In any ag community there is lot of cooperation and partnership between farming operations and the ag industries that service those operations. Neighbors may loan equipment and labor to put in, maintain, or harvest a crop, while others do the same to care for livestock. In some cases, an ag service may call in another provider to cover a client’s needs. Generally, this cooperation and partnership works well and helps [...]
On occasion we field a call from a landowner who has an issue with the condition of a neighbor’s drainage ditch. The landowner believes uncontrolled weeds and silt deposits in the neighbor’s drainage ditch is preventing runoff from the landowner’s drainage ditch. Usually, the issue is resolved with some open communication and a simple request to clean and clear the drainage ditch. Unfortunately, on occasion the neighbor has no interest [...]
While waiting on an arbitration ruling from the National Grain and Feed Association (“NGFA”), I reviewed some of the NGFA's recent decisions. I was surprised to see how many cases were not decided on the merits, but rather, a party’s failure to simply comply with the NGFA’s rules. Take for example Field Farms Marketing v. Prairie Wide Grain, Inc. The NGFA issued judgment in favor of Field Farms and against [...]
How did I forget? Back in August 2022 the Federal Crop Insurance Corporation (FCIC) released revisions to the Rainfall Index Common Policy, Basic Provisions which became effective on January 1, 2023. The changes included revising certain definitions to match those of the Common Crop Insurance Policy and adding a 30-day deadline to appeal a determination of good farming practice. Furthermore, the FCIC added a provision which would allow [...]
Legislative Bill 591: Proposed Changes Timeline for Notice to Terminate Verbal Lease Agreements Legislative Bill 591 (“LB 591”) proposes a different timeline for tenants leasing agricultural property to give notice to terminate their oral lease agreements. Nebraska does not have a statute governing these terminations, but the Nebraska Supreme Court has set clear guidelines, as further explained below. Current Nebraska Law In Wilson, the tenant had an oral [...]
Nebraska State Capitol landscape at sunrise Three bills were submitted to the Nebraska Legislature this month that work to protect Nebraska farmers. LB 662 proposes a change to the Nebraska Right to Farm Act. This Act makes it harder for neighbors to sue farmers over nuisances. This bill further limits who is permitted to file a nuisance action and recover damages. LB 394 determines damages for taking [...]
The long arms of the USDA Risk Management Agency (RMA) recently caught a Nebraska man for making false statements in the collection of a sizeable crop insurance claim. The end result was a sentence of 16 weekends of jail time, a $100 special assessment, a $30,000 fine and the kicker of $1,000,000 in restitution. The sentence was for a 2015 crop insurance claim with the investigation starting after the man [...]
You’re a cattle owner and one of your more ornery cows has escaped the pasture. Of course the pasture was fenced so you’re unsure of how she managed to escape. Before you can find her, you discover a cattle-vehicle collision on the highway not far from the pasture. Lo and behold, the vehicle collided with your cow while she was crossing the highway. Unfortunately, the other driver was injured. Can [...]
Central pivot irrigation systems are vitally important in Nebraska. Not only is Nebraska the most irrigated state in the U.S., it is also the largest producer/user of center pivot systems in the world.[1] For Nebraska farmers and legal practitioners alike, it may be important to understand how center pivot systems are classified when either buying, selling, or assessing, for taxation purposes, farmland that utilizes a center pivot irrigation system. [...]
Two social justice organizations, Iowa Citizens for Community Improvement (ICCI) and Food and Water Watch (FWW) have been seeking to compel the State of Iowa to enact legislation that would require farmers to adopt measures that would reduce levels of nitrogen and phosphorus in the Raccoon River. ICCI and FWW allege that farmers contribute to the toxins in the Raccoon River when they use fertilizer and manure on crops, which [...]
A recent case issued by the Iowa Supreme Court addressed the “fair value” of stock in a closely held farm corporation buyout. In Guge v. Kassel Enterprises, No. 19-2151 (Iowa Sup. Ct June 18, 2021), the Court provided clarity for determining what factors Iowa courts consider in calculating the “fair value” of a corporation in lieu of a dissolution proceeding. In Guge, three siblings owned all of the shares of [...]
VS. Custom farming agreements seem pretty straightforward and simple. Landowner asks Custom Operator to till the field, apply the inputs, plant and harvest the crop or cut and bale the hay. Custom Operator sets a price. Landowner and Custom Operator shake hands. Deal is done, right? Yes, if everything goes right. No, if the parties run into Murphy's Law of "if anything can go wrong, it will". [...]
