Legal

Bayer Proposes Class Settlement Deal in Monsanto’s Roundup Litigation

Tue, 17 Feb 2026 20:09:58 GMT

Announced today, Bayer’s subsidiary Monsanto has reached a class settlement deal —pending court approval—to reach the company’s goal of containing glyphosate litigation.

The deal includes $7.25 billion over 21 years for current and future glyphosate cases.

Almost two years ago, then-new CEO Bill Anderson said it was his goal to have the legal liabilities “under control” by 2026, which had weighed on Bayer. Company leaders said the settlement provides the greatest possible closure for the Roundup litigation by addressing all present and potential claims of non-Hodgkin-lymphoma (NHL) allegedly due to Roundup exposure.

In his statement today, Anderson said the company is “choosing speed and containment over a lengthy battle in the courts.”

“Today’s announcement does not take away from the truth, a truth that scientists and regulators around the planet continue to uphold: that glyphosate is a safe and essential tool for farmers in the U.S. and around the world,” Anderson said.

He continued, “This settlement comes at a cost, even beyond its direct monetary price. It has cost employees their jobs. It’s diverted funding away from new medicines and new seeds and towards litigation, an industry that costs the average U.S. household more than four thousand dollars every year. So, while this settlement is necessary for the company today, we maintain our significant objections to the broken tort system that makes it necessary.”

The settlement is filed in the Circuit Court of the City of St. Louis, Missouri. The class includes people who allege Roundup exposure before Feb. 17, 2026 and who already have NHL or are diagnosed within 16 years after final court approval.

“With more than 40,000 Roundup personal injury non-Hodgkin’s lymphoma claims already in court or under tolling agreements, new filings arriving daily, a pending Supreme Court petition that could restrict plaintiffs’ recovery rights, and crowded dockets offering limited trial dates, Motley Rice began negotiating with other proposed class counsel to reach a settlement with Monsanto,” said Motley Rice co-founder and settlement negotiator, Joseph F. Rice. “I believe this $7.25 billion proposed national class settlement reached in Missouri state court is the best path forward to finally bring the Roundup® litigation to a closing chapter. Based on the hard work of class counsel and Monsanto’s counsel, both occupational and residential exposures will be covered, the rights of future claimants have been uniquely protected, and payments should begin in 2026.”

Six years ago, Bayer proposed a class settlement which did not move forward. That proposal was limited to four years of funding and future litigation beyond those four years required an expert science panel for determination of qualifications.

Beyond the class proposal, Bayer says it has reached separate confidential agreements to settle certain other Roundup cases.

Today’s news comes one month after the Supreme Court agreed to hear one of the cases , referred to as a the Durnell case, which calls into question federal preemption of pesticide labels.

UPDATE: Supreme Court Did Not Issue Ruling on Tariffs Case, Decision Still Pending

Wed, 14 Jan 2026 13:45:25 GMT

UPDATE: The U.S. Supreme Court chose not to release its ruling on President Trump’s global tariffs Wednesday. A decision is still pending.

The U.S. Supreme Court is expected to issue one or more rulings on Wednesday in cases already argued before the justices as major legal disputes remain pending, including litigation testing the legality of President Donald Trump’s global tariffs.

The court is set to release rulings at about 10 a.m. ET (1500 GMT). The court does not announce ahead of time which rulings it intends to issue. The court issued one ruling last Friday but did not act in the tariffs case, which was argued on Nov. 5.

The challenge to Trump’s tariffs marks a major test of presidential powers as well as of the court’s willingness to check some of the Republican president’s far-reaching assertions of authority since he returned to office in January 2025. The outcome will impact the global economy.

During arguments in the case, conservative and liberal justices appeared to cast doubt on the legality of the tariffs, which Trump imposed by invoking a 1977 law meant for use during national emergencies. Trump’s administration is appealing rulings by lower courts that he overstepped his authority.

Trump invoked the International Emergency Economic Powers Act to impose so-called “reciprocal” tariffs on goods imported from individual countries — nearly every foreign trading partner — to address what he called a national emergency related to U.S. trade deficits. He invoked the same law to impose tariffs on China, Canada and Mexico, citing the trafficking of the often-abused painkiller fentanyl and illicit drugs into the U.S. as a national emergency.

The challenges to the tariffs in the cases before the Supreme Court were brought by businesses affected by the tariffs and 12 U.S. states, most of them Democratic-governed.

Other cases awaiting rulings include disputes concerning voting rights, religious rights, Trump’s firing of a Federal Trade Commission member, LGBT “conversion therapy” and campaign finance limits, among others.

(Reporting by Andrew Chung; Editing by Will Dunham)

Legal Battles and Study Retraction Continue to Spotlight Glyphosate’s Uncertain Future

Thu, 11 Dec 2025 16:10:01 GMT

The beginning of December saw a few updates regarding glyphosate.

Here’s Why Glyphosate Has Been in the News

Currently, Bayer is the only domestic producer of glyphosate in the U.S. The company mines elemental phosphorus in Soda Springs, Idaho, formulates glyphosate production in Muscatine, Iowa, and finishes the formulation and production in Luling, La.
To date, Bayer has paid more than $10 billion to plaintiffs in litigation claiming Roundup as the cause of their cancer.

Bill Anderson became CEO in 2023, and one of his commitments was to get the glyphosate litigation “under control” by the end of 2026. In total, there have been about 180,000 lawsuits brought forward, with about 60,000 cases open now. The company has budgeted more than $17 billion toward the glyphosate litigation.

Bayer continues to advance a multipronged strategy, which includes court case management, state law advocacy and a call to the U.S. Supreme Court to review the FIFRA’s preemption provision.

The company has said it could withdraw from the market if they aren’t successful with the goal of containing the litigation next year.

Supreme Court Update

On Dec. 1, the Solicitor General filed of a brief with the U.S. Supreme Court supporting Bayer’s petition seeking review of the Durnell case.

“The support of the U.S. government is an important step and good news for U.S. farmers, who need regulatory clarity,” says CEO Bill Anderson in a company statement. “The stakes could not be higher as the misapplication of federal law jeopardizes the availability of innovative tools for farmers and investments in the broader U.S. economy.”

There has been a split among federal circuit courts in Roundup personal injury litigation, which brought it to the Supreme Court. The company says this raises the cross-cutting question of whether federal law preempts state claims based on failure-to-warn theories. And tens of thousands of Roundup cases in litigation now are based on claims grounded in failure-to-warn theories.

Bayer points out there’s established preemption language to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) that could be similarly applied here and is already used in federal statutes regulating medical devices, poultry products, meat and motor vehicles.

Academic Paper in Question

Also in the first week of December, a paper originally published in April 2000 was retracted by the publisher. Titled “Safety Evaluation and Risk Assessment of the Herbicide Roundup and Its Active Ingredient, Glyphosate, for Humans” and appearing in the journal Regulatory Toxicology and Pharmacology (RTP), the paper is commonly referenced as the “Williams paper.”

In a statement from Bayer’s indirect subsidiary Monsanto, the company said: “Monsanto’s involvement with the Williams et al paper did not rise to the level of authorship and was appropriately disclosed in the acknowledgments. The listed authors had full control over and approved the study’s manuscript. Two prior inquiries into the study previously found that the paper was appropriate, including the European Food Safety Authority (EFSA), and Williams’ former employer.”

The article in question was a review of other studies and did not provide new scientific research.

The editor of the journal states: “I emphasize that this retraction does not imply a stance on the ongoing debate regarding the carcinogenicity of glyphosate or Roundup, but originates from directly following the COPE guidelines.”

Regulatory implications appear to be limited after this retraction.

“The retraction of this publication has no impact on EPA’s glyphosate assessment, which has historically reviewed more than 6,000 individual studies across all disciplines, including human and environmental health,” the EPA states.

The European Union did not rely on the Williams paper for its most recent assessment; its agencies only look back and consider the past 15 years of published research.

In the statement from Monsanto, the company reaffirms: “Glyphosate is the most extensively studied herbicide over the past 50 years. Thousands of studies have been conducted on the safety of glyphosate products, and the vast majority of published studies had no Monsanto involvement. The consensus among leading regulatory bodies worldwide is that glyphosate can be used safely as directed and is not carcinogenic. Because the Williams et al paper is 25 years old, the EU did not rely on this paper in its recent assessment and approval process. Furthermore, the Williams paper is a review article of properly-conducted studies which were separately provided to regulators for their review and contains no original data.”

$1.3 Billion More: Bayer Gives Details on Litigation Plan For Glyphosate Cases

Bayer Affirms Support of Glyphosate, Optimistic for a Future with Over the Top Dicamba Labels

Supreme Court Decision On Glyphosate Case Expected Next Session

Roundup at a Crossroads: Bayer Lays Out Short-Term Window for Finding a Way Forward with Glyphosate

Multi-State Grain Merchandiser Files for Bankruptcy: What Farmers Should Know

Wed, 19 Nov 2025 23:06:25 GMT

Hansen-Mueller Co. is a nationwide grain merchandiser and processor with nine elevators across five states. It also operates port terminals in Minnesota, Texas, Wisconsin and Ohio.

Earlier this week, the Omaha-Nebraska based company filed for Chapter 11 bankruptcy.

In October, it was reported more than three dozen Nebraska farmers were owed a total of $2 million. At that time, Hansen-Mueller’s grain dealer license was suspended by the Nebraska Public Service Commission. After paying farmers $2.1 million, the Commission reinstated the company’s license on Nov. 4 and did not issue any civil penalties. The bankruptcy filing came two weeks later.

“After careful consideration of all available strategic alternatives, the Board of Directors determined that a Court-supervised process is the most effective and efficient way to achieve an orderly sale of our assets,” said Josh Hansen, Chief Executive Officer of Hansen-Mueller Co. in the company press release. “We believe this path will maximize the value of the Company’s assets for the benefit of our creditors, employees, and all stakeholders.”

In its filing, the list of 20 largest creditors includes several grain commodity companies, coops, etc from Louisiana, Mississippi, Kansas, Arkansas, Nebraska and more. The company says it has assets ranging from $100 million to $500 million with estimated liabilities in the same range.

You can read the company’s full statement here.

Minnesota and Texas are also investigating the company not paying farmers.

State departments of ag are issuing advisories to farmers who have conducted business with Hansen-Mueller to file any claims as soon as possible. Each state has a unique set of provisions in the individual state statutes, so it’s important to know what your state’s may or may not provide.

Related Article: When There Is A Failure: 8 Provisions of Grain Dealer State Statutes To Know

For example, in Minnesota its indemnity fund aims to protect farmers who have unpaid grain sales when grain buyers are insolvent.

Additional resources:

Used Farm Equipment Swindle Alert: BBB Warns Virtual Vendor Vehicle Scams on the Rise

Fri, 22 Aug 2025 16:49:31 GMT

The Better Business Bureau (BBB) is warning used equipment buyers nationwide about another sophisticated scam involving used farm equipment.

This particular grift, according to a press release from BBB, involved a fake online heavy equipment retailer impersonating a legitimate Missouri dealership, Cook Equipment & Trucking (Marble Hill, Mo.).

Buyers from across the U.S., some even from as far away as California and Arizona, reported losing a total of $223,000 after attempting to purchase heavy equipment and farm machinery through fraudulent websites and Facebook Marketplace ads.

Related: Essential Advice for Safely Buying Used Farm Machinery

Victims say they were “ghosted” after wiring money for equipment that never arrived. The BBB does not say whether the victims were able to dispute the fraudulent charges and claw back the proceeds from the scammers.

