The War on Ag Continues
Ag in America is not comprised of slack-jawed yokels wearing overalls and carrying pitchforks. It is driven by satellite guided […]
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Unpleasant conversation with the IRS or brush up on Farm Labor Law
Now is the time to brush up on farm labor laws to avoid long unpleasant conversations with IRS agents, lawyers, and more your own lawyer.
Records
You can run into problems by not keeping/maintaining records of the names and permanent addresses of temporary agricultural employees, dates of birth of minors under age 19, or hours worked by employees.
Working Hours:
Under State Law: 14-15 year olds can work upto 4 hours per day when school is in session, for 28 hours a week, but school cannot be missed. Working in agriculture this is cut in ½.
16 year olds just need to avoid hazardous occupations list. (including for farm operations: Operating power driven wood working machines, power driven hoists, power driven metal forming machines, meat slicers, or balers, band saws or chain saws, demolition roofing and excavation).
Before my young readers get too excited, a child of any age may work in any occupation or business at any time doing any type of work in a business operated by child’s parents if parent is on premises.
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Vetting the Veterinarian Case
It is easier to use a vet you trust or find somebody who can give you a referral to a good vet than it is to sue a poorly performing vet. If the animal is valuable enough to sue over, insure it. When considering a lawsuit against a veterinarian, here are some things you should consider:
Veterinary malpractice cases are difficult for plaintiffs for two main reasons:
1) It is hard to find a veterinarian who will testify against another veterinarian; and
2) Animals are personal property. You can’t usually cannot recover pain & suffering or damages based on the sentimental value. That takes the wind out of most plaintiff’s cases right away.
The burden of proof in a veterinary malpractice action is always on the plaintiff.
The plaintiff must prove:
1) A veterinarian’s acts or omissions failed to meet the standard of care;
2) Acts or omissions were negligently performed;
3) Negligently performed acts or injuries caused the animal’s injury or death; and
4) As a result, the plaintiff was damaged.
The professional duty of a veterinarian usually begins with obtaining a history of the animal (which assistants can be used to develop) and a physical examination. The veterinarian is required to use professional leaning, skill, and care, beginning with the initial contact, the diagnosis of the problem, the decision and execution of treatment and follow-up care.
In obtaining permission for treatment, there should be disclosure of the risk of the treatment or drugs. However, in one case where a horse died within fifteen minutes of being injected with a drug, the court held that there was no duty to disclose or warn when the odds of a lethal out come were 1 in 25,000. I think people bet on horses to win races with worse odds.
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Way out West or Way out of Power?
In the early 1990’s, a long time Nevada cattle rancher refused to pay grazing fee permits payable to the Federal Government. He claimed he had rights to the ground predating the federal government. Two decades of lawsuits have ensued and continue. Legally, I believe the rancher never had have a good case.
Personally, I like the approach offered by Texas Lawyer Zach Brady
“I would like to see a serious effort to privatize most federal land. Not Yosemite or Yellowstone or Glacier, not Gettysburg, not Mt Rushmore. Garden variety range land could be sold. Get it appraised. Give current tenants first shot, maybe even at a discount if they have been grazing it for 10 years and are paid up on fees. Only American citizens who file taxes each of the last ten years can submit bids.” Why does the federal government have to own scrub land anyway?
This battle was spurred by a 1993 decision of the Federal government to impose restrictions on grazing specified land which was inhabited by a federally protected desert tortoise on the endangered species list. Ironically, a 23 year long refuge for tortoises is now being cut for lack of funding and the tortoises in that protected facility are slated to be killed.
The action has heated up again because the feds have taken steps to remove the rancher’s 900 head of cattle. Protesters are being restricted to “freedom of speech zones”, out of the way of the government forces. Freedom of speech zones sounds like something out of Orwell’s 1984, not something the founding fathers envisioned. However, our desire to protect abortion clinic users from upfront confrontation with protesters, has spawned this concept of limiting free speech to “zones”, which are often times ineffective at having an audience with access to hear them.
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We are here from the government to help you.
We are here from the government to help you, and arbitrarily penalize your ability to take part in government programs….
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Taking your land away—A few words on Eminent Domain
Sometimes, the greater good trumps individual’s rights. Case in point, when in my house, two kids want to see the movie downtown and one doesn’t, the protesting party is drug along to the theater with promises of popcorn to smooth over hard feelings for having to participate in an activity they don’t want to, because the rest of the clan does in fact want to see whatever is on the big screen. Eminent domain is kind of the same thing, if the government wants to use your land for the public good (i.e go to the movies) and you can’t agree to let them take it or agree on how much the land is worth (i.e not go to the movies), then a compensation system in set up to determine what size of popcorn you get.. er I mean…how much money you will receive for your property.
First, if you voluntary agree to let some government authority take control of your property or some private person do the same, you are avoiding eminent domain, not participating in it. In this piece, read government to include whatever private company (like a utility) is trying to use the eminent domain power.
Interestingly enough, if you voluntarily give up the easement, you should ensure that in the event of non use or abandonment, you get the property back. That is the way it works if the government takes it from you, but if you voluntarily give it up, you may not have this protection unless you work it into your agreement. If the agency is offering you 130% of whatever value is derived from the appraisal they order in addition to paying a portion of your fees, it is doing so to meet a “good faith” requirement that is required to be met before it can forcibly take your land.
