Tuesday, March 28, 2006

Not so Fresh, Not so New: Pig Manure Floods Village

Here's an item that I unaccountably forgot to bring to your attention that occurred last month. In the German village of Elsa, a tank containing pig manure slurry burst and flooded part of the village. In places the manure was 1.5 feet deep, and it flooded several homes as it ran down the main street of Elsa.


Monday, March 27, 2006

Fresh New Stuff

I'm pleased to announce that we here at Law Down On the Farm, high atop the Law Down On the Farm skyscraper (allright, it's just me and my computer for now)...where was I? Oh, now I remember.

We are going to have the able services of Ms. Darla Mondou, agricultural and federal appeals lawyer extraordinaire, available to inform and enlighten our readership as co-editor. You may have read some of her excellent legal writing on the subjects of native American resource issues, and I anticipate that she will bring a southwestern perspective to this project.

It may take a little while for her to surface as she is heavily involved in a federal appeal at this time. In the meantime I'll keep the ball rolling.

Saturday, March 25, 2006

A Brief Analysis of Iowa's Hog Lot Controversy

This is a memo I submitted to the Kerry campaign. It went nowhere.


I. Introduction.

The so called ‘hog lot controversy’ in Iowa is reflective of the concerns of a varied constituency, so understanding the scope and breadth of the debate connotes an knowing who the stake holders are and what they are concerned about. The ‘controversy’ is three dimensional-it subsumes quality of life issues, environmental implications, and the common and statutory law of nuisance. It has become a lightning rod for an entire range of rural social and economic concerns as well.

At heart, much of this issue is a disagreement between proponents of traditional Jeffersonian values and the interests of vertically integrated industrial agriculture.

The burning question is whether industrialized, vertically integrated and technically efficient mass production of market hogs in pig factories can coexist with rural constituencies. On the one hand are a diverse constituency of interested people that include small family farmers, alternative agriculture and organic growers, niche marketers of high end pork products, animal rights advocates, rural advocates, community activists and rural residents. Arrayed against them in a perceived David and Goliath stackup are large corporate interests and in many cases absentee landlords, although many industrialized hog farmers are local people which introduces internecine strife in the mix.

The first thing to understand is that, as a generality, pigs stink, and large numbers of them in a small area without an adequate means of handling the manure they produce can be very offensive. One need not have a dainty nose to understand the principle, and it has created impossible burdens on people who are unfortunate enough to have a large confinement operation sited near them, even if they are rural people accustomed to animal odors. However, the industrialization of hog production, driven by cost concerns to shed external costs, has exacerbated a situation that was always part of life in a farm state and enlarged it to a civil war between industrial hog growers and rural people.

Specifically, large industrial hog factories have handled the waste that the animals produce by flushing it out of the production buildings into open-air ponds euphemistically called lagoons. There the waste sits until it is needed for fertilizer, if ever. This in itself can impose significant costs on counties if the producer files for bankruptcy, as happened in 1994 in Cherokee County Iowa, or abandons the property.[2]

Many technically feasible ameliorative measures can be undertaken that have not being done by industrial growers because they have not been as yet substantially and effectively compelled to, either by regulation or otherwise. The reasons for this are simple: weak enforcement of environmental laws and until recently in Iowa, substantial immunity from nuisance lawsuits arising from odors.[3] The lowest cost production model ruled out substantial efforts to control odors and other problems as uneconomical. There is simply no great incentive at present for factory farm operators to respect their neighbors or the environment.[4]

Another major issue yet to be fully understood is the cumulative cost of air and water pollution that has been occasioned by poorly regulated factory farms. Water pollution from manure runoff and agricultural drainage wells is an ongoing problem in Iowa.[5] Although odors are not generally recognized as pollution per se, the constituents of manure odors (ammonia, hydrogen sulfide, methane etc.) can be air pollutants in and of themselves in sufficient amounts.

Another issue related to the previous ones is the profound effect on rural residents, their lives, and their property values that are occasioned by large agricultural nuisances. Such a nuisance can, for all intents and purposes, demolish the wealth of a life’s work and whatever quality of life can be experienced in country living. A property experiencing such problems is unlikely to be salable except as yet more agricultural land and thus not worth the housing built upon it.

