Blog

Friday, June 1, 2012

Rules for the old burn barrel

Out back of the house near the garden, hidden behind a hill of wildflowers, is my burn barrel.  The burn barrel has long since lost its coat of paint, smoked away with the first hot fire.  The barrel had a former life as a 55 gallon drum containing some forgotten liquid.  It now stands ready to consume whatever I might ignite.

There are rules in Idaho for what I may, or may not, burn in my burn barrel.  It is illegal in Idaho to burn garbage and most human-made substances in your burn barrel, or anywhere else on your proprety.  Plastics, hazardous waste, paint, tires, household garbage, and dead animals are all forbidden fodder.  The Rules for the Control of Air Pollution in Idaho, IDAPA 58.01.01, also prohibit burning of motor vehicle parts, asphalt, rubber materials, tar, and other human-made substances.  These rules are designed to protect air quality in the State.

Idaho law does allow for the use of open outdoor fires under certain conditions and for certain purposes.  Unless a burn ban is in effect (based on weather and air quality conditions) you may burn rubbish, tree leaves, yard trimmings, and gardening waste.  You are also allowed to burn weeds along fence lines, canal banks and ditch banks.

Idaho law also allows for fires for food preparation or for recreational purposes, such as barbeques and campfires.

Also, keep in mind that if you live within city limits, there may be city ordinances that prohibit open fires on your property.

The burn barrel has been a convenient place to stuff a tumbleweed, or a few tree branches until I’m ready to light a fire and burn.  It’s also good for tossing the left-over twine from the hay bales.  Just keep in mind when you burn that some things are fine for the burn barrel, and some things belong in the trash can.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com

Staff at 5:20 PM No Comments | Post a Comment
Agribusiness
Friday, September 2, 2011

Right to farm

It is a common story in Idaho that has been repeated over and over. Developer buys farm ground outside of City.  Developer builds subdivision and sells lots.  City folk buy lot and build dream home in subdivision with beautiful views of the neighboring farmer’s property.

Not long thereafter the city folk’s home is full of smoke from farmer burning his ditch.  City folk are annoyed and shut the window.  Then city folk notice a significant increase in the number of flies around the house and the distinct odor of manure.  City folk grumble.  Lastly, city folk are awakened at 2:00 in the morning by the steady thudding and clanking of farmer’s tractor baling hay.  City folk put the pillow over their head and vow to call an attorney in the morning to rid themselves of the nuisance created by their neighbor, the farmer.

What the city folk don’t know, and what Idaho law protects, is the right of the farmer to operate his farm without the threat of a nuisance lawsuit.

The Idaho legislature expanded the protections of Idaho’s Right to Farm Act in 2011.  The law states that “[n]o agricultural operation … shall be or become a nuisance, private or public, by any changed conditions in or about the surrounding nonagricultural activities after it has been in operation for more than one (1) year, when the operation, facility or expansion was not a nuisance at the time it began, or was constructed.”  Idaho Code § 22-4503.

Normally a landowner could sue a neighboring landowner if the neighbor’s activities constituted a nuisance and interfered with the landowner’s comfortable enjoyment of his or her property.  Idaho Code § 52-111.  However, the Idaho legislature has recognized the importance of agriculture to the State of Idaho and has prohibited anyone from suing and making a claim for nuisance where a farmer is engaged in normal farming practices (no protection is given to the farmer who operates his farming activities in an improper or negligent fashion). 

Activities that are protected by Idaho’s right to farm bill include:

•   plowing, tilling, and preparing soil;

•   burning fields and ditches as permitted by law;

•   applying pesticides, herbicides or other chemicals;

•   planting, irrigating, and harvesting;

•   breeding, hatching, raising, producing, feeding and keeping livestock;

•   processing and packing ag products;

•   noise, odors, dust fumes, light and other conditions associated with an ag operation;

•   selling ag products at a roadside market.

A farmer or rancher sued for his activities can recover his attorney’s fees and costs for having to defend himself in an action.