Iowa Code Chapter 478 outlines how we play and share well with society in eminent domain situations. First, you need to remember that private property can be taken for the public use if it has a demonstrated public purpose and you are paid “just compensation”.
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Taking your neighbors Ground…Legally
Every year, in the spring, another farm publication runs a story about how to take land from your neighbor via adverse possession based on the idea that a fence moved a while back. It always generates interest and discussion, but when the facts and the law are pealed back far enough, rarely does the back 40 become the back 42. So, let us peal back Iowa Adverse Possession cases and take a look.
Iowa Adverse Possession
In Iowa, adverse possession determines acquisition of title (not use) to property by possession. The doctrine of adverse possession is based on the 10-year statute of limitations for recovery of real property in Iowa Code § 614.1(5). A party claiming title by adverse possession must establish hostile, actual, open, exclusive, and continuous possession, under claim of right or color of title for at least ten years. Proof of these elements must be “clear and positive.” Because the law presumes possession is under regular title, the doctrine of adverse possession is strictly construed. That means it is not going to be something the court wants to find.
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Protecting the Old in Iowa:
Planning aging while you are competent and able to find suitable help is paramount to your success in later years.
An Iowa criminal case that finished up its appeals process recently, shows us how elderly individuals can be easily abused, both physically and financially. In this case, Mr. Bean, an non relative care giver was convicted of involuntary manslaughter, two counts of second-degree theft, neglect of a dependent person, and two counts of dependent adult abuse.
Here are the facts: Bean rented farm property from a brother and sister without close family. He got himself appointed as power of attorney holder and named beneficiary under their wills and became a contract purchaser of the pair’s property at below market value. When Bean did get a bank loan to pay off the contract purchase, he used his power of attorney to give the sale proceeds right back to him and his wife. Bean paid his personal bills with the pairs funds. After the brother’s death, Bean relocated the sister to a remote farm house and lived with her. The sister, from the time of the move until her death received no medical attention, even though she had been previously prescribed medication for a variety of issues. In the year she lived with her power of attorney holder before her death, her weight went from 134 pounds to 74 and her right arm had been broken, but had never been set. She had broken ribs and bruising.
How can this happen in Iowa? Easy, when a person executes certain duties under a financial power of attorney for another individual, the courts have a very limited ability to review those actions. Bean isolated this couple and took advantage of them with no checks on balances on his authority and power. We as a society have no positive duty to act without a relationship to another person. That means that it is not crime to watch someone get wounded or worse if you don’t owe that person a duty (like a power of attorney, guardian, care giver, etc, etc). We in Iowa have a mind your own business attitude. Coupled with the privacy laws and policies, often times people can see a piece but not enough to see the trend.
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Succession Planning
First, before we can talk about succession planning, we need to establish that the current generation wants someone to succeed them on the farm. From the Iowa State Surveys, 75% of farmers haven’t identified a successor no data on 25% who had identified them, if they had told the successor. Nearly 50% of farmers indicate that semi-retirement (withdrawal of some labor and management) is a close as they plan on getting to retirement. Another 30% plan to never stop providing labor and management to the farm.
If the farm operator never plans to quit really working, it makes it hard to plan to hand it off in life or death. Again, from Iowa State surveys, it appears that over 40% of farm operators are not talking to anyone regarding an exit plan of any type.
If you fall into this category of never planning to retire and not making any plans regarding transition, you are doing your family a disservice. It is leaving the next generation dazed and confused regarding the future when you do die.
Having the Conversation about succession planning.
Consider whether you are having a family conversation or a business conversation. Discussion about farm succession choices before the turkey is served or the grandson hits the football field are going to be muddled, confused and not yield the result that anybody intended. Consider having the business discussions some other place than the kitchen table. It will help define that in this discussion you are not relating to one another as family but as business operators.
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Not in my back yard
Everybody likes progress, cheap commodities like food, water and energy and nobody likes change. These are truths that can be bet upon time eternal regardless of what region of the country you are in. This is called the NIBY principle. Not In My Back yard.
Yet, in order to achieve cheap commodities, quick access to what we want, infrastructure has to be in place. This year, BNSF railroad hauled nearly 1 million car loads of ag commodities across the country, with rail traffic into Minnesota , Montana and the Dakotas increasing by 31% in the last 5 years and outgoing traffic increasing b y 69%. The oil production boom has something to do with those numbers certainly. All that traffic means more demand for existing rail space and the thought of more rail lines.
I doubt anyone is lining up to allow railroads to cut their fields up into smaller parcels. The same holds true for the Rock Island Clean Line energy lines. This project will deliver 3500 megawatts of energy from Northwest Iowa to Illinois and other eastern states over 500 miles. While many landowners will eventually give easements, others will not be swayed. We use eminent domain as a process to allocate between the rights of an individual and the needs of society for improvement and progress. This process is a lengthy one. In February , the proponents of the energy line asked the Iowa Utilities board to approve their concept and plan and then allow them to go back in to use eminent domain for the parcels that would not sell. This was not allowed by the board. If it had been, the leverage the energy line would have been able to bring to bear would be large. It is much easier to take away one parcel from the unwilling when all others have already given in and been paid. It is a far more difficult row to hoe when many parcels are not yet secured. Currently 1248 objections have been filed to the line and less than 15% of the proposed route has been secured via voluntary easements.