Lamson, Dugan and Murray, LLP, Attorneys at Law

Florida’s Constitutional Ban on Gestation Crates = $505,000 Award for Hog Producer

Posted in Government Regulations

Berkshire Sow

A July decision by the Florida appellate court awarding a Florida hog producer over $500,000 for damages that occurred as a result of the State’s 2003 ban on gestation crates may cause legislatures to take a second look before enacting legislation to rid the pork industry of those very crates. 

In 2010, Stephen Basford filed an “inverse condemnation” lawsuit against the State of Florida, claiming he was forced to shut down his hog operation after the ban on gestation crates was enacted.  The court agreed with Stephen Basford and found the ban prevented Mr. Basford from using the pig-raising facilities and that Mr. Basford would incur over $600,000 in costs to modify the facilities to operate without gestation crates. 

An “inverse condemnation” suit is akin to a “takings claim” which we previously discussed in Rezoning Your Backyard.  The 2003 constitutional ban rendered Mr. Basford’s hog operation useless and essentially “took” approximately $505,000 in value from Mr. Basford.  Therefore, the court found Mr. Basford had a right to receive compensation for the government’s taking of such value.  For more information check out the US Agricultural & Food Law and Policy Blog.   

The ruling is not going to stop animal rights groups from pushing for gestation crate bans in all states.  Furthermore, the court emphasized the ruling was limited to Mr. Basford’s narrowly tailored circumstances.  However narrowly tailored the ruling, legislatures should take note of the decision when deciding how such regulations may affect existing agricultural industry and may create litigation.  

You can find the full decision at State of Florida v. Stephen D. Basford.      

 

Property Rights Along Waterway: What Nebraska Land Owners and Float Trippers Need to Know.

Posted in Government Regulations, Property Rights, Water Law

Float trips on the Dismal River, Platte River, and Niobrara in Nebraska, the Gasconade, Little Piney and Big Piney in Missouri and the North Platte in Wyoming make up some of my fondest memories.  On every one of those float trips, without fail, nature calls on somebody in the group and a decision has to be made as to where can we stop, and how long can we stick around?

This issue came to a deadly end in Missouri on the Meramec River over the weekend of July 21st.  A group of tubers pulled off on a sand bar for a pit stop, wherein a landowner had posted a Keep Out sign.  The landowner confronted the tubers and an argument ensued.  During the argument the landowner shot and killed one of the tubers and was subsequently arrested and charged with second degree murder.

Nebraska had similar episode a while back when a landowner set up a firing range next to the Long Pine Creek which was routinely floated by families.  The landowner got himself in trouble when he fired bullets striking the embankment in front of a family tubing the creek, and fired more shots when the family attempted to walk back upstream.  The landowner was eventually convicted of making terroristic threats and sentenced to 18 months probation and a $2,000 fine.  They also took away his guns.   

So that begs two questions, what are the rights of those floating the rivers and those owning the land along the waterways?  While confusion remains in Missouri, the Nebraska rule is fairly clear.

For canoers, kayakers and tubers:

An individual is allowed to navigate all Nebraska rivers and streams even if such rivers and streams flow through private property.   The landowner owns the land adjoining and underneath the river and stream.  Therefore, an individual is trespassing if he/she gets out of the canoe, kayak or inner-tube, or drops anchor.  However, an individual is allowed to access private property if the individual is required to portage or otherwise transport their canoe, kayak or inner-tube around any fence or obstruction in the river or stream. 

(This was also the rule as I understood and lived by in Wyoming.)  

For landowners:

Landowners can string fences across rivers and streams as long as they don’t violate regulations set out by the Corps of Engineers.  Landowners can also use force in protecting their property if such force is immediately neccessary.  However, landowners cannot generally use “deadly force” to protect a sandbar, river bed, or embankment.  As the Nebraska landowner found out, firing a gun in the direction of another constitutes deadly force. 