2. Is there a right or wrong to the controversy?

The industrial pig is bred and raised for the maximum amount of lean meat attainable, although this is clearly done at the expense of palatability. Market forces have compelled this, as Americans demand low cost, plentiful, high quality meat products and as farmers have become more export dependent. There is research that indicates that the stress of confinement has negative effects on flavor and palatability of the end product, but taste is not foremost in the production of hogs destined for the supermarket.

Confinement operations raise animals in close confinement, many of which are raised on slats for ease of disposal of waste. The waste is flushed out into open air waste ponds euphemistically called “lagoons”. This method of production is much more efficient in terms of feed conversion ratios than free range production but it is offensive. It points to the argument that Iowa’s right to farm law never anticipated technological developments of this nature.

Free range hogs or hoop barn on deep bedding production systems are no more offensive than other livestock businesses, but these old style traditional operations are a small (but growing) part of modern pork production because they are not geared to maximum efficiency-rather, they are geared to the foreign market and to the white tablecloth restaurant and upscale trade. The old fashioned production systems are rating a new look because the product is more edible and tasty, and this fact makes alternative pork production economically viable if the end product can be retailed for 50-100 per cent more than supermarket pork.

3. The packer feeder prohibition

Under Iowa law meat packers have been prohibited from owning animals for slaughter, thus preventing Tyson-style vertical integration of the hog business in Iowa. This prohibition has produced two results. First, many industrial hog producers have moved to regions of the country where this prohibition does not exist. Second, Smithfield Farms has litigated the constitutionality of the packer feeder prohibition and has convinced U.S. District Court Judge Pratt that the packer feeder prohibition impermissibly interferes with interstate commerce. Review in the appeals courts is certain.[6]

The outcome of voiding the packer feeder prohibition, if upheld at the appeal level, will allow packers to own the pig from conception to consumption. Likely this will erode the viability of small producers of market hogs as they will find fewer free markets for their pigs. If the past is prologue we need only look to the demise of the independent poultry producer in this country, substantially eliminated as a class by vertical integration. Likely we will see the increase of contract production and the reduction of formerly independent farmers to contract workers who own nothing but environmental liability, unusable buildings, and unpaid bills.
[1] Robert W. Luedeman is an attorney who practices in Des Moines, Iowa. He holds the L.L.M. in Agricultural Law from the University of Arkansas-Fayetteville. Prior to attending law school he was a journeyman aircraft mechanic and inspector. The views expressed are his own.
[2] Bryant Beef filed for bankruptcy in 1994 after pesticide residues were found in their product. At the time they operated a feedlot in Cherokee County, Iowa with an adjacent 18 acre manure lagoon that became the property of the county and which requires ongoing monitoring and maintenance.
[3] In William Aldred’s Case, 77 Eng. Rep. 816 (1610) a farmer erected a pigsty adjacent to another man’s parlor. The farmer’s lawyers argued that Aldred had a delicate nose but the court held for the plaintiff, saying that “ …(I)t may be that before time of memory (a landowner has had a right to) wholesome air” on his property.
[4] Like all the other states Iowa has had so called right to farm legislation which provided some level of nuisance lawsuit protection for livestock operations. In 1998 the Iowa Supreme Court invalidated the state’s Chapter 352.11 agricultural nuisance lawsuit shield as an unconstitutional taking without compensation.[4] At present, Iowa law protects animal feeding operations from nuisance lawsuits if they utilize best management practices.
[5] It was discovered many years ago in Iowa that an efficient way of draining farmland was to punch through the limestone cap and let water drain from overlying farmland into a subsurface aquifer. This was of no great import until the advent of chemical fertilizers and insecticides, as well as large earthen manure pits on farms that had unplugged drainage wells, particularly in Wright County, Iowa.
[6] Smithfield Foods v. Miller, 4:02-CV-90324 (S. D. Iowa) 2002.

A Look at Alternative Business Models

This was first published in WRENzine

Aldo Leopold spoke of ‘key logs’, likening certain concepts to the key logs in logjams on the rivers of his youth. Dynamite the key log, and the log jam is unsnarled. What Leopold was speaking about, of course, was the fact that certain issues are primary-the outcome determines all that is to follow.

One of the “key logs” in any discussion of rural life is that the farmer or producer has to be sustainable in order for there to be any talk of sustainable agriculture or sustainable rural communities, and that means that the operation has to make economic sense to survive. For example, a farmer produces food-if nobody wants it because it is difficult to buy, doesn’t taste good, doesn’t look good, or doesn’t speak to the buyer’s needs and wants in some fundamental way the farmer will fail in the employment she has chosen. In a larger sense, the survival of rural people and communities has to involve multiple cooperative constituencies working in new ways. A close look at alternative business models that break stride with conventional ideas is an important component of sustainability.

