosed egg production areas, and covered floral nursery growing areas. The California regulation is also limited to labor organizers, whereas the Colorado Access Provisions allow access to “any service provider to which an agricultural worker may need access.” Unlike California, the Colorado Access Provisions do not limit the periods of allowed access or the number of service providers that may enter the property at one time. The Colorado Access Provisions also do not require notice to employers or require service providers to wear badges to identify themselves.
Blaine Produce grows signature hybrid and heirloom tomatoes, as well as specialty greens, vegetables, fruits, and flowers near Grand Junction, Colo. The company currently employs four people who work in its greenhouses, shade tunnels, and fields, and plans to add one or two more employees in the near future. According to the filing, because Blaine Produce produces food for human consumption, and in order to meet the demands of its customers, the company maintains strict food safety protocols throughout its farming operations. These protocols include frequent handwashing, wearing lab coats and latex gloves, and disinfection of shoes whenever entering a greenhouse. None of Blain Produce’s greenhouses, or the properties on which they are located, are open to the general public, but, according to the filing, the Colorado Access Provisions open Blaine Produce’s private property to people who are unknown to Blaine Produce; who Blaine Produce did not invite; who are not required to provide Blaine Produce with notice in advance of their arrival; and who Blaine Produce is prohibited from interfering with. The specialty fruits, vegetables, and flowers that Blaine Produce grows in its greenhouses, shade tunnels, and fields, are, at times, fragile and also susceptible to disease, including the tobacco mosaic virus and the tomato brown rugose fruit virus (“ToBRFV”). Transmitted easily by people, both viruses carry devastating consequences should a key service provider ignore its posted warnings and enter one of its greenhouses, shade tunnels, or fields.
The virtually unfettered access that the Colorado Access Provisions grant to key service providers also creates significant problems for Marc Arnusch Farms in meeting its obligation, under the Colorado Premises Liability Act, to protect people who come onto its farm from injury, given the automated heavy equipment that is frequently in use during planting and harvesting seasons. Arnusch maintains a Private Pesticide Applicator’s License issued by the Colorado Department of Agriculture and routinely applies pesticides to crops. The suit said while these pesticides are safe when used by applicators with adequate training and equipment, they can become harmful to humans at certain points in the application process absent appropriate safety precautions. If key service providers authorized to take access to its private property, without advance notice and without its owners’ consent, were to come into contact with, and be harmed by, the pesticides the farm applies, Arnusch would fall out of compliance with state and federal regulations, putting at risk trespassers and his ability to maintain his license.
Plaintiff Box Elder Ranch, is a row crop, feedyard, and cattle operation located in Yuma County. The concerns Audrey Rock outlines in the suit speak to the safety of employees and key service providers alike. In addition to dangers posed by heavy equipment and the large livestock present on the ranch, including a bison herd. Plaintiff Mauch Farms near Lamar, Colo., cite similar concerns, especially with respect to heavy equipment, damage to crops, and interruption of irrigation operations.
Specifically, the plaintiffs assert that the Colorado Access Provisions, on their face, violate the Fifth and 14th Amendments and, therefore, cannot be enforced against Colorado agricultural employers with respect to property they own or lease and on which they engage in agriculture, that is not open to the general public, and from which they have the right to exclude third parties as provided in Colorado law.
WASHINGTON — The U.S. Department of Agriculture is investing up to $12 million in partnerships that expand access to conservation technical assistance for livestock producers and increase the use of conservation practices on grazing lands.…
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