The reported fraudulent transactions include:

$45,000 for a skid steer loader from a buyer in Oak Hills, Calif.
$32,000 for an excavator from a buyer in Hancock, Mich.
$29,500 for a trailer from a buyer in Amanda, Ohio
$29,000 for a trailer from a buyer in Greenville, N.C.
$28,000 for a skid steer loader from a buyer in Eastman, Wis.
$31,000 for an excavator from a buyer in Des Moines, Iowa.
$29,000 for a skid steer from a buyer in Blue, Ariz.

BBB says the real Cook Equipment & Trucking, a small business operating since 2010, confirmed it has no website and is not affiliated with any online sales. The impersonators registered three fake websites, the most recent on July 14, and continue to run deceptive ads on social media.

“Those shopping for heavy equipment and farm machinery online should do their due diligence so they don’t fall victim to a virtual vehicle vendor scam,” says Michelle L. Corey, president and CEO, BBB St. Louis. “If an item is priced well below market value, that’s a red flag.”

To avoid getting swept up in an online virtual vehicle vendor scam the Better Business Bureau offers these tips:

Research the business at bbb.org or call 888-996-3887
Be skeptical of deals that seem too good to be true
Verify the website and contact the business directly
Read all terms and understand refund policies
Use a credit card for added protection
Report scams to BBB Scam Tracker, your state attorney general, the FTC, and the FBI’s Internet Crime Complaint Center , and notify the social media platform where the fraud was discovered

To learn more about how to avoid online fraud in the used equipment auction world, check out BBB’s 2024 study on virtual vehicle vendor scams.

Your next read: U.S.-Canada Trade Spat Leaves Farmer’s New Holland Combine Stranded Up North

Could EPA Decision Signal The Beginning Of The End For DEF?

Thu, 31 Jul 2025 16:16:02 GMT

Mike Berdo has strong words to describe his ongoing experiences using machinery requiring DEF ( Diesel Exhaust Fluid ) on his southeast Iowa farm.

“It has been an absolute nightmare, at least for us. Mechanics make trip after trip to do little stuff that’s very expensive to fix,” said Berdo, who produces grain and beef cattle near Washington. “We had planting delays last spring … little stuff that came from it and just seemed like [an issue to deal with] day after day.”

The ongoing mechanical issues and costs are why Berdo said he is “all for” EPA rescinding the 2009 Greenhouse Gas Endangerment Finding. The Finding has enabled the agency to regulate greenhouse gas emissions under Section 202 of the Clean Air Act and, in recent years, and launch requirements such as the use of DEF systems in diesel-powered engines.

EPA Draws A Line In The Sand
On Tuesday, EPA Administrator Lee Zeldin released a proposal to rescind the 2009 Finding.

If finalized, the proposal would remove all greenhouse gas standards for light-, medium- and heavy-duty vehicles and heavy-duty engines, EPA said in a follow-up press release .

The move would start with EPA’s first greenhouse gas standard set in 2010 for light-duty vehicles and those set in 2011 for medium-duty vehicles and heavy-duty vehicles and engines.

EPA said the proposal is expected to “save Americans $54 billion in costs annually through the repeal of all greenhouse gas standards, including the Biden EPA’s electric vehicle mandate, under conservative economic forecasts.”

Zeldin made the announcement to rescind the Finding in Indiana, alongside Energy Secretary Chris Wright, and called it the largest deregulatory action in U.S. history.

What The Decision Could Mean To Farmers
Specific to U.S. farmers, the proposal could potentially result in DEF systems no longer being included on new tractors and other heavy equipment using diesel-powered engines, said Chip Flory, host of AgriTalk, during a Farmer Forum discussion on Wednesday.

South Dakota farmer Ryan Wagner told Flory he has a wait-and-see perspective on how or whether the EPA proposal goes into effect. He anticipates that reversing the Finding will take considerable time and effort for EPA to implement.

“It took a long time with the interim engines and things to get into full DEF in the first place,” Wagner said. “I don’t know how long it would take to unwind all that and how quickly manufacturing will just take those systems right off, but it’ll be interesting to see what happens.”

To Wagner’s point, here’s a brief look back at some timing showing when DEF rolled out in agriculture and nonroad equipment and became mandatory . The regulations were phased in over several years based on the type of equipment and engine size:

2008: DEF became required for all new diesel engines with engine sizes over 750 horsepower.

2011: the regulations expanded to include equipment with engine sizes between 175-750 horsepower.

By 2015, all new nonroad diesel engines were required to be Tier 4 compliant and utilize DEF, regardless of equipment type or engine size.

As Wagner considers DEF, he noted its use in diesel engines has provided him with one benefit: “On the plus side, I do like that they don’t make the walls of my shop black. That’s been nice,” he said. “You can run them inside for a short time and not not feel like you’re breathing in a bunch of soot and making everything black.”

Expect Legal Challenges To EPA Decision
A number of environmental groups have already blasted the move by EPA, saying it spells the end of the road for U.S. action against climate change, according to an online article by Reuters .

Legal challenges from various environmental groups, states and lawyers are likely ahead.

That fact wasn’t lost on Flory and the Farmer Forum participants during the AgriTalk discussion on Wednesday.

“If this proposal is finalized, it’s going to start a lot of conversations … and the dominoes are going to start to fall, something that we need to keep track of, no doubt,” Flory said. You can hear the complete Farmer Forum discussion on AgriTalk here:

EPA will initiate a public comment period to solicit input. Further information on the public comment process and instructions for participation will be published in the Federal Register and on the EPA website .

Your next read: Right To Repair Granted? John Deere Launches Digital Self-Repair Tool for $195 Per Tractor

Overcome the No. 1 Challenge in Passing Down Your Family Farm

Mon, 30 Jun 2025 18:28:52 GMT

Between now and 2048, about $124 trillion is expected to exchange hands from older to younger generations in the U.S., according to Cerulli Associates, a Boston-based market research firm.

For perspective, that dollar amount is approximately five times the size of the 2023 U.S. Gross Domestic Product (GDP), which totaled $27.72 trillion.

How will farmers fit into what many people are calling the “Great Wealth Exchange” over the next two decades? Much of it is specific to land, according to the American Farmland Trust (AFT). It predicts 300 million acres of U.S. agricultural land will change hands in the next 20 years.

Based on $5,000 an acre for farm ground, Paul Neiffer, the Farm CPA, estimates that would be a transfer of between $1.5 trillion and $2 trillion in land from older farmers to younger generations.

“If you throw in rangeland, that’s another trillion, so $3 to $4 trillion at most is where I think we’re at,” Neiffer says.

The Reason Succession Often Fails

A common issue is that while 69% of farmers plan to transfer their operation to a younger family member, only 23% have a plan , according to AgAmerica Lending LLC.

But the No. 1 issue that trips up people in the succession planning process is most people – farmers included – focus more on the mechanics involved in transferring assets than on keeping their family relationships intact.

That’s according to Amy Castoro, CEO and president of The Williams Group, a family coaching and consulting organization. Her firm does relationship planning to help family members make sure they’re still speaking to each other after the wealth transfers.

Many times, she says, the friction in the transfer of wealth has little to do with money and material goods and a whole lot more to do with whether the family members involved felt loved.

A Formula For Success

The Williams Group did a 20-year field study and from that developed a formula for how people need to focus their time and energy in the succession process.

The company recommends spending:
60% of your time on building family trust and developing good communication practices;

25% preparing your heirs to take over the operation, laying the business and fiscal groundwork for the farm to continue under their leadership;

10% of your time getting on the same page about your family’s values and having a family mission;

5% of your time on the estate planning mechanics, the nuts and bolts of how the assets will transfer.

In addition, The Williams Group advises that you work with your heirs to:

Strike a balance between control and collaboration.
Embrace the next generation’s perspectives.
Bolster intergenerational solidarity.
Embed high-trust behaviors.
Co-design standards for readiness.

Start The Plan Sooner, Not Later

If you want to see your farm succeed with the next generation of family members, make sure you have the right structure in place – and set it up sooner than later. Don’t put it off, Neiffer advises.

Once you have a plan in place, you have a tool you can modify to fit what your family and farm need over time.

“Having a plan in place can help alleviate stress, even if things change down the road,” Neiffer says. “Keep in mind that farming is a dynamic business and your plan needs to be, too.”

Your next read: Big Questions Remain For Next Gen Farmers

Crop Protection Lawsuits Refocused: What This New State Law Means

Thu, 24 Apr 2025 19:43:03 GMT

Earlier this month, Bayer officials said progress on controlling its Roundup liability litigation was a top priority, and in the next six months something had to develop to mark progress otherwise they’d stop being the only domestic manufacturer of glyphosate.

Today, North Dakota Governor Kelly Armstrong became the first to sign into law a bill reasserting federally approved pesticide labels are the law, and companies can not be subject to litigation when those laws are followed.

“This new law is crucial for providing the tools North Dakota’s farmers rely on to produce America’s food supply,” says Brian Naber, president, crop science North America and Australia/ New Zealand region. “Without crop protection tools, America’s consumers could face higher costs to provide for their families and put food on the table. By signing HB 1318, Governor Armstrong is supporting North Dakota’s farmers, America’s consumers and the decades of innovation that underpin the state’s proud agricultural history and vibrant economy.”

Read more: Roundup at a Crossroads: Bayer Lays Out Short-Term Window for Finding a Way Forward with Glyphosate

Starting last year, Bayer has worked at the state level with legislators to introduce legislation to put a focus around pesticide labels and liability. In 2024, Bayer focused the policy efforts in three states: Idaho, Iowa and Missouri. This legislative cycle, they’ve expanded to 10, which includes: Florida, Georgia, Iowa, Missouri, North Dakota, Oklahoma, Tennessee and others.

In North Dakota, HB 1318 details any pesticide registered with EPA and sold under a label consistent with EPA’s own determinations is sufficient to satisfy state label warning requirements for health and safety.

The bill had strong support in the North Dakota house and senate. Groups supporting the legislation included Modern Ag Alliance, North Dakota Corn Growers Association, North Dakota Department of Agriculture, North Dakota Farm Bureau, North Dakota Farmers Union, North Dakota Grain Growers Association, North Dakota Soybean Growers Association, Northern Canola Growers Association, Northern Pulse Growers Association.

Another state-level bill has passed in the Georgia house and senate and is awaiting action by Governor Brian Kemp.

In its statement, Bayer said: “The enactment of HB 1318 makes North Dakota the first state to reinforce the authority of the U.S. Environmental Protection Agency’s (EPA) science-based rulings that crop protection products are safe when used as directed.

“Crop protection products have transformed modern farming by enabling effective and safe weed management. Glyphosate has undergone rigorous testing and oversight, with the EPA and leading regulatory authorities worldwide consistently affirming its safety when used as directed. When the EPA makes its science-based conclusions around a product label, this new law ensures that stands.

“Bayer hopes the courts will begin applying this legislation to provide the legal certainty regarding claims about the health and safety warning labels on crop protection products.”

Trump Suggests Farmers Could Petition to Keep Workers Without Legal Status

Fri, 11 Apr 2025 14:28:28 GMT

U.S. President Donald Trump suggested on Thursday that farmers will be able to petition the federal government to retain some farmworkers in the U.S. illegally, provided the workers leave the country and return with legal status.

Trump’s comments during his Cabinet meeting are, though vague, the most detail the administration has provided on the fate of the nation’s farmworkers without legal status — who make up half the farm sector’s workforce — under his plan for mass deportations.