Quoting the Missouri attorney from the St. Louis Dispatch, “we don’t have a stand-your-gravel-bar-law yet.”  No matter what your rights are, landowners and float trippers must realize that civility and courtesy is the best way to protect those rights.

Wet Weather Problems Pt. III: Gulf of Mexico Dead Zone and Iowa’s Response

Posted in Government Regulations

The Gulf of Mexico’s dead zone is a big problem and the problem may the biggest on record this year as a result of the wet spring.  

As can be expected, heavier-than-normal rains lead to heavier-than-normal fertilizer runoff from fields, yards, golf courses, etc, into Midwestern rivers, which eventually ends up in the Gulf of Mexico.  Algae feasts on the nitrogen from the fertilizer creating large algae blooms which die off and are decomposed by bacteria.  The bacteria use oxygen in the water decomposing the algae creating a large zone of oxygen-less water.  Fish, including commercialized shellfish, die off or flee the area; leaving fisheries and fishermen with empty nets.  As illustrated below by Dan Swenson.     

Dead Zone Formation

There are a lot of causes for the dead zone, but many point their fingers at Midwestern agricultural practices as the main source of the nutrients entering the Gulf of Mexico.  While acknowledging the problem, the nation’s crop production relies upon fertilizers applied in those Midwestern states surrounding the Mississippi River and its tributaries.   

In response, Iowa created the Iowa Nutrient Reduction Strategy to begin addressing the problems set out in the 2008 Gulf Hypoxia Action Plan.  The Strategy’s outline is

A pragmatic approach for reducing nutrient loads discharged from the state’s largest wastewater treatment plants and major industries, in combination with targeted conservation practices to reduce loads from nonpoint sources such as farm fields.

Those directly affected by the dead zone will argue the voluntary conservation measures outlined in the Strategy do not go far enough and complain Midwestern farmers are unable to police themselves.  From a legal perspective, Midwestern farmers must realize that government regulations are probably around the corner if voluntary conservation practices do not work. 

In any event, the Strategy is Iowa’s first step onto the high wire across the competing interests of the Gulf of Mexico and U.S. crop production.   

A chart outlining the recommended conservation practices and how such practices may affect crop yields can be found at: Nutrient Reduction Strategy

Wet Weather Problems Pt II: Crop Insurance and Your Options

Posted in Crop Insurance

Flooded Field

 

To plant or not to plant?  It is a question several farmers are facing this year in those areas of the Midwest where the rain hasn’t let up and the rivers have overtopped their banks.  In some areas, the decision has been made for them.  In those areas where the fields are beginning to dry out, farmers are well advised to speak with their crop insurance agent to determine how their decision may affect their crop insurance eligibility.

In light of the situation, I went to Greg McInnis from Ambank Insurance, in LeMars, Iowa to get his take on the weather conditions in relation to farmers’ options under their federal multi-peril crop insurance policies.  Born and raised in Plymouth County, Iowa, Greg McInnis has been handling farmers’ crop insurance needs for over 20 years and is currently the Managing Agent at Ambank Insurance’s LeMars branch. 

Planting deadlines are important for crop insurance eligibility.  What are the planting deadlines for a farmer to be eligible for a crop insurance claim?

I am in Northwest Iowa and plant deadlines vary per the crop and by location.  The final plant date for corn (May 31st) has come and gona and soybeans (June 15th) is fast approaching.  However, you can still plant an insurable crop within 25 days after those dates if you are insured for late planting.  A late planting results in a 1% reduction in coverage for every day past the plant deadline.  You cannot insure a crop which is planted 25 days after the plant deadline for most crops.  

What options does a farmer have when prevented from planting prior to the final plant date?

When you are prevented from planting you have a Prevented Plant claim.  After ensuring you have given proper and timely notice of the claim, you are left with a couple of options.  

