Friday, April 1, 2016

Pink Diesel: For Farm Use Only

We have come a long ways from the days when our grandfathers used horsedrawn plows and wagons.  We still rely on horsepower to get our farming done, but it is the motorized horses that plow the ground, harvest the wheat, and bale the alfalfa.  Most of our tractors, combines, and swathers are powered by diesel engines.

Under the law unlicensed farm vehicles that are not used on public roads may use dyed diesel, also known as farm diesel.  Dyed fuel is exempt from state and federal fuel taxes and is cheaper than diesel fuel purchased at most fuel stations.  (The state tax on diesel is 32 cents per gallon and the federal tax is 24.4 cents per gallon).

Dyed diesel fuel often looks pink or red due to the added dye used to distinguish it from regular diesel fuel.

It is illegal to used dyed diesel fuel in licensed trucks or automobiles that drive on public roads.  Since fuel taxes are used to build and maintain roads, illegal use of dyed fuel denies the government of taxes needed for roads.

It is a misdemeanor to improperly use dyed diesel fuel.  In addition to criminal penalties, there is a civil penalty of $250 for misusing dyed diesel.  A second offense will cost $500, and $1,000 for each offense thereafter. 

The Idaho legislature is currently considering increased enforcement actions to catch those who may be breaking the law.

Be aware of the law when fueling up your truck or tractor, and know when you can use pink diesel.


Lance J. Schuster at 11:04 AM No Comments | Post a Comment
Friday, March 4, 2016

Parsing Out a Bundle of Sticks

Owning real property is like owning a bundle of sticks.  Each stick represents an individual right.  One or more sticks may be given away or transferred to another.

For example, a stick may be given to the County for a roadway.  Another stick may be given to the power company for electric transmission lines.  A neighbor may have an easement for a utility line, airplanes have the right to fly overhead through airspace, and the bank may have a mortgage on the property.  These are all examples of rights in property that are held by someone other than the owner of legal title to the property.

Many farmers and ranchers have chosen to give their development rights to a land trust.  Those development rights are simply sticks in the bundle of land ownership.

Those development rights have value, and are typically called a "conservation easement."  By giving away development rights a farmer or rancher preserves his or her farm from future development, reduces its value so as to avoid estate taxes, and earns an immediate valuable tax credit.

For example, Farmer Jones who earns 50% or more of his income from farming or ranching is entitled to deduct 100% of a conservation easement from his Adjusted Gross Income.  A conservation easement on a 150 acre farm valued at $5,000 per acre results in a $750,000 tax credit.  Any unused portion carries forward for 15 years.  If Farmer Jones makes $50,000 per year from his farming, he will owe no taxes for the next fifteen years after granting a conservation easement. 

Farmer Jones will be able to continue to farms his ground, reduce or eliminate income taxes, and because of the reduced value of his property, preserve his farm property for the next generation.

All because of a bundle of sticks.

Lance J. Schuster at 10:53 AM No Comments | Post a Comment
Friday, February 5, 2016

Know What's Required Under a Farm Lease


A leasehold is an estate in real property.  The law recognizes a leasehold as a right to the use and occupancy of real property for an agreed length of time.  Typically a leasehold is created by signing a written lease agreement.  The lease agreement will usually include terms such as a legal description of the property being leased, the amount of rent due, the timing of the rent payments, the responsibilities and duties of the landlord and the tentant, and the term of the lease.

Farmers and ranchers typically will lease property for a term of at least one year.  It may take a year to prepare soil, plant a crop, fertilize, irrigate, and then harvest the crop.  For a crop like alfalfa it will be common for a farmer to lease land for a term of several years since the initial investment of buying alfalfa seed and planting alfalfa is high. 

The law recognizes that farmers and ranchers often hold over and continue to farm following the expiration of a lease.

When a farmer or rancher has possession of agricultural land and has retained possession of the land for more than sixty (60) days after his lease term has expired, and where the landlord has failed to demand possession or give notice to quit the property, the tentant is entitled to hold the property under the terms of the original lease for another full year.