Farm industry groups have warned that deporting large numbers of agricultural workers would grind the food system to a halt. In addition to farming, many workers without legal status are also employed in the meat and dairy industries.

“We’re going to work with farmers that, if they have strong recommendations for their farms, for certain people, that we’re going to let them stay in for a while and work with the farmers and then come back and go through a process, a legal process. We have to take care of our farmers and hotels and various places where they need the people,” Trump said.

“A farmer will come in with a letter concerning certain people saying, they’re great, they’re working hard, we’re going to slow it down a little bit for them and then we’re going to ultimately bring them back. They’ll go out, they’re going to come back as legal workers,” he said.

The White House and the Department of Agriculture did not respond to requests to clarify the policy or when it will be implemented.

During his first administration, Trump promised the farm sector that deportations would not affect agricultural workers, but has made no such promise in this term.

Immigrant farmworkers prepared for the Trump administration by assigning guardians to their children in the case of their detention and taking other precautions.

(Reporting by Jeff Mason and Leah Douglas in Washington; Editing by Bill Berkrot)

FTC vs. John Deere: Two Experts Answer Key Questions

Wed, 22 Jan 2025 21:30:00 GMT

On Jan. 15, the Federal Trade Commission (FTC) filed a lawsuit in U.S. District Court accusing John Deere of creating and presiding over a monopolistic and anti-competitive repair and dealer service system that puts farmers and independent repair professionals at an unfair disadvantage.

The news of this legal action has sent shock-waves through the ag equipment world. Deere has since offered an official statement condemning the action as “meritless…baseless…brazen partisanship.”

Incoming FTC chair, commissioner Andrew Ferguson, who has been appointed to head up the agency under President Trump, issued a statement that simultaneously recognizes the importance of allowing farmers to diagnose and fix their machines while indicating he disagrees with the decision to file the lawsuit. Fergusons’ statement was cosigned by fellow FTC commissioner Melissa Holyoak.

What happens next?
According to a post at FTC.gov, once the agency files a lawsuit the respondent – in this case, John Deere – has the right to contest the charges. FTC may then issue a final order, which can be appealed to the courts. The agency may also seek civil (i.e. financial) damages or request an injunction against Deere.

Plaintiff’s counsel have requested an injunction against John Deere. The lawsuit expressly asks for “a permanent injunction and other equitable relief against Deere to prevent its unlawful conduct in or affecting commerce in violation of Section 5(a) of the FTC Act” along with several state statutes in Illinois and Minnesota.

The Interviews
Now that we’ve set the stage, here is what two experts who have paid close attention to the case have to say about it:

James Kovacs is an antitrust attorney with Shinder Cantor Lerner (SLC), a national litigation firm that specializes in antitrust law.

Q: Is what FTC is accusing Deere of difficult to prove in a court of law?

A: “This is actually a very interesting topic that has been going on now for a number of decades, called right to repair. And right to repair within the antitrust space, which is where I practice, has to do with whether or not restrictions placed by the original equipment manufacturer, in this case John Deere, and what we call an aftermarket, which are the areas in which people compete for repair or service, whether those, you know, aftermarkets are being harmed. And so looking at whether people cannot either independently repair their own equipment or whether independent retailers or repair centers are also restricted as well. With these cases, really any monopolization case is challenging, but here I will say that the practices of John Deere, I think, are quite open and notorious.

“For a long time, people have been aware that farmers have been restricted from repairing their farm equipment. There are a variety of means, most of which are sort of technical issues in which the data and information necessary to perform the repair or the tool, which I believe is called the Service Advisor, has been restricted. And so, when the farmer or the independent repair center goes to fix the John Deere equipment, they are not able to access the necessary technical information to complete the job. And now the farmer can only do those types of repairs through a John Deere retailer, an authorized retailer.

“And so, this type of conduct within the right to repair market dates back to cases in the 1990s, in particular, with Kodak printers. And it can be found to be anti-competitive, wherein there’s an entity with basically complete control over the repair market who applies these types of restrictions. So, this is not something that is uncommon. And it’s something that’s seen quite an uptick in interest since the Biden Administration made it a priority. And when the FTC issued their initial report, called Nixing The Fix, that sort of got the ball rolling on the FTC’s interest in these types of cases.”

Q: In your opinion, does FTC have a strong case here?

A: “In my experience, the FTC does not bring complaints unless they feel like there are strong grounds to do so. Again, I also think there are a couple key factors at play here. One, I think the public is becoming quite aware of John Deere’s practices. I know that there are several reports and public sources out there who have spoken about these issues and their impact on farmers and their farming equipment.

“The second aspect to keep in mind is there is also a private litigation against John Deere alleging the same practices. That case has proceeded past a motion to dismiss. And so, what that means is the allegations have been proven to be sufficient to allow the parties to proceed into discovery. And I think that gives credence to the fact these claims are not necessarily merit-less at all. But in fact, people who have been looking at these issues believe there are merits to these claims. And I think the FTC does not typically act unless they believe strongly that an issue could be problematic.”

Q: FTC, through their legal team, has requested an injunction against Deere along with their co-plaintiffs, the state attorney generals in Illinois and Minnesota. Let’s say I’m a farmer in Illinois or Minnesota, and I’m using Deere equipment. I may be looking to have some repairs made before spring planting by a John Deere dealer. Could there be implications at play for those users?

A: “I think it’s important to note that the FTC’s jurisdiction is nationwide. And so, what the FTC is seeking through its injunctive relief, as I understand it, is access to what they call the ‘full function Service Advisor (program).’ As of right now, there is sort of an incomplete Service Advisor that the independent repair pros and the farmers have access to, but that doesn’t give them the full suite of options to repair all the needs of their farming equipment. And the allegation is that John Deere has withheld some of this technical information out of a desire to sort of capture the repair market under the injunctive relief.

“As I understand it, if the FTC were to be successful in any litigation and a jury ultimately found in their favor, then ultimately the farmers would be able to get access to this full Service Advisor tool and therefore be able to complete more repairs. Whether or not John Deere comes up with additional ways of restricting repairs is going to be open to interpretation, but at least this is a very specific injunctive relief. And there’s also sort of broader language to sort of prevent them from continuing this unlawful conduct. And so, I think it could be substantial relief.”

Willie Cade is a Washington, D.C., lobbyist and Right to Repair advocate. His grandfather was on the board at John Deere and worked for the company as a chief engineer. He can be reached by email at willie@graceful.solutions .

Q: What have you learned about this legal action that sticks out to you?

A: “A couple of things really stick out in my mind. No. 1, deep into the filing, around paragraph 111, they talk about how this monopolization of repair actually affects all repairs.

“Yes, it’s not monopolization of every repair, but it affects the price of every repair, which is remarkable. And they really call it a monopoly. They’re flat out about it. I love the way they took the time – we initially filed the complaint with the FTC and I worked on that with the attorneys that filed it three years ago. So they did their homework and they’ve done a really good job. And I really recommend to the farmers who really care about this issue, that they read the complaint because it reads really well. It reads like they know the industry, like they know what they’re talking about and that kind of thing.

“The other thing that was kind of interesting is, is they have lots (of evidence). They have a number of John Deere executives on record saying that, yeah, we knew we were doing this. So, I mean, they’ve really nailed it from that point of view. And when you look at the dissenting opinion from the two Republican commissioners, it’s a non-dissent dissent. There really was no objection to the substance of the suit, just the timing.”

Q: Are you aware of any other major farm machinery companies that might be engaged in similar conduct?

A: “They’re all doing it. They all use the same similar kind of technology — the CAN bus. Caterpillar is a little different because it’s not a CAN bus, it’s a hub. But those are just technical details. They’re still wanting to, I assert, illegally control the consumer after they sell the product. That’s a legal concept called tying. And tying has been illegal for almost a century now. And the electronics allow you to do it today where you weren’t able to do it before, other than physically. So we’re going to nail this. It’s going to take a year or two and then we’re going to move on. We’re going to move on to some even more important issues in agriculture. But I won’t tell you what that is yet.”

Q: Could you see this becoming sort of a win-win situation, where the farmers win out on this and even Deere comes out of this looking somewhat okay and maybe better for the long term?

A: “Well, here’s the interesting thing. Due to the lack of rights to repair their own farm equipment, farmers stand to lose $4.2 billion a year. About 20% of that is realized in higher prices for repair and services. The rest is in lost yield. So, could you imagine if farmers could get that rough number, that $3.8 billion back or even $3.7 billion back? And it’s all profit, by the way. By the time you get the yield, it’s all profit. If they could get that as profit, of course John Deere is going to do better with sales.”

Watch this video for additional coverage from the Jan. 18, 2025, episode of U.S. Farm Report.

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Heads Up: Corporate Transparency Act Still in Limbo

Fri, 27 Dec 2024 18:53:02 GMT

The ongoing legal battle over the Corporate Transparency Act (CTA) and its Beneficial Ownership Information (BOI) reporting requirements has seen significant developments in the past month:

Dec. 3: A nationwide injunction against the CTA was issued by the U.S. District Court for the Eastern District of Texas.
Dec. 23: The Fifth Circuit Court of Appeals stayed the injunction, reinstating the CTA.
Dec. 26: The Fifth Circuit vacated its earlier stay, potentially reinstating the injunction.

What Does This Mean for Farmers?
The if and when regarding BOI reporting is unknown, but should the CTA be upheld, here’s what we know.

Corporations, limited liability companies (LLCs), limited partnerships (LP) or any entities created by filing a document with a secretary of state must file online reports to the Financial Crimes Enforcement Network (FINCen) , disclosing information about the beneficial owners of the entities. The following information is required:

legal name
current street address
the state in charge of its filing requirements
taxpayer identification number

As of Dec. 27, entities in existence before Jan. 1, 2024, now have until Jan. 13, 2025, to make their first BOI report. However, the Jan. 13 deadline might change based on court outcomes. Entities created or registered in 2024 have 90 days from creation to get their first reports filed.

Conflicting rulings make it difficult for entities to determine next steps. A final decision is expected soon, but the timeline remains unpredictable.

In the meantime, monitor legal and regulatory updates closely, and prepare for compliance by drafting BOI reports to ensure readiness if the CTA is upheld.

5 Steps to Take Flight: Make Sure You’re Legal Before You Fly

Wed, 20 Nov 2024 19:28:53 GMT

As drone service providers spring up across rural America, offering aerial application for a per-acre fee, many farmers are taking it upon themselves to purchase drones and complete the application work themselves.

And while busting farmers who apply products without the proper certifications and documentation might not be high on FAA’s enforcement radar, that doesn’t mean field inspectors aren’t going to make sure you’re operating legally.

In April, an FAA inspector visited a farmer training event and canceled a service provider’s license for a handful of paperwork and operational violations. The foremost violation cited by the inspector was flying the drone closer than 100' from a non-participating farmer. The pilot-in-charge also was unable to provide proof of FAA registration (the drone wasn’t properly marked). That service provider is now grounded, pending legal appeal.

Flying a drone for commercial purposes without the proper licensing and approvals is a felony punishable by up to three years imprisonment and some very hefty fines. Private property protections do not apply, since all airspace from the ground up is controlled (not owned) by FAA.

Luckily, the FAA recently streamlined its processes to make obtaining proper certification and the exemptions to apply product via drone easier.

1. Check Drone Approval

Before purchasing a spray drone, check the name of the manufacturer and model of drone you wish to use to ensure it is approved for FAA Part 137 operations. Also make sure the drone is FAA Remote ID compliant.

