The Year in Reverse: Janzen Ag Law Blog's Top Stories for 2013

2013 was an exciting year for agricultural law.   We saw the Supreme Court take on an Indiana soybean farmer, the CDC address raw milk sales, and Congress push the Farm Bill aside so that it could focus on the debt ceiling and Obamacare.  What were the three biggest stories on the Janzen Ag Law blog (based upon pageviews, comments, and email feedback)?

Local, State, and Federal Regulations Affecting Agriculture: Join me at the Indiana-Illinois Farm Equipment Show December 17, 2013

On December 17, 2014, I'll be attending the Indiana-Illinois Farm Equipment Show at the Indiana State Fairgrounds. I'll be speaking on a panel at 11:00 a.m. moderated by Hoosier Ag Today on "The Business of Farming: taxes, accounting, regulations, and interest rates." The panel also includes:

Joshua T. Sickler, CPA, Sikich LLP
David A. McDaniel, CPA, Sikich LLP
Matt Monteiro, VP of Finance for Farm Credit Mid-America

Please stop by if you are attending the farm show. Hope to see you there.

Land Use, Nuisance and the Right to Farm: Join me at Indiana Farm Bureau Convention December 13, 2013

I'll be speaking this week at Indiana Farm Bureau's annual convention on the topic of  nuisance and the Right to Farm Act.  There have been a flurry of farm nuisance cases in Indiana over the past decade.  I'm proud to say I have been involved in a number of these cases on behalf of Indiana livestock farmers.  Join me this Friday, December 13, 2013 at 2:30 p.m.at the Indiana Farm Bureau convention in Fort Wayne, Indiana, to explore this topic and learn how to minimize nuisance risk on your farm.

Conference registration details can be found here.

To access the handout passed out at the seminar, click here.
 

Contract Law 201: When to hire an attorney

Law school training and real-world legal experience can pay dividends in complex contract drafting and negotiation.  In my previous post, I explained the contract basics every business person should understand.  In this post, I provide some examples of when you should not go it alone, but instead pick up the phone and call an attorney for help.

1. Should the contract be in writing?  Some contracts are unenforceable unless they are in writing.  Nearly every state has a "statute of frauds" that requires a contract to be in writing if certain factors are present.  An attorney knows or can research these factors.  In Indiana, for example, no contract for the sale of land is valid unless it is written out and signed by the seller.  I.C. 32-21-1-1.  The same is true of a lease greater than three years or deed conveying land.  No writing, no signature, no contract.

Contract Law 101: What every business person should know

You don't have to go to law school to learn how to create a contract. But there are some things every ag professional should know about contract drafting. A contract only needs three things to be enforceable: an offer, acceptance, and consideration. These are the basics every law student learns in their first semester:

1. Offer. Formation of a contract begins with an offer. One person offers to do something in exchange for something else. Offers are “revocable” until such time that they are accepted or changed. But you cannot revoke an offer after it has already been accepted. That’s why it’s always good to put a time-frame on how long an offer remains open. You also want to be sure an offer is clearly communicated, whether verbally or in writing.

Is Ethanol Policy Causing Pollution of Our Streams?

This morning while watching CNBC during my usual workout routine, I heard a story about how President Obama's "Green Energy" policies had a dark side.  The story specifically referred to the renewable fuels standard (or "RFS") requiring that gasoline sold in the US contain a minimum percentage of ethanol.  The "secret, dirty cost" supposedly caused by this policy is that acres of prairie and marginal farmland have been tilled up and planted to corn, allegedly increasing water pollution from chemicals and fertilizer.

Further digging pointed to the source of this story.  The Associated Press ran an article about the hidden costs of the United States' ethanol policy, stating:

State GMO Labeling Laws Present Unanswered Legal Questions

At least 20 states have considered bills requiring labeling for genetically modified (GMO) foods in the past few years.  California's Prop 37 was the most notorious of these proposed laws, but it was defeated by referendum in November 2012.  This hasn't stopped GMO opponents in other states from seeking to pass laws requiring the labeling of GMO containing food.  This raises two questions: First, why doesn't the Food and Drug Administration (FDA) require GMO labels?  Second, is it even legal for states to create their own GMO labels?