This law protects a farmer tenant who may have completed fall work on the property anticipating that a new lease will be signed for the next year.  It also protects the farmer tenant whose lease has expired, but who plants a crop in the fall anticipating a harvest the following summer.

A wise landlord will make sure that all leases are in writing, and will give written notice to quit at the conclusion of a lease term.  An astute tenant will understand his rights before doing fall work or fall planting.


Lance J. Schuster at 10:50 AM No Comments | Post a Comment
Friday, January 1, 2016

The Curse and Blessing of Wildlife


We are blessed in Idaho with an abundance of wildlife.  Herds of deer and elk are often found wintering at lower elevations.  Moose wander down from the mountains into the valleys looking for food.  Ducks and geese land in grain fields looking for an easy meal.  Bears, lions, coyotoes and wolves are always looking for an easy meal.

All of this wildlife can be a headache for farmers and ranchers. Wildlife knows no boundaries, and moves easily from public to private property. Farmers and ranchers can face finanical ruin if big game animals eat all the hay that a farmer worked so hard to bale and stack, or if predators kill livestock.

With a few exceptions it is illegal for farmers and ranchers to shoot or harass wildlife that has entered upon private property.  A farmer or rancher can shoot an elk or a deer that is on his property if he has a license and a tag and is otherwise harvesting an animal during a lawful hunting season.  The Idaho Department of Fish and Game also conducts special depredation hunts to relieve big game damage problems in agricultural areas.  These hunts are typically held on short notice, and in small areas, to relieve a farmer or rancher from a problem.

In addition, farmers and ranchers can legally shoot without a permit a predator, like a black bear, mountain lion, coyote, or a wolf, that is molesting or attacking livestock.  In regard to wolves, "molesting" specfically includes the actions of a wolf that are annoying, disturbing, or persecuting, especially with hostile intent or injurious effect, or chasing, driving, flushing, worrying, following after, or on the trail of, or stalking or lying in wait for, livestock or domestic animals.  The law requires that farmers and ranchers notify Fish and Game of lions and wolves that are taken while molesting or attacking wildlife.

Farmers and ranchers may also obtain relief from critters like beavers and muskrats that are interfering with water rights or damaging ditches.

 Wildlife is yet another variable that can affect farmers and ranchers.  Know the law and protect your property.


Lance J. Schuster at 10:41 AM No Comments | Post a Comment
Monday, November 9, 2015

Concentrated Animal Feeding Operations

Many in Eastern Idaho have a small herd of cows on pasture ground.  However, special rules apply in Idaho to concentrated animal feeding operations, or "CAFOs." 

A CAFO is defined in Idaho as a lot or facility where beef cattle, or dairy cattle, are confined and fed for forty-five (45) or more days during any twelve month period in an area that doesn't produce vegetation during a normal growing season over any portion of the facility.  A feed lot or a dairy operation are examples of a CAFO.

A CAFO is required by law to to have wastewater and storage containtment facilities.  These wastewater facilities trap manure and water from the feeding operation.  They are required to be built according to engineering standards, and must prevent manure and wastewater from entering into lakes, streams, rivers and groundwater.  They must be designed such that they are able to hold a twenty-four (24) hour rainfall event, or three inches of runnof from the accumulation of winter precipitation.  No other materials or waste may be disposed of in a containment facility.

Also required is a nutrient manangment plan.  Such a plan must address: (a) proper managment of dead animals, (b) ensure that clean water is diverted from the production area, (c) prevent direct contact of confined animals with rivers, streams and lakes, (d) ensure that chemicals on-site are handled properly, (e) identify appropriate conservation practices, (f) identify protocols for testing of water and soil, (g) identify protocols for applicaiton of manure and wastewater to land, and (h) identify records that will be kept to assure compliance with the nutrient managment plan.

The Director of the Department of Agricutlure is authorized to inspect animal feeding operations to insure compliance with the rules.  The Director may file an administrative enforcement action and seek civil penalities for those who are not in compliance.

If you are confining and feeding animals, you may may be subject to the special rules for CAFOs.

