Law Down on the Farm

On Eating Junk Food and Being Poor

2011-12-08T06:27:00.000-08:00

I've recently had a discussion with a person who is of the opinion that poor folks (I presume in the developed world because this problem isn't even on the radar elsewhere) are in the main overworked, have no leisure time, and can't be bothered to take the time to prepare healthy foods.

They are thus not responsible, so the argument goes, for feeding their kids (and themselves) poison from Maruchan and McDonalds, not to mention the odd bag of Cheez Doodles.

I opined that this issue was one of personal responsibility, skills acquisition, and access to a reasonably well stocked supermarket, and that if a family of four could not get by on $129.50 in food stamps a week (according to the Kansas City Star) the main problem was a lack of enterprise and discipline rather than structural impedimenta.

This my friend objected strenuously to. I then went on to describe how I, being the designated chef here, put together baked macaroni and cheese for about five dollars, which was enough to feed four adults for two days, and how I did it in about an hour. This he described as classist and arrogant, suggesting that I'd never walked in the shoes of the poor (which is inaccurate) and that dilettante chefs and middle class housewives would of course do things as a test project that the poor, not being similarly blessed, could only succumb to the temptations of the Clown and Top Ramen.

Well. I haven't changed my mind and likely neither has he.

I surmise that when you're poor, like so many other burdens, it is incumbent on people to learn the skills necessary to survive, whether that skill involves navigating the social service system, the public transport network, or providing healthy and nutritious eating for the young 'uns. At a minimum it is necessary for child development and school kids from the other side of the tracks need all the help they can get. Good eating on a budget is the first rung on the ladder out of poverty.

Top Ramen and McDonalds don't build a foundation for any kind of sustained effort. They're the definition of empty calories and the white flag of surrender to a lack of initiative.

Get a plot in the public gardens if your town has them. Get a cookbook. You can find Irma Rombauer or Meta Given at the Sally for half a buck. Read it. Treasure it. Learn it. Use it.

Acquire the skills and tooling necessary to prepare wholesome food for the family, and learn to prioritize and manage a budget and develop a menu. Take the time to learn these skills, and there's a pretty good chance your kids won't get diabetes, either.

You may not be able to change the world, but you can change yourself and your family for the better. And if you can't, I'll buy you a week's worth of Top Ramen.

Of course it is not all fun and games, and when you're poor you're only one occurrence away from disaster. The Roanoke Times had this to say back in 2007:

Playing at being poor might seem offensively useless. But it can serve a purpose.
Living in poverty is not the free and easy ride that go-get-a-job critics who rail against taxpayer-funded public assistance programs would have us believe.

Living on Temporary Assistance to Needy Families, food stamps, transportation vouchers and child care subsidies is tough.
That point can be made real for people who live much more comfortable lives through exercises that help them better understand what it means to be poor.
United Way of Roanoke Valley board members and other community leaders last week participated in a poverty simulation.

They assumed the roles of low-income people -- a single, working father raising a 3-year-old; an arthritic elderly woman; a grandparent caring for a grandchild. Then they set out to find food, secure child care and health care, and make sure they had a place to rest their heads at night.
Pretending to be poor for a few hours might seem feckless when one has a warm bed and refrigerator full of food to go home to. But a simulation can at least give people who are in positions to effect change a taste of the difficulty of life on limited means.

Such exercises can be perceived as political stunts when practiced, for instance, by members of Congress.
Earlier this year, four House members attempted to highlight the failings of food stamp benefits by pledging to live for one week on $21 worth of food, what the average food-stamp recipient receives. It wasn't easy.

Ohio Democrat Tim Ryan didn't last the week. Jars of peanut butter and jelly he'd stuffed in carry-on luggage were confiscated at an airport, leaving him with nothing but a bag of cornmeal to carry him through the challenge's final days.
He was caught eating a pork chop in a hotel restaurant because he feared he'd be too weak to deliver a commencement speech.

"It just showed me that when you're living on food stamps, you're really one event away from disaster," Ryan told The Washington Post. "Some people are constantly living on that edge."
There is merit in pretending to walk that perilous edge, if it provides a truer sense of how the poor manage from day to day.

Never mind the appearance of showboating. What's important is that action follows.

Steel Wheels and the First Amendment

2011-10-14T06:16:00.001-07:00

The Iowa Supreme Court heard arguments concerning the first amendment's free exercise clause yesterday, and a decision's expected in a few months.

"B-b-but Sparky!" you say, "What's that have to do with law down on the farm? Are we branching out? Oh, mama, could this really be the end?"

Hesh there, feller.

It seems that Mitchell County, Iowa passed an ordinance in 2009 forbidding the use of steel tractor wheels on hard surface public highways because they tend to tear up the road surface, and thereby hangs a tale.
It seems that Mennonite farmers in the county have had a practice of affixing steel cleats to the wheels of their tractors. Antique Farming.org tells us that steel wheels were de rigeur on tractors until the development of good pneumatic rubber tires in the middle 1930s and they rapidly fell into disuse thereafter. By 1940, over 90 per cent of the tractors in use had rubber tires, and it was found in testing that rubber tires were more efficient, saved fuel, and in general were a needed improvement.

So you gotta ask yourself why the Mennonites not only insist on this retrograde practice, but are willing to litigate it to the highest court in the state on constitutional grounds? It's been suggested that the purpose is to discourage tractors from being used as personal vehicles or as automobiles to run errands, presumably by making it as uncomfortable as possible.

The constitutional argument rests on the first amendment's proscription against making law respecting an establishment of religion or prohibiting the free exercise thereof. It's said that thwarting the use of grousers on the public highways is an impingement on the free exercise of religion.

Whether this is held to be so remains to be seen. My own take on the matter is that this may be a similar sort of controversy to the now familiar reflective triangles on the rear of Amish horse drawn vehicles. They are generally accepted, but some Amish have resisted the use of them.

A recent appellate case in the Kentucky Court of Appeals, Gingerich v. Commonwealth, raised a similar issue. There, the lower court evaluated the claims of the appellants using a strict, or heightened scrutiny, lens and determined that although the ordinance that required affixing a slow moving vehicle reflective devise did burden the Amish, it was outweighed by the state's compelling interest in road safety. The Amish took their appeal to the Graves County court which found that the ordinance applied to all slow moving vehicles.

The Kentucky Court of Appeals found that the appellants had not established a prima facie case of discriminatory effect and purpose, and therefore affirmed the trial court.

Stay tuned.

Appanoose County Confidential: Partnerships Are Still Poison

2011-04-12T09:08:00.000-07:00

Bank of the West v. Early Farm Partnership, no. 10-1093 (Iowa Ct. App. March 30, 2011)

Kevin Early and his father Richard formed the Early Farm Partnership. His father died in 2004, and the widow agreed to step into the shoes of her husband and become the owner of the decedent's 50 per cent share.

Mid States Engineering, a corporation owned by Kevin Early and his wife applied for a loan from Commercial Federal Bank, and the bank requested collateral. Kevin orally advised the loan officer that Sheila Early was an admitted partner and was a required signatory.

MidStates delivered a promissory note signed by Kevin and his wife and a mortgage of the partnership's real estate as security which was signed only by Kevin as general partner of the farm partnership. A security agreement was later delivered to the bank in which Kevin stated he had the full right power and authority to pledge collateral to the lender.

Bank of the West, successor to CFB, sued to foreclose its mortgage and filed a motion for summary judgment. The farm partnership resisted the motion with the affidavits of Kevin, his mother, and the bank's loan officer, alleging that there were genuine issues of material fact that precluded summary judgment.

The district court granted the bank's motion, ordered foreclosure of the mortgage, and this appeal followed.

The court of appeals affirmed, finding that although the Early Farm Partnership documents required unanimous agreement of the partners concerning partnership decisions that affected partnership assets, Kevin could and did act in a way that could bind the partnership.

Iowa Code section 486A.301 states in part,

(... E)ach partner is an agent of the partnership for the purpose of its business. An act of a partner, including the execution of an instrument in the partnership name, for apparently carrying on in the ordinary course the partnership business or business of the kind carried on by the partnership binds the partnership, unless the partner had no authority to act for the partnership in the particular matter and the person with whom the partner was dealing knew or had received a notification that the partner lacked authority.

The takehome's clear: For G-d's sake, forget partnerships, form a corporation and do it right. It'll be the cheapest money you ever spend.

The Strange Case of Iowa Code 561.13

2011-03-19T09:08:00.000-07:00

A couple of recent newspaper articles here detailed the story of Matthew Danielson et ux, who figured out how to get a $320,000 house for free. It also demonstrates that as always, attention to detail is the sine qua non of any profession where money is involved.

It also indicates the truth of Tony Hillerman's fictional detective Joe Leaphorn's maxim: If you believe in coincidence you aren't looking close enough.

How's that, you say? Read on.

It seems that there's a section in the Iowa Code, 561.13, hoary with age, that provides that if there's a conveyance or encumbrance of a homestead, and the owner is married, the conveyance or encumbrance is not valid unless signed by both husband and wife. The reasons are simple-the intent was to prevent one half of a marriage to encumber or mortgage the homestead without the other's knowledge and consent.

Danielson, a convicted felon, applied for a mortgage using a broker named Jason Larson, employed by Once Source Mortgage who fronted the entire mess to Citibank, and the application did not include his wife's signature as has been required since the first Code of 1851. Danielson made one payment and then defaulted.

Citibank attempted to foreclose the mortgage, and Danielson raised the failure to obtain a signature of his spouse as an affirmative defense. The trial court heard the matter and denied Citi's claim that the mortgage had been fraudulently obtained. It also held that the mortgage was void as between Danielson, his wife, and the bank. The end result was that Danielson took the home free and clear and Citi was left with nothing.

Justice? Read on.

Two years previously, Troy Hudson treated Wells Fargo Bank to some of the same medicine and obtained his home free and clear because the mortgage application did not include his wife's signature.

Here's where the plot thickens, as disclosed by the Register's inquiring reporter Lee Rood.

Troy Hudson is Jamie Danielson's cousin.

Both couples obtained refinancing through a firm, First Horizon, where Danielson's wife worked and where her mother, Rita van Zee, was the branch manager.

The Danielsons refinanced through First Horizon for double the price of the original mortgage (far more than the assessed value of the property) and lost the home in foreclosure to First Horizon, having obtained $625,000 more or less in the process. They'd sold some of the property for far more cash than it was worth to dear old Mom a year later. Dear old Mom and her husband are doing pretty well in the property ownership business if the Polk County Assessor can be believed.

Matt Danielson also obtained a mortgage in 2007 to buy a home and it appears from the article that he may have misrepresented his finances and assets on the mortgage application he made.

The mortgage broker in all of this, Jason Larson, has a checkered history as well if court records are reasonably accurate.

All of this has dodgy dealings written all over it, and we expect the U.S. Attorney to take an interest in these matters.

Debt Collector Lies, Gets Hammmered By 9th Circuit

2011-03-08T13:37:00.000-08:00

It's been a while since I visited this blog, but I'm determined to make amends and get back on the case.

This one is a little off topic, but since debt has been part of the farm equation since the first shylock squeezed the first dirt farmer out of his last shekel, it seemed appropriate-as well as being a sorely needed breath of fresh air in these times.

There's also a very important lesson here. Stay with me.

McCollough v. Johnson, Rodenburg & Lauinger, no. 09-35767 (9th Cir. Mar. 4, 2011)

McCollough, a school custodian now disabled, got behind in his credit cards like a lot of other folks. He owed Chase around $3,000 and didn't pay, making his last payment in 1999. Chase charged off the debt and sold the account to CACV of Colorado, a buyer of bad debts.

When McCollough didn't pay, he was sued in Yellowstone County, Montana by CACV in 2005. Representing himself, McCollough asserted the Montana 5 year statute of limitations on account collections and the case was dismissed by CACV.

One year later CACV retained the law firm to collect the debt and alleged that McCollough had made a payment in 2004, which would have tolled the statute of limitations-which starts to run when the last payment is made. The law firm sued McCollough.

McCollough filed a pro se answer asserting the statute of limitations and retained counsel. It had become apparent to the law firm at that point that the lawsuit had a statute of limitations problem. McCollough then sued the law firm under the Federal Fair Debt Collection Practices Act, and the jury awarded him $1,000 statutory damages, $60,000 in punitives and $250,000 for emotional distress.

The law firm, as you would expect, appealed.

The 9th circuit affirmed the trial court, among other things finding that the law firm's interrogatories propounded to McCollough contained requests for him to admit things that they knew were not true, having that information in their possession. Service of such requests on a pro se defendant without the obligatory notice that if not answered in 30 days the requests are deemed admitted was 'unfair, unconscionable, ...false, deceptive and misleading means to collect a debt.'

The teaching, however, is this. Keeping careful records and not making a further payment once you've stopped paying is the best defense to preserve your FDCPA rights and your rights under the applicable statutes of limitations.

She's Leaving Home

2010-09-23T06:03:00.000-07:00

You might ask why this is in a farm law blog, and the simple answer is that we in the farm belt have seen this all before, particularly those of us with long memories of the cold seventies and blustery eighties. We ended up with farm debt mediation, which turned out to be a pretty useful tool for keeping people honest.

The Washington Post reports this morning that the foreclosure process is "...riddled with faked documents, forged signatures, and lenders who take shortcuts reviewing borrower's files...the problems, which are so widespread that some judges approving the foreclosures are ignoring them, are coming to light as (the inartfully named-ed.) Ally Financial, the country's fourth biggest lender halted home evictions in 23 states this week."

The tale goes on to describe how an employee of GMAC Financial signed off on at least 10,000 foreclosure papers a month without verifying whether the information justified the process, as did a flunky who worked for JP Morgan Chase. A low level flunky at another foreclosure bucket house claimed to be an executive of Bank of America, Wells Fargo, US Bank and numerous other anthropophages while signing off on foreclosure affidavits-which, of course, are subject to the penalties of perjury. To add to the mess, numerous other flunkies forged the perjurer's signature too-poetic justice of a sort, no?

As a prefatory matter, we at the Dougloid Towers have always liked our poison straight, undiluted, and bottled in bond. We recommend that all banks, mortgage bucket shops, and all floggers of dodgy loans should be compelled to add to their corporate names the following suffix: "A predatory, onerous and prevaricating retailer, so be warned We'll screw you to the wall if we get a chance." until proven otherwise.

Truth in lending, y'know.

Yet, the pattern has always been clear. Creditor side litigators and their sycophants and toadies in the law firms that service them are infamous for dodging the law, and the robobanks that enforce the garnishments are oblivious to even the simplest principles-such as, you can't garnish social security or pension money.

It used to happen all the time when I was in that trade, and the main reason it happened was that the creditor side got arrogant, and the reason they got arrogant is that debtors usually do not have the kind of money it takes to hire a conscientious and thorough attorney who will put the creditor to their proof in the time allotted. So why should the foreclosure process be any different?

So...what's the takehome?

Well, those of us who have at one time or another labored in debtor side litigation have known this for years, and it forced some of us into dodgy alliances with outfits that were predatory bottom feeders lunching on the remains that fall off the conveyor belt that leads to the bankruptcy courts. The occasional victory was sweet.

That being said, many of the foreclosures are justified, because the banks of all people should know that they lent mortgage money to people who did not have a prayer of paying it back unless property continued to appreciate at 20 per cent per annum, world without end, amen.

The banks, of course, are now acting for all the world like reformed drunks at a church picnic.

If you're looking at this coming down the road, you're entitled-and should feel obliged- to put the bank to its proof, and it is highly recommended that you do so, at the most advantageous time in the process. Check everything out, including names, dates, places, people, the validity of notarial offices, jurisdictional issues, proofs of service, and all other formal requirements.

Chances are good that you can trip them up and stall the process. You may not win in the end but you'll at least have the comfort of knowing you made somebody's life truly miserable for a while.

Mr. Marcellus And His Shale

2010-09-22T13:38:00.000-07:00

Editor's Note: Folks, I've been remiss in my blogging duties because some other things have occupied a lot of time in the last few months-primarily my defense and teaching duties plus the life of a country gentleman maintaining a chunk of land and an old house takes up an inordinate amount of time. However, it is my intention to get on the case and get current. My extended coffee break is over.

A lot of my friends in rural New York and Pennsylvania are up in arms over the issue of natural gas extraction and how it is starting to take place in areas where the Marcellus Shale layer has now become profitable to drill into. In particular they don't much like the process of hydrofracturing, and they say with some truth to it that it poses serious environmental problems for rural folks who use shallow water wells for their domestic uses.

As it happens we've had the same thing here (shallow water well and ground water contamination) for a long time-the contaminants are more localized but the problem is similar in scope.

Here's how I responded to a fellow over on a social network I spend altogether too much time noodling around on. You know which one I'm talking about.

The point is, Stephen, that a lot of folks-not saying you're one of them of course-a lot of folks don't bitch about stuff until their ox gets gored, so to speak. The problem y'all have if you've got the Marcellus shale formation in your basement is, you don't have any lawyers in your area who know anything about oil and gas law because nobody's ever figured out how to get at the stuff until recently, and not that many folks in the region are knowledgeable about gas extraction technology and what it can be made to do as well as what the dangers are.

*Added: That's simply because nobody ever had a need to know about this stuff until recently. Michigan farmers could probably write the book on it because I think there's only one or two counties that do not have some level of oil or gas drilling activity in them.*

Remember that it isn't what people know that's dangerous, it's what they know that ain't so.

Here's my prediction for the next fifty years.

The gas is there, and there's a lot of it. Extraction of it is a matter of private property rights, so it is going to be brought up from the ground and sold, and there's not a whole lot people can do about that without rewriting the last 350 years of American law. It's an emotional issue particularly when one group of people wants to scotch what should be a comfortable retirement in Florida for some farmer and his wife because of what's under their land that they've scratched out a living on for the last 50 years or so. Nobody's got the right to condemn other people to penury because they don't like what they're doing.

Two things will happen.

First, you can expect that rural water districts with centralized distribution will become the norm in all the areas where people get their drinking water from shallow wells. This is what's happened here because of farm nitrate runoff-basically, animal shit and piss and fertilizers. As long as you've got shallow water wells in the front yard and a septic tank or drain field in the back and farm animals wandering around, nobody's got a principled right to complain they suddenly don't like the taste of their drinking water. That's been the history here on the prairie for the last 150 years.