Some of the most fundamental decisions that can be taken in bringing your products to the market are determining the shape your business takes and how you plan to market and move your products. That means, for example, how the business is legally constituted, how the business acquires and distributes money, who is responsible for routine and strategic business decisions, who makes marketing decisions, who collects the money, who pays the bills, and who bears financial responsibility for capital expenditures, losses, and liability.

A new business venture offers an exciting opportunity to put social concerns into practice. Many people have discovered that there is a very profitable market for products and services that are created in a socially responsible, earth friendly and equitable way that is not well served by the lowest cost paradigm. One of the emergent trends in this type of business is the collective marketing organization and the alternative trading organization. Loosely modeled on traditional cooperative practice, sometimes funded as nonprofit enterprises, these organizations may be what they say they are. On the other hand some have the gloss of social responsibility cloaking the basest of motives-so called greenwashing. They use a veneer of social responsibility to command the buying dollars of socially conscious consumers. I know of one that calls itself a farmers’ collective but in reality is a limited liability company in which the people who think they are “member-farmers” have no voice at all and are unsecured creditors.

Ask yourself these questions when you are thinking about joining forces with one of these businesses.

First, are their relationships with you completely transparent? What role do you play? Are your rights and responsibilities spelled out in a way that a lawyer can understand? What law applies to them and are they in compliance? Do they offer you a printed contract?
Next, is the organization constituted in a way the law recognizes? Are you exposed to liability whether individual or collectively? Are you getting paid for your product or are you really letting them do business out of your wagon?
Further, is the socially responsible component a real commitment on the part of the organization or is it a gloss intended to gain market share-having the outward and visible signs but not the inward and spiritual grace, so to speak?
Lastly, if the organization is the latter, what does that say about you and your principles?

Although alternative business organizations may appeal to your right brain, when problems materialize a strict reading of your state’s business laws will be determinative of any controversy, so protect yourself with knowledge-it’s nature’s sovereign remedy.

Thinking Globally and Living Locally: Food Miles and You

This piece was originally published in WRENzine

Although the United States did not sign the Kyoto protocols, people in many other countries that did are getting educated about the subject of food miles, and one way that North Country farmers, food processors and other microenterpreneurs can promote their products is by educating the consumer about the subject.

“Food miles” is a term that is used to describe how many miles a particular item travels in its journey from the producer’s farm to the dinner plate. It stands to reason that the idea applies as well to items as diverse as fabrics, furniture, and paper-all products of the North Country and its talented work force.

For example, if we take a truckload of apples, notepads, or sides of beef that leaves a collection point in Spokane or Omaha and travels to a terminal in Portland, Maine, we ought to be able to figure out how much CO2 and other pollutants the truck contributes to the atmosphere and by extension how much each apple or steak or pencil on board contributes. We can also determine how local products stack up by comparison. We can also form some disturbing conclusions about organic vs. local foods that are increasingly important.

The connection with the Kyoto protocols and other issues closer to home, of course, is the subject of carbon dioxide (CO2) loading-although the subject of artificially low diesel fuel prices and highway maintenance dollars that subsidize the transport of food over long distances represent important associated problems that farmers and local enterpreneurs can use to promote their products.

Research on this subject was conducted by Rich Pirog and others for the Leopold Center for Sustainable Agriculture at Iowa State University (http://www.leopold.iastate.edu), and Rich estimates that the average distance an article of food travels is about 1,500 miles. His study estimated that a bag of locally grown spinach traveled 36 miles, but a bag of supermarket spinach traveled 1,815 miles.
A conversation we had recently shows that Chilean table grapes that are moved by water transport to Philadelphia contribute much less environmental load than California table grapes that move 1/3 of the distance by motor truck. In order of efficiency, water transport ranks first, followed by rail transport, motor truck, and air transport which is dead last.

Just as a matter of interest I took a look in my pantry and I found a bag of flour that came from Minneapolis (275 mi.), a jar of pickles that came from Milwaukee (about the same), a bag of those California table grapes (1,800 miles) and some Missouri apples (100 miles). If I decide to toss a few burgers on the grill, the meat will come from Nebraska (about 150 miles). Take a look at your fridge and see how it stacks up, or better yet, have a conversation with your local grocer about this subject. Let her know you support local farmers and enterpreneurs.