Lance J. Schuster at 8:51 AM No Comments | Post a Comment
Wednesday, September 16, 2015

Food Safety's the Law

Federal authorities have recommended that the owner of Peanut Corporation of America spend the rest of his life behind bars.  The owner, Stewart Parnell, was found guilty of 71 criminal counts after his company distributed salmonella contaminated peanut butter that killed nine people and sickened some 900 others.  Parnell is slated to be sentenced in September in federal court.

Food safety is the law.  The owner, operator, or agent in charge of a domestic or international food facility is required to develop a safety plan for any food facility that is subject to FDA regulation to assure that food sold or distributed by that facility is safe for conusmers.  An owner or operator who fails to do so can subject themselves, and his or her company, to fines and prison. 

More importantly, a food safety plan assures that food distributed by a FDA regulated facility does not sicken or kill consumers.  (Dead or sick customers are never good for business – just ask Blue Bell Creameries).

A food safety plan must be a HARPC plan.  HARCPC stands for “Hazard Analysis and Risk-Based Preventive Controls.”  A HARPC plan identifies food safety and adulteration risks associated with foods and processes, it implements controls to minimize the risks and verify that the controls are working, and it designs and implements corrective actions to address any deviations from the controls that might arise.  Everthing that takes place as part of a HARPC food safety plan must be properly documented and must conform with FDA standards

There are certain exemptions for very small businesses, but most food will originate in or come through facilities that are subject to the requirement of having a HARPC based food safety plan.  Companies must create their HARPC plan, update it as required by law, and produce the documentation to the FDA upon request.  It’s required, and its good business.

Lance J. Schuster at 10:14 AM No Comments | Post a Comment
Monday, August 10, 2015

The Final Clean Water Rule: Irrigation Ditches

The Enviornmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have published a final rule defining the scope of waters protected under the Clean Water Act.  Waters that are covered by the Clean Water Act are subject to regulation by the EPA.

So what about the ditchs carrying water on your farm?  Are they covered by the Clean Water Act?  Do you need a permit?

The answer is “maybe.”

While the EPA states that normal irrigation ditches are not covered by the Act, there are numerous exceptions.

For example, a stream or river that has been channelized or straightened  is not exempt.  A stream that has banks stabilized through the use of concrete rip-rap is not exempt.  A ditch that is a relocated stream is not exempt.  A ditch that drains a wetland, or intersects with a wetland is not an exempt ditch.

Generally, the following types of ditches will not be covered by the Clean Water Act:

  1. A ditch on your farm that carries ephemeral flows (i.e. water flows only at certain times of the year);
  2. Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands; and
  3. Ditches that do not flow directly into, or through another water, protected by the Clean Water Act.

In addition, the Clean Water Act excludes artificially constructed ponds and lakes on the farm, such as stock watering ponds or irrigation ponds.  The Act further excludes return flows from irrigated agriculture, agricultural stormwater discharges, and maintenance of drainage ditches.

While the law is complicated, and more litigation is sure to come, as a farmer or rancher be aware that your irrigation ditches may, or may not be subject to the jurisdiction of the EPA.
Lance J. Schuster at 8:53 AM No Comments | Post a Comment
Monday, June 22, 2015

Are you planning to burn debris? You need a Permit.