In summary, the Right to Farm Act is an important law that protects farmers and ranchers and their agricultural activities. 

- Lance J. Schuster is an attorney at Beard St. Clair Gaffney.  He and his wife raise cattle and kids on their small farm near Idaho Falls.  He can be reached at lance@beardstclair.com.

Staff at 5:18 PM No Comments | Post a Comment
Agribusiness
Friday, April 6, 2012

Open range

Last summer I stood on my front porch and looked out onto the county road in front of my home.  Standing in the middle of the road was a lone Holstein heifer.  I chuckled, happy that for once it was not my cow.  I then hollered at my kids and we walked out to the road.  There were no cars on the road, so we gently walked the heifer back to our neighbor’s property and put her in an empty corral. 

In many parts of Idaho cows, horses and sheep have as much right to be on the road as a car. Idaho is an "open range" state.  Idaho law defines "open range" as all uninclosed lands outside of cities, villages and herd districts, upon which cattle by custom, license, lease or permit, are grazed or permitted to roam.  Idaho Code § 25-2118.  In an open range, livestock may roam freely.  If you live in an open range, you are responsible to “fence out” livestock if you want to keep range animals off of your property (and your front porch).

In open range areas cattle and other animals may be grazing on or near a road or highway.  Owners of domestic animals are not liable or negligent when their animals cause a highway collision in "open range" or when the animals are "lawfully on any highway."  In fact, you may be legally responsible for paying for dead or injured animals that you hit with your vehicle in an open range.

Within a city, or a herd district, an animal owner has a duty under the law to fence in animals and keep them off of a highway.  However, if an animal is on a highway, and an accident occurs, the owner is not strictly liable.  The law looks to the actions of the owner of the animal to determine whether the owner was negligent in allowing an animal to wander onto a highway or roadway.  For example, did the owner fail to close a gate, or did the owner fail to erect a lawful fence that would contain livestock?  In the latter case, the owner may be negligent and responsible for any accidents or injuries that result.

As for my neighbor’s cows, we live outside of city limits and outside of a herd district.  So maybe my neighbor intended for his cow to be out on the road… I’ll have to ask.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com

Staff at 5:16 PM 2 Comments | Post a Comment
Agribusiness
Friday, October 7, 2011

Noxious weeds

June and July are months in which our family dutifully weeds the yard and garden. However, August brings a flurry of family activities. There is the family vacation, the County Fair, the family reunion, the oil change, the flat tire, the raspberries. On top of this school starts soon and there are the backpacks, the shoes, the clothes, the paper, the pencils, the binders, the registration, and don’t forget back to school night at the elementary school, the middle school, and the high school.

By the time August has come and gone my garden has been transformed from neat rows of vegetables to a solid mat of weeds. Additional weeds line my driveway, grow tall around the barn, and envelope the tractor. Weeds hide my trailer, my canoe, and an old lawn mower. Weeds also line the ditch and the edge of the alfalfa field. 

A few of the weeds on my property are bona fide noxious weeds. Canada thistle, morning glory, and more.

Idaho law obligates me as a landowner to control noxious weeds on my land and property. Idaho Code § 22-2407(1).  In addition, the cost of controlling those weeds is my responsibility as the landowner. Id. at (2).

Counties are given the duty and authority by Idaho law to have noxious weeds controlled within a county. Idaho Code § 22-2406(1).  Counties can quarantine a property and stop the movement of noxious weed infested items. If necessary, a County can also destroy crops that are infested with noxious weeds. Usually, however, a County will notify a landowner in writing of a problem and demand that noxious weeds be destroyed, lest the County do the work and bill the landowner for it.

Any person who fails to control noxious weeds on their property can, in addition to paying the costs of control, be assessed a civil fine. However, no civil fines can be assessed without first giving a landowner notice and opportunity for a hearing.  Idaho Code § 22-2409(2)(b).

Additionally, and perhaps as a last resort, a landowner who fails to comply with the noxious weed requirements and rules for the State of Idaho can be charged with a misdemeanor. The noxious offender can be fined up to $3,000 and jailed for up to twelve months. Idaho Code § 22-2409(1). Any person who interferes with state or county efforts to control noxious weeds can also be charged.