First, you could take a 100% loss on a Prevented Plant claim of the first crop and plant a cover crop after the final plant date.  Remember, you cannot harvest the cover crop and cannot hay or graze the cover crop until November 1 under this option.   

Second, you could plant a second crop after the late plant date of the prevented crop.  The second crop is fully insured at 100% of the premium.  However, the premium and indemnity on the first crop will be reduced to 35%.  

What options does a farmer have when the original crop was damaged by the weather this early in the season?

If you believe your original crop was damaged by wind, hail or excessive moisture, you need to notify your agent who will contact the Approved Insurance Provider (AIP).  Thereafter, the AIP will introduce three scenarios.

First, you could replant the acres if the AIP determines it is practical to replant.  The policy provides coverage for the cost of the replant and the replanted acres are insured for the same production guarantee of the original crop. 

Second, you can take a 100% payment for the original crop loss minus appraisal and plant a second non-insured crop.  The acres and loss of the original crop will be used on your Actual Production History (APH).  You must also report the acres and production  on the second non-insured crop but such information will not be used for APH purposes. 

Third, you could choose to plant and insure a second crop with 100% premium and indemnity.  However, similar to the prevented plant claim, the original crop insurance premium and indemnity would be reduced to 35%. 

The original crop premium and indemnity can be returned to 100% if there is no claim on the second crop. 

-

Greg emphasized that crop insurance eligibility and options are very case specific.  Anybody with questions on how they should proceed under their policy given the weather issues needs to meet with their insurance agent immediately. 

Greg McInnis can be reached by phone at 712-546-7821. 

For more information please check out the attached Prevented Plant Flow Chart   

 

 

Wet Weather Problems Pt. 1: Manure Application and Iowa Law

Posted in Farm Management, Government Regulations, Uncategorized

This spring it rains 3 days for every 1 day it doesn’t rain in Iowa.  At least it seems.manure tank with tractor  

While the headlines concentrate on the delayed planting and replanting caused by flooded fields, livestock producers are scrambling to find ways to drain holding ponds filling up with rainwater.   

Livestock operators can relieve pressure on the holdings ponds by applying the manure onto the neighboring fields.  Manure application is an important aspect of any operation’s manure management plan and violations for over application of manure nitrogen can result in substantial fines.  Consequently, operators have to be careful where they apply the manure based on the nitrogen allowances for a given field. 

Generally, manure application is simple enough once a plan is established.  However, this year the weather has delayed planting for many farmers in Iowa and some farmers may decide to plant soybeans in fields orginally planned for corn.  Iowa generally limits manure nitrogen to 100 pounds of available nitrogen per acre for land planted to soybeans, which may be dramatically less than the nitrogen already applied or to be applied by the livestock operator.     

Luckily, the Iowa Administrative Code provides for changes in a farmer’s crop schedule.  Chapter 65.17(6) of the Iowa Administrative Code provides:

“The confinement feeding operation owner shall not be penalized for exceeding the nitrogen or phosphorus application rate for an unplanned crop, if crop schedules are altered because of weather, farm program changes, market factor changes, or other unforeseeable circumstances. However, the penalty preclusion in the previous sentence does not apply to a confinement feeding operation owner subject to the NPDES permit program.”

Furthermore, the 100 pound manure nitrogen limitation for soybeans does not apply after June 1 of each year.  ICA 65.17(18)(c)  After June 1, the nitrogen rate would be based on the “optimum crop yields as determined by IAC 65.17(6)” and the corresponding Table 4 at the end of the chapter.    

The Iowa Administrative Code provides some flexibility for manure management issues caused by the wet spring in Iowa.  However, that doesn’t mean livestock operators don’t have to be careful in their manure applications under the current conditions and should always consult their certified crop adviser. 

For more information on these issues and tips see: Manure Management Concerns Caused by Recent Wet Weather.