Now is a good time to start thinking about how far your food and supplies travel to get to the point of use. Taking this subject a little further, it stands to reason that in some cases the healthy choice on an individual level is not be the sustainable or responsible choice on a regional or national level. The bag of organic lettuce that is hyperwashed and packed in plastic which travels from Colorado to Portland, Maine via refrigerated motor truck may be more damaging to the environment than a bag of locally grown lettuce that is not certified organic but travels from a local farmer to your grocery and then to your table.

Farmer's Markets and You

This piece was originally published in WRENzine.

By the time you read this spring will have arrived in the North Country, perhaps a few weeks later than it does here on the prairie. Growers and sellers are busy as signs go up, equipment is brought out and made ready for the work to come, and people start to think about whether it would be a good idea to use a farmers’ market as an outlet for their spare garden truck, home made products and the like. On the buying side, townsfolk and those who do not garden are eagerly awaiting the first fresh produce of spring to grace their tables and inspire their palates.

A farmers’ market can provide you with low cost, direct access to many customers who you might not have served otherwise, including consumers and buyers for the local trade. As you build a following at the farmers’ market you may find that other business opportunities present themselves. Chefs from the better class of restaurants often use farmers markets as a source of seasonal goods, and you can be sure that a good showing of your produce will lead to new opportunities. Because internet access is now as commonplace as the old party line used to be, a number of chefs have organized informal producer groups to supply their needs, and these contacts were mostly acquired through exposure by direct marketing and at farmers’ markets.

One of the key considerations to investigate is what sort of rules and restrictions are placed on sellers at the farmers’ market you are interested in joining. Some important issues are:

Do I have to be licensed?

For the most part, sellers at a farmers’ market do not have to be licensed to sell what they grow. However, when any sort of processing in undertaken beyond a water wash or you are involved in selling meats, dairy products or eggs you probably will need some sort of license to operate, and this will most likely be through your local authorities or your state department of agriculture.

What can I sell from my stall or booth?

The answer to this question lies in what is contained within the four corners of the membership agreement. For the most part, farmers’ markets deal in fresh farm products and there may be restrictions on sales of crafts, general merchandise, or other things not directly associated with local agricultural production.

Do I have to be a farmer to sell at the market?

This is another question that is controlled by the four corners of the membership agreement. In some cases, membership is limited to actual producers of the farm products they sell. In some cases, the seller must offer at least a percentage of product that they grew themselves. In yet other cases there is no restriction on origin of products you sell.

Who collects the sales tax?

In general you will be responsible for collecting taxes and paying your obligations to the state or city you are located in.

Does the farmers’ market have to be certified by anyone?

Some farmers’ markets require organic certification, and in that case you may have to certified by some third party or have complied with USDA organic certification rules.
If the farmers market requires you to be a producer you might have to submit extensive documentation and a farm plan to demonstrate the ability to meet your commitments. In some cases you may have to open your farm for inspection. In other cases all that will be required is that you pay for the space. Farmers’ markets are idiosyncratic and there are no hard and fast rules that apply to all of them all the time.

Who owns or operates the market?

In cases farmers markets are operated by nonprofit groups, civic associations or municipalities. Some are longstanding operations that have been in existence for many years and some are relatively new on the scene. In any case you should acquaint yourself with the rules that the market asks its members to follow.

What penalties are involved if I violate the rules of the market?

Violating the rules of the farmers’ markets may cause you to lose your ability to access the market. Because of that, it is sound business to know the procedures that are in place for governance of the farmers market and what procedures can be used to resolve disputes among members or between members and management.

Revolutionary Shopping I: Charity Begins at Home

This piece was originally published in the WRENzine.

Revolutionary shopping.

One of the features of life in a northern latitude is that the seasons determine the way we think about certain things. In Iowa, as in the north country, January bears the signs of life quickening despite the iron grip of winter. It is time to get the new seed catalogs for the garden and start thinking about getting plans and equipment in place for the season that will be here in a few short weeks. It’s also time to do some applied thinking about who we are and who we wish to become, which is where I started thinking about what I call, for lack of a better word revolutionary shopping.