In summary, next summer when the kids complain about weeding the garden, remind them that if they don’t, they could go to jail!

- Lance J. Schuster is an attorney at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com

Staff at 5:13 PM No Comments | Post a Comment
Agribusiness
Friday, December 2, 2011

Home on the range

Oh, give me a home
Where the buffalo roam,
Where the deer and the antelope play…                     

Many of our grandparents or great-grandparents came west with the promise of land.  They came west to carve a new home out of the land where the deer and the antelope play.  They needed land for farming and land for grazing livestock.

Today, farmers and ranchers still have a fundamental need for land.  While the days of homesteading are over, land may be acquired in several ways:

1.  Purchase:  Land can be purchased from those who are selling.  The cost of good land can vary depending upon many different factors such as the quality of the soil, the water rights, and the location.  Purchasing land can be difficult in today’s economy as lenders typically require a significant down payment and will not finance 100% of the purchase price.  A 160-acre farm that sells for $5,000 per acre may require a $200,000 down payment to purchase.  This may be cost prohibitive to a small family farmer.

2.  Lease:  Land may be leased from the owner of the property.  A retired farmer may not want to sell his property, but may be willing to lease it for a year, or a period of years.  Farm leases are often structured as crop-sharing arrangements where the landowner and the tenant each take a percentage of the crop grown on the property.  This arrangement may benefit the tenant as the tenant is thereby guaranteed that his rent will not exceed the value of the crop.

Property may also be leased on a cash basis.  A farmer may pay a landowner a fixed fee to lease his property.  These cash arrangements often call for payment on a “per acre” basis.  For example, a farmer might pay $150 per acre to lease farm ground and will be responsible for the payment amount regardless of the success of his crop.

3. Blended Arrangements:  A lawyer may help a farmer or rancher with a blended arrangement that is part lease and part purchase.  For example, a farmer might lease property and structure lease payments so that they are a credit toward the eventual purchase of property.  A real estate lawyer may also assist a farmer or rancher with a blended arrangement that takes advantage of government programs designed to assist beginning farmers and ranchers.  Tax issues, liability issues, and regulatory issues may all factor into a blended arrangement.

Lastly, regardless of the agreement, whether a purchase or a lease, the law typically requires the arrangement to be in writing to be enforceable.  A good well-written purchase and sale agreement or lease can be as important to the success of your farming and ranching operation as the land itself. 

 - Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com

Staff at 5:02 PM No Comments | Post a Comment
Agribusiness
Friday, October 5, 2012

Giving a security interest in farm products

Most farmers and ranchers will at one time or another visit with their banker to obtain financing.  Most folks are familiar with the fact that when they finance a home or other real property that the bank will demand a mortgage or deed of trust to secure payment of the loan.  If you fail to pay the loan, the bank will foreclose on your home.

Many people may be surprised to learn that the law also allows the bank to to secure a loan by placing a lien on your crops, your livestock, your equipment and other agricultural products.

Many farmers and ranchers obtain an operating loan so that they have money at the beginning of the year to buy seed, equipment, fertilizer, fuel, and to pay for other upfront operating expenses.  While the bank may loan you money for such expenses, it will typically request a security interest in the crops, or the livestock, or the equipment that you are purchasing with the money being loaned. 

At the time that the money is loaned the bank may have you sign a UCC-1F (see sample).  This is a farm products financing statement and must be signed by you for the bank to obtain a security interest in farm products.  On the form the bank must identify the farm product in which it is taking a secured interest.

For example, the bank could take a security interest in your wheat, potatoes, alfalfa, beans, wool, eggs, rabbits or bees wax.  Even if you are raising worms, the bank can take a security interest in them little fellers too.

After you sign the financing statement it is filed with the Idaho Secretary of State.  The Secretary of State records the financing statement and a record is kept which puts any other lenders, or buyers of your product, on notice that there is a secured interest in the product.