Which is it? Admittedly I keep going back to the well. Maybe it is because the rules and procedure for arbitrating a crop insurance claim are too complicated. Or maybe it is a dead horse and I need to get past feeling the Nebraska Supreme Court improperly ruled against my client in an arbitration claim in 2017. In that case, Karo v. NAU, an arbitrator ruled against the [...]
It's tough to reclaim cattle once they get to the feedlot While we are no longer living in the days of the Wild West, livestock dealers continue to face theft—particularly, in sales transactions gone wrong. Unfortunately, common remedies generally are inadequate to recover the full amount lost. In response, Congress has taken an active role in protecting the interests of the livestock industry. Statutory Trusts Under the Packers [...]
In a multi-phase litigation, the United States Court of Federal Claims in Washington, D.C. recently entered its trial order against the United States Army Corps of Engineers. The December 14, 2020 order found the plaintiff landowners were collectively entitled to damages for certain losses. Back in 2018, the Court issued its order in the Phase I trial of a “takings” action under the Fifth Amendment: The government’s physical invasion—via [...]
Wait. Did you say Hemp? Nebraska has amended the definition of “farm products” for statutes that govern security interests on farm products. For the first time, the list of farm products now includes goats and hemp. Really, goats are just now being added? The Secretary of State has published a revised Nebraska Effective Financing Statement (Form EFS-1) that includes goats and hemp, which is in effect now. Effective [...]
Around this time last year, the 8th Circuit Court of Appeals found that an arbitrator did not exceed his authority when a dispute over the interpretation of a crop insurance policy provision arose after the arbitration proceedings. Balvin v. Rain and Haill, LLC. Why is this important? It is important because in 2015, the Federal Crop Insurance Corporation ("FCIC") issued Final Agency Determination ("FAD") 230* which stated the following: A [...]
Ask anybody who has attempted to overturn an arbitrator's award in a crop insurance arbitration; the struggle is real even when the arbitrator is dead wrong. Crop insurance arbitration is held to the standards of the Federal Arbitration Act (the "Act"). The Act strictly prohibits overturning an arbitration award unless "the arbitrators exceeded their powers, or so imperfectly executed them that a mutual final, and definite award upon the subject [...]
Hail damage to corn field near Hastings, Nebraska Every year farmers face multiple weather events that can instantly undo the hard work of planting and maintaining a crop. Widespread drought and flooding can wipe out entire crops across a large area. On the other hand, hail and wind storm damage may be extremely variable. Notwithstanding the recent derecho event, a hail or wind storm might affect one farmer [...]
Throughout the summer we received several requests to review production contracts between livestock producers and meat packers. The requests were made due to concerns that one party was not living up to the terms of the agreement. Consequently, it came as no surprise when one of the larger hog producers, Maxwell Foods, filed suit against one of the largest packers, Smithfield Foods, for breach of contract. The suit is likely [...]
In a recent case of first impression the United States Bankruptcy Court the Northern District of Iowa (In Re: Devries, BK No. 19-00181), Thad J. Collins, Chief Bankruptcy Judge, interpreted recently-enacted Bankruptcy Code section 1232(a) to make capital gains by a farmer an unsecured claim for taxes not accorded any priority, and not subject to setoff under section 553(a). The court, relying significantly on Legislative History, held that Congress intended [...]
- A lien for the supplier of agricultural inputs for production of livestock or crops As we discussed, the agricultural production lien-notification can provide additional security on a debt for chemicals, feed, seed, petroleum, electricity or labor used in the production of livestock or crops. However, the lien-notification statement does not perfect the lien. To perfect the lien, the supplier is required to file a financing statement similar to the [...]
- A lien for the supplier of agricultural inputs for production of livestock or crops On first look, the agricultural input lien may seem redundant to the fuel, fertilizer, pesticide, seed and electricity liens. However, the agricultural input lien can provide additional priority against other creditors in protecting a supplier's security interest if a certain hoop is jumped. Considering the current economic and social situation, the extra jump may [...]
I know we’ve all had a fair share of questions regarding what is an “essential business” that would be allowed to remain open if the Nebraska Governor issued a shelter in place/shutdown order. While Gov. Ricketts has said he doesn’t intend to issue such an order, as we know, things change. The Cybersecurity & Infrastructure Security Agency (CISA) in the Dept. of Homeland Security put together guidance on the essential [...]
