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. [...]
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". [...]
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 [...]
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 [...]
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 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 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 [...]
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 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: [...]
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 [...]
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 [...]
Every year, certain portions of the Midwest get pounded by bad weather causing bad yields or outright crop loss. This year, several states encountered above average rainfall preventing several million acres from being planted. At one point this summer, Missouri alone had approximately 4 million acres of un-planted corn and soybean acres. During times of devastating weather, many producers rely on their crop insurance policies to mitigate crop [...]
As previously explained the Federal Aviation Administration (FAA) is working on a rule to allow commercial use of unmanned aircraft (i.e. drones) without going through the same rules for manned aircraft. However, until the rule is finalized farmers and ranchers can apply for an exemption under Section 333 of the FAA Modernization and Reform Act of 2012 (FMRA). The exemption process is not necessarily easy. However, the FAA website provides [...]
As farm operations continue to grow and become more complex, multiple owners or members of a farming entity may consider themselves "farm managers" even though they never set a foot in the field. Characterizing oneself as a "farm manager" may entitle the individual to benefits under certain government programs. However, to obtain benefits from such programs an individual has to be considered actively engaged in farming, which means [...]
When deciding whether to let your spouse know you are going out for a beer with friends rather than straight home for dinner, you may have heard the phrase "it is better to ask for forgiveness than it is for permission." If you haven't heard that phrase, then I guess we do not have the same type of friends. Recently, I have noted the truism is being entertained by those [...]
According to the Seinfeld character George Costanza; "If you consider the other choices "manure" is actually pretty refreshing." Seinfeld - My Boyfriend - YouTube. Well, a Washington Federal Court disagrees; meaning dairy and other livestock operations may have to re-analyze their manure management practices. In Community Association for Restoration of the Environment (CARE) v. Cow Palace, LLC, et al, the United States District Court for the Eastern District of Washington ruled [...]
In 2013 the Iowa Supreme Court evaluated “fairness” among minority and majority shareholders of a family farming corporation in the context of disagreements between second-generation cousin shareholders. The case is Baur v. Baur Farms, Inc. In Baur Farms, one of the cousins, who was not involved in operating the farm and received all of his stock by way of inheritance or gift, decided he wanted to be bought out. The [...]
The United States Department of Agriculture ("USDA") has created several incentive programs for landowners and beginning farmers to help move land ownership and farming operations from today's farmer to tomorrow's. Beginning Farmer or Rancher Land Contract Guarantee The USDA Beginning Farmer or Rancher Land Contract Guarantee Program encourages shifting land to beginning farmers through installment land contracts. This program is administered by the Farm Service Agency ("FSA") and offers two types of guarantees. [...]
Like their Iowa counterparts, landowners and beginner farmers in Nebraska can take advantage of tax credits and loan programs implemented to assist the next generation of farmers. Nebraska Beginning Farmer Tax Credit The Nebraska Beginning Farmer Tax Credit Act provides an incentive for a farmer who is retiring or who wants to cut back on his or her operation to rent to a beginning farmer. A qualified beginning farmer or rancher [...]
According to the U.S. Dept. of Agriculture Census of Agriculture, the average age of today's farmer has increased to 58 years of age. Concerns are increasing over who will step up as the next farming generation considering dramatic increases in land prices and the high cost of equipment and inputs make it difficult for new farmers to get a foothold. Recognizing the problem, state and federal governments have introduced incentives to [...]
Approaching Storm Every spring and early summer, heavy rains, hail, and tornadoes force Midwest farmers into a game of "Crop Insurance Mother May I" regarding whether they will replant damaged crops. For crop insurance purposes, permission is almost always necessary when deciding whether to destroy and replant the damaged crop or destroy the damaged crop and plant a new crop. When facing a replant decision remember the following: "When a crop is damaged and it [...]
On October 6, 2007 Thomas Latzel and Daniel Vanekelenburg were involved in a car accident with Patrick Gaughen at the intersection of County Road T and Count Road 17. Three years later, Thomas Latzel would die from the injuries he incurred in the accident. Thomas' wife, Amanda Latzel, brought a lawsuit against Ronald and Doug Bartek alleging they negligently planted corn too close to the intersection causing the accident. It [...]