Supreme Court Ruling Protects Monsanto’s Patent For Round Up Ready Seed

Posted in Biotechnology, Uncategorized
Old US Supreme Court Chamber in Capital Bldg

Old US Supreme Court Chamber in Capital Bldg

 

The U.S. Supreme Court ruled an Indiana farmer violated Monsanto’s patent when he planted soybeans containing Monsanto’s patented Round-Up ready genetics without paying Monsanto for the seed.  The Court emphasized the ruling was limited to seeds, but the decision may affect self-replicating technology outside the ag world.  

Indiana farmer, Vernon Bowman, purchased Round-Up Ready soybeans from Monsanto for his first crop of the season.  However, starting in 1999, Bowman decided to purchase soybeans from the local elevator to plant his late-season second crop.  Considering all of Bowman’s neighbors were using Round-Up Ready seed, Bowman knew the soybeans he purchased from the elevator would also contain the Round-Up Ready gene.  Bowman would then save back seed from the late-season crop which resisted the Round-Up herbicide and planted those seeds the following year.  Bowman produced eight crops of Round-Up Ready soybeans from the soybeans he originally purchased from the local elevator.     

Bowman thought he found his way around Monsanto’s patent rights through a loophole known as ”patent exhaustion”.  Essentially, patent exhaustion prevents a patent holder from controlling how a patented product is used after purchase.  In this case, Monsanto could not control whether Bowman sold the seed, fed them to his animals, or consumed them himself.   Bowman figured “patent exhaustion” extended to alow him to use the seed anyway he saw fit, including using the seed to grow next year’s crop.   

The Court disagreed and explained ”patent exhaustion” does not allow a purchaser to replicate the product.  The Court further explained that purchasing the seed from the local elevator, instead of Monsanto, did not create an extra layer of “patent exhaustion” protection.  In sum, no matter how Bowman obtained the seeds, he was not allowed to use the seed to create his own Round-Up Ready soybeans without paying Monsanto.

Monsanto and other large agribusiness companies feel the ruling protects the investment in research and development incurred in creating future biotechnology.  However, the Court has officially stepped into the commercial world of genetic technology, which may go beyond the food we eat.

Agricultural Law Pt. IV: Touchdown in Taiwan

Posted in Uncategorized

The group touched down late in Taipei, Taiwan to start the last leg of the LEAD 31 International Seminar.  The following four days was a whirlwind of experiencing the culture, politics and economy of the East Asian state otherwise known as the Republic of China.

Chiang Kai-Shek Memorial

Chiang Kai-Shek Memorial

To understand Taiwan, one must understand the split between the Republic of China (Taiwan) and the People’s Republic of China (China).  Therefore, our first stop was the  National Chiang Kai-shek Memorial Hall, which is a dedication and historical narrative to Taiwan’s founding father and first president, Chiang Kai-shek.

From Taipei, the group hopped on a bus to Yilan County in northeastern Taiwan.  After, driving through mountain passes and rice paddied landscapes, we visited the Sanfu Leisure Farm and Shangri-La Leisure Farm.  The Sanfu and Shangri-La leisure farms are not comparable to my definition of a farm.  Rather, I would characterize the Sanfu Leisure Farm and Shangri-La Leisure Farms as eco-tourism sites, consisting of several acres of natural habitat and wildlife tucked into the sides of the mountains. 

Rice paddies outside Yinlan, Taiwan

Rice paddies outside Yinlan, Taiwan

From Yilan we traveled to Miaoli in northwest Taiwan to visit the Flying Cow Ranch.  Referring to the Flying Cow Ranch as a ”ranch” is a pretty liberal use of the term.  However, Taiwan agriculture is conducted on a much smaller scale than it is in the U.S. with most farms consisting of 2 – 5 acres.  Although large in area for Taiwan, the Flying Cow Ranch maintains only small herd of milking cows and goats and is set up more for agri-tourism than commercial milk production.  The Ranch does produce a variety of dairy products sold on site to visitors and maintains a 7 acre organic garden.    