For starters, the issue of economic justice is an important one. Senator John Sherman, during the floor debates on the subject of the anti trust legislation that bore his name, opined that the only true freedom people have is to enjoy the fruits of their labor. If people do not have this freedom, then all else is meaningless. Political, social, moral, religious freedom-all depend on being able to support ourselves by labor. Remove the ability to earn one’s bread and you have struck a body blow at the foundation of an ethical and a just society. Justice is not served when workers earn enough only for rough grub, a bed in a flophouse and drink enough to self medicate-and if our dollars support that, we have failed in our duties as people who could have done better but did not.

Brother David Andrews of the National Catholic Rural Life Conference has done a great deal of thinking and speaking about the ethics of eating, and eating as a moral and political act…..Michael Rozyne speaks of the dignity price paid for farm products-that is, paying a fair price that allows our neighbors to stay in their chosen occupations and that which supports rural communities-all of which got me thinking the other day-why are we limiting this notion to eating and food?

It stands to reason that where and how we spend our money is the highest form of political statement many of us will routinely make. If I buy a jacket at Walmart that came from Bangladesh, someone is benefiting to be sure, but we do have the right and the responsibility to ask that our dollars benefit our friends and neighbors first. Sustainable lives build sustainable communities.

So how does this notion of revolutionary shopping work? First, it starts with the recognition that when we fix or salvage something useful rather than discarding it we are working for economic justice. Second, when we buy something from the secondary market or from local sources of supply we are not contributing any more than is necessary to the trade imbalance that is destroying our cities and workshops. Third, when we pay as little as possible for the things we do have to buy at the big box store, we benefit ourselves because we keep more of our money in the local community. Fourth, when we minimize consumerism and all that it entails we are lightening the burden we place on our mother earth.

So how does this translate into our daily lives?
Ultimately, charity begins at home as the saying goes, and home is where we live and work, not among strangers half a world away. Eating, drinking, shopping for the things we need and want and filling the grocery cart are as much a political act as voting on election day-we vote with our dollars every day, and how we spend them may ultimately determine the fate of our fellow countrymen.

More Animal Abuse as if You Needed It.

It was reported yesterday on the local news that two horses were killed and another gravely injured in the pasture of one of our representatives, Rick Olson.

Wild Won was bashed in the head by someone and had one of her legs broken. She was in the last stages of pregnancy, and her foal was delivered and it it died. Wild Won had to be put down. Camry, another of Rick's horses, was gravely injured at the hands of unknown persons.

Why is this important? Simply because Rick is one of my brother attorneys, he's worked like a galley slave in the criminal courts of this state, providing representation of the first water to a lot of people who probably didn't deserve it. Also, he's a kind and caring person who is a pleasure to be around. It's sad that this had to happen to a good man and the animals he so loves.

It is also important because there is a dark and bloody theme that emerges every so often in farm country, and it's the critters who bear the brunt of it.


Friday, March 24, 2006

Stable Fire Kills 24 Horses in New Jersey

It is reported this day that a fire in a stable at Perretti Farms, a Monmouth County, New Jersey horse farm claimed the lives of 24 horses who were in stalls and unable to get out.

It is noted that the fire may have been electrical in origin, and it spread rapidly due to large quantities of combustible hay and varnished woodwork in the barn.

This points out the necessity of making sure that the electric service in your indoor animal facilities is as well maintained and properly constructed as the electric service in your home that you trust your own life to. The services of a good residential/commercial electrical contractor are something that all stablemen and agisters should invest in-it is money well spent.


Fair Trade: Coming to a Market Near You?

This article was first published in the WRENzine, which is the journal of the Women's Rural Enterpreneurial Network in New Hampshire. WREN is doing a great job in their field, and I commend them.

Fair trade-coming to a market near you?

Recently we have been hearing about fair trade standards in business, and the idea warrants a close look.

The fair trade movement came about because of a consensus among concerned people that the traditional economic system of production and distribution was not economically or socially just and did not support local communities.

Fair trade is often associated with coffee and other products from the developing world where economic disparities are great and production methods are idiosyncratic, and where producers are oppressed by global economic forces that they do not understand.

People on the consuming side of the equation have asked themselves how their market choices can affect events half a world away, and the answer for some may be fair trade. More recently through the efforts of people like Michael Rozyne of Red Tomato, fair trade ideas are gaining ground and moving into the market for locally grown and produced products and services.

Fair trade asks the same questions in a social sense that the environmental movement has asked in the natural arena with some success: are there things that are worth preserving and promoting, despite the fact that they cost more money than if we ignored them? The environmental movement has answered the question well, and the public now generally agrees with the proposition. It may be time for the fair trade movement to make the same case.