2. Register Your Drone

Once you purchase a spray drone, immediately register the drone at FAADroneZone. It costs $5 for a three-year registration, and all drones weighing over 0.55 lb. must be registered. You must legibly mark the outside of your drone with its registration number, which is the unique identification FAA issues to all aircraft upon registration, in a location that is readily visible upon inspection.

3. Obtain a Part 107 Certificate

You must be 16 years old or older, fluent in the English language, and be of sound physical and mental condition. You must also pass the initial aeronautical knowledge exam with FAA. Once you pass, you will verify your identity with FAA and submit to a background check. Print out your Part 107 certificate and keep it on you anytime you fly.

4. Get a Part 137 Exemption

FFA offers a new exemption, called Gen 3, for 55 lb. and heavier drones allowing for no visual observer, day or night flying, and the swarming of one to three drones at a time.

5. Agricultural Operator Certificate

Once you are approved and receive a Part 137 exemption, now you must file for an Agricultural Aircraft Operator Certificate by filling out FAA Form 8710-3 and emailing it to UAS137Certificates@FAA.gov.

Essentials for Operating a Spray Drone Legally

Valid Part 107 License: Required for commercial drone operation.
Part 137 Exemption: Necessary for agricultural spraying.
ATO-Issued Certificate of Waiver or Authorization (COA): Issued with your Part 137 exemption.
Agricultural Aircraft Operator Certificate: Complete FAA Form 8710-3.

To learn more about drone spraying exemptions, visit this online guide published by well-known drone attorney and private pilot Johnathan Rupprecht.

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ADM Sued for Alleged Misconduct, Lack of Safety Inspections

Fri, 18 Oct 2024 14:58:25 GMT

By P.J. Huffstutter

Archer-Daniels-Midland Co intentionally failed to test and maintain safety systems on its grain equipment for years, which contributed to an explosion that immolated a worker and put him in a coma last year, according to a lawsuit filed against the company.

The explosion was part of a string of safety incidents at ADM facilities in Decatur, Illinois, site of the global grain trader’s North American headquarters.

ADM on Thursday declined to comment on the lawsuit.

The company’s shares have been under pressure this year from a global glut of grain supplies, and it is also facing U.S. government investigations related to accounting irregularities.

The lawsuit, filed on Wednesday in Macon County Circuit Court in Illinois, alleges that worker Antonio McElrath was in a Decatur facility known as the West Plant in April 2023 when a supervisor told him to shut down a grain “leg” tube that started smoking.

An explosion occurred when the tube was opened, and McElrath was standing in its direct path, according to the lawsuit.

McElrath, now 44, was in an induced coma for two to three weeks following the accident, his attorney Timothy Shay said. “He has suffered significant injuries and is still in recovery.”

Investigators with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) found that ADM failed to inspect or test critical safety systems in the explosion that injured McElrath and two other workers.

ADM had fire and explosion suppression systems in place to prevent problems and keep workers safe, but the systems were not working, the lawsuit alleges.

ADM’s sprawling grain and oilseed processing complex in Decatur also suffered dust explosions in 2018 and 2019, fires in 2019, and a smoldering event this summer at the West Plant, according to the lawsuit.

Separately, workers were injured from an explosion at the site’s East Plant in September 2023. And on Monday, an industrial fire broke out at ADM’s sorbitol production department of its East Plant, according to the Decatur Fire Department.

ADM has focused on safety efforts companywide, ADM spokeswoman Jackie Anderson said in an email statement late on Thursday.

At its Decatur complex over the past year, the company has hired process safety engineers and taken other steps to improve safety in its processes, among other steps, Anderson said. “We are fully committed to learning and improving when an operational event occurs so that it does not happen again.”

(Reporting by P.J. Huffstutter in Chicago; Editing by Aurora Ellis and Leslie Adler)

Monster Deer Madness: Iowa Farmer Nabs Antler Thieves, Busts Multistate Shed Ring

Wed, 16 Oct 2024 12:26:39 GMT

Lathered in sweat and eating distance like a hot-nose coonhound, Steve Snow’s blood surged as he zigzagged through timber and followed a trail of fresh boot prints outlined in mud and ice—the telltale, fresh tracks of a shed poacher.

Spilling from the tree line where the prints withered in matted grass, whitetail legend Snow checked up and stared into the expanse of a 4,000-acre Iowa farm. Cemetery silence. Zero wind. He could feel, but not see, his quarry. Through cupped hands, Snow shouted a stone-cold warning across the pasture: “Billy Switek, you’re a piece of s*** thief. I’m coming for you.”

Reap the whirlwind. When Snow collared Switek* (suspect’s name changed; no court conviction), he exposed an organized ring of out-of-state bottom feeders stealing tens of thousands of dollars in antlers from multiple landowners across at least three years of theft, guided by aerial maps and insider tips, and devoid of prosecutorial fear.

“Law enforcement warnings and tiny fines don’t stop these kinds of thieves,” Snow says. “We caught them red-handed, and they won’t be back, but more are coming in their place. More always come.”

Welcome to hot pursuit in a wooly tangle of stolen sheds—and a dose of frontier justice.

A Bare Cupboard

Whether Bass Pro Shop wall hangers or Boone and Crockett winners, some of the finest U.S. whitetail on record hail from a chain of counties in southern Iowa. The region is the realm of thick-necked bulls wearing bone crowns—magnificent antlers that drive outlaws to lust and larceny.

Every late winter, according to God’s clockwork, bucks lose their antlers in mid-January to mid-March. The fallen horns—sheds—are Easter eggs to many sportsmen who legitimately hunt farms or woods by checking trails and bedding areas for specimens.

In 2009 and 2010, Steve Snow was alarmed by the near complete absence of freshly dropped sheds. Giant, big, tweeners, small, all gone in hit-and-run raids.

(Photo by Jon Jackson Bennett)

Particularly on high-management operations, sheds are the history of a herd, and invaluable provenance of health and vitality, i.e., DNA on a rack. In southern Iowa, a given landowner might spend $20,000 on the low end for deer management—food plots, minerals, and progression of a herd to an older age class. Fostered over generations of landowner effort, the results are mature, healthy deer with magnificent antlers, and thereby, beautiful sheds.

“A shed record ties in directly to land value because it shows what’s in your herd,” Snow explains. “When someone steals sheds, they’re also erasing the biography of your operation and taking your data. Literally, the theft impacts your land value, because potential buyers may want to see a succession of sheds.”

Awaiting the annual guarantee of antler drop, thieves arrive in shed season like bees to honey, hopping private property lines to steal from those who manage. Parasites.

“It boils down to money,” Snow says. “Trespass on someone else’s land; rob their antlers; sell them online; pocket $150 to $350 per antler on the nice ones, or way, way more. A truly big or unique antler can bring some serious money. And if they get caught, they can pay the fine with eBay proceeds, and have plenty of profit left to make it worthwhile. And do it all again the next year.”

“Bank robbers want to break into vaults with lots of money,” he adds. “Shed thieves want to break into whitetail versions of Fort Knox and take everything, and they know the law will do nothing beyond a small fine. Do the math: Robbing sheds is well worth it to these sonuvabitches.”

Snow doesn’t waste words. In 2009 and 2010, across his meticulously managed deer population, he was alarmed by the near complete absence of freshly dropped sheds. Giant, big, tweeners, small—all gone in hit-and-run raids. The cupboard was picked bare.

Greed Grows

Snow’s name is synonymous with monster deer—and by extension, monster sheds. With a hunting career often spent in the spotlight of video, television, and radio, Snow is a renowned bowhunter distinguished by his outdoor prowess and whitetail knowledge.

Traumatic shoulder injuries forced him to give up the bowstring, but in 2009, the lifetime farmer (raised in the Minnesota dairy industry) managed a 4,000-acre operation specifically for whitetails and row crops, along with his 1,400-acre farm in Decatur County—both locations home to superb whitetail genetics.

“There are millions of wonderful people involved in hunting, but also a few bad apples,” says Snow.

(Photo courtesy of Steve Snow)

The 4,000-acre farm contained south-facing slopes: In winter, deer grazed and then bedded on the sun-soaked grassy hillsides. Therefore, the bulk of sheds dropped on the slopes. Yet, in 2009 and 2010, when Snow tried to collect sheds in mid-March (an effort to ease pressure on the herd and allow all antlers to fall), he found the slopes denuded of specimens. Best estimation: Poachers hit in late February or early March.

“Two years running and we found almost nothing from the finest antlers to the smallest, and those were critical to management. For example, if you see a 30”-jump between sheds from a buck, it’s clear evidence of giant potential.”

Theft was evident, but what Snow didn’t know, what he couldn’t know—the bone collectors originated 500 miles to the northeast. And their shed greed was only just beginning to grow.

How was Snow to respond? File police reports? More posted signs? No and no, he explains. “My only long-term solution was to catch them, sheds in hand.”

But on big acres with big calendar windows of opportunity, nabbing poachers is a tall task, sometimes eased by a tipoff. In January 2011, Snow’s cell screen brightened with an unrecognized area code from a nearby Midwestern state. An unfamiliar voice crackled on the line: “Mr. Snow, everything I’m about to tell you is what you don’t want to hear.”

The Hayfield Buck

Snow had tapped a leak. Over the phone, Will Rutland* (name changed to protect identity), a legitimate shed collector, poured out a buck-wild tale. Rutland claimed that while hunting antlers on public land, he met a horn hunter from Milwaukee, Wisc., who boasted of finding massive sheds of quantity in southern Iowa. The Wisconsin collector described county, land, farm, and deer associated with the claims.

Rutland’s in-person conversation led to a continued online acquaintance where the Wisconsin collector emailed shed pictures and provided further detail: I parked by a cattle pasture and crossed the blacktop to a big farm where they do video stuff.

Wildlife outlaws are repeat offenders. Seldom does a poacher repent on the Damascus Road, and almost never does a poacher pull a one-and-done.

(Photo by Chris Bennett)

Aware of Snow’s media presence, reputation in the whitetail community, and approximate location in Decatur County, Rutland connected the dots and became convinced the Wisconsin collector had stolen from Snow.

Every word from Rutland resonated with Snow. “It was a match—all of it. I had a source from out of state telling me about a thief from another state, and the source knew about sheds from a special, special deer we called the ‘Hayfield Buck.’ Nobody, and I mean nobody, could have known such detail.”

Rutland assured Snow he would stay in contact with the Wisconsin thief and keep an ear to the ground. True to his word, Rutland called back weeks later: “March. Steve, he’s going to steal from you close to Saturday, the first week in March. His name is Jim Jacoby* (suspect’s name changed; no court conviction).”

Bingo. Patience to bow hunt; patience to catch a shed thief. Snow would be ready. “It’s an upside-down world,” he says. “A guy from Wisconsin was driving seven or eight hours and 500 miles to rob us, but I knew that somebody would twist things to make me be the bad guy. But one thing for sure, I’d be waiting for him.”

No Honor Among Thieves

With roughly eight lookouts spaced along a blacktop road, per Rutland’s warning, Snow waited to trap a rat. Clear morning, first Saturday of the month, Snow and company were in position and on red alert.

In less than an hour, Snow’s cell buzzed. His crew had found a vehicle parked at the butt of a dead-end road, across the blacktop from the farm—a sedan with Wisconsin plates. The unlocked car’s contents revealed a stunning scope of theft. Sprawled across the backseat, aerial maps rested in plain view, including maps of the 4,000-acre farm, maps of Snow’s 1,400-acre farm, and maps of Lee Lakosky’s nearby highly esteemed ground. Snow’s pulse raged as reality dawned: He was dealing with a rattlesnake, not a sticky-fingered local amateur.