LEAD 31 Meeting with Taiwan Council of Ag

LEAD 31 Meeting with Taiwan Council of Ag

After visiting the Flying Cow Ranch, we jumped on the bus and headed east to Taipei.  Back in Taipei we had the opportunity to visit with representatives from the US Meat Export Federation (USMEF), US Grains Council (USGC), US Wheat Associates, and the American Soybean Association International Marketing (ASA-IM) at the American Institute.  We also had the opportunity to for a question and answer session at the Taiwan Council of Agriculture, which is essentially Taiwan’s version of the USDA.   

The one common theme throughout the Taiwan visit was the large role the U.S. played in Taiwan’s agricultural economy and the desire to build the connection and agricultural trade between the two countries. 

Leaving Taiwan and heading home was admittedly bittersweet.  I was torn between being ready to go home  and the desire to continue experiencing what these countries had to offer.  It was an experience I will never forget and will recommend to anyone who asks.

Agricultural Law Abroad Pt. III: Visiting Vietnam

Posted in Uncategorized

Somewhere out in Hanoi a rooster crows incessantly

To be honest, of the three countries we visited on the LEAD 31 International Seminar, Vietnam was my favorite.  At its core, Hong Kong is similar to almost any other international metropolis.  Hanoi and Ho Chi Minh City, on the other hand were completely different than anything I had ever experienced.

Hanoi

Upon leaving Hong Kong, we flew into rain drenched Hanoi.  I had some preconceived notions of Hanoi as a communist block city of bare, minimalist concrete, covered with banners of socialist propaganda and in that respect, Hanoi did not disappoint.  However, I was surprised to find the street level of almost every building housed a family-owned shop selling anything and everything from freshly hung meat to all your hardware needs.  Entreprenuership at the local level thrives in Hanoi. 

Exchange at Vietnam Farmers Union

  While in Hanoi we met with several U.S. delegates at the U.S. Embassy, toured the Hanoi Hilton, and the Hanoi University of Agriculture.  From an agricultural perspective, I found the exchange with the Vietnam’s Famer’s Union (VFU) to be the most educational.  The VFU serves the dual functions of distributing information, technology and modern farming practices to the millions of farmers in Vietnam and serving as the farmers’ voice regarding government policies and regulations.  Although the VFU’s director tows the communist party line, it became clear in our exchange, that the government understands the need to bring its agriculture  production up to modern standards if it is going to participate in the global market.

Ho Chi Minh

A display of the tunnels at Cu Chi

From the city dynamic to the weather and everything in between, Ho Chi Minh city (aka Saigon) is a different world from Hanoi.  The city is humming with western social and economic influence, and without question, retains the wealth in Vietnam.  In Ho Chi Minh we had the opportunity to meet with several more U.S. delegates to discuss the hurdles and opportunities U.S. companies face when working and investing in Vietnam.  The delegates confirmed that although the government is centralized out of Hanoi, the economy is ran from Ho Chi Minh.  Thereafter, we visited the infamous tunnels of Cu Chi, consisting of the immense network of tunnels constructed by the North Vietnamese and Viet Cong during the Vietnam war.  The tunnels were a sobernig and educational experience for the group but we soon realized the war (American War as referred in
Vietnam) does not have the same grip on the Vietnam population the way the war still has on the U.S.   Our last stop was a tour of the Hi Tech Agricultural Management Park which provides an  educational and technological launchpad for agricultural businesses. 

Orchids, seen here at the Hi Tech Ag Park, are one of Vietnam’s largest ag exports

   

The Lead 31 International Seminar moved pretty fast and you had to keep up or get left behind.  But getting left behind in Vietnam might have been worth the price of catching up as there was a lot more of the country and culture I wanted to experience. 

Pictures and more information of the Vietnam leg can be found on the University of Nebraska LEAD website

 

Agricultural Law Abroad; Pt. II: Hello Hong Kong

Posted in Uncategorized

If you love skyscrapers and city skylines, Hong Kong is the place for you.  