Generally, fair trade takes into account several convergent themes.

First, fair trade starts with the idea that farmers, crafters, weavers and other small producers of goods and services should receive enough from their work to build sustainable communities, while preserving ecological and cultural values. In the case of farmers, this includes practicing sustainable agricultural methods. In the case of crafters, weavers and other small producers of goods and services, this notion includes the idea of sustainable local communities. Both of these themes are not well served by present day notions of laissez faire capitalism-the lowest price is often the wrong price for somebody. Third, buying and using fair trade products answers the need of concerned people to contribute to the welfare of less fortunate but equally worthy communities. Fourth, fair trade suggests that supporting local producers is environmentally sound, when one considers, for example, that the average distance an apple travels from the orchard to the table may be several thousand miles that has to be bankrolled by cheap petroleum.

However, fair trade cannot exist without some method of assuring that it is genuine, and that is answered by independent certification. The process is overseen by an independent certification organization, and the products that are certified enjoy market promotion and recognition that the production practices and methods are sustainable. People who buy fair trade products get to contribute to sustaining local communities in a meaningful way, no matter where they live.

As we progress from extractive and destructive production methods to sustainable systems is it reasonable to expect that the economic theory that evolved to justify those methods may give way to ideas more in line with emergent social theory? Stay tuned.

Limited Liability Comapnies for Alternative Farmers

One goal of all niche producers of agricultural, value added products is to successfully tackle the issue of building a model of governance that is fair, flexible in the modern environment and one that retains the original reasons for existence of the marketing group. Many niche producer groups start out as informal associations of like minded producers, where mutual support and shared expertise form much of the "soft capital" of the group. As the business prospers, the objective of keeping the original rationale for existence alive assumes greater significance, particularly when it is time to set a dollar value to each person's contribution.

How this objective is approached can mean the difference between success and failure for the project in terms of the original vision of the founders, but in a larger sense it can serve to promote social goals and put into practice things that we usually only get to think about in the abstract.

Some of these factors are,

treating people equitably and respectfully
acknowledging important contributions regardless of size
respecting each member's unique knowledge
preserving the communication and mutual support that was a basis for the project in the first place
providing a fair and equitable means of adding new people to the group
providing a reasonable method of achieving a valuation of the enterprise that everyone can live with.
Within this construct, providing a flexible means of management that can adapt to changing market conditions.

In many cases the response has been to form a traditional cooperative, but that form of business entity has some disadvantages when it comes to flexibility and acquiring investor and non-producer support.

One group I worked with faced the challenge squarely and did the work necessary to address these challenges. The group did have one major advantage, and that was that it was entirely self capitalizing-it did not need startup funds, premises, professional employees, or market development, as the market was there waiting for someone to come along and grab hold of it.
It was determined that the group would be operated by a consensus model. Although it was something of a surprise to me, the largest members (going by production allotted to the enterprise) were most in favor of this model.

The initial goals were to define the management structure, define the model of governance, and create the most efficient vehicle for attaining these goals.

Some of the major features of governance for a small enterprise of this nature that are somewhat unique are

Limiting non producer voting members on the Board of Directors-producers shall always hold a 2/3 majority of voting seats
Limiting members ability to withdraw their support from the enterprise in its formative period
Any producer regardless of size can sit on the Board of Directors, and each has but one vote.
A semi independent marketing and operations arm
A producer's bargaining agent with real power
An informal "curbstone" dispute resolution mechanism
A defined set of quality standards for live animals
A shared vision of what the business can accomplish and a mandate to return maximum income to the membership through production and marketing of a superior product

All this can be done through the vehicle of the operating agreement. Although it is not easy to do, the process of discussing and creating an operating agreement that can do these things provides ample opportunity for sharing knowledge, mutual respect, and community education by discussion and advocacy of different points of view. At the end of the drafting process, the finished product represents a real consensus, and each member that was part of that process not only has an ownership stake in it, he or she understands exactly what it means in real terms.

Thursday, March 23, 2006

Hog Nuisance Oil Drilling Case

Environmental contamination of subsurface oil allegedly caused by hog confinement operation.

Test Drilling Service Co. v. Hanor Co., 322 F.Supp. 2d 965 (D. Ill. 2004); 322 F. Supp. 2d 957.

