Friday, July 1, 2016

Be Sure to Know Your GMOs

There has been a lot of news lately on genetically modified organisms (GMOs), but what exactly are GMOs?
The USDA defines genetic modification as the "production of heritable improvements in plants or animals for specific uses." In short, genetic engineering transfers specific traits, or genes, from one organism into another.
How extensive are GMOs in farming? Soybeans provide a good example. In 1997, herbicide-tolerant soybeans were planted on 17 percent of acreage. That figure has jumped to 94 percent in 2015.
The potato industry is following suit. J.R. Simplot hopes to have a variety resistant to the Irish potato famine pathogen ready for commercial production by 2017.
Many wonder, with such explosive growth what is the government doing to ensure these crops are safe?
Genetically modified crops fall under the offices of the USDA, EPA and FDA. These agencies have shared responsibility to make sure crops are safe. The USDA's Animal and Plant Health Inspection Service tests to make sure GMO crops do not pose a "plant pest risk" to the environment through field trials and certification programs. The EPA's Biopesticides and Pollution Prevention Division checks to make sure that pesticide resistant plants are tested and fall within tolerance limits. The FDA then tests the food or feed to make sure it is safe for human and animal consumption.
The state of Idaho also places restrictions on GMO crops entering the state. The Idaho Department of Agriculture maintains a database of USDA-approved GMO crops that have entered the state. The law requires that people wishing to bring GMO crops into the state to first obtain a permit.
Botton line, Idaho farmers are using GMOs to compete in today's market. Check the law and obtain a permit before bringing new GMOs into the state.
Lance J. Schuster at 12:26 PM No Comments | Post a Comment
Friday, June 10, 2016

What To Do With a Neighbor's Tree

The neighbor's tree branches come across the property line. The suckers from their poplars are coming through the lawn. Their leaves seem to fall in your yard, but not theirs. What is a landowner to do?
Idaho adopted the common law of England when it became a state. The common law is that part of English law derived from judicial precedent, rather than statutes.
Under the common law, a property owner could cut off at the property line the limbs of a tree that are on a neighboring property. If the roots of a tree penetrate neighboring land the neighbor may dig them out. However, a property owner has no duty to prevent the limbs or roots of a tree from crossing over onto an adjoining property.
When trees are located on the boundary between adjoining property owners, they are treated as being jointly owned by the property owners. If the adjoining property owners cannot agree on the trees, a property owner may still bring a nuisance action if the trees constitute a threat or pose a potential harm.
For example, a tree on a common boundary whose roots exert sufficient pressure on a home's basement walls to push the walls inward may be entitled to remove the tree at their own expense since it is a nuisance. Lemon v. Curington, 78 Idaho 522 (1957).
As for the leaves - you get to rake them whether they are yours or the neighbors!
Lance J. Schuster at 11:11 AM No Comments | Post a Comment
Friday, May 6, 2016

Coming up: The Transport Rule

Almost all food that we buy in the grocery store is transported either by truck or rail.  The Food Safety Modernization Act (FSMA) will soon require that vehicles and transporation equipment be suitable and cleanable to assure the safe transport of food. 

This new transport rule applies to shippers, receivers, loaders and carriers who transport food in the United States by truck or rail.  It also applies to shippers in other countries who ship food to the United States.  The transport rule establishes requirements for vehicles and transportation equipment, transportation operations, records, training and waivers.

Measures that must be taken to assure the safe transport of food include adequate temperature controls, preventing contamination of ready-to-eat food from touching raw food, protection of food from contamination by non-food items in the same load or previous loads, and protection of food from cross-contact with food allergens.

Shippers, receivers, loaders and carriers will require training in sanitary transportaiton practices, and documentation of the training. 

Transportation activities performed by a farm are excluded by the transport rule.  In other words, transporting grain from the farm in a truck, or live animals to a sale, will not reuiqre compliance with the transport rule.   However, farms are still subject to other rules that prohibit the holding of human food under insanitary conditions.

Companies that ship food, or carriers of food, should be aware that the entire food chain is changing with an emphasis on avoiding hazards that may lead to unsafe food.

Lance J. Schuster at 11:08 AM No Comments | Post a Comment
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
Wednesday, March 9, 2016

March Madness Networking Event

March Madness Networking Event
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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
Wednesday, February 24, 2016

Beard St. Clair Gaffney Welcomes Michael D. Hales

Beard St. Clair Gaffney is pleased to announce that Michael D. Hales has joined the firm. Michael returns to Eastern Idaho after gaining valuable experience practicing law in Orlando, Florida where he represented individuals and businesses alike. His emphasis has been and continues to be centered around timeshare law.  He is experienced in protecting clients from unscrupulous companies, timeshare cancellations, and credit protection. Michael earned his Juris Doctor from the University of San Diego, and a Bachelor of Arts in English from Brigham Young University.