Everybody saw it coming. Sooner or later an organic farmer was going to sue a neighbor for genetic contamination of an organic crop. It has happened in Western Australia when Steve Marsh sued his neighbor, Michael Baxter, for allegedly contaminating Marsh's organic fields. RT.com The case will be monitored as groundbreaking for future cases worldwide. Marsh alleges that wind blew Baxter's Roundup Ready canola onto Marsh's farm resulting in a loss of organic [...]
The fear of OSHA inspecting the storage facilities of small farming operations seems to have been quelled. In 2011 OSHA issued a memo which led some inspectors to believe they were authorized to inspect grain storage facilities on private farms. The memo led to the inspection of a private grain storage facility in Atkinson, Nebraska resulting in approximately $132,000 in fines. In December, 2013, U.S. Senator Mike Johanns (R-Neb.) drafted a [...]
This spring it rains 3 days for every 1 day it doesn't rain in Iowa. At least it seems. 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 [...]
Hopefully they are saying "Hello" and not "It's a Deal". Almost exactly a year ago, I wrote a blog discussing important checklists for producers entering livestock production contracts, which you can revisit here. This issue came to mind again when I learned of a recent lawsuit over a handshake deal between a livestock owner and contract grower. The owner claimed $85,000 in damages when several of the owner's cattle became sick or died because the contract [...]
Emergency medical helicopter taking off in rural field Every farmer and rancher knows their business is dangerous, and even with the utmost care, accidents happen. When the accident is fatal a subsequent wrongful death lawsuit may not only affect the bottom line but can also bring emotional and social turmoil that a farming or ranching operation is not prepared for. Fatal accidents can happen anytime, but here in Nebraska and Iowa, these [...]
Cattle Chute In the past two months, there seems to be an uptick in violations of the Packers and Stockyards Act (P&S Act) for failing to pay, when due, the full amount for livestock. In fact, the U.S. Dept. of Agriculture's Grain Inspection, Packers and Stockyards Administration (GIPSA) has issued ten press releases regarding such violations in that time period. Arguably, the violation for failing to pay, when [...]
In mid-August, Iowa's Natural Resource and Conservation Service (NRCS) began rolling out an updated version of the Iowa Corn Suitability Rating; now commonly known as CSR2. Iowa farmers need to be aware whether CSR2 has been implemented on their land and how the updated rating may affect property taxation and land value. In 1971, a gentleman named Tom Fenton developed a rating to measure the potential productivity of the land based on soil type, slope characteristics and weather conditions [...]
HSUS is not the first group to go after hog operations for ammonia emissions. The blueprint for HSUS' flank attack was established by earlier lawsuits against hog and poultry operations for violations of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA aka the Superfund law) and the Emergency Planning and Community Right-to-Know Act (EPCRA). CERCLA and EPCRA do not limit pollutants but require reporting when specific quantities of specific substances are released into the environment. CERCLA and EPCRA [...]
The month of May is upon us, bringing with it the beginning of summer's warm temperatures. Which means it is once again time to remind outdoor workers about heat-related illness. Heat is more deadly in the U.S. than earthquakes, hurricanes, and tornadoes combined[1]. Between 1992 and 2006, heat caused the deaths of 423 crop workers[2]. Prevention is key to avoiding heat-related illness. For starters, drink plenty of water and take [...]
Family farms and ranches are built on generations of hard work, determination and a little bit of luck. Considering all the sweat that goes into building a successful operation it is imperative for the farmer or rancher to have a plan to keep the operation in the family through situations such as death, divorce or dissolution. There are several options and your attorney can help you pick out the best options for you and your operation. With that said, you must [...]
(First in a series of Insurance Issues for Agribusiness) POLLUTION EXPOSURE All farmers and agribusinesses have a potential pollution exposure. Some of the largest risks can arise when transporting chemicals, operating heavy equipment or dealing with waste run-off from a hog or cattle operation. Also fires can erupt that release potential harmful gases. Smaller risks arise from spilled chemicals or noxious fumes. Vandalism also can cause a pollution loss. In [...]