At LDM, we share all the concerns of every family and business as our country faces this unprecedented time in our lives. We echo the reassurance of health care experts that we can all get through this together. We add to that our commitment to continue addressing the legal concerns of existing and new clients as steadfastly as always. In the realm of legal matters, there is an important [...]
- A lien for the person who supplies seed or electrical power used in crop production- Although not exactly peanut butter and chocolate, the Nebraska legislature decided to shoehorn lien protections for the seed dealer and electric company into one statute. It is important to note that the dealer and power district do not have a lien on all crops, but only those "crops produced from the seed furnished or [...]
The U.S.D.A Grain Inspection, Packers, and Stockyard Administration (GIPSA) continues to catch producers being off guard and assessing civil penalties in excess of $1,500—per contract—or other civil actions for marketing and production contracts which do not meet minimum federal requirements. If your contract does not meet the minimum standards it should be cancelled and replaced with a new compliant contract, which includes the appropriate required disclosures. GIPSA requires generous considerations [...]
According to Bloomberg News, the Federal Reserve Bank of Kansas City recently reported that “farm finances deteriorated across a swash of agricultural states during the summer and early fall . . .” Specifically, farm income fell in the third quarter from a year ago in each of seven rural states covered by the K. C. Fed., while farmers’ dependence on federal assistance programs increased. This situation is due, in part, [...]
When a loss occurs at your feeding operation, it can be a devastating time. Obviously, insurance can help minimize the devastation. However, you must have the right insurance and be able to stay out of the many insurance exclusions. Insurance coverage is costly, and an owner may assume the premium price covers all the perils but there are often exclusions preventing the needed coverage. The very common “care, custody, or [...]
Sounds good.....But I'm still going to have file that lien A lien for those who supply or apply fertilizer or agricultural chemicals for the production of crops. Over the past couple years, we have had to assist several crop input suppliers and appliers who have relied on their customer's promise to pay their bill after harvest, only for the customer to run into a financial problem and not [...]
A pivot is only as good water allowed to run through it If you own farmland in a Natural Resource District in the state of Nebraska, then the case of Prokop v. Lower Loup Nat. Res. Dist., should give you pause. Robert Prokop has operated a farm since 1962 in Nance County which falls within the regulatory territory of the Lower Loup Natural Resource District (LLNRD) of central [...]
A lien for the supplier of petroleum products used for crop production. As a teenager did anybody else sneak gas from the farm barrel to fuel a Friday or Saturday night out? Anybody? No? Yeah, me neither. In Nebraska, that fuel may have a lien against it if the supplier filed a financing statement within 6 months of furnishing the fuel or lubricants. The financing statement must contain the [...]
A surprising Nebraska Supreme Court opinion has spurred legislative changes to Nebraska's tax sale laws. Partner Katie French has summarized Nebraska's tax certificate law, the shocking case of Wisner v. Vandelay, and the legislature's necessary but little-too-late response. TAX CERTIFICATE LAW: In the case of delinquent real estate taxes, the county treasurer may sell real property for taxes. The treasurer provides the purchaser a tax certificate that represents a transfer [...]
A lien for a licensed veterinarian against any livestock cared for or treated. It's hard to argue that anybody who routinely utilizes shoulder length latex gloves should not have priority to payment for their services. So indisputable is the vet's right to payment that the lien procedure is probably the most straightforward and simple ag lien to follow. A vet lien is created by filing a UCC financing statement within [...]
- A lien for the owner or operator of any threshing machine or combine against the grain or seed harvested or processed. Neb. Rev. Stat. Sec. 52-501. A combine with a plugged feeder house is extremely frustrating and basically useless until the plug is removed. Similarly, liens that are plugged with filing or notice problems are frustrating and potentially unenforceable. Even a straightforward thresher's lien can contain [...]
Good work. Now make sure to hold onto the tractor until you get paid - A lien for the person who makes, alters, repairs, or enhances the value of machinery, farm tools or implements, or shoes horses or mules. Why the lien is called an Artisan's Lien is beyond me. I don't remember anybody who would be covered by this lien calling themselves an artisan. Maybe I need [...]
Lately we have been fielding a lot of calls from farmers, ranchers and various other agribusiness to assist in collecting on unpaid debts. Our first question when taking that call is “when was the work performed or the materials supplied?” Our second question, “is there an ag lien on file yet?” It seems that everybody knows ag liens exist. It also seems that only the most sophisticated know exactly [...]
My father has recently taken to saying "75 is the new 65", which is his way of trying to convince my mother he can still do things he did when he was 65. My mother rolls her eyes, mutters "Yeah, sure" and proceeds to gather up a heating pad and the ibuprofen.When it comes to farmland owners across the Midwest, my father is not alone in this statement. The results [...]