Second, the petroleum drillers and producers will have to start doing a better and cleaner job of drilling and cementing, and they're going to have to use simpler and less offensive methods of hydrofracturing. The people who are against it will have to get used to the idea that it can be made environmentally safe and will have to insist on that as a precondition to getting a drilling permit, and they'll also have to get used to the idea that private property is a pretty important idea.

Image of the rig courtesy of Chief Oil and Gas. They've got a very informative website.

http://www.chiefog.com/where_we_work.html

Bad Moon Rising In Poweshiek County

2010-01-15T08:42:00.000-08:00

The Register informs us that late last week that a couple of miscreants broke into the Montezuma sale barn, turned 17 yearling calves loose, and proceeded to stab them-that's right, stab.

Three of the yearlings were so wounded they had to be put down.

Chief Deputy Larry McNaul of the PCSD indicated he had no idea at all why someone could do this. I think perhaps he was just stunned by the brutality of this crime. I mean, it's beyond stupidity. We tend to think of farm animals as property, but this is inexplicable.

Robert Foults and Jamey Christofferson were arrested and charged with seventeen counts of animal abuse. That's going to make a good story in jail: "Hey-what are you in for?" "Ahhhh, cow stabbing!"

New Land Law Cases

2009-12-30T14:41:00.000-08:00

It's been a while since I revisited this site but updates are always in order particularly when there's something interesting to talk about. The Court of Appeals has, it seems, delivered the goods.

Mitchell v. Holliday, no. 08-1461 (Iowa Ct. App. Dec. 30, 2009)

This is but the latest chapter in the doings of the litigious Mitchells, pere et fils. See, Debruce Grain, Inc. v. Mitchell, no. 05-1934 (Iowa Ct. App. July 25, 2007). There may be others, including what was, for a short while, the biggest overweight truck ticket in Iowa.

On February 9, 2005, Mitchell leased 1,000 acres of Adair County farmland from Wendel and Janet Holliday and Douglas and Jodi Holliday for a period of five years. At the time the leases were executed, the Hollidays were in default of promissory notes with the First National Bank in Creston and under the gun to conclude a settlement. The bank and the Hollidays ultimately reached an agreement wherein they would keep two ten acre plots with the homesteads secured by mortgages, the remainder of the ground to be sold at auction in full settlement at which point the bank would release the mortgages on the homestead plots.

The Hollidays neglected to disclose to the bank the existence of the leases, and they platted their ten acre plots in a manner that would decrease the auction value of the whole. The Mitchell leases were also at below market rates. When the bank got wind of these shenanigans it brought a foreclosure action and a sale resulted at which Mitchell was the high bidder.

Mitchell then filed a suit for specific performance of the settlement agreement between the bank and the Hollidays and a crossclaim seeking specific performance of the contracts to purchase the farmland. The bank resisted.

At a jury trial it was held that the Mitchells and the Hollidays had entered into a conspiracy to defraud the bank, and punitive damages against Douglas Holliday were levied in the amount of $140,000. The settlement agreement was rescinded, and the court granted a judgment of foreclosure. The district court found that the terms of the leases were intended to discourage bidding at auction and also tied up the land for five years, giving Mitchell an advantage in the bidding.

Next, Mitchell sued the Hollidays seeking damages for breach of the lease agreements and the court dismissed his action, finding that the doctrine of in pari delicto barred him from recovery and this appeal followed.

The Court of Appeals affirmed, finding that the doctrine of in pari delicto is meant to deter misconduct by denying relief to one whose losses were substantially caused by his own misconduct. The Court also found that the doctrine of issue preclusion was satisfied, prohibiting Mitchell from relitigating the issue of the underlying conspiracy to defraud the bank.

Tool v. Nolin, no. 08-2012 (Iowa Ct. App. Dec. 30, 2009).

This is the latest chapter in a long running range war between the Tools and the Nolins over the ownership of a triangular piece of land of less than 1/3 acre that was previously part of a railroad line.

In an earlier iteration the Nolins claimed their right to the plot through an 1877 grant that provided that if the railroad did not build the line or abandoned it, that the right of way would revert to the grantee. The county bid and bought the land at a tax sale in 1956 and then sold it to the Hewitts, who sold it to Nolin.

The Tools argued that they were the assigns of the original grantees.

In the prior appeal, the case was remanded to determine title by adverse possession of the last 20 feet of the property. The court found that the Tools had established adverse possession of most of the property but as to the last twenty feet, their possession was not exclusive since they had allowed the Nolins to access property and did not plow it up until 2002.

Modification and Lowering of Old Levees

2009-07-06T07:58:00.000-07:00

Gannon v. Rumbaugh, no. 07-0889 (Iowa Ct. App. July 2, 2009).

Rumbaugh modified a levee on their land and either constructed a dam or put fill in a ditch which, it was alleged, caused flooding on the adjoining lands owned by Gannon and Steenhoek. The trial court found for the plaintiffs-in fact, adopting their proposed finding of facts and conclusions of law verbatim- and this appeal followed.

It was determined that a drainage district was established in the early 1900s that built levees in the area to prevent flooding from Clear Creek and Indian Creek. The drainage district was moribund, not having made assessments in seventy years or more. The Rumbaughs lowered the levee on their property in 2002 and made other alterations.

The Court of Appeals found that the trial court's finding of a nuisance was against the clear intent of Iowa Code ch. 654B, in that no request for mediation was ever made. The court thus dismissed the finding of a nuisance.

The court found that the Steenhoek's negligence claim for changes to the roadside ditch could stand, but denied the plaintiff's claim that the elimination of the old levee caused surface water to flow across their lands. The court further found that their was no evidence that the drainage district was now authorized by law since it had been abandoned many years ago.

Look Before You Dig

2009-07-06T07:42:00.000-07:00

BP Pipelines v. Bockenstedt, no. 08-1681 (Iowa Ct. App. July 2, 2009)

Fitzpatrick owns farmland in Delaware County that he leases to his son. BP owns a gasoline pipeline that runs under the land, and its presence is marked. The Fitzpatricks hired Bockenstedt to install tile in an area at the rear of the farm near some waterways.

You see where this is going, right?

Bockenstedt was operating a tile plow when he punctured BP's pipeline, liberating 8,400 gallons of product.The Bockenstedts were fined by the state for not contacting the state's excavation hotline before they put plow to soil, and they were sued by BP for repairs to their pipeline and the expense of removing the spilled product and environmental remediation.

Bockenstedt, in turn, sued Fitzpatrick, alleging that Fitzpatrick failed to warn them of the pipeline. This claim was dismissed via summary judgment and this appeal followed.

The Court of Appeals found that Fitzpatrick was not liable for Bockenstedt's failure to contact the notification center. In addition, the court determined that Fitzpatrick's direction as to where the tile should be laid established liability under the retained control doctrine.

Simply stated, Iowa Code ch 480.4(1)(a) places the burden of ascertaining the location of underground facilities squarely on the shoulders of the excavator.

Wapello County Confidential: Soybean Shortage Valuation

2009-07-06T07:18:00.000-07:00

Tri-County Grain Corp. v. Zimmerman, no. 08-1639 (Iowa Ct. App July 2, 2009)

Tri-County leased grain warehouse space from Zimmerman. Zimmerman informed Tri-County that its lease was not going to be renewed when it expired in September 2006. Under the lease, Zimmerman supplied all labor and was solely responsible for any shortages.

When the lease expired, Tri-County and Zimmerman orally agreed that Zimmerman would buy the remaining corn and truck the remaining soybeans at Tri-County's expense to ADM. There was no discussion about holdover rent and Zimmerman never asked for it. Zimmerman paid Tri-County for the remaining corn and hauled the beans to ADM.

There was a shortage of 10,544 bushels of beans which was not determined with precision until February 2007, when Tri-County billed Zimmerman $76,444.11 for the shortage. In July, 2007 Zimmerman asserted a claim for back rent for storage for the first time.

The fighting issue was the value of the soybeans. Tri-County said they should be valued at $7.23 a bushel, which was the price in February 2007 when the beans were delivered to ADM. Zimmerman claims the value should be $5.00 per bushel which was the price when the lease expired in September 2006. Zimmerman also counterclaimed for the use of storage bins after September 2006.

The district court determined that the beans should be valued at $5.00, entered judgment for Tri-County, and denied Zimmerman's counterclaim. This appeal followed.

The Court of Appeals cited the Uniform Commercial Code section 544.2713(1) for the proposition that the valuation for the shortage was the difference between the market price at the time when the buyer learned of the breach, and not when the exact number of bushels Tri-County was shorted became known.

Mr. Justice Mansfield dissented, saying that the majority's interpretation was not the better view of the issue. He reasons that had there been no shortfall, Tri-County would have sold the missing beans at $7.23, not at what they would sell for at an earlier date. If anyone had a duty to determine the nature and reason for the shortfall it was Zimmerman as the breaching party.

What Goes Down Must Come Up

2009-06-19T07:23:00.000-07:00

St. Paul's Evangelical Lutheran Church v. City of Webster City, no. 07-1752 (Iowa June 12, 2009).

The church had a gravity flow connection to the city sanitary sewer that was installed when it was built in 1953.

In 1978 the city embarked on an extensive water system renovation project. While installing a water main a contractor severed the St. Paul sanitary connection and rerouted it around the water main using corrugated pipe rather than iron or clay as was required.

The repairs interfered with the operation of the sewer line . In 2005 the sewer line backed up, causing $30,000 in damage to the church and the church sued the city. The city countered, arguing that Iowa Code 614.1(11) which bars lawsuits relating to improvements to real property when fifteen years have elapsed.

The district court, Judge William Pattinson presiding, agreed with the city, granting judgment notwithstanding the verdict, although the jury had found that the bootleg repair was not an improvement to real property.

The Supreme Court reversed, finding that an improvement to real property is 'a permanent addition to or betterment of real property that enhances its capital value and ....is designed to make the property more useful or valuable, as distinguished from ordinary repairs'.

In the view of the Supreme Court, the record indicated that reconnection of the sewer line to the church was not part of the project to upgrade the city's water system. A city official testified that there was no need to cut the sewer line because the water main could have been reconfigured.

The Court concluded that the negligent repair of the sanitary sewer was not an improvement to real property that would bring it within the ambit of the statute of repose. The Court identified the four factors that define an improvement to real property:

a permanent addition to or betterment of real property
that enhances its capital value
involving the expenditure of labor or money
that is designed to make the property more valuable or useful as distinguished from ordinary repairs.

Replacing the original rigid lines with corrugated pipe only satisfied two of these considerations because it was permanent and involved the expenditure of labor and money but did nothing to enhance the value of the property and was an ordinary repair.

Iowa Supremes Interpret Equine Activity Statute

2009-06-19T07:05:00.000-07:00

Baker v. Shields, no. 07-1102 (Iowa June 19, 2009).

Baker was employed as a farmhand and worked for the Shields, father and son. In the course of attempting to move cattle, Baker was thrown from a horse. The third time he attempted to ride the horse he sustained a serious leg fracture and sued the Shields, father and son.

The Shields filed for summary judgment based on the immunity provisions of Iowa Code section 673.2 which provides that the owner of a domesticated animal is not liable for injuries sustained by a participant in the activity because of the inherent risks of a domesticated animal activity.

Baker disagreed, arguing that chapter 673 does not apply to the use of horses in traditional farming activities. He also argued that because the Shields did not provide workmen's compensation insurance they were liable anyway under Iowa Code section 87.21.

The district court concluded that the Shields were protected by Iowa Code section 673.2 and that Baker could not rely on section 87.21 because 87.21 only applies to common law defenses, not statutorily created defenses.

The Supreme Court affirmed, noting that the 'manifest intent' of the legislature in enacting the state's equine activity statute was to provide a blanket immunity for a broad range of activities and that traditional farming was within the ambit of the statute.

Polo Pony Dieoff in Florida UPDATE II-Mystery Solved

2009-04-20T07:25:00.000-07:00

UPDATE 2: It now seems, according to Scientific American, that the ponies died because of an overdose of selenium linked to faulty compounding on the part of the pharmacy that prepared the "supplement".

Great work Franck's. Let me know when you're preparing meds for my pets so I can find an excuse to spend the weekend in North Dakota.

______________________________________________________________

It seems that my aflatoxin theory was incorrect. It now appears that Franck's, a pharmacy in Ocala prepared a medication for the affected horses, According to the Washington Post the preparation was intended to be a substitute for a banned substance called Biodyl but apparently the pharmacy got the formulation wrong. Biodyl contains vitamins, electrolytes and selenium and it is allegedly used to help animals recover after races.

Apparently, not being able to obtain the stuff, these people decided to whip up their own.

One has to wonder what the hell was in the stuff that was toxic enough to kill a horse, let alone 21 or so at last report. It may be that an excessive concentration of electrolytes killed the animals.

______________________________________________________________

At least fourteen polo ponies collapsed and died in front of horrified spectators at a U.S. Open polo competition in Florida yesterday, according to the Los Angeles Times. The horses were owned by a Venezuelan team that has facilities near the site of the polo match.

Forensic examinations are underway and the results will be available in the next few days.

If I had to take a guess, barring any criminal action it may be found that mycotoxins in the feed are the culprit.

There are periodic outbreaks of aspergillus in farm country having to do with how feed grain's been harvested and stored, but occasional dieoffs of farm critters are rarely as notable as this occurrence.

The environmental conditions have to be right for a.flavius and other fungi and molds to get started in feed stocks, but in particular hot nights and water stress lay the groundwork for it to get started when the grain's still growing in the field.

Bargain hunters often buy damaged grain and blend it with clean grain up to the maximum allowable limit of aflatoxin for animal feed, but there can be hot spots in any load of feed if it's been stored any length of time.

South Dakota State University has an excellent fact sheet on the subject of aflatoxicosis in farm animals that is highly useful. Draw near and give it your kind attention

The solution? Know your dealer. Stop trying to save money by buying suspect feed at bargain prices.

Also, you can check for the presence of a. flavius by going down to the local head shop and buying a black light for testing your grain-that's right, folks, it fluoresces.

Ain't Nobody Here But Us Chickens

2009-03-14T07:30:00.000-07:00

The National Post never fails to please, and this morning was no different. Imagine me sitting at my kitchen table, ruffling the pages of my cyber-newspaper and seeing this story.

It seems that the good people of Vancouver B.C.-you know, the city where a refrigerator carton under an overpass will cost you $250,000 to buy-where was I? Oh. I remember.

Do you think I'm kidding-about the refrigerator box? I checked the prices and the least expensive condominium I could find in Vancouver, a 500 square foot number, was listed at $350,000. That's not much larger than a Maytag box.

Some folks have decided that in the name of sustainability, cityfarming, and all good green things, that the city ordinances that banned backyard chicken coops should now be replaced with a more chicken-friendly version which would allow such things in backyards. It's in keeping with the prevailing ethos which allowed Hizzoner, the mayor of Vancouver, to annex a cuink of the lawn in front of City Hall for a community garden.

The problem of what to do with the chickens when mother hands you the hatchet on Sunday morning and says if you want roast chicken there are a few-ahem-chores to accomplish is left for another day and time.

Also, the problem of what to do when your neighbor's pet yardbird decides it's time to serenade the ladies at 4:30 am on Tuesday morning and you need to be rested for your work is left unsaid as well.

Local poultry producers are against the measure, as are animal health activists rightly concerned about the spread of avian influenza which has decimated chicken flocks in mesne places.

Don't get me wrong-I'm all for cityfarming, and if it was up to me, we'd be growing a lot more in the way of victory gardens. Fact is, in these times, scratching the dirt and letting Gaia's increase grace our tables is a good idea anytime, and if present trends continue, we may well see more of this practice. I expect to see a lot more folks out at Phil Funk's farm in Grimes this summer gathering tomatoes and sussing out the mysteries of home canning.

And that's good. But pet chickens in town? No thanks. Peace and quiet is worth something too.

Marshall County Confidential

2009-03-12T11:17:00.000-07:00

Spahn and Rose Lumber Co. v. Jones, no. 07-1742 (Iowa Ct. App. Mar. 11, 2009)

Jones owned real estate in Marshall County and was building a house on it. There were three liens: the plaintiff's mechanic's lien, a mortgage lien held by Aegis, and a lien held by Angell Landscaping.

Spahn and rose filed suit to foreclose their lien and the court ordered the property sold, the sheriff erroneously noting that the property was not subject to redemption

A sale was held that was not attended by Aegis, believing there was a statutory redemption period in place.

Moyer bought the property for $190,000 and executed a mortgage to Grundy National Bank.

A hearing was held to disburse the surplus after Spahn and Rose had been paid and Aegis filed a claim for $408,710.68. The surplus, $111,000 was turned over to Aegis, leaving Angell out in the cold.

The fighting issue, as it developed, was whether Moyer could be considered a good faith purchaser for value, which would have had the effect of stripping Aegis of its statutory right of redemption because of the provisions of Iowa R. Civ. P. 1.1015(1).

Aegis argued that Moyer could not be a good faith purchaser for value because she had constructive notice of Aegis' statutory right of redemption.

The Court of Appeals agreed, noting a long line of cases that suggest that a purchaser at a foreclosure sale is charged with notice of such material facts as the record discloses. It also noted that the trial court's finding that Moyer was a good faith purchaser for value conflicted with previous decisions that the representations made by the sheriff at a foreclosure sale contain no guarantee of the legal status of a title.

Moyer was charged with constructive notice of title through properly recorded public documents. Moyer had not, as it happened, pursued a title search or sought legal advice.

The takehome's simple-look before you leap.

News From Nebraska, And It's Not Good

2009-03-04T07:15:00.000-08:00

We're reliably informed that one Acea Schomaker of Omaha used the homemade device to put his girlfriend's cat in while he smoked a bowl of herb.

He was charged with animal cruelty. He said that it was not the first time and it calmed the cat down.

I always thought there was something strange about Nebraska.

This may be something to threaten Zelda with, as she's taken up the habit of trying to get us up to play at 3 or 4 in the morning.

Knuckling Under To The Inevitable

2009-02-24T09:34:00.001-08:00

We've recently received a copy of a draft report for the Foreign Relations committee issued under the aegis of Senator Richard Lugar, R-Indiana and it is interesting reading.

I'll cut right to the chase. What it says is this:

"Nevertheless we must recognize the ineffectiveness of our current policy and deal with the Cuban regime in a way that enhances US interests."

