Tuesday, September 29, 2015

BSG Welcomes Kristopher D. Meek and Megan J. Hopfer

bsg welcome Kristopher D. Meek and Megan J. Hopfer
Staff at 3:21 PM 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, July 27, 2015

Lance J. Schuster Awarded AV Preeminent Peer Review Rating

Beard St. Clair Gaffney is thrilled to announce that another one of its lawyers has achieved an AV Rating from Martindale-Hubbel®. Lance J. Schuster was recently awarded the AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the country’s leading legal directory. The AV Rating is the highest possible rating given and signifies that fellow attorneys rated Lance as having the highest possible rating for legal abilities and ethical standards. This rating is a significant accomplishment and a well-deserved achievement that accurately reflects Lance’s legal knowledge, analytical capabilities, judgment, communication ability, and legal experience. The AV Preeminent rating is awarded to less than five percent of all attorneys across the country.
Staff at 11:08 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
Wednesday, April 22, 2015

Beard St. Clair Acquires Unanimous Jury Verdict in Partnership Dispute

Attorneys Jeffrey Brunson and Lindsay Lofgran acquired a unanimous jury verdict finding the existence of a construction and excavation partnership between their client and another individual on April 2, 2015. Over the course of a three-day jury trial, the trial team presented evidence establishing that the parties verbally agreed to form a partnership to provide excavation and construction work, including extensive work done in North Dakota. The team presented further evidence establishing the detailed terms of the parties’ oral partnership agreement, including provisions to split profits and pay wages to each partner. In finding that the parties entered into a partnership, the jury verdict also unanimously determined that the parties orally agreed to all terms advanced at trial by the trial team.
Staff at 9:34 AM No Comments | Post a Comment
News, Litigation
Wednesday, March 18, 2015

Gregory C. Calder Achieves AV Preeminent Rating

Gregory C. Calder has been awarded the AV® Preeminent™ Peer Review Rating by Martindale-Hubbell®, the country’s leading legal directory. The AV Rating is the highest possible rating given by LexisNexis Martindale-Hubbell Peer Review for a lawyer and signifies that fellow attorneys rated Greg as having the highest possible rating for legal abilities and ethical standards. This rating is a significant accomplishment and a well-deserved achievement that accurately reflects Greg’s legal knowledge, analytical capabilities, judgment, communication ability, and legal experience. The AV Preeminent rating is awarded to less than five percent of all attorneys across the country.
Staff at 9:53 AM
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
Tuesday, March 17, 2015

Water Preferences

The West is a land of limitations.  Mountains, deserts, rocks, soils, and the arid climate all place limitations on farmers and ranchers.  There are places where you can grow crops, and places that you simply can't. 

A significant limitation on farmers and ranchers is imposed by water.  Water is required for drinking and for domestic use.  Water is required for livestock.  Without irrigation water most crops cannot be raised in Eastern Idaho.  Mother Nature does not provide enough rain to grow hay, grain and potatoes.

Idaho's Constitution recognizes that water is a limited resource and further recognizes that certain uses of water have preferences over other uses.

Section 3 of Article XV of the Idaho Constitution states that "priority of appropriation" governs the use of water in Idaho.  In other words, the first in time to divert water and put it to beneficial use has the better water right.  If there is a water shortage, the earlier water right gets the water.

Notwithstanding, the Idaho Constitution also states that when there is insufficient water those using water for domestic purposes have preference over those claiming water for any other purpose.  In addition, water appropriated for agricultural use has preference over those using water for manufacturing.  But, in any organized mining district, mining uses of water have preference over manufacturing and agricultural purposes.

So, for example, an agricultural water right with an earlier priority date will be trumped by a domestic water right with a later priority date.  However, the law requires those with junior water rights who claim the use of  water based upon the preferences outlined in the Idaho Constitution to pay just compensation for the taking of water.  When water is insufficient, as is sometimes the case, preferences for the use of water will trump priorities.
Lance J. Schuster at 7:33 AM No Comments | Post a Comment