First Podcast for Janzen Ag Law!

Sarah Aubrey, Prosperity Consulting

I recently did an interview with Sarah Aubrey of Prosperity Consulting, talking about issues facing livestock producers who are looking to expand. Sarah discussed her knowledge and expertise of grant writing for these same farmers. You can listen to the podcast by clicking here:  Prosperity Consulting Podcast.

Special thanks to Sarah Aubrey for making this happen.  Among other talents, Sarah specializes in grant writing for farmers and agribusinesses.  If you are wondering if USDA or other grant money is available to help your operation, contact Sarah.  Her website is found here:  Prosperity Consulting.

By Todd Janzen

Dalzell v. Country View: Neighbors' suit against hog farm "doesn't fly"

The Seventh Circuit Court of Appeals in Chicago, Illinois, has decided a nuisance suit in favor of a Randolph County hog farmer.  The case, Dalzell v. Country View Family Farms, LLC, involved an appeal from the district court that held that a “nuisance” lawsuit brought by various neighbors  against a new hog farm were barred by the Indiana Right to Farm Act.

County Zoning can be a Minefield for Livestock Producers Wanting to Expand

New swine barn under construction.

Not all counties are created equal when it comes to zoning.  Recently, I’ve been involved in a number of zoning disputes in different Indiana counties.  It’s remarkable to me that a farm situated on a county line—as many farms are—will face drastically different zoning requirements depending on which side of the county line the farmer decides to build a new livestock barn.

At one extreme are counties with no zoning at all. There are at least a dozen counties where farmers face no zoning hurdles when deciding whether to expand their farms.  Build it wherever you want—the county won’t interfere.

What are "satellite" manure storage structures?

Sputnik, not a manure storage structure.

A few years ago, concerned Indiana residents raised complaints with their elected officials about the storage of manure in remote ponds, or “lagoons” that were not sited next to existing livestock farms.  The Indiana Department of Environmental Management (IDEM) for years had regulated confined feeding operations (CFOs), but nowhere on the books were stand-alone manure lagoons regulated.

Climate change has already impacted USDA policy.

President Obama recently unveiled his Climate Change Action Plan. This may come as news to some, but the reality is that climate change policy has already impacted farm policy through the United States Department of Agriculture (USDA).

Earlier this year, the USDA issued a report on the effects of global climate change on United States’ agricultural production. The report, available free online, “Climate Change and Agriculture in the United States: Effects and Adaptation,” details the possible effects that changing climate may have on U.S. agriculture. Unlike the EPA, which has sought ways to reduce carbon emissions and “greenhouse gases” through regulatory channels, the USDA report is focused on making sure that U.S. agriculture adapts to any changes in climate.

The Legalities of Raw Milk

A recent Wisconsin farmer’s acquittal for selling “raw” milk may have Indiana farmers wondering to what extent such sales are legal in Indiana.

Raw milk is “unpasteurized” milk. Some believe that raw milk has a higher nutritional content, is tolerated better by people with certain health conditions and has other health benefits.  The State of Indiana requires pasteurization, a process by which milk is heated to slow microbial growth, on all milk that is delivered for “human consumption” in an effort to prevent illness.   Specifically, Indiana Code § 15-18-1-21 states that:

Genetically engineered wheat arrives. Lawsuits follow.

A farmer in Oregon discovered glyphosate resistant wheat recently in one of his fields. Though such genetic engineering (GE) has been common in corn and soybeans for more than a decade, wheat markets have never accepted GE products—and from what I can tell, no biotech company has really pushed to change that. According to the USDA, Monsanto was authorized to test GE wheat from 1998-2005. But such wheat was never approved for sale or commercially sold.

Why patent law favors Monsanto.

It is rare that the United States Supreme Court takes a case that directly affects Midwestern corn and soybean farmers. That happened recently in Bowman v. Monsanto, where the Supreme Court held that Indiana soybean farmer, Vernon Bowman, infringed upon Monsanto’s Roundup Ready patent when he planted “commodity” soybeans he purchased from his local elevator that contained the Roundup Ready technology. Although many billed this case as David versus Goliath, in reality, this 9-0 decision suggests the law was pretty well settled in favor of Monsanto. There are good reasons why Monsanto won.

Thinking of expanding your farm? Don't assume the Right to Farm Act applies.