That's right folks. Rip van Winkle and Sleeping Beauty both concur that the last 47 years of isolation policy has been an abysmal failure.

US policy has provided Cuba "with both a convenient, though overblown, scapegoat for its economic difficulties and an external threat with which to justify its authoritarianism."

Is it any surprise that this comes from a farm state senator?

Critters Behaving Badly

2009-02-17T16:16:00.000-08:00

I've been thinking about how to breathe new life into this blog and as things would have it there was a dandy news story today to kick off the new! better than ever! down and dirty! Law Down On the Farm.

The New York Times informs us this day that a 55 year old woman was severely mauled by a 200 pound chimpanzee with miles of bad attitude. Travis the chimp, who had appeared in several commercials, was said to have contracted Lyme disease-which explains part of his grumpiness-and was being dosed by his owner with Xanax, which is just plain stupid.

What's even more stupid is that Travis was wandering around the property like one of the family, could drink from a wine glass and use a computer as well as being able to dress and bathe himself-which makes him smarter than the average high school student.

Travis attacked a friend of the owner, who picked up a butcher knife and ventilated the simian-who subsequently attacked a police car and its occupant-all of which earned Travis a lesson in ballistics from Professor Colt.

New York Confidential: Roadkill Smuggler Goes On Trial

2007-11-26T06:15:00.000-08:00

The New York Times reports that a woman of West African origin is currently on trial in federal court in New York on charges of meat smuggling.

But the meat in question was not just any meat-it was euphemistically called bush meat, which is a synonym for anything that falls within reach or, alternatively, roadkill. The picture to the left is not atypical.

12 parcels arrived at JFK Airport for the woman, Mamie Manneh, and the customs declaration said "African dresses and smoked fish".

On opening the packages what the horrified customs inspectors found was skulls, limbs, and torsos of nonhuman primates and the hoof of a small antelope known as a duiker. When customs inspectors tooled over to Staten Island to inverview the woman, her mind suddenly went blank. A monkey arm was found in her house and she opined that it was a gift from God.

As usual, cultural relativity has reared its ugly head and there are the usual attempts to argue that eating the stuff is a religious practice, it's really only a small amount of monkey, the government's picking on little folks again, they're taking a mother away from her children, it's the holidays, and so on.

Under cross examination, Mamie Manneh, who is currently serving a two year sentence for assaulting a woman with a motor vehicle, was laid low by selective amnesia when it came to the question of who filled out the customs declarations. She alleged she couldn't read and write, never attended school, and the forms were most likely filled out by her daughter and husband.

On questioning about a letter from her sister, Mamie said she had 30 siblings and couldn't remember their names. Her daughter Corinthian says she's been eating the stuff and doesn't understand why the government objects to it.

The answers are not particularly hard to understand, even for self professed illiterates like Mamie Manneh. Try ebola zaire for one, and there's also the ever popular HIV virus as well as a host of other diseases. And that's not even touching the issue of endangered species.

And there's that pesky problem of lying to the government on customs declarations, which may be another religious custom in Manneh's homeland but is a practice which we don't generally approve of here.

And that, indeed, is what this case is about.

Photo credit National Geographic

Peregrinating Porkers Make Life Difficult For Animal Control Cops

2007-11-15T10:27:00.000-08:00

From the Associated Press.

This is one of those stories that sort of smears the border line between this blog and the others in this house, respectively the Iowa Law Enforcement Reporter and the Dougloid Papers.

It seems that two stray Vietnamese pot bellied pigs stirred up a ruckus in Davenport Wednesday and led the cops, animal control and some utility workers on a merry chase on public highways that lasted 35 minutes or so.

Perhaps the porcine fugitives had heard what the usual fate of their kind is in this part of the world and decided to make haste for the bridge.

The pesky porkers were finally corralled and taken into custody when Officer Leah Messmer grabbed a blanket to catch them.

A blanket, you say?

Elementary, my dear Watson.

No necks.

Photo credit Oklahoma State University

Go, Cowboys and Cowgirls!

Throwing Out the Baby With the Bath Water, or, Cotton Subsidies Down For The Count

2007-10-16T06:09:00.000-07:00

As everyone except three guys on the rapidly shrinking Greenland icecap know, cotton farmers in the U.S. got clobbered by the WTO at the behest of Brazil and several smaller African countries.

The gist of the complaint that the cotton producers lodged with the WTO was that subsidies to American farmers amounted to trade distorting devices that kept world prices for cotton artificially low and thereby damaged the ability of other countries to compete on the world market.

Of course, if that were true, China, Brazil and India would have long since gotten out of the business of producing cotton, but they didn't. In case you haven't been looking, China is the world's largest producer of cotton, Brazil's number 5, India is number 3, and Pakistan is number 4. The U.S. is second.

All of which means that the future of agribusiness and industrial cotton in those countries never really was all that bad to begin with.

But nevermind. Reality always comes in last in disputes such as these.

What Brazil objected to is that much American cotton was exported, and if the WTO precedent holds up, we may see similar results for other commodity crops produced in the midwest, including corn, rice, soy, and wheat.

What folks in other parts of the world may not fully appreciate while they're fixing to toss out the baby with the bathwater is that, at least with commodity crops. price supports to U.S. farmers have had the effect of steadying international prices for those items. By putting a floor underneath commodity prices, and being big enough to swing world markets, a benefit has inured to world commodity producers without any burden that I know of.

I remember having a discussion with an Indian colleague in which he described the plight of India's small farmers who are under enormous pressure that is taking a toll on them that the rest of the world should be outraged about. You can read about it here. I explained how farm subsidies in the U.S. underwrote the price that the Indian farmer would get when he hauled his grain to the elevator.

My colleague said "Oh, but that's not how it happens with these fellows. Usually they're deep in debt to the village moneylender because of the dowry they have to pay to marry off a daughter, and their production is rather small. So they have to sell their crop to middlemen who are usually-you guessed it-the village moneylender, who then collects and trucks the crop and sells it at the world price."

My argument then and now was "That sounds like an argument for the fundamental need for credit reform, agricultural policy reform, and land reform in every farming village in India and not an argument against American farm subsidies."

Although I'm not exactly a fan of his, Dean Kleckner has a good op ed piece in the International Herald Tribune that is well worth reading on this general subject.

Another Man Done Gone

2007-10-16T05:52:00.000-07:00

Al Krebs died on October 9 of this year after a long struggle with failing health.

Some of you with long memories here may remember Al in connection with his work with Prairiefire, or may have subscribed to his e-newsletters on agribusiness and politics.

He is also remembered for his uncompromising stance against corporate agribusiness interests in his book The Corporate Reapers. Al was no summer soldier or sunshine patriot-his entire adult life was devoted to exposing injustice to the arc light of truth.

I met Al a couple of times at the Prairiefire office and I remember him as something of a gadfly, albeit a gentle, literate and intelligent man who cared deeply about the American countryside and the people who find their life's work there.

There's an excellent piece on Al that does far more justice to him than I can.

It's on Counterpunch, the author's Heather Gray, and you can read it here.

Vaya con Dios, Al.

Inflated Steer Causes Consternation at Warren County Fair

2007-08-14T08:01:00.000-07:00

The Register reports that an episode of cheating was uncovered at the Warren County Fair when it was determined that a reserve grand champion steer being shown by Lexie Smith of Martensdale had been injected with air to make it look a little more buffed.

Some folks are of the opinion that 4H animal competitions are a venue for suburban kids whose parents want to give them an experience they might otherwise not have in West Des Moines. I've heard it said by a gentleman in the country of unimpeachable reputation that designer show cattle for suburban kids with parents eager to buy their kids every experience has changed the landscape of what the competition was supposed to be about.

Cheating, it seems, is going to be part of life in the 21st century, even in what ought to be a transparent childhood pursuit.

At the risk of sounding like Cassandra, it bespeaks a certain slack and fluid moral standard that ultimately will have its payback somewhere down the road in mesne adverse ways.

Kids do what their parents tell them and teach them to do, in the main. One wonders what else Lexie Smith's parents taught Lexie to try and slip past her teachers or get over with when nobody was looking. The ethos of winning at any cost and cheating to win is a bad one that defeats the notion of sportsmanship and being rewarded for merit and hard work. It cuts at the very heart of what makes civilization tick.

Ultimately, all a person carries into life is their reputation for telling the truth and not dealing from the bottom of the deck. It's a terrible thing that Lexie's parents are responsible for.

Attempt to Sidestep Judgment Lien Fails

2007-08-08T09:18:00.000-07:00

Debruce Grain, Inc. v. Mitchell, no. 05-1934 (Iowa Ct. App. July 25, 2007)

This case is a cautionary tale for family farmers who owe money and are thinking about some fancy footwork in an attempt to dodge judgments.

Maurice and Marvin Mitchell are father and son, farmers who reside in West Des Moines, Iowa.

I briefly became acquainted with Marvin Mitchell when he had the short lived and dubious distinction of owning the largest overweight truck ticket in the state of Iowa. The disposition of that ticket, when there was ample evidence, is a story for another time and place.

Marvin Mitchell and his wife declared bankruptcy in 2002, but prior to and after the bankruptcy they had done business under the name Mitchell Farms. In 2003, Maurice Mitchell opened a bank acount in the name of "Mitchell Farms Clearing Account".

DeBruce operates a grain elevator in Creston, Iowa and was contacted by Marvin Mitchell in 2004 requesting an offer to purchase 36,000 bushels of soybeans for October delivery. DeBruce accepted the offer and set up an account with Mitchell using the Mitchell Farms Clearing Account name and address, but with Marvin's personal identification including name, phone number and social security identification. DeBruce had never heard of Maurice.

DeBruce issued a confirmation order and mailed it to the address listed with Marvin's name and customer identification number on it. When the confirmation was received, Maurice crossed out Marvin's name and wrote in his name as seller and signed it. It was returned to DeBruce and entered into the computer system. DeBruce later discovered a Cargill judgment lien against Marvin Mitchell and evidence of the bankruptcy.

When the beans were delivered there was a small overrun and DeBruce prepared a clearing contract in the name of Mitchell Farms Clearing Account in care of Marvin Mitchell. On learning that DeBruce was going to pay Marvin and his creditors, Maurice demanded payment in full to him and DeBruce declined, arguing that their contract was with Marvin. A complaint for nonpayment was lodged with the Iowa Department of Agriculture by Maurice and DeBruce filed an interpleader action and deposited the proceeds of the sale with the Clerk of Court of Union County.

The district court, based on affidavits from both Mitchells and the bankruptcy trustee entered an order to pay Maurice based on his claim that it was his contract and his beans. This order was set aside. Ultimately, the only remaining parties were Cargill and Maurice.

If the contract was between DeBruce and Marvin, the proceeds would go to satisfy Cargill's judgment lien, and if the contract was between DeBruce and Maurice, then the proceeds would go directly to him. The district court ruled that the contract was between Marvin and DeBruce, and and this appeal followed.

The court of appeals found that Marvin never stated to DeBruce he was acting as Maurice's agent, and entered personal information identifying him into its system. The court also found that Maurice did not meet his burden of establishing that Marvin was his agent. because his answers to interrogatories contradicted his conclusory testimony at trial

Maurice also argued that the contract was with him because he owned the bank account entitled Mitchell Farms Clearing Account. The court found that a bank account is not an entity capable of contracting.

Further, the court found that Maurice's act of scratching out "Marvin" and writing in "Maurice" on the purchase confirmation did not in itself affect the contract, because a confirmation is not a contract itself, but merely a method of bypassing application of the Statute of Frauds. In addition, even if it was significant, Maurice didn't own the contract and therefore could not change or modify its terms.

Because the contract was as between DeBruce and Marvin Mitchell, Maurice took nothing and Cargill, as judgment creditor, took the proceeds of the sale.

When Is A Waterfront Property Owner Entitled To Use All The Lake's Surface?

2007-07-27T14:51:00.000-07:00

Orr v. Mortvedt, No. 04-1968 (Iowa July 20, 2007)

This case is of importance to people who have bought lakefront homes or property in which the lake is not naturally occurring. As city folks move out in the country and take up residence around former sandpits this question can assume great significance, especailly if they're feuding with their neighbors.

A number of people bought Hamilton County lakefront land from the Twedt family, the lake in question being a flooded quarry that was fed by springs and became a 30 acre lake. Each sale conveyed a portion of the lakebed and the land along the shore. Sevde bought 20 acres on the east, south and west side of the lake. Mortvedt bought a tract north and west of the lake, and Orr bought on the east side of the lake which included the strip between the land owned by Sevde and Mortvedt. Orr conveyed part of his tract to Cameron, including a part of the lakebed.

A boundary dispute arose between Orr and Mortvedt, Mortvedt arguing that his land ran to the water's edge on the west side of the lake, and Orr argued that a survey showed that he was the owner of the western lakeshore. Orr planted trees on what he said was his land.

A lawsuit resulted, with Orr, Sevde and Cameron on one side and Mortvedt on the other. Orr argued for a determination that the owners were entitled to use only that part of the lake overlying their land and that the several landowners had the right to drain the lake on their lands and mine the minerals. Mortvedt counterclaimed, seeking a determination that they could use the entire lake, to have the level restored to its prior level, that the plaintiffs could not drain the lake, and that the plaintiffs could not install a fence in the lake. Mortvedt also sought reformation of their deed to conform to the understanding of the parties to the 1996 conveyance. After losing at trial this appeal followed.

The Supreme Court dealt with the issue of reformation, affirming the trial court's ruling that evidence contrary to the written contract was inadmissible parol evidence and a violation of the statute of frauds.

In dealing with the Mortvedt's claims of a right of use to the surface waters, the Court held that the landlocked body of water that was the lake had never served as a highway of commerce and was thus not navigable water.

The issue of whether the Mortvedts had a right to access to all the surface of the lake, the Supreme Court addressed an issue of first impression and adopted the common law rule that one is entitled to exclusive use and enjoyment of that part of a non navigable lake that covers the lakebed that one owns.

Statute of Limitations Bars Partition Action

2007-06-13T10:12:00.000-07:00

Thacker v. Thacker, No. 06-1766 (Iowa Ct. App. June 13, 2007).

James and Robert Thacker were farm partners for many years. They bought a farm on contract in 1972 and were given a warranty deed to James and Robert Thacker in 1987 to the property. In 1987 James, Robert, and Frances, Robert's wife granted an undivided interest in the property to Robert and Frances.

Questions were raised about the deed but nothing was ever done about it, and James died in 2004. James' heirs filed an action for partition and the district court found that the 1987 conveyance to Robert and Frances was unambiguous and that the ten year statute of limitations barred the petition. The district court granted summary judgment.

The Court of Appeals affirmed, finding that James had actual knowledge of an alleged problem or mistake concerning the deed and contacted an attorney in 1994, but no action was ever taken. That invoked the discovery rule and the ten year period ran in March or April 2004 barring a claim to title filed in 2005.

Justice Sackett dissented.

Biofuels: The Good, The Bad, and The Ugly

2007-06-08T07:58:00.000-07:00

Reuters reports this day in an interview with Gustavo Best the UN's Food and Agricultural Organization (FAO). Best opines that biofuels-ethanol and biodiesel-done right can bring benefits to the food industry, but that there is significant risk to the 850 million people who are underfed.

Biofuels are a viable alternative to petroleum fuels if the price of crude oil remains above $40 per barrel, it is said, and they are also carbon neutral. The problem that Best sees is that a biofuel driven increase in the price of grains and vegetable oils may put additional pressure on the poorest among us.

FAO has published a comprehensive report on the subject of bioenergy that is worth a look. Although there is the danger that biofuel crop production could impact the availability of food crops for the poor, the report suggests that if biofuel crop production is properly managed it may actually make food more available for the poor. Second generation biofuel production from cellulose may mitigate this trend.

Significant price increases have been noted in all the crops now used for biofuel production and the types of foods that are normally produced-sugar, molasses, corn, soya, and other edible oils crops. Although this is not necessarily an issue in the US or Europe, it is an issue in the global village. If farmers in the third world start shifting over to growing diesel fuel, the effects on poor people are going to be problematic.

There is also an ethical construct that's hard to avoid, and that is the advisability of burning food to run Cadillac Escalades in Los Angeles and BMWs doing 200 kph on the autobahn. I've also felt that way about the corn stoves that people were selling a couple winters ago when the price of natural gas went skyward and I had a $300 bill every month from Count Dracula's son Midamerican Energy to heat the headquarters of this gigantic empire.

The idea of burning food runs right into what Brother Dave of the National Catholic Rural Life Conference talks about when he refers to eating as a moral, ethical and political act. It's an uncomfortable feeling.

Here on the prairie, we've seen a doubling in the price of corn and a shift away from soya acreage to plant more corn for the ethanol plants on the edge of town that are springing up like mushrooms on the lawn after a rain.

On the other hand, one of my spies in the commodities trade tells me that many of the new ethanol stills are contracted for less than half of their projected needs over the next few years. This makes me think that the ethanol people either think there will be a major price decline as the new corn acreage comes on line this fall, cellulosic ethanol is going to be a reality, or else they're going to get their asses handed to them. Time will tell.

Perhaps some of this planting is in the nature of cashing in while the opportunity presents itself-farmers all know that good times don't last forever.

Either way, for cattlemen and hog producers there's a shift away from feeding corn in favor of distiller's grains, which is one reason why there's a benefit to corn based biofuels that's not well understood outside the farm belt.

It is a good feed, but careful attention must be paid to the science of feeding so as to obtain the maximum benefit while maintaining the quality of the finished animal.

The Order 81 Controversy: Much Ado About Nothing, Redux

2007-06-07T06:10:00.000-07:00

It appears I've been taken to task for my views on this subject by one Benno Hansen, a fellow from Denmark. He has posted a comment and links to his blog below, wherein he makes much of the fact that I moderate comments before I allow them to be posted and sometimes it takes a while to get a 'round tuit' as we say.

Benno thinks I'm a stooge for Monsanto and an apostle of corporate greed.

It also seems that the sponsors of his blog are on my ISP's list of problem spammers, and my emails have gone unanswered, or else I would have posted my comments to the blog of this self confessed spammer. So be it. I am not interested in spending half the morning getting Mediacom to unblock the site just for l'il ole me.

Here's the substance of my remarks.