The recent Nebraska Supreme Court's decision in Lesiak v. Central Valley Ag Cooperative (CVA) provides an evidence standard for pesticide damage claims against applicators. In Lesiak, the Nebraska Supreme Court discussed burdens of proof, implied services warranties, the economic loss doctrine, blah, blah, blah, blah........zzzzzzzzzzzzzzzzzzz. You are asleep aren't you? I get it. However, those involved in crop damage cases (especially lawyers) need to know what kind of evidence is necessary to get the claim [...]
Little by little, custom feeding arrangements secured by a handshake are going the way of the four-row planter. As contract growers and livestock owners become more sophisticated the handshake is being replaced by the "Livestock Production Contract". Approximately a week ago, I came across this Livestock Production Contract Checklist produced by the Iowa Department of Justice. The checklist provides 6 important issues a producer should understand and questions a producer should ask before [...]
Set in a field along eastbound Interstate 80 traveling into Des Moines, Iowa is a set of 4 signs that read accordingly: Urban Sprawl; Ain't too Pretty; Save Our Farms; Build In The City. The signs make a good point and a worthwhile plea. However, a recent Iowa Farmer Today article pointed out farmers and ranchers can proactively perserve their land for future generations of farming with a conservation easement. To create a conservation [...]
With the Missouri River back in its banks, farmers along the Missouri Valley are left wondering how to repair their farmland. Scour holes and several inches of sand may hinder productivity in the affected areas for a long time if the land is not properly reconstructed. Farmers must also consider how they will repair the land while staying in compliance with various Farm Bill programs. Flood affected farmers should plan to [...]
In May, I wrote this blog about the dangers of children working in agriculture. In the blog I warned that deadly accidents, such as the Mt. Carroll, IL incident last year, may bring increased federal regulation restricting child labor in agriculture. It appears that warning has come to fruition. The Department of Labor has recently proposed revisions to the Fair Labor Standards Act for child farm workers, which will severely limit agriculture employment for [...]
I know I opened with a fairly obscure movie quote two weeks ago discussing communication between ag operators and insurance agents, which you can find here. With that said, I am going to the well once more. The recent agreement between the Nebraska Farmers Union and the Humane Society of the United States (HSUS) reminded me of this scene in Ghostbusters regarding the upcoming end of the world. https://www.youtube.com/watch?v=O3ZOKDmorj0 Seriously check it out, I promise it [...]
If you remember correctly, Luke in "Cool Hand Luke" always ended up on the wrong end as result of a "failure to communicate". The following are two examples of livestock producers who also ended up on the wrong end as a result of communication break-downs between the producer and insurance agent. Example No. 1: A custom hog feeder lost 3,000 head of hogs to suffocation when the power failed in a hog confinement. The owner [...]
"What we've got here is ... failure to communicate." The iconic line of the prison captain to Luke in "Cool Hand Luke" resonates with me every time I am involved in a case between a farm or ranch operator and his/her insurance agent. These types of cases come about when a disaster strikes and the insurance company denies a claim on the premise that the insurance policy did not cover the loss. The subsequent scene [...]
Failing to meet the Worker's Compensation Act requirement as outlined in Part I can result in some serious repercussions. A Nebraska producer who fails to comply with even one of the Worker's Compensation Act's requirements can lose his/her exempt status and become liable under the Act. If you do become liable under the Act, and have a worker’s compensation policy in place, the Act provides the employee’s exclusive remedy. This means, among other things, that the employee cannot [...]
If you operate a small farm or livestock operation in Nebraska, you are probably used tobeing exempt from providing worker’s compensation coverage to your employees. But in 2003, the Nebraska legislature changed the law. Although most small producers continue to be exempt under the 2003 amendments, the law imposes certain requirements that must be followed in order to keep exempt status. In particular, producers who only employ relatives, or employ less than ten full-time, non-related employees, can typically [...]