In 2024, the Iowa legislature passed a new law, doubling the fine for a first offense hunting trespass from $265 to $500. A second offense was bumped to $1,000.

(Photo by Jon Jackson Bennett)

On pace with the map revelation, Snow’s cell flashed with a notification from a camera positioned in the middle of the farm. He stared at a real-time photo of a backpack-toting individual, Jim Jacoby, bending over to steal a shed. The antler in Jacoby’s hand had been purposely placed by Snow several days prior as bait to capture imagery of a potential thief via the lens of perfectly hidden trail-cam.

“In that instant, I literally knew right where he was standing,” Snow recalls. “The man in the picture sure as hell wasn’t one of us, and he was roughly 1 mile into the property.”

“Things came together because this same day, the farm owner and one of his buddies were on site to hunt sheds,” Snow continues. “I called and asked him to drive near the location of that camera and rev his 4-wheeler. The rest of us waited on the road for the thief to come out.”

As expected, Jacoby sprinted across a pasture toward the dead-end road and his parked escape vehicle—where he was collared by Snow’s waiting help. To Snow’s surprise, solo was duo. Jacoby was accompanied by a partner in crime, Michael Mahoney* (suspect’s name changed; no court conviction), and both men were clad head to toe in camo.

Livid, Snow approached Jacoby: 30-something, stockily built, tattooed, and the apparent leader of the twosome.

“You wanted to meet me? Here I am,” Snow snapped.

In possession of Snow’s antlers, as well as maps depicting numerous properties, and guilty of theft across at least a three-year span, the first words from Jacoby’s mouth revealed a total lack of remorse: “F*** you.”

Coldblooded. Unrepentant.

Snow balled his fist, stepped toward Jacoby, and disincentivized a return trip in the manner of Woodrow F. Call.

In the background, Jacoby’s confederate, Mahoney, crumbled. No honor among thieves. Mahoney talked: The pair were associated with other thieves as well—a web of theft. Presumably, they were hitting farms beyond Iowa, and possibly active on the road from the start to finish of shed season.

“I saw red and wanted these guys to pay in blood,” Snow says. “It all got splashed on the internet by the social media cowards, making me out as the one in the wrong. People behind a keyboard are desperate to excuse thieves, but if you want to protect what you’ve worked for your entire life to own, you better be self-reliant. These criminals were predators, searching for private property to abuse, and they factored the risks to be worth any penalties. At least I made certain they’d never come back to our county. Then again, I never dreamed a different one of the bunch would show right back up to steal from us the following year.”

And this time the shed trail led from the farm to a motel room cache.

No Shame

Fast forward 12 months, up to the beginning of March 2012. Freakish weather. Snowfall followed by 70-plus degree days produced a near-complete melt in Decatur County, except for patches of 1” powder hiding in heavy shade and timber.

Ready for a day collecting sheds, Snow was pumped for the hunt when he spotted a car parked across the blacktop on a wet gravel road. Polk County (Des Moines) plates. Odd. Incongruent.

Curiosity building, Snow pulled in behind the vehicle and copied the license plate number. Boot prints stamped in gravel sludge led toward the blacktop. Crossing over, Snow found the tracks again in gravel, stretching 50 yards parallel to the road, jumping a ditch, and entering the farm property. No doubt. A shed thief.

“Do the math: Robbing sheds is well worth it to these sonuvabitches,” says Snow.

(Photo by Chris Bennett)

“I started moving fast, following these prints in timber. Most trespassing shed thieves wait until all snow has gone, but this guy was too greedy and got in before complete melt. I called my wife and told her to call the law, let them know we had a trespasser, and run the plates. She called back and said the car was a rental out of Des Moines, registered to Billy Switek.”

Inside the timber, Snow’s rage doubled at the site of more tracks, but outlined with less definition, crisscrossed beneath the fresh prints. No question, Switek walked the path a day before. He had already stolen sheds.

“I came out of the trees on top of a hill to a south-facing grass field that catches sun and had no snow. No boot prints. Everything was perfectly still and quiet. You could hear a pin drop. Knowing Switek would hear me, I yelled a threat as loud as I could to scare the hell out of him.”

Snow then doubled back to Switek’s car, prepared to play the waiting game. Assisted by his son, Snow wedged the rental car bumpers between two old Chevy three-quarter ton trucks. Switek was pinned.

“A sheriff’s deputy drove out to take a look and said that I had Switek’s vehicle in false containment. The deputy said if Switek walked out with antlers, he’d write him a trespass ticket. I said, ‘That’s it?’ and he came back with, ‘They’re just deer antlers.’ I had choice words for the deputy.”

“One, I knew Switek wasn’t coming down the road with antlers because he knew I was waiting. Two, even if he was crazy enough to do so, I couldn’t prove in that instant that he stole them from us. I knew Switek would stash the antlers before he got on the blacktop. He could even stash them in a road ditch right-of-way, and that’s country property, and we would have no recourse.”

Exhausted after hours of a winding cat-and-mouse game, and wet to the ears, Snow left his son on sentry duty, and zipped home in his truck for a change of clothes. Slipping on dry socks with 30 minutes of daylight left, Snow’s phone vibrated: “Dad, the guy is walking down the road from the opposite direction, approaching from the north away from the farm.”

Engine roaring back to the gravel road, Snow was face-to-face with Switek just two minutes after the call.

“You’re a trespasser and a piece of s*** thief,” Snow raged. “You and me on this gravel, right now.”

Dressed in camouflage, roughly 60 years old, Switek crumbled, begging for mercy. “I’m sorry, sorry, sorry. I’ll pay you for what we took. I’ll come and work for you for free.”

“You’re a damn liar. Just show me where the sheds are.”

“I’ll go get’em.”

“Hell no. We are going to get them together. In my truck, now.”

As Switek groveled in the cab, Snow drove a quarter mile. “He tells me to stop the truck and we got out and walked on our property about 100 yards along a creek,” Snow recalls. “On the ground, there was a backpack with a half-dozen sheds sticking out.”

Climbing back in the cab, Snow delivered an unexpected ultimatum: “Now, I want our antlers from yesterday.”

“Yesterday?” Switek feigned.

“Don’t give me that s***. I saw your other boot prints. Blink, or try anything other than telling the truth, and you’re not getting out of this truck.”

Switek’s memory instantly cleared: “They’re in my motel room.”

Indeed. Switek had flown from Milwaukee into Des Moines, rented a car, and holed up in a Clarke County motel.

Pistol on hip in case of trouble, Snow drove to the motel, and frog-marched Switek to the room, where the thief opened the door on an antler cache. Sheds blanketed the bed, but the prize was hidden.

Switek grabbed a bedside suitcase and opened the lid, revealing a carefully wrapped monster antler. “It was a 100” antler from the Hayfield Buck,” Snow says. “He had it packaged and ready to go. By itself, it might have brought $2,000 at the time. I have zero doubt he had more sheds than what were in the motel room, but I never found them.”

Recovering his stolen property, Snow gave Switek a final warning. “I made it crystal clear to him. Never, never return to our property or anywhere near it.”

Despite Switek’s pleadings, was he genuinely contrite?

A brazen answer came months later. Snow’s mailbox clinked with a letter from Switek, asking to buy the Hayfield Buck antler for $5,000.

“That shows the mindset of these thieves,” Snow says. “No shame.”

Damascus Road

Every deer season, Snow attempts to guide a youth hunt. Harvesting a deer, particularly for young teen who might not otherwise have the opportunity, can be a formative experience, Snow says. “Hunting should be about true love and respect of the outdoors. Across this country, there’s so many wonderful people involved, but the few poachers and trespassers don’t care about what’s right. If I stole sheds from them, you can rest assured they’d take action. Myself and most property owners just want to be left alone. Again, there are millions of wonderful people involved in hunting, but also a few bad apples.”

What might be an appropriate penalty for deer shed theft on private property?

In 2024, the Iowa legislature passed a new law, doubling the fine for a first offense hunting trespass from $265 to $500. A second offense was bumped to $1,000.

“Bank robbers want to break into vaults with lots of money. Shed thieves want to break into whitetail versions of Fort Knox and take everything,” says Snow.

(Photo by Utah DWR)

Snow doubts the deterrent effect. He recommends a $1,000 fine for the first offense; $2,000 and 5-year loss of hunting privileges for a second offense. And no verbal warnings.

“All the people I know with great deer and farm properties busted their asses to build what they have. Take a step back and look at the big picture. Taking sheds is theft and fundamentally wrong, end of story. If the antlers are big enough and worth enough, fines alone will not stop thieves if the math works in their favor.”

Wildlife outlaws are repeat offenders. Seldom does a poacher repent on the Damascus Road, and almost never does a poacher pull a one-and-done. With a lifetime volume of stories in his pocket, Snow has witnessed offenders of all stripes.

“Several years ago, I got a call from an out-of-town neighbor who got a cell camera notification of trespassers on his land. I crept over a hill and spotted a man strapped with a .44 pistol, with two kids—probably a 12- and 4-year-old. They packed my neighbor’s ground blind, along with a ladder sticks, antlers, and a tree stand—all they could carry.”

“I came out of hiding and hollered out, ‘Nice haul, %#%#%#.’”

Snow walked the trio off the land and to the nearest road, into an adjacent church parking lot, allowing the adult to assume the landowner (a sheriff’s deputy was in route) was on the way. Moving 50 yards away to ease the tension, Snow watched as the sheriff’s department vehicle came into view.

“The guy grabbed his pistol, gave it to the 12-year-old, and pointed for him to go hide it behind the church building,” Snow recalls. “The deputy pulls up and this guy lies that his name is ‘Jack Black,’ just like the movie actor.”

However, the deputy recognized the thief as Justin Mason—a convicted poacher—and Snow had helped nab Mason over a decade prior.

“About 15 years earlier, I heard a gunshot at 5 a.m., found his truck headlights, and followed him into town,” Snow recalls. “Long story short, the wardens raided him and found 52 racks. It became one of the biggest poaching stories of the last 50 years.”

However, on this occasion, Mason faced no charges. “Crazy, crazy,” Snow exclaims. “I caught him in action, but because all the stolen goods technically never left my neighbor’s property, he was allowed to walk.”

Paying the Price

What advice does Snow have for other landowners or land managers?

Cameras play an important security role, but are only a partial answer. “You can’t put cameras on big acres and solve anything,” Snow contends. “There’s nothing unusual about shed thieves putting on ski masks and staring right into your cameras. No, even if they work to perfection and don’t ever go down in service, they will not stop a determined thief that pulls a grab-and-go. If you have a lot of acres to protect, some other technology is needed.”

“Law enforcement warnings and tiny fines don’t stop these kinds of thieves,” Snow says. “We caught them red-handed, and they won’t be back, but more are coming in their place.”

(Photo courtesy of Steve Snow)

“I’m hoping satellite technology becomes available that can cover an entire operation. If it really worked, guys would pay a tremendous amount for that kind of security.”

In the meantime, Snow stays vigilant. “Sometimes in the public’s eye, everything gets turned around if you don’t react meekly. You become the bad guy for protecting private property, but I’m willing to pay that price. Shed poachers are the sort that’ll do anything when they think no one is looking. I’ll never hesitate to say they’re liars and thieves.”