Benno, there are no conspiracies here-only differences of opinion. You need not be catty or supercilious-it does not add to the fund of mutual knowledge.

While I am honored that the ramblings of this country lawyer appeared momentous and threatening enough to be remarked on in the great nation of Denmark, let me clarify a few items for the record.

I am not a corporate stooge in the service of the Great Satan Monsanto.

I am not trying to cram GMOs down the throats of poor farmers in their loincloths.

I live in a modest apartment.

I drive a 20 year old Mitsubishi pickup truck with 240,000 km on the clock. That is what you call living the recycling lifestyle.

I have a mountain of debt for my education that in all likelihood will outlive me.

I'm a struggling teacher and most of my clients are indigents charged with criminal offenses.

I did not have a college degree until the age of 45.

I have to mow the lawn today to keep the landlord happy.

I'm teaching myself welding.

I have kids and grandkids.

My knees hurt going up the stairs at the courthouse.

I spent most of my working life as a factory worker, auto parts clerk, millhand, and tow truck driver.

I vote Democratic.

My working class credentials are, to put it bluntly, impeccable.

I also have a master in laws degree in agricultural law from the University of Arkansas-Fayetteville. It is the only such program in the US and maybe the entire world, judging from the number of foreign students that attend. I also work with the Drake University agricultural law center from time to time on projects of interest to the Director.

So I know a little about agriculture, law, legislation and policy. In fact. I've been published on such subjects a number of times.

I have three clients that are corporations.

One is a farmer's cooperative that raises Berkshire hogs on grass.

(Parenthetically, organizing that was a real experiment in how democracy works for people who work with their hands. I may write about it some day).

One is a nonprofit that provides mental health services to people in rural America.

One is a small electroplating shop run by an expat Austrian.

That's it, folks. No Great Satan here. Just a working stiff on temporary desk duty trying to make a living.

I also know a manufactured controversy when I see one, and that's what this is all about.

But don't take my word for it. In fact, don't take anyone's word for it.

Read CPA 81 Article 3 for yourselves. Make up your own mind about whether it's a war crime as Benno Hansen thinks, or whether there are more important things to waste time over.

If you think it's a war crime, stop by to collect your aluminum foil hats and Koolaid.

Wrestling With All That Mud

2007-05-29T12:08:00.000-07:00

It's widely reported that a milestone of sorts has been reached in Java as it marks the one year anniversary of the birth of a mud well of sorts spun completely out of control. At this report the mud well/volcano has been spewing splooge for a year and no end is in sight.

"B-b-but Sparky! I thought this was an agricultural law blog!" Yes, I know, I know, but this is interesting.

It seems that this was no natural phenomenon. A year ago an exploratory well being drilled blew out and that's when things really started going to hell in a wheelbarrow. The well continues to produce millions of barrels of boiling hot mud each day that has covered major roads, caused better than 40,000 people to lose their homes and has buried factories, railways and infrastructure.

Nobody seems to have a clue as to how to remediate the situation. Dumping the stuff in a local river clogged that up pretty much, droppong concrete balls down the borehole didn't help, and now it's supposed that a giant dam can be built around the mud spewing crater.

There's a bright spot in all this. There isn't a dime of American money involved.

photo credits to Al Jazeera.

You Are What You Eat, But Not In China

2007-05-29T11:16:00.000-07:00

It is reported today by Al Jazeera (that's right, folks, the bes' li'l ole news organization that ever prowled the back streets of the middle east on a Sheikh's expense account) and others that the former head of China's food and drug safety regulatory agency has been condemned to death for what amounted to whoring out his regulatory power to the highest bidder. The take for Zheng Xiayou was on the order of $780,000 or thereabouts.

According to sources he took bribes that enabled approval of one antibiotic that killed at least ten patients before it was removed from the market. Zheng's conduct was egregious even by China's lax standards concerning official corruption.

Apparently the stink from this person offended even the government of the PRC because it's getting in the way of business-and that's what China's all about, folks. And anyone who gets in the way of business and foreign trade is going to get run over.

Whether it will change much remains to be seen, but unless the underlying food safety issues are adequately addressed, there's likely to be still more trouble up ahead for China's food exporting business

Al Jazeera also has a few juicy items in a sidebar that bear further investigation:

antibiotics in imported catfish that have caused Mississippi and Alabama to ban imports
antibiotic and pesticide residues in shrimp and other items imported to Japan and Europe
turbot ( a fish) artfully doctored with malachite green, a carcinogen, exported to Hong Kong

(these can be explained by noting that the water in China that fish are grown in is more than ordinarily polluted, thus the need for antibiotics and fungicides like malachite green)

poisonous baby formula, saltwater passed off as rabies vaccine, and carcinogenic dyes injected to make egg yolks more colorful, all in China.

Stay tuned.

Picture credit to AlJazeera.

The Order 81 "Controversy": Tales Told By Idiots

2007-05-25T05:58:00.000-07:00

For some reason, about two months ago we here at Law Down On The Farm started seeing an increase of mail in the mailbag on the subject of Coalition Provisional Authority Order 81. As you know already, CPA81 was instituted by the Coalition Provisional Authority in April 2004. It's a revision of Iraqi law concerning protection of intellectual property.

You can read CPA81 here.

In particular, Chapter three quater was singled out for scrutiny as it institutes some protection for plant breeders.

The discourse was about like the following snippet:

Iraqi Order 81 is of special interest because it goes a long way in affecting every living being on the planet. This order prohibits Iraqi farmers from using the methods of agriculture that they have used for centuries. The common worldwide practice of saving heirloom seeds from one year to the next is now illegal in Iraq. Order 81 wages war on Iraqi farmers. They have lost the freedom and liberty to choose their own methods of agriculture

Pretty strong stuff. But it didn't stop there.

Jeremy Smith in The Ecologist called Order 81 "the ultimate war crime". Galil Hassan says of Iraqi farmers "the fate of their food sources and agricultural heritage is being looted behind closed doors."

"B-b-but Sparky! What does it do? What in the hell is going on here?!" you say.

Good question.

It seems that Iraq's farmers have a tradition of saving seed from year to year-like many farmers the world over, even a few here in the United States.

It also seems that Iraq's agricultural sector is in decline.

Galil Hassan blames it on 'criminal sanctions' -that's Newspeak for the U.N.'s Oil for Food Program and the sanctions imposed after Iraq's brutal invasion of Kuwait....didja forget that, Mr. Hassan?

It's quite likely that the decline of Iraqi agriculture began a few years before the sanctions. A cruise through the FAOs website suggests that desertification, salinization, and mismanagement on a governmental level are as much to blame as sanctions and war for the parlous state of the agricultural system in Iraq. In addition, Iraqi farmers were forced to sell the wheat and barley they grew to the old regime's government trading monopoly at artifically low prices. There's a universal principle at work here-nobody likes to work for free, either here, in Iraq, or any place else.

The UN's Food and Agricultural Organization says that 97 per cent of Iraqi farmers saved seed in 2002, and their report indicates that productivity declined steeply in the 1990s because of lack of machinery, low use of inputs (presumably fertilizer and herbicides), and deteriorating soil quality and irrigation infrastructure.

In an effort to increase Iraqi agricultural productivity, high yield plant varieties are being sent to Iraqi farmers in an effort to increase production of foodstuffs.

These include varieties of wheat that are used to produce pasta.

Somehow or other, because Iraqis do not generally eat pasta products, this is seen as the thin end of a wedge that's going to force GMOs on Iraqi farmers and make them pay for seed that replaces that which they used to save and rope them into some sort of subjugation to Monsanto for herbicides and patented seed varieties.

Nonsense. It's an effort to produce more food to eat, and to produce plant varieties that can be marketed and exported.

So....back to Order 81, in particular Article 3.

It allows for registration of plant varieties that have an identifiable genotype that is developed by selection or presumably by genetic engineering, and it prohibits propagation of a registered variety without the assent of the breeder. It also prohibits using saved seed from protected varieties. Protection will last 20 years from the date of registration.

That's it. No big plot to shanghai poor farmers in their loincloths. Nothing compels farmers to buy what they would not otherwise use. Nothing prohibits farmers from planting any existing variety, or saving seed, or doing any of the things that farmers have done in the region since time out of mind.

Quite the opposite seems true. Since 2004, when the Ministry of Agriculture was handed back to Iraqis to run, there is a consistent theme of transfer of farming expertise and technology to struggling farmers in Iraq. It's in the great tradition of farmers helping farmers that is one of the bright spots in an otherwise dismal decade of American foreign policy.

We've seen similar complaints from the same people concerning the Green Revolution. One time I was at a symposium where Nobel Prize winner Dr. Norman Borlaug spoke. A woman in the audience got up and started taking him to task for similar reasons. Borlaug interrupted her in mid tirade and said "Ma'am, we were concerned with feeding as many people as possible. If you can't do that, you can't do any of the other things."

Borlaug has said "If you desire peace, cultivate justice, but at the same time cultivate the fields to produce more bread. Otherwise, there will be no peace."

A moral for our times? No doubt about it.

And that leads us back to the words of the Bard which seem appropriate to this manufactured controversy concerning Order 81. This story truly is "...a tale told by an idiot, full of sound and fury, signifying nothing."

And the idiots are easily identifiable.

Tree Farm Owner Convicted in Deer Killing

2007-05-13T07:34:00.000-07:00

We blogged this issue last December, but here's a brief refresher. Kevin Kelly, owner of a tree farm near Tipton, Iowa decided he'd provided the last free lunch a wandering whitetail deer would ever have, and shot it out of season.

Kelly relied on a 1915 case as support for the proposition that he could kill the deer for having the audacity to want to eat lunch on his property.

The DNR was not amused at being put to its proof and Kelly was charged with killing a deer out of season. He asserted his defense of necessity, but was convicted by a Cedar County jury because he could not point to specific trees that had been damaged by the wandering critters, whose only crime was hunger. Kelly was fined $100 for taking a deer out of season, another hundred for using a rifle, and assessed a levy of $1,500 to replace the deer.

Kelly remains unrepentant, and John Carlson of the Register remains sympathetic.

I'm in mind of the laws of old Europe that would jail or execute people for picking up deadfalls in the king's forest to heat their huts or cook their grub. Remarking on the injustice of this was enough to get a young Prussian lawyer named Karl Marx kicked out of the country, and thereby hangs a tale.

However, if Kelly had asked this former prosecutor about what he was fixing on doing, I would have told him this.

The usual arguments about "I wuz just shooting coyotes" don't work.

Poachers, idlers, and takers of game and fish out of season never win their arguments except at the tavern and across the kitchen table.

As an assistant county attorney it was my duty to prosecute DNR violations in Madison County while I worked there. I took great pleasure in it. I probably have prosecuted more short bass tickets than anyone around, and my record on prosecuting using a shooting range after sunset is 100 per cent.

It's simple. You break the law, you get punished, especially if you're trying to rub the DNR's nose in something.

And as any Lucas County farmer will tell you, the first six rows are for the deer anyway.

Food Safety and China In The News

2007-04-13T07:38:00.000-07:00

The Associated Press has a story today that visits the little known issue of food safety in the rest of the world and how it is impacting the rest of us under the harsh rubric of globalization.

As everyone except three guys stranded in Antarctica know, there's been a huge recall of pet food manufactured by Menu Foods, a Canadian producer of a lot of pet food that's sold here in the states. Even those three guys might have thought something was amiss when they cracked open a can of dog food and Bowser seemed a bit under the weather thereafter.

The fact is, this could have happened anywhere, and it highlights the international and sometimes murky nature of the secondary animal feeds market, which is a subject that yr average consumer doesn't spend much time thinking about if they think about it at all.

As it happens, I made a rather extensive study of the feed market and the subject of bad feed a couple of years ago, for which I never got paid by certain individuals who shall remain nameless.

It's enough to hope that the pain they feel is me grinding my grubby thumb in their eye.

In this case, it is alleged, the source of the contamination was wheat gluten imported from China that was contaminated with melamine, a chemical used in a number of industrial products but normally not as a flavor enhancer.

It's likely that the ultimate source of the contamination may never be known or the miscreants brought to the bar of justice.

One can also infer that there was knowledge of the contaminated nature of the wheat gluten, but the extent of the contamination was underestimated, or that it was unevenly distributed. This is quite possible when you consider that if the stuff was food grade it would have had no trouble being sold into the food market for higher prices. The managers of the company that sold the wheat gluten to Menu Foods of course threw up their hands and claim they didn't know nuthin'.

In fact, blending contaminated feedstocks with enough good material to dilute the resulting product to allegedly safe levels is fairly common practice. Here in the corn belt, there are periodic outbreaks of aflatoxin contamination and other mold problems with stored grain. The contaminated or damaged grain is bought at a price and feed is diluted to the upper limit of what can safely be fed to cattle or hogs. It's typically higher for finishing cattle because if a cow's going to the slaughter house, who cares if the last meal she has could cause liver cancer?

Wheat gluten is a proteinaceous material that's left when the starch is washed out of wheat flour. It's used as a food modifier and feed stock, and also to produce allegedly edible meat substitute products such as Tofurkey. We produce plenty of the stuff here in North America along with a lot of corn gluten which is also used for animal feed.

I'll have more to say about this subject as we move forward.

Prehistoric Chicken Bones

2007-04-13T07:23:00.000-07:00

The Globe and Mail reports this day that scientists have recovered the femur of a tyrannosaurus rex from a rock formation at the aptly named Hell Creek, Montana.

You know t. rex, that penultimate pissed off lizard that's been a favorite of nerdy kids who love nothing more than to gawk at the reassembled remains of said lizards and fantasize about what they could do to the bigger kids who pick on them if only they could animate dem bones?

Upon careful study, enough of the remains of the soft tissue residing within the femur allowed scientists to conclude that t. rex was quite similar to the modern day chicken, only on a rather large scale and with all those nasty teeth.

The story goes a long way toward explaining the grouchy disposition of the average yard bird and also confirms what I've long thought about the advisability of consuming too much chicken.

As a parenthetical note, I've been away from the blogosphere for a while. Being self employed, you take jobs and then try and figure out how you're going to do them. I've been pretty busy lately but I expect to be doing a bit more scribbling before it's over.

I Love The Smell Of Turkey Litter In The Morning: It Smells Like Megawatts

2007-03-17T09:36:00.000-07:00

It's reported that a Benson, Minnesota power plant will be fueled largely with turkey litter. For those of you who think that meat grows in those plastic packages in the back of the supermarket, turkey litter is, well, crap that's cleaned out of turkey houses.

The plant will burn about half a million tons of the stuff along with other bio waste and generate 50,000 megawatts of power, so 'tis said by the wire services that picked the story up.

I thought that number was mighty big so I checked and I was right, the power plant is only 50 mw according to SNC Lavalin, the people who are building it. It's a steam plant, which may make it more survivable long term than some of the earlier efforts I've heard about. Turkey poop and the other stuff are going to have a lot of erosive contaminants that may affect the life of the plant and its components.

That's no mean feat, though. Power is power, and power is where you find it. The Polk County landfill here, operated by the fine folks at the Metro Waste Authority produces enough methane to run a 5 mw power plant that's operated by the MidAmerican folks.

Mobile Internet Advertising: Coming To A Cell Phone Near You?

2007-03-11T12:24:00.000-07:00

A number of sources have reported the results of a study performed by the Online Publishers' Association (whatever that is). It seems that with the appearance of such things as mobile internet devices, there will be more and better ways to clutter your life with stuff you don't need and information you don't want to hear about.

What you see here is what's on my desk. It works well, it's fifty years old, and is unobtrusive (except for its color). It does what I want it to do and no more. It stays out of my face and out of my space. Efforts to market things to me via this device have been so far unavailing, and that's just how I like it.

The phone is a tool to help me do my job, and no more.

When I was dragged kicking and screaming into the cell phone era about three years ago, that's about what I wanted from a cell phone-a device that was unobtrusive, convenient, reliable, and uncluttered-and that's what I got from the folks from U.S. Cellular.

But it seems that if we have mobile internet, we're going to have advertisements and unwanted content. The article suggests that folks in more advanced places such as (of course) Europe are a lot more receptive to the idea of getting ads for TrimSpa and Viagra stuffed in your ears and all over your screen.

Not me. Life's tough enough as it is.

An Inconvenient Truth: Hey Al, You Listening?

2007-02-28T06:35:00.000-08:00

Andrew Thomas has a hilarious article over on The Inquirer that is thought provoking and sobering.

I know, I know this is supposed to be an agricultural law blog, but this is interesting.

It seems that through the offices of the pesky Freedom of Information Act it was discovered by the Tennessee Center For Policy Research (whoever that is) that our favorite hair shirt wearing eco tree hugging former vice president Al Gore spent $30,000 on gas and electricity at his Nashville Tennessee crib-about 30 times the national average.

Talk about an infrared hot spot, you don't need the FLIR-this one's glowing like a barbecue grill full of Kingsford's best.

Since Al's documentary by the same name as this article aired, Al's electricity consumption has actually increased from 16,200 kwh to 18,400 kwh-per month. Last time I looked, the average around central Iowa for a single family residence was about 750 kwh per month and it cost me about $65 or so. Even with that, I still run around shutting off the lights and anxiously check the bill every month.

Andrew has this pungent observation" "How much bloody electricity can one man use, for God's sake? He may have invented the internet, but now it looks as if he's running the whole thing from his house."

Amen, brother.

Pollutant Exclusion Bars Defense of Insured in Hog Confinement Fatality

2007-02-23T06:55:00.000-08:00

Bituminous Casualty Corp. v. Sand Livestock Systems, Inc., no. 05-1063 (Iowa Feb. 23, 2007).

Gossage, an employee of Furnas Farms at an Ida County hog confinement facility (sounds like a prison, doesn't it?) was using the washroom when overcome by carbon monoxide fumes from a malfunctioning power washer also housed in the washroom. His estate sued Sand, who had installed the power washer heater.

Sand requested Bituminous to defend it but the insuror declined. invoking the 'pollution exclusion' clause of its commercial lines policy which denied coverage for bodily injury or property damage which would not have occured in whole or in part but for the actual, alleged or threatened discharge, dispersal, seepage, migration release or escape of 'pollutants' at any time. Pollutants are defined by the policy as 'any solid, liquid, gaseous or thermal irritant or contaminant including smoke, vapor, soot, fumes, acids, alkalis chemicals and waste'. In addition there was a pollution exclusion in its commercial umbrella policy which stated that the policy did not apply to any liability for the actual or threatened discharge or release of pollutants, and to any obligation to defend on that basis.