Obert's Legacy Dairy, LLC

I recently litigated a case that made state and national news involving a “nuisance” claim against the Obert’s Legacy Dairy after it expanded from its traditional 100 cow size to a more modern 760 cow farm. A neighbor, who never complained about the 100 cow farm, did complain about the smell of the 760 cow farm. Citing the Indiana Right to Farm Act, the Indiana Court of Appeals affirmed that the neighbor had no case.

Janzen Ag Law, now appearing on Hoosier Ag Today

For the next few weeks, the articles usually featured on this blog will be featured on Hoosier Ag Today.  Hoosier Ag Today presents readers and listeners with current news and information about Indiana and national agriculture.  Hoosier Ag Today sends out a free daily e-newsletter and is regularly heard on radio stations throughout Indiana and the Midwest.  I am delighted to be featured.  I'll continue to post my usual articles on this website too, but look for my articles on the Hoosier Ag Today website under the heading "Ag Law."  

Bowman v. Monsanto: Farmer Cannot Endlessly Replicate RR Soybeans

The United States Supreme Court has held that an Indiana farmer cannot plant Roundup Ready (RR) soybeans purchased from a grain elevator (or "commodity soybeans") without violating Monsanto's RR patent. (Read prior post: Indiana Farmer Takes Monsanto to Supreme Court).  Justice Kagan wrote the opinion, which the Court summarized as follows:

Parker v. Obert's Legacy Dairy: Court Affirms Right to Farm Act

A few years ago, the Obert family decided that in order for their dairy farm to continue on to the next generation, it would need to expand.  The family consulted with experts in the industry and ultimately decided to build a new, modern milking parlor and  new freestall barn.  The location selected for the new barns was on a 67 acre tract of ground adjacent to their historical farmstead, where the Oberts have farmed since the early 1800s when their ancestors immigrated from Bavaria, Germany, to Gibson County, Indiana. Unfortunately, following the expansion, a neighbor sued the farm for "nuisance," claiming that although he was  fine living next to the old 100 cow dairy, he was not fine with living next to the new 760 cow dairy.

Should I Create a New Company for My Custom Farming Business?

Growing up on a beef cattle farm in Kansas, I spent a good part of my summers swathing and baling hay for other farmers in the area.  This "custom farming" operation utilized some of our farm's machinery, but for the most part it operated as a separate business.  Under situations like that, it makes sense from a legal perspective to create a new company to handle such operations.  If you custom farm--whether silage cutting, manure hauling, harvesting, planting, etc.--read on for points about how and why you should set up a separate company for this purpose.  

Tomorrow's Farmers: Cutting a Wide Swath

Instead of agricultural law, I'm going to break with the theme of this blog and write about a recent observation.  I've been blown away in the past few weeks with a number of America's young farmers.  They are a different breed. They understand the challenges ahead.  And their contribution to agriculture in the next 50 years is going to be huge.

Debate Over Indiana "Ag Gag" Bill: What Does SB373 Really Mean?

There has been a lot of press in Indiana lately about Senate Bill 373.  SB373 attempts to prevent undercover filming or photographing on farms, done without the farmer's permission and with the intent to harm farming operations.  Farm industry groups have lined up to support the bill.  Bob Kraft at Indiana Farm Bureau explained that the bill seeks to stop vigilante practices used to denigrate Indiana’s livestock industry.  Animal rights groups and some environmental groups have lined up to oppose it, calling it an "ag gag" bill.  Even Bob Barker--of Price is Right fame--interjected himself into the debate by sending a letter in opposition to the bill.  (And no, the bill does not prevent anyone from spaying or neutering their pets).  PETA said the bill would "make it illegal to film on factory farms."  Putting aside the debate, here are some facts about the bill:

What I Heard While Visiting the Environmental Working Group

In my experience, most farmers are skeptical of environmentalists.  Many environmental groups deserve this reaction, in my opinion, because some exhibit a self-righteous quality that is insulting to someone whose livelihood depends on the long-term sustainability of his or her land.  How can someone in an office in Washington, D.C. understand land management better than someone who has spent his or her entire life managing the field outside their kitchen window?  This tension recently came to light when I, together with my Indiana Agricultural Leadership classmates, visited the Environmental Working Group (EWG) in Washington, D.C.  Here are some of the ideas I heard (italics are my paraphrasing of EWG):

Farm Policy Predictions After a Week in D.C.