For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:

Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told

Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market

Bagging the Tomato King: The Insane Hunt for Agriculture’s Wildest Con Man

Ghost in the House: A Forgotten American Farming Tragedy

Priceless Pistol Found After Decades Lost in Farmhouse Attic

Bizarre Mystery of Mummified Coon Dog Solved After 40 Years

American Gothic: Farm Couple Nailed In Massive $9M Crop Insurance Fraud

Evil Grain: The Wild Tale of History’s Biggest Crop Insurance Scam

Fleecing the Farm: How a Fake Crop Fueled a Bizarre $25 Million Ag Scam

The Arrowhead Whisperer: Stunning Indian Artifact Collection Found on Farmland

Skeleton In the Walls: Mysterious Arkansas Farmhouse Hides Civil War History

4 Quick Succession Planning Tips With Attorney Jim Angell

Fri, 23 Aug 2024 16:11:14 GMT

A farm’s succession plan is complex. And with ever-changing laws and family dynamics, it can be hard to make sure everything gets taken care of in the process. Kansas attorney Jim Angell recently joined the Top Producer podcast to share four things you should consider for your operation’s transition.

1. Trusts For Gifting
The IRS Lifetime Gift Tax Exemption is currently $13.6 million, but there’s speculation that limit could be cut in half in 2026. If you’re going to be gifting a considerable amount before the end of next year, there are two types of trusts he recommends putting in place.

“We might use an entity, an LLC or Limited Partnership, and do some transfer gifting on that,” Angell says. “Or, we could use what’s called an Intentially Defective Trust. That allows you to maintain the income at the first level, freeze the assets and pass those on to the next generation. We use that quite a bit.”

2. Include Your CPA
Angell says your CPA is a more valuable asset in this process than you may think.

“One of the first things I do is if I don’t have the CPA in the first meeting, I make darn sure the CPA is in the second meeting,” he says. “The clients are out there grinding, surviving, and doing what they do best on the farm. The CPA professionals have a much better understanding [of the overall finances] generally, and so we rely on them very heavily in doing the advanced tax planning.”

3. There’s No Such Thing As One Size Fits All Succession Planning
It’s important to remember fair isn’t always equal, especially in situations with on-farm and off-farm children.

“We’ve got to find a way to keep the farm intact and transition it potentially to to the farming child, but at the same time be fair to the remaining heirs,” Angell says. “That farming child may end up with more equity, but they’re going to end up with a bigger challenge of the debt, worrying about drought, making the operation work, taking the risk and taking the lower return. So, when you really step back and look at it, if you’re looking at it economically, some of these children that are getting less value after the estate is fully settled are really better off in the short run.”

4. Set Up Protection From Unintended Beneficiaries
In some situations, a parent will remarry after the other passes away. Angell says it’s important to make sure this doesn’t have an unfortunate outcome for the farm children.

“Most estate plans, especially the larger ones, are going to need some protections built in there for at least a certain portion of those assets being held in an irrevocable trust upon the first death,” he says. “We try to push a pre-nuptual agreement and get the kids involved in for when dad does decide to remarry. Those situations can potentially tear families apart and the farm apart.”

Hear more from Angell on the Top Producer podcast

Are You Covered? How To Reduce Your Operation’s Insurance Risk

Tue, 27 Feb 2024 19:49:33 GMT

With the cost of living on the rise, so are the values of insurance settlements paid out in lawsuits. Kevin Charleston, owner of Specialty Risk Insurance in Carthage, Mo., shares a few ways to protect yourself and your operation against a gap in coverage.

Who’s On the Policy
According to Charleston, the name on an insurance policy can cause confusion. Is it under the LLC? The operator and their spouse? The spraying business? He says this often gets lost in the shuffle when property is transferred into a trust.

“Whatever names are on the policy is who they’re going to write the check to. If it’s not correct, then that causes a whole big problem,” he said on an episode of the Farming the American Countryside podcast . “You really compromise the insurance contract if your name isn’t on it because they don’t have a duty to defend that name when it’s not on there.

Charleston recommends sitting down with your insurance agent for just a few minutes to double check that everything is named properly.

“Every time I sit down with somebody, I find out something they didn’t tell me about,” he says. “Nobody wants to call your insurance agent and talk to them unless you have to. But it’s just part of the deal.”

Valuation of Assets
Charleston says a common mistake is having liability insurance that only covers the value of the operation’s assets.

“You have to figure out your personal assets — not just the company you’re protecting — and if someone could get through the company to your personal assets [in the event of an accident and lawsuit],” he explains.

Even with personal assets included, he suggests taking the extra step to have coverage above that value.

“A jury of our peers is not necessarily a jury of our peers. It’s somebody who’s emotional and has never lived on a farm,” he says. “We’re seeing awards of $5 million to $15 million over something that would have been $300,000 three or four years ago. If there’s a child involved in any way, we’re seeing awards beyond what we’ve ever seen.”

Documentation
Another step Charleston says can help protect you is documenting as much as possible, such as:
• Safety training
• Defensive driving training
• DoT compliance
• Semi inspection/walkaround

“Trucks are the No. 1 target point for an attorney,” he says. “You need to have your scheduled maintenance documented. You need to have your walkarounds documented. That plays well in court if you have an issue.”

He says overall, it’s important to remember there’s a lack of public awareness when it comes to the ag industry.

“In farming and agriculture, our thought process of common sense is not the same typical thought process of somebody just driving down the road,” he says. “The biggest thing I tell everybody to plan for today is the people who don’t understand what we truly do.

To hear more from Charleston, listen to this episode of Farming the American Countryside.

Trimble Launches Connected Climate Exchange Marketplace

Tue, 09 Jan 2024 16:49:15 GMT

Trimble announced today the Connected Climate Exchange, a carbon marketplace to connect and aggregate verified data across the agriculture supply chain.

Trimble’s Connected Climate Exchange creates “a streamlined process for aggregating data across farm organizations and verifying this data for emissions reductions and removals buyers.”

By connecting an ecosystem of farmers, agronomists, ag retailers and carbon buyers in one marketplace, the Connected Climate Exchange enables participation in carbon markets and sustainability programs, the company claims.

“Trimble is taking a farm-centric approach (to carbon credits),” said Darren Howie, director, emerging digital and sustainability. “While many carbon programs work by identifying a specific practice to implement and search for farms, Trimble is partnering with agronomy-focused, enterprise agriculture companies to optimize interventions at the farm level.”

A Farmer-First Solution

As a key participant in the carbon market since 2007, Trimble offers high-quality, in-field data in a platform solution that allows smooth data integrations, according to a press release from the company.

Over the past 17 years, Trimble says it has sold over 4.5 million tonnes of agricultural carbon offsets in Canada, generating over $50 million for farmers.

The Trimble Connected Climate Exchange works with Trimble Ag Software and other third-party farm management tools to:

Centrally manage sustainability projects and customers
Perform calculations to report on carbon emissions, reductions and removals
Provide reporting and visualization to sustainability impacts
Calculate payments where applicable
Generate cross-sector supply chain insights

“One key roadblock to other carbon programs has been data aggregation. Trimble has been on the farm and collecting data for decades,” said Dietmar Grimm, vice president, corporate strategy and sustainability. “Through its data aggregation capabilities, the Connected Climate Exchange is able to deliver quantifiable and verifiable reports, validated by independent third-party MMRV (measure, monitor, report and verify) providers.”

Head over to Trimble.com to learn more about the Connected Climate Exchange.

Accidents Happen. Don't Lose the Farm Because of Them

Fri, 27 Jan 2023 18:04:27 GMT

It’s well after lunch, mid-afternoon at an all-day grower meeting, but the 20-plus farmers sitting on metal folding chairs arranged in a half circle are focused intently on the speaker in front of them.

“Only 50% to 60% of farmers going down the road hauling a load of hay, driving a semi with grain or some other piece of equipment are doing so legally,” Fred Whitford tells them.

He pauses momentarily, reflects on what he’s just said, then nods his head: “Yeah, I’m pretty comfortable that’s true. It doesn’t take much to be at fault; it could be as simple as driving on bald tires.”

The farmers look around at each other nervously as Whitford builds on his initial comment.

“If I don’t have grooves in my tires I can’t move water, and I can hydroplane. When I go to brake, I don’t have braking power and the truck won’t stop.…What then?”

Maybe the truck just ends up in a ditch. At the other extreme, the driver has a major accident with a motorist that causes death or life-long incapacitation.

It’s not uncommon. Data from the past decade show that while only 19 of every 100 Americans live in rural areas, more than 50% of all fatal roadway accidents take place there, according to the U.S. Department of Transportation.

It’s a heavy topic, but Whitford wades into it, intent on helping the farmers present prepare for if or when calamity strikes.

Pitfalls To Avoid
One common problem is farmers tend to have insufficient insurance, says Whitford, Clinical Engagement Professor, Botany and Plant Pathology and Director of Pesticide Programs at Purdue University.

“Say you have $2 million dollars of liability coverage, which roughly covers your net worth. One of your vehicles is involved in an accident that causes the death of a child.

The jury awards the child’s parents $5 million. Your insurance company would only be responsible for covering the first $2 million, while you would be responsible for the remaining $3 million,” he says. “That could bankrupt your business.”

Whitford brings up another common issue he sees.

“Who has their farm in an LLC?” he asks the group.

A couple of farmers raise their hands. Most are studying the floor. One mumbles that his land and equipment are in a single corporation.

“Well, sir, that’s not a good idea,” Whitford politely tells the farmer. “I can go into the corporation, get all the insurance money and then I can sell the land. I see it happen all the time.”

Whitford tells the farmer to go home and put his land in a corporation separate from his equipment. “You want to protect the one asset that brings you income,” he advises.

“This is why investing the time with an attorney is so vital.”

Whitford also encourages the group to meet with their insurance agent. “Ask them some questions, like ‘How much am I covered for? And what does that mean?’”

Insurance agents often tell Whitford that when they ask their farm clients to come in for an annual review many don’t even return their calls. “Not getting your annual insurance review is lost opportunity to protect your assets,” he says.

He acknowledges a basic insurance policy for the farm is pricey, and there’s no escaping the expense.

However, additional coverage beyond the basic policy is often available at a more palatable rate. Sometimes referred to as an umbrella policy, it provides additional protection that could literally save the farm.

“It often adds $5 million, $10 million of protection on top of your basic policy and at a discounted rate, but insurance agents often don’t bring it up because they know the odds of you buying it are slim,” Whitford says.

Talk, Listen, Act

As part of your annual meeting with your insurance agent, don’t hold back, Whitford tells the farmers in the room.

“Get your agent’s best advice, discuss all of the possible insurance options, then make the best decisions for you and your farm regarding coverage and policy limits,” he says.

While most farmers believe insurance is important, few read their policies. It’s true that an insurance policy is tedious reading, but making an effort to understand what is (and what is not) covered is important.

“After you suffer a loss, it will be too late to make any changes,” Whitford says. “Even if you don’t personally read your policy, at least develop a list of questions you want your insurance agent or attorney to answer.”

More Information Available

Fred Whitford is the author of more than 300 publications. Two of his recent ones are:

The Aftermath of a Farm Truck Crash: Lawsuits, Settlements, and Court Proceedings

Farm Truck Accidents: Considering Your Liability Management Options

Blood And Dirt: A Farmer’s 30-Year Fight With The Feds

Mon, 08 Nov 2021 21:05:51 GMT

On a crisp May morning set against a striking backdrop of farmland tucked between rolling hills in northwest Pennsylvania, Randy Brace, 23, looked south after a tillage pass and watched in surprise as a 12-car caravan pulled alongside his fields. Time slowed and the young farmer’s chest tightened when a phalanx of officials from the U.S. Army Corps of Engineers, Environmental Protection Agency and a mix of state agencies spilled from the vehicles and walked onto his land.