The following article was authored by Jessica Weborg, Attorney, at Lamson, Dugan & Murray LLP. On May 23, 2018, the United States Senator from Nebraska, Ben Sasse introduced the “Transporting Livestock Across America Safely Act” (S.2938) (“the Act”) into the United States Senate. A copy of the bill can be viewed by [...]
The following was authored by attorney, Shannon G. McCoy, Lamson, Dugan & Murray, LLP and written for submission in the National Land Improvement Contractors of America (LICA) newsletter. Succession planning frustration One Month before Your Planned Retirement, 2038: Owner: Alright Steve, Mike, and Kelsey, the day has finally come, it is time to sell my 100% ownership interest in Family Business, LLC, and each of you gets to purchase an [...]
The following was authored by attorney, Shannon G. McCoy, Lamson, Dugan & Murray, LLP and written for submission in the National Land Improvement Contractors of America (LICA) newsletter. Succession Plan Frustration One Month before Your Planned Retirement, 2038: Owner: Alright Steve, Mike, and Kelsey, the day has finally come, it is time to sell my 100% ownership interest in Family Business, LLC, and each of you gets to [...]
Originally submitted by Dan Waters, Attorney & Sean Minahan, Attorneys Lamson, Dugan and Murray, LLP; Proud members of C2C in the LICA Contractor. The issues and discussions addressed in the following apply equally to family farm succession planning as they do for succession planning of family owned contracting companies. Christmas Dinner, 2042: Steve: Mike, pass the sweet potatoes. . . . Mike, I said pass the sweet potatoes! Mike: [...]
Monsanto's dicamba has turned friendly neighbors into legal foes due to crops damaged by dicamba's inability to stay where it is supposed to be. With the soybean harvest basically complete, we are seeing more and more claims filed and litigation initiated. Farmers are calculating the effect that dicamba applied by a neighbor may have had on their fields. States like Arkansas, Minnesota, North and South Dakota, Tennessee and Indiana are [...]
According to a quick Google search the term holding the bag" comes from the mid eighteenth century and means be left with the onus of what was originally another's responsibility. Nobody wants to be left holding the bag. But that is the situation our client (subcontractor) found themselves in when upon completion of a public project the general contractor went out of business before paying the remaining amount due and [...]
If you have received a Notice of Overpayment and Removal of New Producer Status from your crop insurance company, you are not alone. In 2012 the Risk Management Agency started auditing crop insurance applications wherein the insured had requested "New Producer" status. The effects of the audit have come to fruition in the last few years. The notices generally demand immediate payment of any indemnity paid pursuant to the benefits [...]
Landowners and developers bogged in an EPA wetland determination were recently thrown a life line when the United States Supreme Court determined The Army Corps of Engineer's (Corps) "jurisdictional determinations" (JD) regarding wetland designations are reviewable by the court. United States Army Corps of Engineers v. Hawkes Co. Inc. Under the Clean Water Act (CWA) landowners and developers who do not have the proper permits can face severe criminal and [...]
Landowners and developers bogged in an EPA wetland determination were recently thrown a life line when the United States Supreme Court determined The Army Corps of Engineer's (Corps) "jurisdictional determinations" (JD) regarding wetland designations are reviewable by the court. United States Army Corps of Engineers v. Hawkes Co. Inc. Under the Clean Water Act (CWA) landowners and developers who do not have the proper permits can face severe criminal and [...]
Such is the life of a farmer. Even in times of a good crop, the potential insurance claim may be more valuable than the crop itself. That may have been the case for Aaron Johnson of Norwood, North Dakota, who in 2014 received a 4 year sentence for receiving crop insurance payments on a potato crop he purposely damaged. According to court records, Johnson had his hired man spray [...]
Added Land: Insurance Options Ahead Farm land does not change hands very often but when it does the acquiring operator should keep in mind the rules which may affect the operator's crop insurance benefits covering the newly added land. Failing to understand and abide by the Risk Management Association's (RMA) rules can cost an operator the maximum guaranteed yields and dramatically reduce the indemnity available under the [...]
Work Comp Claim Form Early in my career I had a Nebraska case come across my desk which involved a farm hand falling and striking his head while working on a farm truck. The farmer had not obtained a workers' compensation policy to cover such accidents because most farms and ranches are not required to provide workers' compensation in Nebraska. Unfortunately, the farmer had failed to have [...]