Bituminous filed a federal complaint to determine its duty to defend and the the federal court certified the question to the Iowa Supreme Court for a local law determination, in view of the fact that it could not predict an outcome because the law is unsettled in the United States.

The court held that the broad definition of pollutants unequivocally included carbon monoxide and from that held that the local policy to enforce unambiguous policy exclusions as written compelled the result.

For Iowa farmers, the takehome is clear. Review your coverage with a specialist. But the larger issue is clearer, and it's one we've discussed here before. Make damned sure that the equipment you have on the property is in good working order and safe to be around, because you may not be able to count on the insurance company being there for you in a time of need.

Buying Organic, Buying Smart.

2007-01-17T12:44:00.000-08:00

There's a very interesting article in the Wall Street Journal today, which because of the subscription stuff I had to get through the back fence.

The gist of the article is, the potential benefits of buying organic are a mixed bag, and buying organic is not necessarily the more healthy choice. Here's a few highlights:

If the fruit and vegetables you buy are already low in pesticide residue, buying organic may not be anything more than a personal decision.

In meat and dairy, organic may be more healthy if one is concerned about hormone or antibiotic residues.

Organic does not always mean "family farm produced", and that is becoming less and less likely as big hitters like Walmart get green.

The benefits of organic food are in fresh products, not packaged and processed foods.

Organic seafood does not yet exist.

There are a couple of points that are not made in the article.

Organic food that travels a couple thousand miles in the back of a motor truck isn't doing the environment one bit of good. That's the concept of "food miles"-how far an article of food travels and what it costs to get to your table. It stands to reason that locally grown produce is fresher and easier on the planet if it comes from right down the road.

Supporting local producers is a way to keep your money in local circulation among your friends and neighbors. Charity begins at home, not half a world away among strangers.

Most important, every dollar you spend is a political statement about the kind of world you want your kids to live in.

The National Catholic Rural Life Conference has a lot to say on the subject of the politics and ethics of eating. It's well worth a look. I didn't think they'd mind if I borrowed their picture....it IS an important issue and I want to get the word out.

http://www.ncrlc.com/Agric-and-Food-Issues.html

Amish Cheese Cooperative Shuts Down

2007-01-16T07:27:00.000-08:00

It's reported in the Register today that the award winning Golden Ridge Cheese Cooperative in Cresco, Iowa has ceased operations in the wake of production quality problems and philosophical differences among the members. This will be a disheartening blow to gastronomes everywhere, ans it will mean an end to the cooperative's famous blue cheese-at least for now.

Old Order Amish members founded the cooperative, and since then there have been differences over the use of electricity and other modern processing methods at the plant.

It's expected that a buyer will be found in a short period of time.

Canada Takes Issue With Corn Price Supports

2007-01-09T15:17:00.000-08:00

It is reported in today's Des Moines Register that the Canadian government has decided to take a complaint to the WTO with respect to the price supports that US farmers receive. Canada says that the price supports encourage overproduction and distort trade. It is said that Canada's complaint is similar to one that Brazil brought over US cotton price supports.

Paradoxically the Canadian International Trade Tribunal ruled last year that Canadian corn growers had not been harmed by US price supports.

Quite possibly the reverse is true. US price supports stabilize the market price farmers receive by setting a floor under it. If the market price goes below the cost of production, the supports kick in. Because the US corn market is big enough to swing world market prices, it's arguable that the support works to the benefit of all corn farmers in the world, courtesy of the US taxpayer. Without that safety net there'd be nothing to prevent the North American market from crashing and taking Canada's corn growers along with it.

While we're on the subject of international trade, one has to wonder: if no corn grower in Canada stands to gain by this, what's the point?

The point is, it's a political realignment. By this, Canada can gain credibility with those in the WTO who are waving the bloody shirt of the third world dirt farmer in his loincloth in an effort to bust open world markets for their grain, which IS produced on the backs of those long suffering souls. Brazil is one of these underdeveloped countries-and it's the largest soy exporter in the world. India and South Africa aren't far behind and Argentina's in that crew as well.

If Canada's so concerned about free markets, they'd abolish the Canadian Wheat Board tomorrow morning before coffee break and have done with it. But they won't, because they aren't. This is about posturing and positioning.

I had a discussion with one of my correspondents on this subject not too long ago. He's in India. I made the same argument, that the price the Indian farmer gets for wheat is due, in some measure, to US price supports. He said "Well, our farmers don't take grain to the elevator and get a price. They are mostly small farmers and they sell the grain to a middleman who's usually the village loan shark. They take what they can get."

I told my friend that rather than that being an argument for demolishing price supports in the US and posturing before the WTO with a cynical appeal to the poor third world farmer, it was an argument for agricultural reform in his own country.

Stay tuned....this issue will be around for a while.

Eighth Circuit Invalidates Initiative 300: UPDATE

2007-01-06T15:05:00.000-08:00

Jones v. Gale, 2006 U.S. App. LEXIS 30588 (8th Cir. Dec. 13, 2006)

The eighth circuit invalidated Initiative 300, the Nebraska Anti Corporate Farming statute recently. Six people with interests in Nebraska farmland filed suit against the state, alleging that the statute violated the 'Dormant Commerce' clause of the U.S. Constitution.

Dormant commerce analysis, once thought to be the bane of all law students, now seems to be gaining ground. Simply stated, laws that unduly burden or discriminate against interstate commerce are invalid under dormant commerce clause analysis. The court found that Initiative 300 was both facially discriminatory and invalid because of its discriminatory intent.

Register Foresees Decline In Hog Prices

2006-12-28T14:16:00.000-08:00

Today's Des Moines Register foresees that there is an increase in pork production in the state that may push prices down in the not too distant future. Agricultural economist John Lawrence of Iowa State University gives figures that suggest that although pork producers have made money in the last three years, increases in the cost of feed and new productive capacity coming on line will produce red ink for hog farmers in the near future.

It's sobering reading. Although it is not known what effect this might have on niche producers, certainly the price they receive for product that is spun back into commodity pork will net them no more than the industrial operators will get, and that's going to hurt.

Stay tuned.

Pennsylvania Attorney General Takes A Bullet For the Team

2006-12-28T14:02:00.000-08:00

Commonwealth v. Lower Oxford Twp. Board of Supervisors, 2006 Pa. Commw. LEXIS 670 (Comm. Ct. Pa. December 12, 2006)

The state Attorney General filed suit against the township under chapter 2 of the Agricultural Code (3 Pa. S.S. sections 311-318 also known as 'ACRE') which took effect in 2005, allowing for review of local zoning ordinances at the behest of a local mushroom composter. The local ordinance sought to regulate composting and the attorney general argued that they were invalid and preempted by various provisions of law.

The township demurred, arguing that the attorney general had not pleaded sufficient facts to show authority to act, as the ordinance complained of had never been enforced. The Court agreed, finding that section 313 of ACRE applied only to the enforcement of such statutes that predated the adoption of ACRE.

Enforcement Action Against Composter Goes Forward

2006-12-28T13:41:00.000-08:00

Coconino County v. Antco, Inc., 2006 Ariz. App. LEXIS 158 (Ariz. Ct. App December 19, 2006).

The Twidwells owned 20 acres in Coconino County and leased five acres to Antco for composting septage and restaurant grease. Under scrutiny by the county, Antco attempted to take advantage of Ariz. Rev. Stat. section 11-830(A)(3) that restricted local regulation of land used for 'agricultural composting'. Antco notified the county that its activities now constituted agricultural composting. The county filed a complaint and this appeal followed dueling motions for summary judgment.

The trial court dismissed the county's petition on the basis of the doctrine of primary jurisdiction in deference to the Arizona Department of Environmental Quality (ADEQ).

The court dispensed with an exhaustion of remedies argument that figured in some of Antco's briefs by observing that because there was an existing agreement between ADEQ and the county that empowered it to initiate enforcement actions, exhaustion was not relevant.

In considering Antco's argument on the doctrine of primary jurisdiction, the court found no precedent anywhere in which the doctrine had been applied to prevent a governmental unit from exercising its public health enforcement power.

With respect to possible preemption, the court held that the trial court was remiss in applying the doctrine of primary jurisdiction when the facts of the case called for a preemption inquiry.

Water, Water Everywhere-But Will They Drink It?

2006-12-21T05:55:00.000-08:00

I got this article this morning from the fine folks at AnimalNet, which is at the University of Guelph in the great nation of Canada. It's well worth a look if you have cattle that water from sources on the farm such as streams, ponds and sloughs.

Thanks for this update. Nothing escapes your attention.

Cattle watering issues
20.dec.06
Yorkton This Week

Cattle producers are being urged to keep an eye on their water resources this winter.Saskatchewan Agriculture and Food Livestock Development Specialist Bob Klemmer said weather conditions over the course of the spring and summer have impacted the quality of surface water sources.The cause can be broken down into two main factors: too much water, and not enough. Klemmer said, while both situations can result in poor water quality and reduced cattle productivity, the prognosis for improvement is much better for the former."Flooding and run-off has led to increased nutrient loading in dugouts, dams, sloughs and lakes in some parts of Saskatchewan last summer. Combined with our hot summer weather, this situation resulted in rapid and recurrent algae blooms," said Klemmer.

Treatment during the summer takes care of this growth, but leaves behind the dead organic material, which ends up decaying on the bottom over the winter months as the water becomes anaerobic.This nutrient loading also encourages the growth of water weeds, which adds to the build-up of organic matter on the bottom. Left unchecked, this scenario leads to brackish/odorous water in mid-winter due to the anaerobic break-down of the accumulated organic matter.

If bad enough, cattle may not drink as much, which will result in a reduction of feed intake and lower productivity (lower gains, weight loss, lower milk production). Fortunately, this situation can be remedied by the installation of a properly sized aeration system.On the other hand, Klemmer said a lack of surface water can impact water quality as well."There are parts of Saskatchewan that experienced very little snow and zero run-off, and therefore no recharge to surface watering sites. Adding insult to injury, the hot, dry and windy weather last summer increased the amount of water cattle required, and caused a much higher evaporation rate, which has led to very low surface water reserves in some areas," said Klemmer.The resulting issues range from uncertainty of water supply/quality, to bringing old wells with questionable water quality back on-stream.

In some cases, this has forced producers to haul water to the cattle. Hauling water is expensive, time consuming and unsustainable; however, because the quality of the water may actually be higher, the cattle may be better off than drinking water from a depleted slough, dugout or dam.As water evaporates off the surface of these water bodies, minerals dissolved in the water remain, and, over time, may accumulate to levels of significance to cattle productivity and health. Even in a year of normal rainfall, one study demonstrated that mineral concentration in a dugout can double. This should be a "red flag" to those in this situation to make sure they test for water quality, especially when water levels fluctuate.Klemmer said knowing your water quality is the first step in ensuring your herd remains productive and healthy."The main minerals of concern are iron (Fe), sodium (Na), magnesium (Mg) and sulphur (S) in the form of sulphates. While iron levels are a nuisance for household use, and can cause problems inside your water distribution system, it is only when iron becomes excessive that it can affect the amount of water cattle will drink and, thereby, reduce productivity," explained Klemmer.Sodium and magnesium are most often of concern when they are associated with high levels of sulphates. High levels of magnesium sulphate have been shown to reduce water intake by cattle. If the water your cattle are fed contains high levels of sulphates, many problems can show up over time.Cattle on high sulphate water tend to have loose stools, due to its laxative effect. While this, in itself, is not a production problem, it may be an early sign that something is up "so check that water. Concerns with sulphates and productivity and health relate to interference in the absorption of trace minerals from the diet (primarily copper, zinc, and manganese) and, in extreme cases, cattle death due to polioencephalomalacia (thiamine deficiency).Solutions to these water quality problems range from installing costly water treatment systems, to initiating a special mineral supplementation program, to re-development of your water source over time.The levels of minerals in surface water can fluctuate widely over time, depending on precipitation, recharge, cattle use and evaporation, and the concerns/solutions can also be long-term, depending on these same environmental factors. Consequently, Klemmer said, a good first step to ensuring your cattle remain healthy and productive is testing the quality of water from all of your water sources."Testing and then monitoring quality over time is very important. Solutions to water quality problems, such as aeration, can be simple and inexpensive or costly and complex, such as treatment systems.

8th Circuit Finds Nebraska's Corporate Farming Ban Unconstitutional

2006-12-17T12:12:00.000-08:00

Last week, a three judge panel of the 8th Circuit held that Nebraska's corporate farming prohibition an unconstitutional restraint of interstate commerce. The law which was written into the Nebraska Constitution as Article XII section 8 (Initiative 300) was seen as one of the tougher corporate farming prohibitions.

Taking into account the ruckus that erupted here in Iowa over our state's packer feeder statute and how it ran afoul of Smithfield, it's a fair bet that this issue is headed for the Supremes in Washington. The 8th doesn't much like populist stuff like the Podunk States (that's us) telling the likes of Corporate America that we'd like to have a say in the matter before they run us over with their stretch limo Hummers. How the conservatives on the Court will treat the issue is anyone's guess.

For those of us who are concerned about vertical integration doing to the pork and beef markets what vertical integration did to the independent poultry producer (and, it may be said, a real and substantial decline in the viability of our rural towns), the issue is well worth getting up to speed on and contacting your legislators in Washington.

If you decide to contact your legislator, for heaven's sake write them a letter. Emails and phone calls are quick, easy, and forgettable. Letters are like oatmeal-they stick to the ribs.

We're not completely without friends inside the beltway, however-Senator Grassley of Iowa is, by all reports, the only senator in the United States who is an active farmer, as well as a former factory worker. For that alone, he is worthy of praise, aside from being a genuinely likable guy.

The political winds are changing in Washington-it's time to be heard about this issue, at every opportunity.

Farmers' Failure to Mediate Deprives Small Claims Court of Jurisdiction

2006-12-15T12:14:00.000-08:00

Klinge v. Bentien, No. 04-0843 (Iowa Dec. 15, 2006).
Klinge and Bentien had an oral agreement concerning raising feeder pigs. Bentien bought the pigs and Bentien fed and raised them. Klinge sued Bentien in small claims court in Clayton County alleging insufficient compensation. Bentien countersued, arguing that Klinge's negligence caused a loss of 100 pigs. Neither party requested mediation under Iowa Code sec. 654B.

The small claims court entered judgment for both parties on both claims and counterclaims. Klinge appealed to the district court but Bentien did not. The district court dismissed Klinge's claim but since Bentien did not appear the court let the judgment stand.

Bentien then hired a lawyer. The next day the lawyer requested a dismissal, arguing that neither party had requested mediation as is required. The district court washed its hands of the entire matter, and this appeal followed.

The Supreme Court found that Iowa Code section 654B1 was applicable to the controversy. Therefore, Klinge's failure to file a mediation request and obtain a mediation release before filing his complaint deprived the small claims court of jurisdiction of the subject matter.

Section 654B.3 requires a 'farm resident' to file a request for mediation with the far mmediation service and obtain a release before filing suit if the matter involves a livestock 'care and feeding contract."

The Race Is Not Always To The Swift: La Migra Raids Packing Plants UPDATE

2006-12-13T08:15:00.000-08:00

In an article published today in the Greeley Tribune we're starting to get a clearer picture of what went on yesterday. Greeley, Colorado is the home of one of the larger Swift meatpacking plants where the aptly named ICE rounded up 261 packing house workers. It is said by authorities that at least 10 people in the roundup were detained on identity theft warrants, and the balance were held on immigration violations.

In addition, we now know where at least some of the detainees are being held-Camp Dodge, Iowa.

I have problems with a lot of this stuff.

Yeah, I don't like illegal immigration, but I like cheap beef and bacon on my table. I also don't like seeing the government beat up on working folks. I don't like seeing the government depriving kids of their hard working parents and throwing families to the four winds and acting as if they're protecting the rest of us from terrorism.

It's taking on all the hallmarks of a pogrom. There. I said it.

Whatever their status, the illegal immigrants who work for Swift, almost exclusively hispanics, provide a valuable service and are in the main, working stiffs with families and kids here in the states and down below the border who depend on that paycheck for a modest existence. We're targeting people who may be technically guilty of some statutory offense, but are morally and ethically blameless for trying to make a better life for their families.

They may have crashed the party, but in the main they've got sweat equity and have earned their place at the table.

There's a qualitative difference between these folks and those who seek to do this country great harm by slipping under the radar screen.

And I'm willing to bet my last Confederate dollar that there are a fair number of folks serving proudly in our military, standing up for this country, whose parents came here illegally from Mexico.

For all those who are busily getting all self righteous, what the hell would you do if you were from Mexico? You'd do what you had to to feed your family and worry about the long term consequences later.

That's what people do who love their families.

Here's a note from one of our correspondents. It sums up my feelings about the entire subject pretty neatly.

Thank heavens for men like Mr. Chertoff who stand up for these poor victims (of identity theft, that included a murderer serving life in prison and a dead guy). But if specific victims are not enough, remember 911: “Chertoff called the trafficking of false and stolen documents a serious national security issue because terrorists can use such phony papers to try to get on airplanes.”

Why didn’t I realize these poor schmucks bustin their butts in our nation’s packing plants might actually be aiding the 911 terrorists? How did I miss that connection? Again thank heavens for Mr. Chertoff.

There are three people who don't know that ICE, the less kind and less gentle version of La Migra raided a number of packing plants operated by the Swift folks yesterday in a flying razee that the old time Tuaregs would have approved of. One of those plants happened to be in Marshalltown, Iowa. The folks who did not hear about it are probably on a dogsled somewhere north of Thule where the radio waves don't go.

The more important question is what it means for the people who are involved.

It is alleged by La Migra that a significant number of the detainees have been using purloined social security identification information that was lifted from other folks, are undocumented, facing criminal charges or otherwise have paperwork problems.

What's unknown is if ICE simply grabbed everyone in sight whose name ended in -ez, or had some idea of who it was they needed to interview and for what reason. A cloak of secrecy uhas descended as ICE is not disclosing where the detainees have been moved to.

There's reason to believe that a fair number of people who are legal residents in the US have been swept up because they weren't carrying their documents, according to Jim Benzoni, an immigration law practicioner in Des Moines. This is understandable. If I had a document that was the most important piece of paper in my life, it would be in a safe place like a safety deposit box and not in my pants pocket while I was working in a slaughterhouse.