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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
Thursday, January 7, 2016

Five Things Contractors Should Know About the Notice & Opportunity to Repair Act

Five Things Every Contractor Should Know About the Notice & Opportunity to Repair Act (NORA)

By: John Avondet, Esquire

This publication is intended to notify readers of developments in the law. It should not be construed as legal advice or opinion on any facts or circumstances, nor should it be construed as insurance brokering advice on any facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you may have.

The Idaho legislature enacted the Notice & Opportunity to Repair Act (NORA)* in 2003. NORA had the full blessing of the Idaho Building Contractors Association and IBCA specifically recommended the law as a way to reduce the number of lawsuits filed against contractors. Though it is unclear whether NORA has accomplished this goal of reducing lawsuits filed against contractors, every construction defect lawsuit involving a home involves NORA. The following are five things every contractor should know about NORA and how it might affect legal rights.

1.     Residences only, please.

NORA exclusively applies to construction defects in the construction of residences. NORA defines residence as a “single-family house, duplex, triplex, quadraplex, condominium or unit in a multiunit residential structure in which title to each individual unit is transferred to the owner under a cooperative system.” This does not only mean new construction but also applies to substantial remodels of existing residences. The Idaho Supreme Court** has ruled that NORA does not apply to construction defects in a detached shop built on the same property as the residence. So, NORA may affect only some of your rights and obligations in a given project where more than one building was built on the premises. The quick test for NORA’s application is if people can live there, then it’s probably a residence and NORA applies.

2.     Don’t expect details.

NORA only requires a homeowner to provide notice of a construction defect in “reasonable detail sufficient to determine the general nature of the defect” and nothing more. The statute does not define reasonable detail but the courts have construed NORA’s language as not requiring excessive particularity. The Idaho Supreme Court explained that most homeowners won’t know the technical nature of the defects. As long as the homeowner gives some description of the general nature and location of the defect, then the homeowner has provided notice under the law. NORA only applies to claims of defects in construction. It does not apply to allegations that a contractor failed to perform under a construction contract.

3.     Timing matters.

Once a homeowner has provided notice to the contractor of the nature and location of the defect, the clock is ticking for the contractor. The homeowner cannot file a lawsuit until at least twenty-one (21) days after serving the contractor with notice of the defect. If the contractor does not respond within twenty-one days, then the homeowner may file a lawsuit on the twenty-second day. So, even if things are busy and chaotic, which often happens in the construction industry, respond to the homeowner if only to buy more time to evaluate options or negotiate a resolution.

4.     Write it down.

Any response to a homeowner should be in writing. Oral responses to notices are not enough. NORA requires a written response to the initial claim. The contractor’s written response should address one of three things: (1) propose an inspection of the property and state a deadline to complete the inspection; (2) offer to compromise and settle the claim without inspection; or, (3) dispute the claim and state that the contractor does not want to inspect and will not compromise the claim. Any other response constitutes a failure to meet NORA’s requirements and will entitle the homeowner to proceed with filing a lawsuit irrespective of any additional provisions found in NORA.

5.     It’s about the money.

There’s a daily cost to doing business and litigation will affect a contractor’s ability make a living. NORA specifically outlines the damages a homeowner may recover in a lawsuit. The law allows for a homeowner to recover reasonable and necessary attorney’s fees. This is not reciprocal for the contractor. Unless there is a contractual provision or other applicable statute providing for the recovery of attorney’s fees between the contractor and the homeowner, the contractor will be unable to recover its attorney fees against the homeowner. This is a powerful arrow in the homeowner’s quiver that should not be underestimated by the contractor when weighing options about whether the compromise, inspect, or refuse to remedy any claimed defects.

 If you’ve received a letter from a dissatisfied customer claiming construction defects, do not hesitate to contact an attorney for consultation. As noted, timing matters once you’ve received a notice from a homeowner claiming a construction defect. 

*NORA is found in the Idaho Code at §§ 6-2501 through 2504.

**As of the time of writing this article, the only Idaho Supreme Court case interpreting NORA is Mendenhall v. Aldous, 146 Idaho 434 (2008).

John Avondet at 5:08 PM No Comments | Post a Comment
Construction, Business Law
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