Confused and fighting a rush of dread, he climbed down from the box and ran toward the security of his father. Patriarch of the family operation, Bob Brace listened in the milk house as his son described roughly 20 government reps moving across Brace farmland. The regulatory die was cast. Fists clenched, the elder Brace walked out of the milk house and into one of the longest legal fights in agriculture history. Brace’s “damned nightmare” began that fateful May in 1987. Over 31 years later, it is yet to end.

By draining 30-plus acres of pasture, Brace was deemed to have violated the Clean Water Act (CWA). Regulatory agencies claimed the ground was a wetland and threatened the Erie County producer with imprisonment and severe financial penalties. As Brace vehemently protested his innocence through exemptions and exclusions, the merit of his pleas was lost to judicial interpretation and a courtroom gavel.

“Don’t be fooled by the numbers; they want my blood, not my money.” - Bob Brace

Since 1987, Brace has paid over $1.5 million in litigation costs and refused to bow to the biggest law firm in the world: The United States Department of Justice (DOJ). Three decades in the making, Brace’s case lays bare a labyrinth of agency contradictions and begs two echoing questions: What is normal farming? What are the real-world boundaries of CWA jurisdiction?

As of 2018, what is arguably agriculture’s longest running legal saga may be entering its final stages, with EPA doubling down with more charges against Brace, and Brace countering with an $8 million suit. “They want to fine me $145,000 each day because those numbers are intended to crush me and should tell everyone something about my case,” Brace says. “Don’t be fooled by the numbers; they want my blood, not my money.”

1970s

Peeling the layers on Brace’s case requires a step back in time. Brace, 79, was born and raised on a family farm 15 miles south of Lake Erie in Waterford Township. In 1975, he purchased the farm from his father, and in 1976, began draining the land by replacing and repairing tile laid by his grandfather. The ground was used for hay and pasture, and Brace intended to switch it to row crops. Along a tiny creek, beaver had built several small dams, increasing drainage issues. At the request of Brace, the beaver were trapped and removed by the Pennsylvania Game Commission (PGC).

“I did what any normal farmer does,” Brace says. “I tried to make the most of my land and I didn’t hide a damn thing. In fact, I made sure USDA knew every single thing I was doing to make sure I had approval.”

He hired a dynamite crew in 1977 to clear ditches and restore drainage function, all with USDA’s nod, notes Brace’s attorney Larry Kogan, Kogan Law Group : “Mr. Brace did everything with the authorization of USDA, certifying his father’s conservation and water plan dating back to 1962. Beginning in 1977, he received technical support and partial funding from USDA Soil Conservation Service to develop drainage tile systems on one of the three parcels of land in question. The homestead farm was his original focus and then he expanded out to other ground with USDA technical support.”

“Ultimately this evolved into a conversion of the land itself, from one common form of farming—pasture farming—to another common form of farming—cropping. The former ASCS (Agriculture Stabilization and Conservation Service) was involved with cost-shares for a minimum of 10 years. At this point, Mr. Brace had the full support of government agencies,” Kogan describes.

Every year in the late 1970s and early 1980s, Brace shaped the fields, and began growing corn on the ground in 1986. “It became beautiful, beautiful land,” Randy Brace describes. “And then 1987 came and everything went straight to hell.”

1987

According to DOJ, which has poured millions of taxpayer dollars into its pursuit of Brace, the Erie County producer is a prolific defiler of the environment and a destroyer of wetlands. Yet, the overall beauty of Brace’s farming landscape is picturesque, almost as if pulled from a postcard. The condition of the Brace farm is sharply manicured, with fields, equipment and buildings presenting the appearance of a remarkably ordered operation. “Bob’s place is just about perfect and always has looked beautiful,” describes Tom Coffin, 75, who grows corn and soybeans on 500 acres to the northwest of the Brace’s operation. “I’m talking about the hardest working farm family I’ve ever seen. In the evening, I head home and they’re still in the field. The entire family.”

Brace again began having trouble with beaver proliferation in 1987, and asked the PGC for removal. When a senior PGC official arrived and began asking questions about permitting, Brace had no idea a regulatory sledgehammer was about to drop across his farmland. “The boss was Andy Martin and he came out and started asking for permits. He and dad got into an argument and I believe that was the trigger point for the next 30-plus years,” Randy Brace says.

“Mr. Martin saw the conversion work and thought it was the worst wetland destruction he had ever seen. He didn’t have a clue what he was talking about,” Kogan says. “He went to the U.S. Fish and Wildlife Service (USFWS) in 1987 and reported on Mr. Brace’s land. Then the EPA and Corps jumped in, and they all descended together.”

“Despite lacking a warrant, a showing of probable cause, or Mr. Brace’s affirmative consent, Mr. Martin illegally entered Mr. Brace’s private land to conduct his unscientific eyeball investigation at the time when Brace ‘No Trespass’ and ‘Private Property’ signs were clearly visible to the public,” Kogan adds.

Congressman Glenn Thompson (R-Pa 5^th District), vice-chairman of the House Committee on Agriculture, describes government action against Brace as an “egregious assault” on private property rights. “At the federal, state, local, game commission, and so many other levels, I’ve never seen anything even close to what the Brace family has been experiencing for three decades. I’ve never seen a case like this in my career. If this was a football game, yellow flags would be flying everywhere for piling on.”

In his role as a farmer and landowner, Coffin claims he has never seen “anything as crazy and wrong” as regulatory action on Brace land. “I’ve watched shameful behavior from my own government officials as they change rules. In all of my life, I’ve never witnessed a court case where the government wanted to win so badly,” he says.

Pared down, regulatory officials demanded Brace restore the ground to a wetland. The 12-vehicle visit in May 1987, was the government’s opening salvo, according to Randy Brace: “One day you’re working ground and suddenly the feds bring in a small army to your land. You would have thought they were looking for Al Capone.”

Based on CWA violations, the Corps and EPA ordered the Braces to end all discharge activities on the acreage. Brace had no wiggle room: Stop or face a $50,000 per day penalty. “I couldn’t even protest. Finally, the government sued us in 1990 and we got to start the court process,” Brace explains.

Despite the potential consequences, Brace was relieved when DOJ took him to court in 1990: “Basically, I’d accumulated $68 million in fines and couldn’t contest anything, because you can’t sue the government until the government sues you. I was ready to finally go to court.”

DOJ cast Brace in the same light as private land developers, and framed its argument as a CWA Section 404 wetlands case. CWA Section 404 generally prohibits the dredging and filling of Waters of the United States (WOTUS), including adjacent wetlands, without a Corps permit, unless the landowner can meet one of the statutory exemptions or exclusions.

“Bob’s case demonstrates the serious problems landowners face regarding ambiguity of wetlands designations. ... We need to get rid of ambiguity. Ambiguity gives bureaucrats more room to maneuver.” - Rep. Glenn Thompson (R-PA)

Brace was accused of recklessly converting land without regard to the environment. The portrayal was baseless, Kogan contends: “This is simply about a farmer on his own land who undertook a tremendous amount of work and was stunned to find out how far the government claimed federal jurisdiction could reach.”

Rep. Thompson served as chair of the Conservation, Energy & Forestry Subcommittee for six years, prior to his current role as chair of the Nutrition Subcommittee. The Brace case is a textbook example of the perils associated with CWA “ambiguity,” according to Thompson: “Bob’s case demonstrates the serious problems landowners face regarding ambiguity of wetlands designations. The Clean Water Act has been abused by bureaucrats and these punitive actions were not originally intended by Congress. We need once-and-for-all clarity on Section 404 which contains agricultural exemptions. A change must incorporate all normal farming practices or ranching practices ... We need to get rid of ambiguity. Ambiguity gives bureaucrats more room to maneuver.”

Brace’s district court date finally arrived in December 1993. He claimed his activity followed the guidelines of a government-approved conservation plan and was backed by all required permits—and former Judge Glenn Mencer (United States District Court for the Western District of Pennsylvania, Erie) agreed that Brace’s activity constituted normal farming practices. At first glance, it was case closed and a return to row cropping for Brace. In reality, Brace’s relief turned bitter as the case took on a byzantine level of complication. Despite a bench trial victory in his pocket, Brace’s trouble was only just beginning.

(Citing pending litigation, the Corps and EPA declined comment on the Brace case. Pennsylvania Game Commission declined comment. DOJ and USFWS offered no response to FJ phone calls or emails.)

1994

DOJ appealed the decision to the Philadelphia-based Third Circuit Court of Appeals. In short, the Third Circuit and Judge Robert Cowen said Mencer was wrong and determined Brace was never engaged in “normal agricultural activity.”

Brace contends judicial deference shown by the Third Circuit to EPA, Corps and USFWS agency (but not to USDA) recommendations was impossible to fight. “Suddenly, the facts didn’t matter in court. My permits didn’t matter. I get in front of the judge and he only relies on the word of government experts? What’s the point? I can’t compete against Chevron deference . It’s a terrible, tight spot to be in and I know there are other landowners that have been in the same predicament,” Brace notes.

“The Third Circuit said my farming wasn’t normal. What is normal? I was legal before all of this and I’ve always been legal since. They say whatever they want in a courtroom because administrative law does what it wants. We’re at the point where people who have never farmed in their lives or set foot outside an office building get to define normal farming.”

While the feds used the broad brush of the CWA against Brace, Kogan claims they ignored the specifics of a key statute: The Food Security Act of 1985. It contained among the most critical wetland conservation legislation in all of federal law, known as the swampbuster provision. For farmers who the USDA-ASCS determined had commenced conversion of wetlands to productive farmland prior to Dec. 23, 1985, swampbuster offered a means to secure USDA cost-sharing and avoid penalties. Essentially, producers were eligible to receive USDA cost-sharing if they could prove to USDA-ASCS through physical activity or invoice materials they had already started conversion of wetlands to farmland prior to Dec. 23, 1985.

Kogan says the Food Security Act of 1985 was a clear green light allowing Brace to continue conversion activities until Jan. 1, 1995—the regulatory deadline. However, the government claimed Brace’s activities prior to 1985—hay and pasturing—did not constitute normal farming . Bottom line: DOJ said a lack of row crops equated with a lack of farming. Brace was sealed in a CWA box, and no matter which way he turned, he wasn’t allowed to use the Food and Security Act of 1985 to say his farmland activity was protected from CWA jurisdiction.

With a flick of the pen, Brace was the court loser, and maddeningly, he had fought with one hand tied behind his back, according to Kogan: Before the district trial began in December 1993, the Corps released a regulatory guidance letter stating wetlands converted to cropland by Dec. 23, 1985, were excluded from federal jurisdiction. In addition, a joint EPA-Corps regulation (August 1993) broadened the definition of prior converted cropland by announcing reliance on the USDA Food Security Manual of 1988. However, due to the timing, the administrative record had already closed on his trial and Brace couldn’t use the new regulatory guidelines for his case.

“The government blindly insisted Brace was a polluter of wetlands and entirely ignored the Food Security Act of 1985, the Food Security Manual of 1988, and jointly issued 1993 EPA-Corps regulations excluding prior commenced conversions from federal CWA Section 404 jurisdiction. They did this in order to put Mr. Brace in a corner and say he wasn’t engaged in normal farming activity,” Kogan exclaims. “Forget logic, because haying and pasturing isn’t farming according to the court. The CWA creates this legal fiction so the government can assert federal jurisdiction and get control of the wetland. Private property rights and farming livelihood be damned.”