For producers who have delivery commitments, problems are going to be experienced as long as Swift is unable to acommodate them because of lower staffing levels.

Unhealthy Appetites: Deer and Damage to Crops

2006-12-04T11:24:00.000-08:00

John Carlson had a pretty extensive article in the Sunday Register about one producer's struggle with protecting his crop of nursery trees from deer. As we've been noticing, there's an increasing population of the critters, and sometimes they can and do eat nursery stock and corn.

It seems that the owner of a tree farm near Tipton has gotten frustrated with what he sees as the Department of Natural Resources' inadequate response to his complaints about the deer damaging his nursery stock. As something of a riposte, he's taken to carrying a rifle and shooting the critters every now and again as the spirit moves him. He's been issued a summons but he believes that he's on pretty solid authority in his course of action, and he relies on State v. Ward, 152 N.W. 501 (Iowa 1915) as his backstop.

The DNR does not seem to be overly impressed with the tree farm owner, saying he qualifies for a program that would issue him permits to destroy deer if he comes up with $1,000 worth of damage. He isn't interested, and looks forward to his day in court in Tipton on March 19 of next year.

I may make time in my schedule for a road trip that day. It should prove interesting to follow this case.

Interestingly, the case of State v. Ward he relies on says much about the defense of necessity, which was not allowed by the lower court. And that is why the case was reversed and remanded.

Ward does not set out some sort of general rule of conduct that all must adhere to, or allot rights and responsibilities as the tree grower would like. It merely points to the fact that a defendant in such cases could advance justification of the killing so as to avoid substantial injury to his property. It specifically does not rule on what the outcome might be if the deer was not in the very act of destruction of property at the time of the shooting.

Stay tuned.

Curbing the Urge to Fence

2006-12-01T11:21:00.000-08:00

Newport v. Dulin, No. 6-669/05-1233 (Iowa Ct. App. Nov. 30, 2006).

(Note. This case makes perfect sense if one draws a picture).

The Newport family owns land in Cedar Rapids and has so for many years, operating a greenhouse and florist business on the premises. Part of the land was platted, including what came to be known as Newport's Third Addition.

Access to lots 1 and 2 of Newport's Third Addition was by a driveway running from Wilson Avenue SW along the boundary of Newport's First and Third Additions.

Dulin purchased the business from the Newports and a part of the property, which included the driveway. The title opinion furnished to Dulin at that time noted the existence of a utility easement but did not mention the access easement that had been described in the final plat of Lot 1 in Newport's Fourth Addition and other documents.

Dulin erected a fence that blocked the driveway in 2002, and the Newports sued to enjoin Dulin from blocking their access to the property. The District Court found that the Newports had an express access easement by virtue of the language in the plats, and that they also had easements by necessity and implication to part of the driveway.

The Court of Appeals held that an easement granted in a plat (as this surely was) has the same effect as if explicitly granted in a deed or conveyance. Turning to the issue of an easement of implication or necessity, the record showed ample evidence of a preexisting use that manifestly was intended to be a permanent use that was beneficial to the enjoyment of the retained land. In addition an easement of necessity was found based on the general layout of the land and in the difficulty of accessing it absent an extremely costly construction job.

Subsidies For Hybrid Cars: Unfair At Any Price?

2006-11-30T18:48:00.000-08:00

I've been hearing about the folks at Toyota who have had a bang up success with their environmentally friendly and high priced Prius automobile.

Maybe what you didn't know is that you, me, and every other taxpayer in this country is subsidizing the folks who can afford this, to the tune of $3,600 per car...at least until this month, when Toyota reached the 60,000 unit cap and the credit fell to a mere $1,510. They're complaining bitterly in Washington, so we hear.

I know, I know, you're thinking "What in the heck does this have to do with agriculture, anyway?" Well, because it costs you and me money and it's transferring that money to people who don't need it as much as some folks I know, that's what it has to do with the general subject.

I mean, don't get me wrong. I'm all for green products, and saving on the oil bill and the balance of payments is a good thing for the country. But when K**** W*****, a friend of ours who, between herself and her husband is knocking down around a hundred grand a year, and who went from a Porsche to a Dodge Stealth to a Prius gets a $3,600 kickback that comes out of the wallets of less wealthy folks, I've got a problem.

While I'm struggling to keep current with student loans I'll never pay off in my life, and folks I've met in my practice are scuffling at construction jobs trying to keep some old pile of junk car going so they can feed and clothe the kids and stay out of jail, let alone drop $20,000 on a Prius because they want to make a fashion statement, well, our pockets are being picked to underwrite this.

Did I get a break for rebuilding the engine in my 1987 pickup truck to keep it out of the landfill for a few more years? Hell, no. Do I get a check for riding a bicycle? Not bloody likely. Do the folks on the poor side of town that I have to labor to keep out of jail get anything from this beyond less money in their tax return? Not a chance.

Am I angry? Yes. I'm angry as hell about having my wallet skimmed to underwrite this nonsense.

Politics, Canadian Style

2006-11-27T17:45:00.000-08:00

I've recently come across a blog published by a Canadian who was tired of listening to the crap that comes out of the radio and teevee and the papers and decided to speak with her own voice.

It's Small Dead Animals and it is well worth a bookmark for those of you who take an interest in political affairs north of the worlds longest undefended border. I've done so and you can link to it over on the blogroll.

Australian Wheat Board Payoff Scandal Thickens

2006-11-27T17:33:00.000-08:00

This one's tought to get a handle on for Americans and for the most part we're oblivious to what's going on in the world beyond our borders....imagine if the CIA or the Mafia represented all American farmers who sell wheat. Well, that's essentially what you've got in Australia and Canada....a government trading monopoly in wheat. And we know what happens with government trading monopolies through the past history of the Soviet Union. The farmer gets hosed on both ends of the transaction.

Well, if that rings your bell, it's what we've got going on with recent probes into the Australian Wheat Board's antics in corrupting the UN's Oil For Food program in Iraq. It's been determined that some $222 million USD or more was funneled to Saddam and his goons through a phony Jordanian trucking company.

Stay tuned....this is getting interesting.

UPDATE: Here's a link to the official website for the inquiry.

http://www.oilforfoodinquiry.gov.au/

I'm Glad He Said It, Not Us.

2006-11-26T10:05:00.000-08:00

India's finance minister Chidambaram yesterday castigated oil producing countries for the high price of oil that's been experienced this year, particularly in his neck of the woods.

Interestingly enough, the minister criticized developed countries for raising environmental concerns over energy usage. The minister also complains that India could have reached a 9-9.5 per cent growth rate, save for the high price of oil.

All of which is very nice, of your growth strategy is predicated on continued cheap oil. Maybe he doesn't realize it, but that's a sucker's game. Bitching about the ability of speculators in the oil market or any other market, for that matter, to swing prices is a play for the grandstand that midwestern farmers know pretty well.

Here we're experiencing just as much pain from high oil prices as India is, and we're also having to deal with the consequences of high corn prices in the farm belt. It's not easy, but you get busy and think ahead when times are good, and you invest in alternatives.

Here, we don't call what India's got going on growth-we call that cancer.

A burrito by any other name

2006-11-13T18:54:00.000-08:00

It was widely reported today that the courts at Massachusetts, having gravely considered the issue and giving all due deference to the submissions of learned counsel, have concluded that a burrito is not, in fact, a sandwich.

Seems that the Panera folks had a lease in a shopping center that precluded another 'sandwich shop' from opening in the same area. Qdoba, a chain operation, opened a burrito shop. Panera sued to prevent Qdoba from bringing the detestable spawn of Satan himself anywhere near their turf.

The court concluded that a burrito was not, in fact, a sandwich as that is known, partially because a sandwich has two sides and a burrito has sort of a Mobius strip thang going on.

The entire subject goes to show what sort of legerdemain the twin effects of not enough legal precision and too damn many lawyers can produce.

Step Away From The Faucet: Water Spying in Colorado

2006-10-23T06:29:00.000-07:00

Sometimes we in areas that are blessed with waters that are sufficient most of the time tend to forget the reality of water rights. Simply stated, when there's enough to go around, we don't fret over the subject.

Not so in Colorado, where the shortage of water in dry years has been a fighting issue ever since the farmers on the upper St. Vrain Creek blew up the dam belonging to the Left Hand Ditch Company in the 1880s. The same problem is in existence today as was noted in the Des Moines Register Sunday. However, as one goes farther west the detail develops complexity as the climate becomes drier.

As described in the Madison, South Dakota Daily Leader and other papers, three fast growing cities and some other owners of senior water rights hired private investigators to snoop on farmers who were allegedly continuing to pump water after the state engineer ordered farmers in the South Platte River basin to stop pumping based on estimates of lower flow. It is also noted that the cities-Boulder, Sterling, and Highland Ranch-rejected an emergency plan that would have allowed the farmers to continue to use the water.

The net effect is that millions of dollars in crops were left to die so that suburbanites could continue to water their unnaturally green lawns, hose down their driveways, wash their SUVs daily and water their golf courses.

Thieves At Work on the Farm

2006-10-09T14:50:00.000-07:00

It's reported in the Record Online that thieves recently entered an almond warehouse in the Central Valley of California and made off with better than $250,000 worth of almonds.

Further, in San Joaquin County, the Rural Crime Unit has documented thefts of ATVs, equipment, and cattle recently.

It's worth noting that our colleagues in California are far ahead of us here on the prairie in gathering the resources and people necessary to make a dent in rural crime. It's just not on the map here, although this type of thievery is well known to every rural county sheriff in the state of Iowa.

Farmers here are advised to be vigilant, particularly in this time of year where valuable equipment may be left in the field and products like soya are in the bin in remote locations. There is also much logic behind asking your candidates what they're doing to advance detection and prosecution of rural criminals.

http://www.recordnet.com/apps/pbcs.dll/article?AID=/20060914/MONEY/609140325

http://agcomm.co.tulare.ca.us/agcrime.htm

Gay Men's Camp Sues Hog Producer For Harassment

2006-09-26T10:45:00.000-07:00

One of my correspondents directed my attention to this ruckus brewing in Douglas County, Missouri. Thanks for the tip, Jack. We'll be keeping an eye on it.

It seems that the proprietors of a gay men's campground in Douglas County, Missouri, have filed suit against some of their neighbors for alleged acts of harassment that, among other things, included raising hogs to create a spite farm nuisance. They've also attempted to invoke the hate crime provisions of Missouri law, at least according to the news report.

Not to cast aspersions on the news reporters here but the petition does not seem to invoke the hate crime sanctions of RSM 557.035, perhaps because there's no private right of action therein.
Perhaps that is the reason why the petition was amended.

In their petition the plaintiffs allege that the defendants conspired to oust them and damage them by diverting drainage onto their lands, fire weapons at their property, throw rocks at their property, and harass and annoy the campers. They also allege that diversion of hog waste and effluent was part of the conspiracy.

The defendants, on the other hand, see the issue as a land use dispute at its heart.

http://www.news-leader.com/apps/pbcs.dll/article?AID=/20060319/NEWS01/603190386

The entire revised petition can be viewed at:

http://www.jewsonfirst.org/06b/cactuscanyon_petition.pdf

News from the North

2006-09-26T10:29:00.000-07:00

It's reported that Stephen Harper's government in Canada has targeted some governmental programs for elimination, and that has the usual suspects in a tizzy.

But enough of that.

What's more important is the fact that, despite being in the position of catching a cold every time the United States sneezes, Canada last year posted a $13.2 billion budget surplus.

Yes, that's right, friends-a surplus that amounts to better than $400 per person. With socialized medicine, tax and spend liberalism, and so on, they've got their house in order, while we here in the economic engine room of the hemisphere (as we think) are using cash advances on the credit card to eat and burning the furniture to stay warm.

That, from an administration that roared into power bloviating on how it was going to whip everyone into shape and get those untermenschen off of welfare for good, and took the budget surpluses of the Clinton administration and blew them...

It's just plain pathetic and embarrassing is what it is, and it makes a lot of people in the rest of the world wonder what the heck we could be thinking about.

http://www.theglobeandmail.com/servlet/story/RTGAM.20060926.wxbudget26/BNStory/National/?cid=al_gam_nletter_newsUp

Addition to the Law Down On The Farm Blogroll

2006-08-30T07:15:00.000-07:00

I've added the George Morris Centre up in beautiful downtown metropolitan Guelph, Ontario to the blogroll. They've got some great publications and insight into agricultural matters of concern to farmers worldwide and I commend their work to you. It is well worth the time to stop by and have a look around.

When is a Ditch a Swale?

2006-08-29T17:40:00.000-07:00

Clark v. Yellow Medicine County Bd. of Commissioners, 2006 Minn. Unpub. LEXIS 948 (August 22, 2006)
Knutson petitioned for a conditional use permit for construction of a hog feedlot and Larson, a citizen, objected, saying that the proposed project violated setback requirements in that there was a drainage ditch too close to the boundary of the proposed feedlot. The county found that the natural feature was a field break, swale or natural ravine not subject to the setback requirement and granted the permits.

Larson sued out a taxpayer mandamus action to rescind the permits, but the Board was granted summary judgment. Another mandamus action followed, this time filed by one Clark, alleging that the natural feature had been converted into a drainage ditch as set forth in a letter from Larson. The court again granted summary judgment.

On appeal, the court determined that the doctrines of collateral estoppel and res judicata applied and prohibited relitigation of issues that had already been decided in the previous action.

Cuba Signs Trade Deal With Navajo Nation

2006-08-27T09:54:00.000-07:00

It has recently been reported that NAPI, the Navajo Agricultural Products Industry, has signed a letter of intent with the government of Cuba for the sale of agricultural products including corn, wheat, beans and other commodities. The value of the deal is said to be $16 million.

The deal is significant for another reason, and that is that it validates the Navajo Nation as a serious international player in the agricultural commodity export trade. In the opinion of Nation President Joe Shirley, Jr., it also validates the Nation as a sovereign entity. President Shirley also made the commonsense observation that people in Cuba have to eat, too, and that includes grandmas and grandpas.

Back in April, when a deal was signed between Alabama farmers and the government of Cuba for agricultural products, we here at Law Down On the Farm opined that we thought it was high time that the barriers to trade between Cuba and the U.S. come down.

If trade is indeed a liberalizing influence that is good for all (and we do think so as a matter of policy, considering our relationships with Viet Nam and China) then we ought to be thinking hard about whether we ought to be continuing the embargo against Cuba after all this time. Whatever their politics, people have to eat, and American farmers know how to meet that need.

This scribe clearly remembers huge grain deals between the U.S. and the U.S.S.R. during the height of the Cold War. Even a state of war did not prevent the liberalizing message from farmers to hungry folks from getting through, loud and clear.

It's time to separate the issues of what kind of government ought to replace the Castro regime (which has not, it is true, been kind to dissidents and freethinkers and respectful of property rights) and what sort of remedies ought to be available to the Cubans who lost their properties in the revolution, from the larger issue of maintaining an embargo that only serves to justify and validate the politics of the Cuban emigre community in this country.

This issue is far too large for the emigres to wield such power, when it works such a detriment on American farmers.

One might recall the words of Oliver Cromwell to the Rump Parliament in 1653. They seem peculiarly applicable to the embargo against Cuba: You have sat too long here for any good you have been doing. Depart, I say, and let us have done with you. In the name of G-d, go!

http://www.daily-times.com/news/ci_4245377

The Importance of Punctuation.

2006-08-08T09:34:00.000-07:00

I've just added the Toronto Globe and Mail to my menu of cool news, and I've been waiting anxiously to get some news from the Great White North.

Well. Let me tell you, it wasn't long in coming, and this one's a stunner.

It seems that Rogers Communications inked a deal with Aliant to hang its cable on Aliant's poles for an annual fee of $9.60 per pole. Rogers thought it had a five year deal with a renewal option that could have taken them to 2012, but they got the word that the contract was going to be cancelled and the prices were going up.

It all came down to a single comma in a single sentence.

The agreement said it "shall continue in force for a period of five years from the date it is made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party."

What everyone missed was that the comma between "terms" and "unless" allowed Aliant to dump the contract any time after one year. At least that's what the regulators at the Canadian Radio-television and Telecumminactions Commission said when they were done parsing the terms of the contract.

Rogers estimates that this will cost them about C$2.13 million more than they expected to pay.

http://www.theglobeandmail.com/servlet/story/RTGAM.20060806.wr-rogers07/BNStory/Business/?cid=al_gam_nletter_newsUp

Eminent Domain: Taking On Water In Ohio

2006-07-28T07:04:00.000-07:00

City of Norwood v. Horney, 2006 Ohio 3799 (Ohio July 26, 2006)

In a unanimous decision that shakes the foundations of the U.S. Supreme Court's infamous Kelo v. New London decision, the Ohio supreme court has ruled that using eminent domain to confiscate private property and transfer it to a developer simply because it confers an economic benefit to the community does not satisfy the 'public use' requirement of the Ohio Constitution.

Homeowners in the city of Norwood, Ohio lived in a neighborhood that had undergone substantial changes in the decades preceding this action. A private developer approached the city with a redevelopment plan and urged the city to use eminent domain to condemn and acquire the property of homeowners. The city recommended that the developer acquire the property on the open market, but the effort was not completely successful.

The city hired a consultant who determined the neighborhood was 'deteriorating' as that term is defined in the city code. The city then filed actions against the property owners for condemnation. A trial court upheld the city's action and the developer acquired the titles and began demolition.

In response to the Kelo decision and a ground swell of public opposition, Ohio enacted legislation which created an eminent domain task force to study the matter, and imposed a moratorium on takings of a nature such as the instant case.

The court ultimately found that the trial court erred in giving deference to the city's code's use of 'deteriorating area' as a standard because that term actually had no definition and did not provide the property owners with fair notice. Because Norwood could not justify the taking for public use on the 'deteriorating area' standard and because it could not justify a taking for economic benefit, the trial court and appeals court decisions affirming the taking were reversed.

Although we here at Law Down On The Farm admit of public necessity, we also think that the twin furies of the power of eminent domain coupled with a love affair with anyone who comes into town with a stack of blueprints and a good story has been too much for cities to refuse. It is, as the phrase has it, the very legerdemain.