The morning after arriving in Hong Kong was spent acclimating to our surroundings (i.e. figuring out breakfast (fried monk fish) and exchange rates).  Fortunately, we did not have to figure out lunch, which was served and sponsored by Pet-Link Co. Ltd.  Pet-Link Co. is a distributor of small animal pet products produced by Oxbow Animal Health in Murdock, Nebraska.  Space is a premium in Hong Kong and rabbits and hamsters are popular pets.  Oxbow is an international leader in nutrition  of such animals.  The Pet-Link presentation provided a microcosm of the difference between doing business in a Special Administrative Region like Hong Kong from mainland China.  Essentially, Hong Kong is economically and politically autonomous from the mainland, which allow businesses to invest and thrive freely in the Hong Kong regions.  The same cannot be said for most of mainland China, where outside investors run a gauntlet of bureaucracy while being under the thumb of the government. 

After lunch we toured the Aberdeen Fishing Village and Repulse Bay.  English sailors made first contact with the local population at Aberdeen Harbor, which is now is populated by

Aberdeen Fishing Village

an interesting combination of million dollar yachts and fishing junks.  Several thousand people live and work on the boats; fishing everyday which they sell to the local distributors and nearby markets.  Repulse Bay on the other hand is all about recreation and one of the more popular beaches in Hong Kong.  Being in business attire, the group enjoyed the views mainly from the sidewalk while exploring the large Kwun Yam Taoist Shrine located next to the beach. 

Repulse Bay

The group was dropped off at the famous Ladies Market after dinner to fend for ourselves.  Why they call it the Ladies Market, I do not know.  The Ladies Market is a massive, nine block area of wall to wall stores and street vendors who sell everything from clothes, to electronics, to you-name-it.  All prices are negotiable a the Ladies Market.  Members of the group lightened their pockets but heavied their backpacks before filtering back to the hotel; some…ahem…later than others.    

Ladies Market

The following morning, we were bussed to Hong Kong Disneyland to tour the facilities before catching our afternoon plane to Hanoi, Vietnam.  We didn’t get on any rides. However, we did get a great tour demonstrating how U.S. agricultural products are being served worldwide; specifically Nebraska beef which Hong Kong Disney serves in the high end dining operations.      

After lunch we were off to the airport.  One and half days in Hong Kong is not enough, but by mid-afternoon, the group was already preparing for Vietnam.

Agricultural Law Abroad: Part I: How I Came to Board a Plane for SE Asia

Posted in Uncategorized

I realize it has been some time since my last posting.  But wait, before you write me off as being lazy or having given up, listen to my excuse.  

Rice paddies outside Taipei, Taiwan

On January 12th, I and the rest ofthe Nebraska LEAD Class 31, left for an educational tour of Hong Kong, Vietnam and Taiwan returning on January 24th.  The weeks beforehand were spent scrambling around getting my cases and staff organized in preparation for my 12 day absence from the office.  

Before talking about the travels, I want to explain how I got to the point of boarding a plane for SE Asia.  In the spring of 2011, I applied for the Nebraska LEAD Program, which is a leadership development program geared towards Nebraska residents involved in production agricultural and agri-businesses.  The mission of the program is “To prepare and motivate men and women in agriculture for more effective leadership.”  To fulfill that mission, the Nebraska Agricultural Leadership Council selects a new class of 30 applicants each year for two-year program of monthly educational seminars held throughout the State.  Throughout the seminars, class members are provided an education on agriculture and the leadership skills necessary to take agriculture into the next generation. 

During the second year, the class is sent on an international study/travel seminar.  The location of the international study/travel seminar which changes every year.  This year, LEAD Class 31 traveled to Hong Kong, Vietnam and Taiwan.  Over the next several days, I plan to blog about my experiences in those countries and what I learned of their agricultural practices and the regulatory system in which it works.