1996

Brace tried to get the Supreme Court’s ear and was denied. He was out of options, dejected and facing millions of dollars in stipulated penalties imposed by statute and due regardless of whether there was injury to the land. Brace was at a fork: Go broke or go into mediation with absolutely no bargaining power.

Brace signed a consent decree requiring restoration of 32.5 acres designated as wetlands to its pre-1985 condition. “My head was on the chopping block,” he recalls. “I signed a consent decree to tear out tile lines, plug up some ditches and put in a check dam. The consent decree should have been the end.”

Randy Brace describes the entire legal affair as a “horror show” that isolated the Brace family. “The government portrayed us as environmentally evil. I know what it’s like to feel alone and lose faith. How do you even tell someone this story from start to finish?”

“Farmers don’t always realize what power the government has,” he continues, “but things get real very fast when it’s your land.”

2012-2013

The consent decree required tile removal, select ditch plugging and installation of a check dam. In short time, the backwater and beaver dams wreaked havoc on the farm’s hydrology, causing erosion and flooding on adjoining family land, according to Brace. “What do you think happens when you’re not allowed to clean ditches or culverts?” he asks.

In 2012, EPA and Corps officials walked the site and pointed out spots where ditch maintenance was legal and acceptable. Brace began cleaning culverts and installing drainage tile in prescribed areas with what he describes as “verbal authorization.”

In short time, Brace was again charged with violation of the consent decree and CWA regulations, and hit with over $100 million in fines. “Basically, the government lied and said they authorized repair only outside the decree area, but they actually authorized such work both inside and outside,” Kogan says. “If you tell a farmer to fix a ditch and the laterals, then he’s going to clean them including putting in necessary tile, otherwise nothing will work. As always, the government said, ‘Dance to my tune or that’s it.’”

“My dad and I have both been threatened with jail,” Randy Brace asserts. “We’ve been lied to repeatedly. I keep asking myself, ‘What country is this?’”

2017

EPA reopened the 1990 case on Jan. 9, 2017, 11 days prior to President Trump’s inauguration. The court filings alleged consent decree breaches, and a second action was filed against Brace the same day, claiming the Pennsylvania producer had committed more CWA Section 404 violations on adjacent farmland within the same hydrologically integrated farm based on the same government-denied authorizations.

“They moved the goalposts on me over and over,” Brace says. “As a farmer, how can you even be in compliance when the government can change the definition of the word ‘compliance’ according to who does the interpreting?”

Yet, 2017 took a favorable turn for Brace in June, when a federal magistrate judge from the Western District of Pennsylvania reopened Brace’s 1990 case for new discovery. Additionally, on July 3 and July 7, Brace filed an $8 million administrative action against EPA, the Corps and USFWS under the Federal Tort Claims Act, to which the government has not yet responded. Brace wants compensation for what he contends is 20 years of damaged farmland and lost harvest revenues resulting from “improper, wrongful and/or negligent” enforcement of the consent decree.

2018

On March 15, 2018, DOJ filed a second motion to enforce the 1996 consent decree. Kogan intends to show the court the interplay between the CWA and the Food Security Act of 1985: “We will show how Mr. Brace’s actions were grandfathered by the Food Security Act of 1985, and how EPA and Corps regulations excluded Mr. Brace from CWA jurisdiction.”

“The government has controlled this case with a, ‘Mother may I?’ proposition. The government doesn’t have to prove you are guilty; you have to prove you are innocent. We are now living in the European Union,” Kogan continues. “Put up a fence or hang a posted sign, but the government still believes it can do whatever it wants. This is an injustice of the highest order and Mr. Brace’s case is a wake-up call to all Americans.”

“Nobody Is From A Farm Anymore”

As Brace’s lifelong neighbor, Coffin has watched the legal fight from a ringside seat. He clings to what he considers a lone certainty: “I only know one thing for sure. If the government wins this in the end, it won’t be based on the merits of their case. They never wanted to stop Bob, they wanted to destroy him.”

“This case was never about the facts. The truth means nothing when the government can change the rules as they go along. Bob stands beyond himself and he’s fought for all farmers and landowners. Sure, all farmers have different soils and slopes, and grow crops in different states, but this case is all of us,” Coffin adds.

Spanning his political career, Thompson says he’s never encountered a regulatory case with as much multiple-agency power directed toward one farmer: “I’m in awe of the endurance of Bob and the entire Brace family. For 30 years they’ve been under attack from government agencies and received mixed messages the whole time.”

The toll on the extended Brace family has been exceedingly heavy, acknowledges Randy Brace. “Nobody sees what the families go through when the government tries to ruin a farm. The pain across 30 something years is hard to talk about. Almost nobody is from a farm anymore and what happened is so hard for me to describe,” he explains.

Randy and his brother, Ron Brace, are quick to point toward a hopeful fifth generation of Brace producers: sons Zack, 25; Nic, 21; Jackson, 16; and Jep, 13. “Our boys are everything. They’re our hope for this farm. They’ve stuck it out with us and they’re hanging on, holding tight for something good,” Randy describes.

DOJ: 10,000 Attorneys

How much money has DOJ, backed by 10,000 attorneys and 114,000 employees, spent in pursuit of Brace? Considering litigation at the administrative and judicial levels, and agency activity over the 30-plus year period, the precise multi-million dollar total remains a glaring question. (DOJ declined to answer how much money has been spent on the Brace case, as well as all other inquiries related to Brace.)

Kogan has deposed scores of government witnesses and recently filed 3,200 pages of exhibits on behalf of Brace. Regarding the gravity of Brace’s case for private property rights, Kogan speaks bluntly: “The government has done whatever the hell it wanted without accountability. They put Bob Brace in a vice and then used a consent decree to create a primordial wetland on his farm that never existed.”

“The DOJ frames its case against Bob Brace as if he was an industrial polluter, entirely ignoring that he runs a small farm,” Kogan continues. “This case is a train running wild without a conductor. DOJ, the biggest law firm on the entire planet, never gets enough.”

(Again, citing pending litigation, the Corps and EPA declined comment on the Brace case. Pennsylvania Game Commission declined comment. DOJ and USFWS offered no response to FJ phone calls or emails.)

Normal Farming?

For 31 years, the elder Brace has been part of a complicated tangle of government regulation, CWA and FSA interpretation, wetlands preservation, agricultural exemption and agency authority. The case and its burdens have sat on his shoulders for three decades, and at 79, he hopes resolution is near. “Maybe they should have just shot me instead of putting my family through this, but I’ve never been afraid to fight for what’s right. The government can come on any farmer’s land and easily find something wrong. No matter which way you turn, you can’t meet the letter of their regulations. How does a farmer fight when they threaten you with a $100,000 fine per day? How?”

“When I raise the flag, I wonder what is going on in this country and if our republic is gone. Take a look at this horrendous case and you’ll find out that it’s not about me as a person, because there are other cases like mine in other states that people don’t know about. This is about farming and the power of government to do as it likes. Trump, Pruitt, Congress and all the politicians in D.C. need to know what happened so this doesn’t keep happening to more farming families.”

Brace shakes his head, pauses, and offers a final reflection: “How in the hell do they know what normal farming practices are, anyway? I’ve been in those fields since I was four years old. Guess what? I’ve never done nothing except normal farming.”

(See here for a summary page of Brace’s March/April/May 2018 court filings and here for previous Brace case material. Also, visit Pennsylvania Landowners’ Association for additional Brace-related legal documents.)

See also:

Agriculture’s Darkest Fraud Hidden Under Dirt and Lies

Pigs Don’t Fly: Feral Hog Spread Is A Man-Made Mess

Bald Eagles a Farmer’s Nightmare

Private Property Rights Collide With Invisible Frog

Who Killed the Finest Soybean Soil in the World?

When a Farmer Punches Back at the Feds

The Secret Life of Farmland Marbles

Death and Burial on an American Farm

Avoid Next-Door Drama

Wed, 18 Nov 2020 16:47:41 GMT

As a responsible farmer you take steps in your business not only to produce the best, highest-quality crop you can, but also to protect the health of the land or the welfare of your livestock on a daily basis. But in doing so, you may still have neighbors who aren’t happy with your operation’s impact on their lives, whether it be true or a misperception. Over time, disgruntled feelings have the potential to fester into lawsuits against your farm. Here are a few ways to practice good neighbor hygiene, and how to handle it should you find yourself facing a lawsuit.

Check in with neighbors. A quick check-in can head off issues by providing an opportunity for two-way dialog. Contacting your neighbor periodically in general and alerting them of upcoming changes to your business plan gives them an opportunity to share any issues or concerns relating to your farm that you may be unaware of.

“If a neighbor who already has some concerns about your farm—potentially unexpressed concerns—suddenly sees backhoes show up at your property, they’re going to be nervous and curious what’s going on over there. If they’ve had issues with odor or insects before, they’re going to naturally assume the worst,” says Chad Blomberg, JD, of Lathrop GPM . “That may not be true at all. Instead, you may be adding something to the farm that will make things better or you may be adding new technology. To help alleviate these concerns your neighbors might have, talk to them and help dispel misinformation about what’s going on.”

Evaluate your practices. The legal standard for a nuisance claim is unreasonable land use, so a farmer has to act reasonably in developing and implementing farm practices, and stay up to date on available technologies, equipment and management practices, says Jennifer Griffin, JD, of Lathrop GPM .

“Nearly every state has Right to Farm statutes that provide some form of protection against nuisance suits. But some states’ statutes—like Missouri’s—say that the expansion or new practice cannot create a substantially adverse effect on the environment or create a hazard to public health or safety,” she notes.

Educate your community. Building an understanding of farming practices, including the fact that your farm operates under a permit that is monitored by state and meets all requirements to continue operation can also be key in staving off lawsuits.

“Public education of members of the community can be useful in avoiding litigation and helping to mitigate misconceptions (or misinformation) about farming practices,” Blomberg and Griffin say. “Many types of information (e.g., permitting, regulatory requirements, your periodic reports) are public records, and can be shared or communicated with the community, including neighbors and others in the community who have relationships with them.”

What to do if you get served with a lawsuit.

Do you know what to do should you find yourself in a legal dispute with a neighbor? “Though catching up over a cup of coffee can go a long way in building relationships over time, after a lawsuit has been filed, the opportunity for casual conversation disappears,” says Tiffany Dowell Lashmet, JD, associate professor & extension specialist of agricultural law at Texas A&M AgriLife Extension Service. At that point, anything you say could be used against you in court and could hurt you in the long run. Once you’ve been served, you need to find legal counsel to represent you.

Don’t put insurance policies on autopilot. Blomberg, Griffin and Lashmet all agree that one of the most important steps in fighting a lawsuit is to get in touch with your insurance carrier and talk over your coverage. It is crucially important to review coverage on an annual basis and stay away from auto-renewal year after year, they say. Policies can change, and you may not be covered for what you thought you were 10 years ago.

Find resources to help you. While it may be tempting to represent yourself, it is easy to underestimate the complexity of the issues and the time it can take to resolve a suit, and it will benefit you to have expert help.

“The best-case scenario is that you’ve got an insurance company that provides you a defense. They hire you an attorney and the attorney steps in and takes over representing you,” Lashmet says. “The first phone call I would make is to my insurance company to find out if we’ve got an event for which an attorney would be provided. If not, I would recommend to anybody who’s facing a lawsuit, at least consult with an attorney to figure out what’s going on, whether it’s worth hiring someone, and determine how serious it is.”