It has also been more temptation than cash strapped governments could ordinarily resist. However, there comes a point at which the power of government to evict one property owner in favor of another with a larger bankroll must halt. This, it seems, is one of those times.

Let us hope that this decision is merely the first rumbling of a faraway storm that unseats and then discards this unhealthy rendition of the power of eminent domain.

Sleepless in Doha: The Takehome

2006-07-27T11:23:00.000-07:00

By now, nearly everyone except a few people who've been locked up in a submarine under the polcar ice cap know, the Doha round of World Trade Organization talks foundered on the subject of farm subsidies and whether they could be eliminated or mitigated, so as to free up market access for third world farmers.

There are as many levels of complexity to this debate as there are uninformed opinions on the subject. There are first, definitional problems. What is a 'subsidy' anyway? Is it a cash payment to sit on the porch and watch the sun go down over the barn, or is it a price support system such as those on commodities in the U.S.? How do we establish a level of equalness that allows us to negotiate meaningfully with the Europeans (read the French)? And if that modus vivendi can ever be reached, what are we negotiating for and what are we giving up?

It's easy to say Free trade si! Subsidies no! but the notion that a decline in subsidies will automatically produce an equal and opposite benefit for the downtrodden third world farmers in their loincloths is a mistaken one.

One of my colleagues in India informs me that because of the generally small holdings there, the average farmer sells the grain he produces to a middleman, who pays as little as he can get away with, rather than whatever the CBOT says that number 2 hard wheat should bring today less transportation. Oftentimes, the middleman buying the grain is also the village moneylender, who holds the smallholders in thrall with ruinous interest rates that would make one of Joe Profaci's loan sharks blush.

This situation is not conducive to bringing benefits to the small farmer in the third world, and if that's the objective, agricultural law reform in the third world should be the order of the day, but it's not on the table.

Another point not considered in the debate is that we have world markets for grain and commodities. The price is the same in the pit in Chicago as it is on the dock in Marseilles as it is on the dock in South Africa as it is on the wharf in India. Because the agricultural sector is so powerful in the US, when we sneeze the world catches cold, like it or not. Anything that supports prices in the US tends to support world prices as well, and that means everyone benefits from the largess of the U.S. government farm programs-unless they're in thrall to the village moneylender who isn't inclined ot share the wealth.

Parallel to this is the apparent issue of whether we in the west ought to put this on the table without getting anything in exchange from the developing world, such as access to markets for our industrial products and the reduction of tarriffs in those countries.

I'm not entirely sure where this whole subject is taking us, but we will be watching it closely.

Disputed Title to Reservation Lands Survives Motion to Dismiss

2006-07-23T08:10:00.000-07:00

Gila River Indian Community v. Winklemann, 2006 U.S. Dist. LEXIS 33276 (D. Ariz. May 22, 2006).

In this case, the defendant Arizona commissioner of state lands granted one Clark a permit to operate an apiary on land which both parties claim. The state claimed that the 640 acre property was school trust property granted to it by Congress and the tribe contends that they have an unextinguished aboriginal land title to the same section of land.

The tribe sued to enjoin the encroachments of the commissioner and the apiarist. The defendant moved to dismiss the action on numerous grounds, including sovereign immunity, failure to join indispensible persons, and extinguishment of title.

The court denied Winklemann's motion to dismiss, finding that there was a factual dispute that prevented decision on the issue of extinguishment of title, and that the United States and the State of Arizona were not necessary parties to the action. The court also found that the suit could go forward under the exception to sovereign immunity found in Ex parte Young, 209 U.S. 123 (1908).

Keeping Horses Not an Agricultural Activity

2006-07-23T07:51:00.000-07:00

In re Tavalario, 2006 N.J. Super. LEXIS 183 (N. J. June 27, 2006)

Tavalario challenged a state Agricultural Development Committee decision that his keeping of horses on a 7-1/2 acre property in Gloucester County did not constitute an agricultural activity that would exempt him from certain land use and zoning restrictions under New Jersey's Right to Farm statute.

The township had changed the zoning scheme for the property from agricultural use to residential zoning requiring a variance to practice agriculture on it prior to Tavalario buying the property and locating horses on it.

The SADC decision, affirmed by the supreme court, found that Tavalario could not show income of $2,500 per annum from his activities, either present or in the form of contingent contracts, that would allow him to meet the threshhold requirements for exemption under the statute.

Lack of Polaroid Factors Sends Spirutein Down For the Count

2006-07-23T07:39:00.000-07:00

Natural Organics, Inc. v. Neutraceutical Corp., 2006 U.S. Dist. LEXIS 46057 (D. N.Y. July 7, 2006).

Natural Organics sued Neutraceutical, alleging that the defendant's Soytein drink mix improperly infringed on the trade dress of the plaintiff's Spiru-tein soy drink mix.

After a loss at the trial, Natural Organics' appeal resulted in a remand to apply the specific test set out in Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961), to wit: 1) strength of plaintiff's trade dress, 2) similarity of the trade dresses, 3) proximity of hte products in the marketplace, 4) likelihood that the plaintiff will bridge the gap between the products, i.e., enter a market related to that in which the defendant sells its product, 5) evidence of actual confusion, 6) defendant's bad faith, 7) quality of the defendant's product and 8) sophistication of the relevant consumer group.

Applying the factors, the court again dismissed the plaintiff's action with prejudice.

This case points out the difficulties that producers of food products face in a highly competitive market where the products are in competition for the same customer base.

Man Tanks Up On Ethanol: Employer Not Amused

2006-07-10T13:41:00.000-07:00

Well, it had to happen.

It was reported in yesterday's Register that a fellow who worked for Amaizing Energy, an ethanol producer in Denison, was fired from his job for personally road testing the product with his liver.

Cory Neddermeyer, a recovering alcoholic, showed up for work back in April at the Amaizing Energy plant and saw that there had been a spill of fuel grade ethanol at the plant and several hundred gallons of the stuff were in a holding pond. After some thought Neddermeyer proceeded to sample some of the fuel grade ethanol, a/k/a Everclear. It worked so well that Neddermeyer was found in an incapacitated state and was rushed to a local hospital, where his blood alcohol level was an astounding 0.72.

He was, of course fired, and appealed the denial of his unemployment benefits, arguing that the employer was discriminating against him because he is an alcoholic. Needless to say, his appeal was denied.

http://www.desmoinesregister.com/apps/pbcs.dll/article?AID=/20060709/NEWS10/607090341/-1/archive

From the "Things We Knew Already" Department.

2006-07-07T16:21:00.000-07:00

In the June 4 edition of Time, we found an article entitled "The Magic of the Family Meal". The author tells us that regular reliable family dinners are where, it is said, kids benefit from the communication and interaction and exploration of ideas they just do not get in the drive up lane at Mickey Dee's or slinging a frozen pizza in the microwave.

Further, it is shown that in this sort of environment, kids reap the benefits in adolescence as they're less likely to smoke, drink, use dope, get depressed and suicidal develop eating disorders (although we here at Law Down On The Farm have always considered eating at fast food outlets something of an eating disorder) and so on. Studies by respected research institutes demonstrate clearly what has been self evident to anyone with eyes and ears, that things have changed since the advent of the microwave and the drive up lane, and not for the better.

When the idea of wholesome cooking for the family became anathema to Mother and Father and such practices were disparaged by their contemporaries and the media as lame demeaning drudgery, something was lost that is very difficult to regain. So say the professors and the savants.

It's a lot easier to figure than that. Go to the supermarket and have a look at what's in people's carts, and then look at the people pushing them.

I'll bet my last Confederate dollar that the people who look like they're going to be doing some righteous cooking for the family are a lot more relaxed bunch than the scrawny folks with one container of yogurt and a broccoli stalk, to be consumed alone in an empty room. Well, they can have it-give me the groaning board and good friends and family all around, even if I'm getting a little broad in the bottom these days.

Common sense will tell you that far from being a hated chore, good home cooking was a matter of some pride to folks when I was a youngster (and one heckuva feather in the caps of those who did it), and it offered an opportunity for the exchange of ideas and, dare I say it, the kind of love and companionship that people are so starved for? We're so damned busy trying to be hardbody, rising executives that we forget what's been there all along-preparing, eating and sharing food is a pleasant thing-it's also a social and political statement about the kind of world you want and the kind of folks you want the kids to grow up to be.

http://www.time.com/time/magazine/article/0,9171,1200760,00.html

Alligator Growing Operation Not A Farm

2006-07-04T11:04:00.000-07:00

Gill v. Prehistoric Ponds, Inc., 2006 Ga. App. LEXIS 671 (Ga. Ct. App. June 8, 2006).

A worker at the defendant's alligator growing operation was bitten by one of the pugnacious critters and contracted osteomyelitis and salmonella. The worker's claim for workmen's compensation benefits was denied because the administrative law judge hearing the case concluded that he was a 'farm laborer' and that the defendant was engaged in farming and thus exempt from the Georgia workmen's compensation statute.

On appeal, the court of appeals held that alligator growing is not farming, because the ALJ had improperly considered them livestock, which is a defined term. Alligator growing operations are regulated by the Department of Natural Resources and alligators are considered game animals.

The court of appeals concluded that although the plaintiff was performing agricultural labor, his employer was not a farm because alligators are not considered livestock, and thus the employer was not exempt from the workmens' compensation statute.

Gross Negligence Trumps Equine Activity Statute

2006-07-03T17:22:00.000-07:00

A couple of recent cases from Michigan involving equine activity statutes point to the creative use of exceptions to the general rule of non liability in states that have an equine activity statute.

In Hawkins v. Ranch Rudolph, Inc., 2005 Mich. App. LEXIS 2366 (Mich. Ct. App. September 27, 2005), two plaintiffs went on a horse ride at a dude ranch and executed the standard release of liability under the state's Equine Activity Liability Act. The plaintiffs selected a ride that was to be rather gentle given that one of the plaintiffs had never ridden a horse before. As the ride progressed, the person conducting the ride urged the riders to go a little faster which they assented to.

At that point the horses bolted and one of the plaintiffs' saddle slipped and he fell and was injured. The trial court granted summary judgment for the dude ranch, and the plaintiffs appealed. The court of appeals found that the issue of whether the conduct of the dude ranch constituted gross negligence and thus escaped the reach of the EALA and the release the plaintiffs admittedly signed was one on which reasonable minds could differ and remanded the case for further proceedings.

In Terrill v. Stacy, 2006 Mich. App. LEXIS 522 (Mich. Ct. App. February 28, 2006), a rider was riding a horse at a dude ranch and the horse bolted, throwing the rider and injuring her. The bit broke, and she alleged that failure to properly inspect the bit proximately caused her injuries. The defendants held up the signed EALA release and moved for summary judgment, which the trial court granted, not allowing the plaintiff to amend her claim to include gross negligence.

The court of appeals affirmed the trial court summary judgment, finding that the release was in the nature of a contract that was ambiguous only if the language was reasonable susceptible to more than one interpretation. Amending the complaint to allege gross negligence would have been futile in the court's view.

The takehome from these cases clearly demonstrates that the courts in Michigan are ready to look at the issue of gross negligence as an exception to the rule of nonliability in the state's Equine Activity Liability Act, if it is properly pleaded.

Taking a Bite Out of the Foreign-Natural Rule in New York

2006-07-03T13:17:00.000-07:00

Rudloff v. Wendy's Restaurants of Rochester, Inc., 2006 N.Y. Misc. LEXIS 1502 (N.Y. Civ. Ct. June 8, 2006)

A diner at a Wendy's restaurant broke a tooth on a double cheeseburger and filed suit for personal injuries sustained in the occurrence. Because the plaintiff alleged that he had swallowed the offending portion it could not be determined whether the object was 'natural' to beef like bone or gristle, or whether it was 'foreign' such as a piece of metal, or whether it came from the bun, the cheese, or from some other source. The diner sued under theories of strict liability, negligence and implied warranty.

Wendy's moved for summary judgment, alleging that there was no proof of negligence in its preparation of the double cheeseburger and that the plaintiff, not being able to prove whether the object was not natural to a cheeseburger, could not argue a breach of implied warranty.

The court found that although Wendy's could show that they had not negligently prepared the cheeseburger patty, they could not show that they had exercised the same degree of care with respect to assuring that the preformed patties they bought were free of such defects.

Turning to the strict liability assertions, the court found that the plaintiff had met his burden that the patties did not perform as intended.

In discussing the implied warranty claim, the court found reason to visit the 'foreign-natural' rule, holding that the 'foreign-natural' rule was not the proper test for what happened and also that it was not a complete bar to the action.

The court also noted that even had the 'foreign-natural' rule survived the adoption of the Uniform Commercial Code, it was of no avail to Wendy's because the correct measure is what the consumer reasonably expects. The nature of the object and how the food was prepared should be factors but not the sole determinant of liability.

Owner of Bobcat Violates Restrictive Covenants in Housing Development

2006-07-03T13:00:00.000-07:00

Lineberry v. Riley Farms Property Owners Ass'n., 2006 Ark. App. LEXIS 393 (Ark. Ct. App. May 24, 2006)
A woman purchased property in a subdivision which had restrictive covenants that prohibited property owners from keeping exotic animals, and also required those who wished to fence their property to have the fence approved by the Association's Architectural Control Committee.

The plaintiff in error applied for permission to build the fence, and about that time it became known she had a bobcat. She was asked to remove the bobcat and set her fence back from the property line, but did neither, and a complaint was filed in the county court. A jury returned a verdict for the Association and the court ordered the landowner to pay substantial attorney's fees.

The landowner argued that the determination of 'wildness' should be made on a case by case basis, but the appellate court found that the trial court's use of the Restatement (Second) of Torts sec. 506 definition, although arguable, was supported in law and not an abuse of discretion.

Horse Owner Convicted in Moving Animals Under Quarantine

2006-07-03T12:37:00.000-07:00

People v. Talaske, 2006 Mich. App. LEXIS 1129 (Mich. Ct. App. April 11, 2006)

In this unpublished opinion from Michigan, Talaske, an owner of 14 horses, was convicted of four felony counts of moving animals in violation of a state department of agriculture quarantine. His horses were boarded at a farm where the manager was given written notice of quarantine because the horses had not received tests for equine infections anemia (EIA). Talaske was acting pursuant to an eviction by the owner of the stable at which his horses were boarded, and he removed them the day before the court sitting in the eviction order required him to.

Talaske argued that he was never personally served with a quarantine notice, and that such is a necessary element of the violations he was convicted of. The court disagreed, holding that the statute was unambiguous, and the defendant could not avoid the reach of the statute by reading into it a notice requirement that was not there.

This is a troubling outcome to such a case where an animal owner acting in response to the order of one court runs afoul of another, even though he may have had oral notice of the necessary testing-one suspects that Talaske was between the proverbial rock and a hard place.

The takehome has to be that making absolutely sure you're on solid ground with regulatory authorities is a necessary precondition to moving animals when one is not regularly in that line of business or knowledgeable in the field. A little research can prevent a carload of heartache and bad consequences.

EIA is a serious illness that has substantial adverse health effect potential for equidae. A good resource may be found at the following Utah BLM website.

http://www.ut.blm.gov/HorseEIA/horseia.html

Oh No, They Can't Take That Away From Me: Eminent Domain Takes A Hit.

2006-06-23T09:36:00.000-07:00

Thursday's Miami Herald reports that a Broward County judge has ruled that the City of Hollywood cannot take a small downtown business using eminent domain and convey it to a developer seeking to put together a $100 million project of condominiums and shops.

The City sought to take the property and considered expanding the tax base a public use.

According to the Herald, under recently passed legislation in the state of Florida, cities are severely restricted in using eminent domain in such cases. The legislation in question was signed into law by Governor Bush on 13 May of this year, and it was created largely in response to the Supreme Court's decision in Kelo v. City of New London last year.

Kelo makes for interesting reading, particularly in the "Who's for it and who's against it" heuristic analysis that many people use. In this case, the friends of the smallholder were the conservatives on the Court, and it's my opinion the dissenters had the better view, just as Mr. Justice Harlan's dissent in Plessy v. Ferguson was the better view of the issue, long term. I have not yet met a person who is familiar with the case who thinks that Kelo was a good decision.

Ultimately I believe that Kel0 was wrongly decided, the issue will be revisited, and the Supreme Court will reverse itself.

http://emdo.blogspot.com/

http://www.miami.com/mld/miamiherald/news/breaking_news/14878166.htm

Trail Rider Injured in Saddle Slippage Defeats Motion to Dismiss

2006-06-22T08:59:00.000-07:00

Anker v. Wineglass Mountain Trail Rides, 2005 Mont. Dist. LEXIS 1465 (D. Ct, Mont. Nov. 9, 2005).

In this case a rider, injured when a saddle slipped and she fell off sued the operator in negligence. The trail ride operator in return filed a motion to dismiss for failure to state a claim.

The defendants argued that under the Montana equine activity statute sec. 27-1-725-6-7, Mont. Code. Ann. and a written waiver signed by the plaintiff they were immune from suit.

The court overruled the defendant's motion, observing that the plaintiff had alleged enough to state a claim in negligence, and that the Montana equine activity statute was designed to assist courts and juries in attempting to determine under what circumstances an equine operator might be liable, rather than a blanket immunity as the defendant argued.

Rider Injured in Fall From Horse Stung By Fire Ants Cannot Recover

2006-06-22T08:46:00.000-07:00

Gamble v. Peyton, 182 S.W.3d 1 (Tex. Ct. App. 2005).

In this case a woman who bought a horse from Peyton mounted the horse while on Peyton's ranch and was thrown because the horse had been stung by fire ants, which Peyton had mentioned had been a problem on his ranch.

The landowner invoked the Texas equine activity statute to bar liability. The statute, contained in Tex. Civ. Prac. & Rem. Code. sect 87.003 (2005) provides an exemption from liability when injuries result from the inherent risks of participating in an equine activity.

The Gambles disagreed, arguing that a factual issue of whether a dangerous latent condition of land existed that precluded summary judgment, pointing to 87.004(3). The court noted that Gamble misread the statute which says "a dangerous latent condition of land", not "or land".

The court concluded by noting that a horse's natural reactions to other creatures is an inherent risk of equine activity, and affirmed the trial court's grant of summary judgment for the landowners.

Japan Drops Beef Import Ban

2006-06-21T07:08:00.000-07:00

It was reported in the New York Times this day that the Japanese government has dropped its ban on beef imports from the United States under certain conditions, the most important of which is direct inspection by Japanese food safety inspectors.

