Top 10 Things an Ag Lawyer Should Know

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In October, I attended the American Agricultural Law Association Symposium in Albuquerque.  As always, I came home with a huge notebook full of information that I am excited to share with you.

I really enjoyed a session titled “Top Ten Things an Ag Lawyer Should Know.”  The speakers included Justin Schneider (Indiana Farm Bureau), Drew Kershen (University of Oklahoma), and Tim Bernasek (Dunn Carey Allen Higgins & Tongue LLP).  I think that their list is useful not only for ag lawyers, but also for all farmers and ranchers to understand the various legal issues that agricultural producers have to deal with.

turbines and cotton

1. Farming is diverse.  Agricultural operations are diversifying in order to stay profitable. We see various alternative income strategies—corn mazes, hunting leases, etc.–popping up on farms and ranches across the country.  It is important to understand the various legal issues that exist for your operation and to remember that there is no one-size-fits all approach for agricultural law issues.  Every operation is different, which requires that legal documents like leases, business plans, and estate plans must be different as well.

2. Non-farmers own land.  Much of the most productive land in America is owned by non-farmers.  It is critical that farm leases be in writing and detailed in order to attempt to cover all issues that may pop up.  Likewise, there needs to be education of those non-farmer landowners so that they understand our farming and ranching practices.

3.  Farmers are seeking more legal advice.  Legal issues facing farmers are becoming more and more complex in most areas of law.  For farmers and ranchers, this includes water law, real estate, business succession planning, estate planning, and environmental laws.  I cannot stress enough the benefit that a good attorney can provide for your agricultural operation.

4.  More people want a say in how individual farmers farm their land.  The discussion of this item had me repeatedly nodding my head in agreement with every point that Dr. Kershen made.  There are more and more organizations who want to have input how farmers and ranchers manage their operations, which puts more and more pressure and risk on operators.  We see animal rights groups pushing legislation to control which production practices may be used by farmers and ranchers, and they have been successful in banning things like farrowing crates in certain states.  There are environmental groups seeking to have more animals listed under the Endangered Species Act and therefore impacting our ability to use the land.  Additionally, there are resource shortages–particularly water–that will almost certainly impact the ability of a producer to grow crops and raise livestock.  Further, consumers have new concerns over antibiotic use and genetically modified seeds that has changed many production and marketing techniques. Everyone probably recognizes there are increasing government regulations in an array of topics including environmental laws, labor laws, and food safety regulations.

5.  Attorneys are counselors, public relations experts, and political advisors.  An attorney should be part of a team of advisors for your operation along with accountants, public relations, and trade associations.  Attorneys can help with things like business plans, risk management, and strategic planning for your business.  Additionally, we see more and more farm issues in the press and it is extremely important that we be prepared to tell our story, but also to understand how any comments made could negatively impact a potential future lawsuit.

6. Government regulation leads to attorney specialization.  An attorney cannot be an expert in every area.  It is important that farmers and ranchers understand that the attorney who put together their estate plan may not be the right attorney to assist them if they end up in a dispute with the Environmental Protection Agency and that the lawyer who drafted a farm lease may not be able to help in a complex water law case.  Farmers and ranchers need to ensure they have an attorney who is capable of representing them with regard to the particular issue that has arisen.

7.  The government increasingly misunderstands how agriculture works.  However well-meaning government officials may be, many of them have no experience in agriculture.  This, coupled with the fact there are more and more regulations and enforcement issues aimed at agriculture, has created a problem for our industry.  Again, it is critical that we do whatever we can to help educate people about what we do and how we do it.

8.  Law school education about agriculture is changing. Traditionally, ag law courses were very production oriented, focused on providing education focused on providing information for those involved in producing food and fiber.  Today, there are two very different approaches toward agricultural law.  First, animal rights courses are growing in popularity and are often taught from a very non-farm friendly perspective. Second, courses covering food and food system laws are now focused much on consumer demand than before.

9. Farmers need strategic legal advice with a wider support network.  Attorneys should not be seen as the person clients go to only as a last resort in an emergency. Lawyers should help people avoid trouble, not just get them out of it!  In addition to providing legal advice, attorneys should assist clients to find additional resources for their operation, assist with helping farms locate assistance with public relations, and help to ensure clients have good accountants and consultants.

10.  Lawyers need a better grasp of science to serve as competent advisors to farmers and agricultural entities.  In light of increasingly complex legal issues, attorneys need a good understanding of the scientific issues underlying so many of these legal issues.  For example, there are numerous scientific issues related to food safety, pesticide use, antibiotic uses, international standards that impact trade, GMO seeds, data collection and usage of farm data, hydrology, and much more.  Attorneys need to step up and gain a better understanding of this science and to engage others to help with a team approach to solving clients’ legal issues.

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