NICK GOSNELL
Hutch Post
HUTCHINSON, Kan. — Roger McEowen, the Professor of Agricultural Law and Taxation at Washburn University School of Law is clear that foreign land ownership laws will likely be an issue for courts across the country in 2024.
"There has been a court that has weighed in on one of the state statutes on this," McEowen said. "There have been a number of states that have enacted foreign ownership restrictions in the past year, year and a half, but particularly in 2023, that was Florida. The court said it's perfectly within the state's rights to have a law that restricts foreign ownership of certain adversaries, these foreign adversaries that are on the foreign adversary list. The court didn't have any problem with that, and I think that's probably the right decision. It's a legitimate interest of the state in protecting its people and protecting the food supply."
According to the latest USDA Agricultural Foreign Investment Disclosure Act report, foreign persons held an interest in approximately 40 million acres of U.S. agricultural land as of December 31, 2021. This is 3.1 percent of all privately held agricultural land and 1.8 percent of all land in the United States.
"This will continue to be a big issue in 2024," McEowen said. "We'll have more states that enact legislation. Also in 2023, we had the state of Arkansas that pushed it even further and mandated the divestiture of agricultural land interests owned by a company controlled by the Chinese."
Crafting legislation that keeps out bad actors, while allowing for competition to continue when ag land comes up for sale will be tough in statehouses across the country.
"There are a bunch of issues that are tangled into this all over the place," McEowen said. "It's going to make it difficult for state legislatures to craft restrictions in a manner that is carefully tuned to rat out, so to speak, the problem that they are after and not paint with too broad a brush, where you get into constitutional problems," McEowen said. "It presents a thorny issue for state legislatures, for state AGs, for governors, but it's a major issue in terms of agriculture's concern."
Foreign ownership concerns go all the way back to English common law. The common law rule existed in England until it was abolished by statute in 1870.
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