As the weather warms up and lawns begin to turn green from the recent rain, many farmers and ranchers will be cleaning up their property for the upcoming summer. This cleanup may include the need to burn some debris.
If you grew up in eastern Idaho, or have lived here for a while, you may not think twice about setting your ditch bank or leaf pile on fire, but you probably should.
Idaho Code 38-115 says that if you are burning anything between May 10 and Oct. 20, you need to first obtain a permit from the Idaho Department of Lands. While this law was passed in 1972, it has generally not been enforced in the southern parts of the state. In 2012, the Idaho Department of Lands began to take over responsibility for issuing burn permits to residents who do not live within city limits.
Failure to obtain a permit may result in criminal charges or fines.
So now the question is, how do you get a permit and how much will it cost? Permits to burn anything except crop residue are free of charge and may be obtained from the Department of Lands either in person or online at
The permits, once issued, are good for 10 days and can be renewed through the same website. If you plan on burning crop residue, there is an additional permit you must obtain. This permit is issued through the Department of Environmental Quality and will cost you $2 per acre. These permits can be obtained at and must be obtained 30 days prior to burning.
In addition to obtaining a permit through either department, there may be more requirements before you burn. These requirements range from having a shovel handy, to having a truck with a 100 gallon water tank on it with a 10 gallon-per-minute pump. These requirements can be found on the Department of Lands website when you apply for your permit.
Additionally, it is a good idea to check with your city or county to see if there are additional requirements.
While it may seem strange to get a permit before you burn your ditches, it is the law. However, there is some good news - you don't need a permit for a recreational campfire. So sit back and enjoy your s'mores cooked over the campfire, but if you plan on burning anything else from May 10 to Oct. 20, make sure you first get a permit.
Lance J. Schuster at 9:35 AM No Comments | Post a Comment
Tuesday, March 17, 2015

Country of Origin Labeling

Country of Origin Labeling ("COOL") is a federal law that requires retailers, such as grocery stores and supermarkets, to notify their customers regarding the source of certain foods.  Examples of food covered by the law include beef, veal, pork, lamb, goat, chicken and fish. Retailers must also specify production steps of birth, raising and slaughter of some meats.  Also included are fresh and frozen fruits and vegetables.

To convey the COOL information retailers may use a label, stamp, mark, placard or other clear and visible sign.  The information can be placed on a package, or a display or bin.  Food service establishments, such as restaurants, cafeterias, and food stands, are exempt from the labeling requirements.

The law further requires any person engaged in the business of supplying commodities covered by the law, to make information available to the retailer about the country of origin, and in some instances the method of production.  The information may be provided either on the product itself, on the shipping container, or in a document that accompanies the product through to the retailer.

The USDA may conduct an audit of any person that prepares, stores, handles, supplies, or distributes commodities for retail sale so as to verify compliance.  While there is no mandatory identification system used to verify COOL information, records should be maintained in order to verify that retailers are provided with credible information on which to base origin and method of production declarations.  

In addition to the COOL provisions of the law, statements regarding a product's origin and method of production must also comply with other federal law.  For example, the Federal Food, Drug and Cosmetic Act prohibits false or misleading labeling.

Be aware that Idaho farmers and ranchers must provide information to purchasers about the country of origin and, if applicable, method of production of a covered commodity.
Lance J. Schuster at 7:50 AM No Comments | Post a Comment
Tuesday, March 17, 2015

Disparaging Agriculture Food Products

Thirteen states, including the State of Idaho, have adopted agricultural food product disparagement laws.  Idaho's disparagement law is designed to protect producers of perishable agricultural food products.  A person who defames an Idaho producer of products such as potatoes, onions, beef, or milk can severely damage the producer by claiming that the product is unsafe or unhealthy.  

For example, Beef Products, Inc. has filed suit in South Dakota against ABC News and several individual news anchors who reported that lean finely textured beef was not beef at all, but rather "unhealthy 'pink slime' that was hidden in ground beef."  As a result of the story, Beef Products, Inc. alleges that sales of lean finely textured beef decreased resulting in the closure of three production facilities and the lay-off of over 700 employees.

The same kind of harm can result to an Idaho farmer or rancher who is wrongfully accused of producing harmful products.

Idaho's act requires a producer to prove by "clear and convincing" evidence that it has suffered actual damages as a result of another person's disparagement of the producer's product.

A producer must show that disparaging factual statements are clearly directed at a particular plaintiff's product.  A factual statement that is aimed at a generic group of products, rather than a specific producer's product, may not be the basis for a claim.  A statement that "potatoes are unhealthy" is not the basis for a lawsuit.  However, a slanderous statement that Farmer John's potatoes are unhealthy is actionable where Farmer John can prove that it lost sales of potatoes as a result of the disparagement.

Be advised that Idaho law protects farmers and ranchers from disparaging statements that harm producers of agricultural food products.
Lance J. Schuster at 7:44 AM No Comments | Post a Comment