After the loan is satisfied the bank should sign, date and file with the Secretary of State a termination statement which terminates the secured interest in the agricultural product.

A security interest in your crops or livestock provides additional security to assure that the bank will be repaid for the money loaned to assist you in your farming and ranching.  However, all of the hard work and sweat is still up to you.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171. Or lance @beardstclair.com

Staff at 4:53 PM No Comments | Post a Comment
Agribusiness
Friday, January 6, 2012

Food safety

Idaho farmers and ranchers raise quality food products.  Some of the most important food products produced include dairy, beef, potatoes, wheat and barley.

Farmers and ranchers have a duty under the law to make sure these products are safe for human consumption.  Listeria-tainted cantaloupe was the source of the most deadly food-borne illness in the U.S. in the last decade.  At last count 29 people were dead and 139 were sickened.  The cantaloupe was grown in Colorado and lawsuits have been filed against the grower.

While state law provides some protection to the consumer, Federal law has been passed to address food safety.  The Food Safety Modernization Act (“FSMA”) was signed into law in 2011 and allows the Food and Drug Administration (“FDA”) to detain food products which it believes are adulterated (i.e. tainted) or misbranded.  It aims to ensure the U.S. food supply is safe by “shifting the focus of federal regulators from responding to contamination to preventing it.”

Owners of most food handling facilities are now required by FSMA to conduct a hazard analysis and identify and evaluate known or reasonably foreseeable hazards and implement preventative controls.  Records must be kept of the effectiveness of those controls.  The owner of the food handling facility must also have a written plan that documents and describes the procedures used by the facility to comply with FSMA requirements.  The FDA will inspect most food handling facilities in the years to come.

Also, most manufacturing, processing, packing and holding facilities of food will be required to register with the FDA starting in October – December, 2012. 

Farmers and ranchers who fail to comply with the FSMA may have their products detained and may be prohibited from selling their food products.            

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com

Staff at 4:47 PM No Comments | Post a Comment
Agribusiness
Friday, May 4, 2012

Field burning in Idaho

One of the first signs of spring in Eastern Idaho is the smoke.  Farmers and ranchers burn ditches, slash piles, and weeds.  While effective at cleaning ditches and getting rid of weeds, burning fields requires prior approval.

In 2007, after a northern Idaho group called Safe Air For Everyone challenged Idaho’s field burning laws, the Ninth U.S. Circuit Court of Appeals held that the laws were illegal under the Clean Air Act. This resulted in a 2007 ban on field burning in Idaho.

The next year, however, the state, farmers, and clean air activists reached an agreement for the burning of crop residue. These rules can be found on the Idaho Department of Environmental Quality (DEQ) website.

Under the new rules, crop residue includes vegetative material remaining in the field after harvest or produced on conservation reserve program lands. Crop residue also includes “whole fields, pastures, spots within a field or pasture, broken bales in the field that…were generated during the time of harvest, Conservation Reserve Program lands, food plots, and blanching or flaming operations.” http://www.deq.idaho.gov/air-quality/burning/crop-residue-burning.aspx. Crop residue “does not include vegetation along ditch banks, fence lines, orchard prunings, or forest slash piles.” Id. Farmers can only burn in fields that produced the crop residue.

Under the new rules, farmers are required to get approval from the DEQ through registering for a permit at least 30 days before they plan on burning any crop residue. The permit registration requires detailed information about the planned burn. There is also a fee of two dollars per registered acre that must be paid at least seven days before burning.

The new rules also limit the days on which field burning can take place to daylight hours on weekdays. No burning is allowed on holidays or weekends.

In a draft of its Crop Residue Burning Program 2011 Annual Report, the DEQ stated that last year over 65,000 acres were burned across the state. About two-thirds of these acres were burned in southern Idaho. Despite the wet and cool conditions last spring and early summer, the DEQ was able to approve most of the burn requests made by farmers last year.