Why the Chesapeake Bay Matters to Midwestern Farmers

I just returned from the American Bar Association's annual fall environmental conference. This year's conference was in Baltimore, at the north end of the Chesapeake Bay.  Needless to say that the environmental condition of the bay and the controversy surrounding it were the talk of the conference.  If you don't understand why what happens in the Chesapeake Bay may affect you, read on.

Modern Agriculture's Big Five Issues (and How the Law is Reacting to Them)

For this next year, I’m serving as the chair of the American Bar Association’s (ABA) Agricultural Management Committee. The Committee is part of the wider ABA Section on the Environment, Energy and Resources and focuses on cutting-edge issues involving agriculture and the environment, including biotechnology, livestock, sustainability, and food safety. One of the chair’s duties is to create an Action Plan, identifying the five top issues related to agriculture and the environment. Here’s my list and brief explanation of the laws that these issues affect.

Wetlands and Agriculture: An Overview of Swampbuster

"Swampbuster." It is a fun word. However, it can cause some not-so-fun repercussions for farmers who violate its rules protecting wetlands. Swampbuster is the term used for the federal law that discourages farmers from altering wetlands by withholding federal farm program benefits from any person who: (1) plants an agricultural commodity on a converted wetland that was converted by drainage, dredging, leveling, or any other means; or (2) converts a wetland for the purpose of or to make agricultural commodity production possible. See 16 U.S.C.§ 3821.

Problems in the Mississippi River are Flowing Upstream: Gulf Restoration Network v. EPA

In 2008, various nonprofit environmental groups petitioned the U.S. Environmental Protection Agency (EPA) to create rules to reduce nitrogen and phosphorus levels in the Mississippi River Basin.  The environmental groups argued that because of the massive dead zone in the Gulf of Mexico—known as “gulf hypoxia”--the EPA was required to do a better job of reducing nitrogen and phosphorus run-off into the Mississippi River and its upstream tributaries.  The groups asserted that the Clean Water Act required the EPA to create new rules for reducing nitrogen and phosphorus.

The Economist is Right: Farming as Rocket Science.

Like many farm kids, I grew up learning how to build rockets.  Though miniature in size, the same components that made NASA rockets fly worked with our model rockets too.  The rockets contained real engines, cargo bays, and parachutes that would deploy (if everything went right) on descent.  I never thought that building rockets had anything to do with farming, but a recent article The Economist has changed my mind: 

Will drones be used by government agencies to monitor agriculture?

All of the excitement over drones lately has made me wonder how more widespread use of drones will affect agriculture.   We got a preview of the issue last year, when one Congressman falsely accused the EPA of using military drones to spy on farmers.  It is true the EPA uses aerial surveillance to look for water quality violations, but as far as I am aware such activities involve old-school tactics–people, Cessnas, and cameras.  Still, farmers looking into the future might wonder, could the EPA (or other government agency) use drones to monitor farms?

Indiana Lawyer: Farm Smells Ignite Debate, No Consensus

I was recently quoted in the Indiana Lawyer, which published an article about farm nuisance, the Right to
Farm Act, and urban sprawl into the country side:

Before dinner can be prepared and served at the table, the food has to be raised on a farm.  However, Old MacDonald’s Farm with its placid scenes of pigs and cows is a shrinking segment of American farming, being replaced with large industrial agricultural operations with hundreds and thousands of animals.

Indiana Coliseum: They don't make them like they used to.

There are times in history when civilizations construct buildings to last for generations to come.  The cathedrals of Europe, the Parthenon, and the Lincoln Memorial are all great examples. But on a much smaller scale, we are surrounded by great buildings constructed by people who built them not just for themselves, but for their grandchildren.  After recent tour of the Indiana Fairgrounds Coliseum, which is undergoing renovation that exposes its core structure, I was left with that impression.

Not getting paid to feed someone else's horse?

One of the more interesting legal questions I answered over the years goes like this:

I’ve been boarding a horse for someone for the last few months and now the horse’s owner has stopped paying me. I can’t stop feeding the horse, but what can I do?

Downstream Problems: Farmer Liability for Fishkills in Indiana

This time of year, many farmers are busy spraying crops with herbicides and pesticides. Should an accident occur that causes these chemicals to enter a stream or river—whether caused by negligence or rapidly shifting weather conditions—a farmer may find a number of state officials knocking on the front door to investigate.

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.