I spent this past week in Washington, D.C., with the Indiana Agricultural Leadership Program.  We met with Senators, Congressmen, farm industry and environmental lobbyists, and executive agency officials. Though this was not my first visit to D.C., the past week was eye-opening for a number of reasons.  There were a few recurring themes I heard over and over this week I thought I would share.

New Fertilizer Rule Brings Regulations Further Downstream

On February 16, 2013, the Fertilizer Use Rule promulgated by the Office of the Indiana State Chemist went into effect. The new rule has some important components that are new to many Hoosier farmers. The most notable change from prior law is that the rule is applicable to everyone, not just large regulated livestock farms. (If you apply less than 10 cubic yards or 4,000 gallons of fertilizer or manure per year, you remain exempt.  But for all other farmers applying fertilizer or manure for the production of crops, this rule applies.)  Here are some important parts:

God Made a Farmer

Someone recently asked me if I had done a post about the Ram Trucks' Superbowl commercial titled "God Made a Farmer."  If you are one of the few people who missed the commercial, it was a series of photos of farmers and farm families undertaking various agricultural pursuits, all set to the lyrics of a poem written and read by the late broadcaster Paul Harvey.  To see the video, click here:  God Made a Farmer.

Some portion of the proceeds from the "likes" of the video will go to benefit the national FFA hunger relief efforts.    

By Todd Janzen

Atrazine Settlement Provides Millions to Water Utilities

A class action lawsuit alleging that the herbicide Atrazine contaminated various Midwestern water supplies has been settled. As part of the settlement, Syngenta Crop Protection, Inc. (Syngenta), the maker of Atrazine, has agreed to pay $105 million to over 1100 class members, consisting of water utilities across the Midwest.  (Indianapolis will reportedly receive $1 million).

A Tribute to a Dutch Dairywoman

Indiana’s dairy industry lost one of its own this week, Leontien Van de Laar Oostdijck.  Anyone who ever met Leontien knows what a huge loss this is for us all.

Leontien was part of waive of Dutch immigrant farmers who sold their farms in Europe to move to Ohio, Michigan, and Indiana in latter part of the 20th century.  After investing their life savings and relocating to the Midwest, farmers like Leontien worked hard to make ends meet in their new country. Coming from a family of Dutch immigrants, I loved watching the “American dream” unfold before my very eyes.

Raw milk study released in Indiana

Unpasteurized or "raw" milk sales for human consumption are illegal in Indiana, but lately every year a bill shows up in the Indiana General Assembly to legalize raw milk sales. After a legalization bill failed in the 2012 legislative session, Indiana legislators authorized Indiana Board of Animal Health (BOAH) to "conduct a study of the issue of farmers selling unpasteurized milk to consumers."  After a summer of researching and soliciting public comments, BOAH has released its study on the sale of raw milk.

The LLC - The Infinitely Variable Company

Growing up, tractors had gears.  The older the tractor, the fewer the gears.  Throughout my childhood, tractors moved from 4 to 8 to 16 gears.  Now, nearly every manufacturer offers an "infinitely variable" transmission that no longer restricts an operator to using a specific gear.

Corporate law underwent a similar transformation in the early 1990s with the development of the "limited liability company" or "LLC."  Prior to the passage of the Indiana Business Flexibility Act in 1994, the LLC form of legal entity did not exist in Indiana. The same was true elsewhere. In 1989, only two states had enacted LLC statutes.  Businesses that wanted to protect their owners from personal liability had one option--form a corporation.

Three reasons it's time to incorporate your farm.

I'm surprised how many farmers I meet that own land or buildings in their personal name.  I'm surprised, because my non-farm clients would not even consider starting up a new business or purchasing commercial property in their own personal name.  Farmers shouldn't do it either, for a number of reasons.

Don't like CAFO regulations? Tell the EPA.

On October 31, 2012, the United States Environmental Protection Agency ("EPA") provided notice that it was undertaking a review of its regulations for concentrated animal feeding operations, or "CAFOs" as they are often described (or "factory farms" as their opponents describe them).  Under Section 610 of the Regulatory Flexibility Act, the EPA must review regulations every ten years to determine their continued necessity.