Test Drilling Service Co. (“Test Drilling”) held oil and gas leases in Greene County, Illinois going back to 1994. Id. at 968. Test Drilling began producing oil on the property in September, 2000 and soon discovered that the oil it recovered was contaminated with bacteria of a type associated with animal waste. Id. Defendants Hanor Co. and Pig Improvement Co. operated hog confinement operations adjacent to the leased site and contracted with other defendants for the design and management of animal waste handling arrangements. Id. at 959-60.

Test Drilling originally filed suit in state court alleging a variety of causes of legal and statutory causes of action including negligence and negligence per se. Id at 968-69. Test Drilling alleged that the defendants allowed leachate and animal waste to flow from their property into the mineral leasehold, damaging the value of the oil in the ground and equipment used in extracting the oil. Id.

The case was removed to the U.S. District Court for Central Illinois.

The defendants moved to dismiss Test Drilling’s negligence claims. Id at 967. The court dismissed the plaintiff’s negligence per se claims because the statute cited as the basis of the claim did not provide for strict liability Id. at 964. The defendants argued that the claims of negligence should be barred by the economic loss doctrine which holds that economic damages are not recoverable in a tort action , but the court declined to agree because there was damage to other property.-in this case, the leasehold itself. Id. at 970-71.

The court noted that under Illinois law Test Drilling’s interest in the oil and gas leases was a property interest, and that recovery for damage to this interest and the damage to its pumping and storage equipment caused by a dangerous occurrence was not barred by the economic loss doctrine. Id. However, damage to the oil itself was not compensable as Illinois law holds that a mineral leaseholder does not have title to oil below the ground until it is reduced to possession. Id. at 971.

A footnote: You may have heard about this case *somewhere else*. Compare your dates carefully. This document was created February 16, 2005 and submitted *somewhere else* and yr obedient servant got *no answer* until something along the same lines appeared *somewhere else* three months later, all of which points to the old rubric about casting one's pearls before the subjects of this litigation.

Wednesday, March 22, 2006

What's That Awful Smell?

From the "things we already knew" department, we learned in today's Los Angeles Times-a superb newspaper if ever there was one-that after two decades of sometimes outrageously punitive efforts to clean up the air in the basin, the air quality stinks and not only that, it's bad for your health.

It is also reported that if you do not care to expose yourself to further health risks of this nature, one may move to rural Wyoming, Montana or South Dakota.

I'm going to take a big guess here but I'm willing to bet that we here in Iowa are probably OK in that department. The worst anyone can say about our air is sometimes it smells bad when you're near a hog farm or feedlot, but last we heard the smell of shit is not otherwise hazardous to your health.

Lest I be called a xenophobe or a hillbilly, I did live in the basin for nearly twelve years, and I've got my share of smog stories, of choking on the freeway stuck behind an Oldsmobile diesel, of days when the air was so thick with poison the sun seemed to be dying in a pool of its own heart's blood. I could tell you of smog alerts when we got turned back at the plant gate, how long it took before I knew there was a mountain range behind the city, and on and on. You get the picture.

Let those who value their health take notice and govern their affairs accordingly, as we say in the trade. There's plenty of room to spread out here in the rest of the world.


The Call of the Wild Comes to New York

The natural world has a habit of intruding in places where the natives least expect it. Not too long ago, a pair of redtail hawks was rudely evicted from the ledge on a New York apartment house where the couple had set up shop. I mean, the hunting was good with all those damned pigeons, right, and the competition was sparse? After much representation by the animal lovers of the city, the couple's cramped but cosy habitation was reinstalled to the applause of many.

There's something elegant about watching a redtail hawk nail a pigeon on the wing that would bring tears of hopeless envy to the folks at Raytheon and their Patriot missiles.

We here in less....ahem....developed parts of the world are more used to such things and take them in our stride. My home is in the middle of Des Moines, about three miles from the heart of downtown, and there are several redtail hawks and a couple of barn owls living in the timber behind the house. In addition, I am feeding a trio of whitetail deer who come up to the back of the house at night, because they have found that the eating is good and their personal safety is assured. In fact, I have seen bald eagles downtown on two separate occasions in the past couple of years.