The new rules and processes governing field burning in Idaho may not be clear of legal problems, however. In its draft 2011 annual report, the DEQ recommends allowing farmers to burn fields on weekends and holidays. If this rule is changed, field burning law may again be facing legal scrutiny from clean air advocates.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com.

Staff at 4:35 PM No Comments | Post a Comment
Agribusiness
Thursday, February 2, 2012

Fences

The grass was greener on the other side.  Or at least my cows thought so.  They jumped the fence, or went under the fence, or perhaps through the fence, and joined my neighbor’s herd.  I called my neighbor and told her that it would not hurt my feelings if she fed my cows all winter long.  My neighbor laughed, but only briefly and politely.  I then promised her that I would fix some fence.

Idaho law dictates what constitutes a legal fence.  Idaho Code § 35-102 states that a lawful fence may be any of the following:

Stone Fence: Must be four feet high and two feet at the base and one foot thick on top.

Worm Fence: Must be four feet high and the rails must be well laid.

Post & Rail:  The posts must be well laid and not more than eight feet apart.  There must be at least three six-inch boards, or rails not less than 2 1/2 inches in diameter.  The top board or rail must not be less than four feet from the ground.  If rails not less than three inches in diameter are used, the posts may be set 12 feet apart.

Wire Fence:  Probably most common, a wire fence must have posts set not more than 24 feet apart with three stays placed at equal distances between the posts.  All wires must be securely fastened to the post with not less than three strands of barbed wire.  The bottom wire must not be more than 21 inches from the ground and the other wires a proper distance apart.  The fence must be at least 47 inches high.

Other:  If made in whole or in part of brush, ditch, pickets, hedge, or any other materials, the fence must be equal in strength and capacity to turn stock as the fences described above.

One purpose of these legal fence requirements is to “fence out” cattle and other livestock in an open range.  However, in a herd district, these same fence requirements dictate the requisite legal fences that must be built to contain livestock.  If you live in a herd district, and if your cows escape through your fence, and your fence is not a legal fence, you may be “per se” negligent and responsible for any damages that may result.

Remember that good fences make for good neighbors, and a legal fence will keep you and your cows on the right side of the law.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171 or lance@beardstclair.com
Staff at 4:30 PM No Comments | Post a Comment
Agribusiness
Friday, November 2, 2012

Droughts and rain dances

This year has been a record year for lack of rainfall.  Eastern Idaho has been affected by drought conditions with rainfall falling behind the yearly average.  Even the recent rain and snow has not relieved the drought.

Fortunately Eastern Idaho is blessed with mountains where snow tends to fall with abundance in the winter.  When that snow melts in the spring much of it runs down our rivers and streams, and much of it is captured in reservoirs.

Thanks to the hard work and industry of Eastern Idaho pioneers much of that water is diverted into canals and ditches where we are able to use it to irrigate our crops throughout the summer.

However, what happens when there is not enough water in our streams and rivers?  What happens when the drought limits the amount of water in our reservoirs?

Idaho law states that “as between appropriators, the first in time is the first in right.”  Idaho Code § 42-106.  What this means is that the first person to divert water and put it to beneficial use has priority in times of shortage over the next person to divert water and put it to beneficial use.

Most water rights have a “priority” date that establishes when water was first appropriated.  For example, your water right might have a 1920 priority date.  Your neighbor might have an 1899 priority date.  If there is not enough water to go around, you will be cut off from water before your neighbor.

As the amount of water decreases due to drought, those with the newest priority dates will be the ones to first lose their water.  Those with the oldest priority dates will be the last to lose their water.

Meanwhile, we all need to pray for moisture and do a rain dance.  Be advised, however, that Idaho even has a law for that.  Every person intending to conduct within the state operations to artificially produce rainfall is required to register with the department of agriculture of the State of Idaho.  Idaho Code § 22-3201.  Go figure.

- Lance J. Schuster is a lawyer at Beard St. Clair Gaffney.  He and his wife raise kids and cattle on their small farm near Idaho Falls.  He can be reached at 523-5171. Or lance @beardstclair.com

Staff at 4:26 PM No Comments | Post a Comment
Agribusiness