Nebraska Attorney General Jon Bruning has taken the first step toward defending Nebraska’s controversial corporate farming ban before the U.S. Court of Appeals in St. Louis.

Opponents and advocates of the constitutional amendment known as Initiative 300 were sifting through the details of a 17-page legal filing Wednesday.

Bruning was unavailable for comment. But Steve Grasz of Omaha, lead attorney for six Nebraska plaintiffs who had challenged the corporate ban, said he saw no surprises as the state’s legal team formally raised six questions of law.

“I just saw it this morning for the first time,” Grasz said.

Bruning acted after a federal judge in Omaha ruled Dec. 15 that ballot language approved by voters in 1982 was unconstitutional because it interfered with interstate commerce and violated the Americans with Disabilities Act.

Among the six points that Bruning raised about Judge Laurie Smith Camp’s decision was that it does not violate the commerce clause and does not discriminate against out-of-state individuals, partnerships or corporations.

He also said there is no violation of the Americans with Disabilities Act because plaintiffs with disabilities, regardless of those disabilities, would not qualify to own farmland under circumstances outlawed by Initiative 300.

Bruning said “the District Court went far beyond the language of Initiative 300, the explanatory statement, and the ballot title in reaching the conclusion of unconstitutionality.”

If Bruning succeeds in St. Louis, the case could be sent back to Omaha for a full trial. Smith Camp bypassed a trial with a summary judgment.

“The district judge did not issue what’s called a ‘final order,’” Grasz said, “but she basically said that all the important issues in the case were decided.”

David Bracht, another plaintiff attorney with Blackwell Sanders Peper Martin in Omaha, said those trying to overturn the ban remained confident that the judge acted properly.

“I would say absolutely,” responded Bracht, “based on the fact that the District Court’s opinion closely followed the ruling the 8th Circuit has already given” in a South Dakota case.

John Hansen, president of the Nebraska Farmers Union and a crafter of Initiative 300 language, praised Bruning and his staff for their legal work.

“Their legal analysis, their command of the facts, their framing of the issues, in our opinion, has been good,” Hansen said, “and they should prevail.”

The origins of court confrontation go back 23 years to the passage of a law that, with few exceptions, bans ownership of agricultural land or livestock by non-family farm corporations or limited liability partnerships.

From the beginning, the law’s proponents said their goal was to make corporations and business partners engaged in agriculture fully accountable for their business decisions and to deny them a liability shield.

Initiative 300 had withstood several previous legal challenges. But six Nebraska plaintiffs, including former Nebraska Sen. Jim Jones of Eddyville, have won at least a preliminary victory in Omaha with a case they filed a year ago.

Two of the six defendants, including Shad Dahlgren of Lincoln, cited physical disabilities and said portions of Initiative 300 discriminate against them because a family member must be involved in day-to-day management of farm holdings to qualify as a family farm corporation.

The St. Louis court did not rule on the disabilities issue in the demise of Amendment E in South Dakota.

But plaintiff attorney Bracht didn’t see that as a potential problem. According to Bracht, “that just gives us a stronger case, because there are two alternative theories” for unconstitutionality.

Hansen, meanwhile, called the disabilities finding “the farthest reach and the least sound part of her opinion.”

Initiative 300 forces clashed Wednesday even as the latest federal count of Nebraska hogs and pigs showed no change from the 2.85 million reported a year ago.

As of Dec. 1, total pork on the hoof in Nebraska has declined more than 1 million animals since a similar inventory report in 1995.

Rod Johnson of the Nebraska Pork Producers said the numbers comparison suggests Initiative 300 is “one of many factors” in holding down investment in the pork sector even as investment surges in Iowa and other neighboring states.

Johnson called it “disappointing that we’re not seeing the same growth in Nebraska as they are in states around us.” But he said the bigger problem was “the attitude of the people who make the final decisions” in land-use matters at the county level.

County officials are rejecting new pork confinement operations even when they meet all zoning requirements, Johnson said. “And that is where the problem lies in Nebraska.”

Chuck Hassebrook of the Nebraska Center for Rural Affairs, also involved in choosing the Initiative 300 language submitted to voters in 1982, said the state continues to lead the nation in production of red meat.

Hassebrook said the state’s pork promoters “have not come up with a coordinated strategy” for boosting production on family farms.

“I think, instead of focusing on that, there are too many people trying to focus on overcoming the will of the people of this state.”

Reach Art Hovey at (402) 523-4949 or ahovey@alltel.net.

What it means

What happened: Attorney General Jon Bruning began his defense of the state’s corporate farming ban by filing a petition for permission to appeal with the 8th U.S. Court of Appeals in St. Louis.

What it means: If accepted by the court, Bruning’s action — dated Dec. 23 — sets aside a timetable that otherwise could have ended with an Omaha judge issuing a permanent injunction against Initiative 300 enforcement.

What's next: If Bruning’s preliminary request is granted, plaintiff and defense attorneys will have about 90 days to file supporting legal briefs for the court’s consideration.