It is reported today that a genuine coyote (pronounced kai-oat) was captured in Central Park in a scene out of a Keystone Kops flick. The western visitor gave the dogcatchers the slip for some time, escaping from their grasp near the Hallett Nature Sanctuary, only to be apprehended some time later after it had jumped into a pond, swum under a bridge, slithered through a gap in the fence and then away. All in all, a good performance from the Trickster (or so he's called in Native American lore) and one that we here on the prairie have become used to of late.
The New York cops were up to the task, with helicopters, sharpshooters, and an army of determined park rangers, all armed to the teeth, and they corralled the Grey Fellow.
It is said that the critter was removed to a facility in upstate New York (meaning Nyack or points north) to be "rehabilitated".

Iowa cattlemen and sheepherders have been dealing with coyotes and their bad habits for a number of years now, and they would likely opine that the prospects for "rehabilitation" of the Wily One and his clan can be laid at the door of the irrepressible optimism of folks who are unfamiliar with him and think that the wild can be tamed out of him.

One of the highest values we prize in a visitor to our shores is the habit of minding his business. If visitors do, they can move without let or hindrance. However, it is calving time here on the prairie, the mud is in the field and the cattle and sheep bear their young down in the breaks out of the wind. Such largess often proves to be too much in the way of temptation for brother coyote, and the offender is usually rehabilitated with a dose of lead delivered by Doctor Winchester.

And that, in the end is what is most heartening about the story. To the good folks of New York, I would say that the beauty of the coyote is that he cannot be tamed, any more than John Gotti could help being who he turned out to be.

It is in him. It is in his blood and his bones, his hide and sinew and paws, and it cannot be refined out.


I Have Seen the Future and it is Not Hydrogen

When the usually practical and down to earth folks in Sweden decide it's time to do something, you can bet that they have done some serious thinking about the subject. It's no mystery to me that a fair number of Swedes fetched up in Minnesota-the culture and climate is unmistakably Norse.

It is reported in Der Spiegel that Sweden has announced that it intends to be completely off the petroleum baby bottle by the year 2020-fourteen years from now.

Sweden intends to fuel its motor vehicles using enhanced production of ethanol from cellulose as an avenue to a more self sufficient energy future. Already, Sweden may have more E85 stations (about 450) than the United States. This is serious stuff, and if the Swedes are involved it's practical and doable. They are, in the main, a no-nonsense, down to business people.

We here in the prairie states already know that ethanol can supply a large part of our motor fuel diet, through the use of biodiesel and crop based ethanol-which has the advantage of producing a good grade of animal feed that is actually protein fortified by the yeast content it receives. We also have a large coterie of hungry cattle that are ready and waiting for their dinner. We've also synthesized plastics from corn, and there are inventors and tinkerers all over the midwest busy in research labs and garages on alternative energy projects.

We also have a developing coal gasification/synfuels industry based in the western states that promises to produce good quantities of high quality motor fuel.

Overall, the picture is one of a new industry emerging from the wreckage of the previous economy. It's not hydrogen, it's a partnership between technology and agriculture, and it leads me to think our best days are ahead of us, not behind us.


Friday, March 17, 2006

More Mad Cow-Korea Delays Imports

It is reported this day that resumption of beef exports to South Korea will be delayed until it is verified that the identity of the animal and its age can be validated for compliance with the recently concluded bilateral agreement that allows South Korea to reimpose a ban on beef from the US that was born after April 1998.


Wednesday, March 15, 2006

Where's the Beef?

It is reported in the Los Angeles Times that President Kirchner of Argentina has come up with a novel and interesting way to fight inflation of food prices for the masses: he's going to stop, that's right stop-exports of beef.

Taking your biggest line item in the export department off the table makes a lot of sense, particularly to producers in other parts of the world like the US and Canada who will, no doubt, step in to help out their Argentine friends with their....ahem...commitments.

And who said we here in the states have a monopoly on idiots?


Mad Cow Disease

It is reported recently that a third case of Bovine Spongiform Encephalopathy, a/k/a Mad Cow diesease was detected in a cow from Alabama, and the knownothings are once again in a tizzy.

How else to explain the reaction of Consumer's Union? "Food policy experts" are outraged, and the finger's pointed squarely at feed practices.


What the pundits seem not to have noticed is that BSE occurs spontaneously across the population of cattle just as its human variant, Creutzfeldt-Jakob disease (CJD) can occur spontaneously in humans. I shall have more to write about this later.

Meanwhile, Japan-you know, those wonderful folks who ban American beef at the drop of a hamburger-has reported its 23d case of BSE, and nobody seems particularly upset about it, which makes me wonder what the ruckus is all about. I shall have more to write about this later but right now I gotta do some paying work. Stay tuned, and welcome aboard.