Japan banned imports of U.S. beef in the aftermath of the discovery of BSE in cattle in this country. The ban was briefly lifted in 2005, but a shipment of beef from a plant in New York was found to contain backbone parts which could have contained nerve tissue. Brain and spinal column tissue parts are more likely to carry the disease causing agent than other parts.

The most important condition is that Japanes inspectors are going to directly inspect packing plants in the U.S. and can accompany U.S.D.A. inspectors on spot inspections.

This is good news for cattlemen, but it will probably take some time for exports to reach former levels.

http://www.nytimes.com/2006/06/21/business/worldbusiness/21cnd-beef.html?_r=1&adxnnl=1&adxnnlx=1150898585-XpggWGM3HW65dAUjYQlwrA&oref=slogin

The Natural World II: You're Gonna Burn.

2006-06-19T10:35:00.000-07:00

It is reported today that a fast moving wildfire has laid waste to several thousand acres of the most beautiful land on G-d's planet, and that is in Oak Creek Canyon in northern Arizona.

Although I personally do not make much of the notion that Sedona is a hot spot of psychic energy forces like Berkeley or Fayetteville, Arkansas, it is still a remarkably pretty spot and a fine place to get out of the car, walk up a hill, sit under a pine tree and maybe drink some coffee out of the thermos and marvel on it all. The sunlight in the West is stronger, the air is clearer, the horizons go on forever and one cannot help but come away refreshed after spending a pleasant day in northern Arizona.

Of course, fire is also part of the renewal that nature mandates for the health of spaceship earth. It's reasonable to believe that this disfigurement will pass and that the Canyon will be more beautiful than ever in a few years, if that's possible.

http://www.kpho.com/Global/story.asp?S=5046751&nav=23Ku

Class One Appropriator Not Entitled to Extra Diversion

2006-06-12T13:20:00.000-07:00

Fort v. Washington Dep't. of Ecology, 2006 Wash. App. LEXIS 1069 (Wash. Ct. App. May 23, 2006)

Fort was the senior appropriator on Beaver Creek in Okanogan County as successor to a class 1 right under a 1921 decree which established 18 classes of water rights. Fort also held class 8 and class 9 water rights, all at the same point of diversion.

In 2001, water in the creek became insufficient to meet all appropriator's needs and the state prohibited any diversion junior to class 5. Fort continued to divert water for his class 8 and 9 rights, and was assessed a penalty for his trouble.

Fort argued that since his point of diversion was downstream of the junior appropriators his actions were not contrary to the 1921 decree.

The court held that the adjudication decree was not affected by water or climatic changes might have, despite the change those influences might have on the quantity of available water.

Race Horse Training Not an Agricultural Purpose

2006-06-12T13:10:00.000-07:00

Seward County v. Navarro, 2006 Kan. App. LEXIS 482 (Kan. Ct. App. May 19, 2006)

The county moved to enjoin the defendants from further use of their property as a horse training facility, and the defendants responded that training race horses is an agricultural purpose. The defendants also argued that their preexisting use as a racehorse training facility trumped the county's regulation.

The Kansas Court of Appeals held that training horses for racing is not an agricultural purpose that would exempt it from the county's zoning regulations. However, the court remanded the case for consideration as to whether the Navarro's use predated the county's ordinance.

Landlord Potential Liability for Tenant's Nuisance

2006-06-07T07:59:00.000-07:00

Tetzlaff v. Camp, 04-1499 (Iowa June 2, 2006).

Pangborn owned land that Camp farmed under an informal agreement. Camp, proprietor of a hog operation, spread manure on his land and on the field he farmed with Pangborn's consent. The field was close to the Tetzlaff residence

Tetzlaff complained to Pangborn about Camp's practices but Pangborn then purchased more land adjacent to the Tetzlaff residence and had Camp apply manure to that field as well. Tetzlaff sued Pangborn and Camp under a nuisance theory, but the trial court granted summary judgment to Pangborn, concluding he did not substantially control the activities of his tenant.

Limiting its decision to whether Pangborn should have been granted summary judgment, the court made no finding on the nuisance action. The court held that although the general rule is that a landlord is not liable for the tenant's nuisance, under the Restatement (Second) of Torts sec. 837, a lessor can be held liable for a tenant's nuisance if the lessor would be liable had he conducted the activity himself and he consents to the activity or knows or should have known the nuisance would be carried on, and he knows or should know the activity is causing a nuisance.

The court concluded that under the peculiar circumstances of this particular case and this particular landlord, a sufficient factual issue was generated to prevent summary judgment in favor of the landlord.

The takehome from the case is clear. Landlords should not expect that they can be insulated from the consequences of the nuisances of their tenants, if they have any involvement in the nuisance causing activities at all.

Action on an Equipment Lease Time Barred after Four Years

2006-06-06T17:37:00.000-07:00

Frontier Leasing Corp. v. James River Country Store, 05-0953 (Iowa Ct. App. May 24, 1006)

Frontier's predecessor in interest, Liberty, leased an ATM machine to James River in 1999. Part of the lease stated certain conditions which constituted a default on the lease, among which was if one of the guarantors died. Roberts, a guarantor, died early in 2000 and James River stopped making its lease payments in April 2000.

Credit Card Center, the supplier under the lease, made four further payments on behalf of James River, two in June 2000, one in August 2000 and one last payment in December 2000. Liberty considered the lease to be in default as of January 2001.

Frontier sued James River on the lease on September 30, 2004. and the district court entered an order of dismissal on the defendant's motion, finding the suit was time barred under the 4 year limit of Iowa Code Ch. 554.13506.

The district court found that the first default triggered the time limit of the statute of limitations, although there were other defaults that followed.

The Court of Appeals affirmed the trial court.

Two points of information should be significant to farmers and agriculturalists who lease equipment.

First, it was of no significance that the original lessor did not consider the lease to be in default until January 2001.

Second, the statute of limitations begins to run when the first default according to the terms of the lease occurs.

Louisiana Catfish Statute and Use of the Term Cajun Interpreted

2006-05-25T09:19:00.000-07:00

Piazza's Seafood World v. Odom, 2006 U.S. App. LEXIS 11188 (5th Cir. 2006)

In this case, the court considered the constitutionality of a statute that regulated the labeling of catfish and one that regulates the use of the word "Cajun" on food products. Piazza imports seafood and sells it using the word Cajun in its brands.

In the district court, the Louisiana Commisioner of Agriculture was enjoined from enforcing the statutes. The court found that the Catfish Statute, La. Rev. Stat. sec. 3:4617(c) was preempted by 21 U.S.C. secs 321d and 343(t). The court also found that the statute regulating the use of the term Cajun violated the first Amendment.

On appeal, the Court of Appeals affirmed, finding that the Catfish Statute violated the dormant commerce clause in that it improperly discriminated against foreign commerce in favor of local interests because it was protectionist. The Court of Appeals also affirmed the district court's finding that the Cajun Statute violated the 1st amendment as to Piazza's use of the term under the test announced in Central Hudson Gas v. Public Service Commission, 447 U.S. 557 (1980).

Native American Farmers Cannot Cultivate Hemp Without DEA Registration

2006-05-25T09:07:00.000-07:00

United States v. White Plume, 2006 U.S. App. LEXIS 12090 (8th Cir. 2006)

The Oglala Sioux Tribal Council passed an ordinance which criminalized production of marijuana. The ordinance was amended to exclude from the definition of marijuana a crop containing less than 1 per cent THC. The tribe was aware that the US DEA took the position that manufacture of industrial hemp required a DEA certificate of exemption.

Subsequently, White Plume raised a crop of industrial hemp on federal trust land which the government destroyed. In 2002, White Plume again raised a crop of industrial hemp and again, the government destroyed it and the district court enjoined the defendant from further production without a certificate of exemption.

The Court of Appeals held that the Controlled Substances Act required that the defendant submit to registration, and also found that the Treaty of Fort Laramie of 1868, which addressed native american farmers did not preserve any right to grow industrial hemp.

Court Affirms Denial of Benefits for Converting a Wetland

2006-05-25T08:59:00.000-07:00

Holly Hill Farm Corp. v. United States, 2006 App. LEXIS 11375 (4th Cir. 2006)

In this recently decided case from the 8th Circuit court of appeals, farm owners were denied program benefits when they converted a one acre wetland into a pasture on their 650 acre property. Under the "Swampbuster" provisions of the Food Security Act of 1986, farmers are prohibited from producing an ag commodity crop on lands that have been converted from wetlands. Under subsequent legislation the prohibition was extended to include land on which commodity production is possible. Conversion of a wetland after Novembner 28, 1990 serves to make the converter ineligible for USDA program benefits.

Kimchi For the 21st Century? Read On.....

2006-05-23T07:49:00.000-07:00

It was reported by the Los Angeles Times yesterday that many new developments are taking place in the realm of Korea's traditional hot and spicy pickled cabbage.

What is most interesting is that there is an entire scientific research bureau, the Kimchi Research Institute, devoted to researching the healing and therapeutic effects of the national delicacy from the Hermit Kingdom. All of which raises the question: what do they know that we don't?

Among other new and interesting developments: Kimchi has been shown to lower stress among mice fed on the fiery pickle, special anti aging, anti obesity and anti cancer kimchi is being developed by the Kimchi Research Institute, and there are literally thousands of books and doctoral dissertations on the subject. The counter to that is that people who regularly consume large quantities of kimchi are more likely to develop gastric cancer at rates ten times higher than here in the states.

The scientific establishment in Korea has also developed a special blend of kimchi that will be provided for the delectation of future astronauts who will travel to space aboard a Russian Soyuz in 2008 to the International Space Station. One can only hope that the other residents of the space station are provided with the appropriate level of protection from the resulting....ahem....fumes.

Koreans, it seems, take their national passion very seriously indeed, as befits a serious and hard working group of people who have done a lot with a very little.

http://www.latimes.com/news/nationworld/world/la-fg-kimchi21may21,0,2559692.story?coll=la-home-headlines

Owner of Trespassing Cattle Liable for Damage

2006-05-15T10:54:00.000-07:00

Harsh v. Cure Feeders, L.L.C., 116 P.3d 1286 (Colo. Ct. App. 2005)

Harsh owned nine fields comprising 165 acres with center point irrigation, and he raised corn on them. The fields were protected by a barbed wire and an electrified fence. Cure Feeders put cattle to pasture on the adjoining lands. The cattle broke through the fence, spreading out onto irrigated and unirrigated areas and also causing the loss of a large amount of prepared fertilizer.

Harsh sued Cure to recover the yield difference between the undamaged and damaged areas of his cornfield based on a projection of anticipated yield. The trial court concluded that Harsh had not adequately documented his deductible costs he was not entitled to recovery, and the court also denied the claim for damages for the spilled fertilizer.

The Colorado Court of Appeals reversed, saying that the correct measure of damages in a case where the crop is not completely destroyed was correctly stated in Blossom v. San Luis Valley Crop Care, Inc., 596 P.2d 1189 (Colo. 1979). That case stands for the proposition that when a crop is partially destroyed, the measure of damages can be adequately demonstrated by comparisons, which the plaintiff had demonstrated at trial.

On the issue of liability for the spilled fertilizer, the Court of Appeals also reversed, holding that the fence law was applicable to the controversy, which included liability for damage that the trespassing cattle caused while in Harsh's cornfield.

Ag Decision Maker's Page

2006-05-15T08:03:00.000-07:00

Prof. Roger McEowen, the agricultural law guru deluxe, is putting some timely agri law legal information up on the Iowa State extension Ag Decision Maker's page. I've linked it to this blog. It's well worth a visit. When you get to the Ag decision maker's page click on legal and taxes over on the left hand side and you're there.

Roger's got a big job ahead of him to measure up to the standard that Neil Harl set. Prof. Harl, of course recently retired after many years in harness, and he is one of those people whose discourse is so clear and incisive that it leaves you shaking your head and saying "Now why in the hell didn't I think of that?"

Right to Farm Issue Not Reached In Code Enforcement Suit

2006-05-15T07:35:00.000-07:00

Vavrus v. City of Palm Beach Gardens, 2006 Fla. App. Lexis 4959 (Fla. Ct. App. 2006)

Vavrus' land was annexed to the city at his request, but he refused to allow access to code enforcement officers, instead operating a clearcut softwood timber logging operation on his land. In his counterclaim, among other things, Vavrus argued that the Florida Right to Farm statute prohibited the city from regulating his activities. Passing on the right to farm question the court held that Vavrus had not preserved the alleged improprieties of the trial court judge for review.

Constitutionality of Michigan Right to Farm Law Not at Issue in Nuisance Case

2006-05-15T07:27:00.000-07:00

Vasko v. Michigan Department of Agriculture, 2006 Mich. App. LEXIS 293 (Mich. Ct. App. 2006)(unpublished opinion)

Pro se plaintiffs sued a hog farm operator on a nuisance theory. Among other things, the plaintiffs requested a determination of the constitutionality of the Michigan right to farm law in view of Bormann v. Kossuth County Board of Supervisors, 584 N.W.2d 309 (Iowa 1998). The Bormann case held that Iowa's right to farm nuisance suit exemption constituted an uncompensated taking of an easement.

The Vasko court found that the plaintiffs failed to allege any facts that would controvert the governmental immunity of the Michigan Department of Agriculture, and also found that the plaintiffs had failed to allege any reasons why Bormann was relevant or applicable to the case at bar.

Lease From Life Tenant Expires on Life Tenant's Demise

2006-05-15T07:21:00.000-07:00

Olmsted v. Nodland, 828 N.E.2d 338 (Ill. App. 2005)

Nodland leased farm ground from a life tenant on a cash basis. The life tenant died in 2003, and the sole remainderman served a notice of termination of the lease on the lessee. The lessee argued he was entitled to farm the ground for the 2004 crop year under the lease. It was held by the court that a life tenant's ownership interest, and any lease thereunder, expires with the death of the life tenant, unless the lease specifically provided otherwise.

Google News Malaprops

2006-05-15T06:01:00.000-07:00

Sometimes the system by which Google News ranks news stories produces unexpectedly funny results.

I mean, don't get me wrong.

Google is the single biggest thing that's come along since the wheel. In addition the folks at Google provide this forum free of charge and remarkably free of niggling and small minded oversight. This they do out of a sense of doing good works, as I understand their corporate ethos. It also grows the internet, which is one of those rising tides that float all sorts of things including their revenues.

Most recently they ran a story this moring about the conjoined twins that are the biggest thing to hit Fargo, North Dakota since the blizzard of 1936. Here's how it looked.

Conjoined twins doing well after separation surgeryFood Consumer - 19 hours agoBy Sue Mueller. The twins, born to a Fargo North Dakota couple, are doing well Saturday morning after an uneventful night, Mayo Clinic said. After surgery, they remain in intensive care under sedation, as planned ... Surgeons separate conjoined twins Monsters and Critics.comParents pray for recovery and of twins The Mercury (subscription)Contra Costa Times - DailyIndia.com - KVOA.com - Pioneer Press - all 712 related »

Smithfield Loses Appeal of Union Busting Thuggery

2006-05-12T12:13:00.000-07:00

United Food & Comm'l Workers v. Nat'l Labor Relations Board, 2006 App. LEXIS 11190 (D.C. Cir. May 5, 2006)

It was widely reported that the D.C. Circuit handed down a decision Monday which should get the attention, however briefly, of thugs and union busters in the meat packing industry.

In 1992 Smithfield established a processing facility in North Carolina that soon became the focus of organizing efforts by the UFCW. The UFCW lost elections in 1994 and 1997. In actions that would have made Carnegie and Frick proud, Smithfield threatened to fire employees who voted for organizing, freeze wages and ultimately to close the facility. Smithfield also threatened to discipline employees, it grilled suspected pro union employees, it confiscated recruiting materials and spied on the workers with videocameras.

Complaints were filed with the NLRB and a voluminous decision was released, the opinions consisting of nearly 400 pages of record, which was the subject of the instant appeal

The Court of appeals found that Smithfield had threatened workers, ordered one to stamp hogs with a "vote No" stamp, unlawfully discharged several employees for union activities, and violated its own employee disciplinary process in so doing.

In an interesting sidelight, three former Smithfield attorneys intervened, in an attempt to upset the NLRB's decision to investigate them for potentially suborning perjury with respect to the testimony of a witness and the procurement of a potentially spurious affidavit.

Think about all that the next time you're in the grocery looking for some chops to toss on the barbecue-there's a lot more going on than happy farmers and full cases at the meat counter.

Closer than you think?

2006-05-12T04:09:00.000-07:00

One of the news sources that graces my cyber table is the Miami Herald, and it is a snappy and interesting work in progress that seems to contain more than its share of strange stuff.

It was reported by that august journal that an alligator attacked, dragged into the water, and partially consumed a 28 year old woman who was sitting on a canal bank in West Broward the other day. It was determined that the gator was 8-10 feet long.

I know, I know. This is supposed to be an agricultural law blog. But this is interesting.

What it points to is that the natural world operates by different rules than our world does, and that the natural world really hasn't gone away at all. It's been there all along, waiting and watching.

http://www.miami.com/mld/miamiherald/news/local/states/florida/counties/broward_county/14560341.htm

Challenge to Open Range Doctrine Fails on Constitutional Grounds

2006-05-09T12:36:00.000-07:00

Herzberg v. County of Plumas, 34 Cal. Rptr. 3d 588 (Cal. Ct. App. 2005)

The "open range doctrine" is a rule of law that provides that no liability shall attach to the owner of cattle for the trespasses of the cattle in open range, unfenced districts, unless the landowner has erected a suitable fence. This is known as the fence-out provision, and it is a notion that has existed in American law since the middle of the 19th century. Cases in some states have extended the open range doctrine to preclude liabilityfor cattle owners whose animals wander into roadways and cause collisions with motor vehicles. That is something quite different.

In this case, the plaintiffs challenged a county open range statute that, they say, compelled them to accept the trespasses of cattle belonging to their neighbors without recourse. This, they alleged, was a taking of private property for public use without compensation. The landowners further alleged that their property was trampled, damaged and, as is customary among cattle, that it was pooped upon.

The court found that the essential elements for a taking did not exist, as the only remedy the plaintiffs were precluded from in addressing the issue was distraint of the cattle.