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As artificial intelligence (“AI”) becomes increasingly integrated into daily life, more people are turning to AI for emotional support and personal decisions. (For more on this topic, see this Arizona State University news article.)
It’s no surprise that many now also use it for legal guidance, oftentimes as a “starting point” before consulting a lawyer.
That’s exactly what the defendant did in United States v. Heppner. The defendant’s communications with AI unintentionally caused him to waive the protections of the attorney-client privilege over sensitive case information.
Attorney-Client Privilege
Most people are familiar with “attorney-client privilege,” but what exactly is it? It is one of the oldest and most sacred protections for confidential communications. The privilege belongs to the client, not the attorney. Its purpose is to encourage open and honest dialogue between lawyers and clients, which ultimately serves the public interest by promoting compliance with the law and the fair administration of justice.
The privilege generally protects communications between an attorney and client made for the purpose of seeking or providing legal advice. These protections last indefinitely, even after the attorney-client relationship ends of the client dies.
Waivers and Exceptions
Although attorney-client privilege is strong and long-lasting, it can be waived, intentionally or unintentionally, by the client. There are also limited circumstances where an attorney may be compelled to disclose the protected communications.
One common way privilege is waived by the client is by sharing confidential case information with a third party. This includes bringing a friend or family member to meeting with your attorney or casually discussing case details with a confidant over coffee or drinks. Those communications are not privileged and thus, the information discussed will no longer be protected by confidentiality.
And that is exactly what the judge decided happened in Heppner.
United States v. Heppner
In United States v. Heppner, the defendant, a senior executive indicted for securities fraud, used AI to analyze his legal situation and develop a defense strategy. The government sought to use the AI search results, while the defense argued the information remained protected by attorney-client privilege.
The judge ruled that the defendant waived privilege by disclosing sensitive information to AI, which constituted a third-party disclosure. The court further held that even if the defendant later intended to share the AI results with his attorneys, the privilege could not be restored once the information had already been revealed to a third party.
The Heppner Effect
This case serves as a timely reminder of how attorney-client privilege works and how easily it can be waived. While Heppner is a New York decision, it is the first ruling addressing AI and attorney-client privilege, and it is likely to influence courts nationwide.
The case highlights an important lesson: AI is a powerful tool, but it can also unintentionally work against you. What seems like a helpful resource may become a costly mistake.
Key takeaway: If you are involved in any type of litigation, never disclose sensitive case information to friends, family, or even AI.
Tags: Legal news, Litigation strategy, artificial intelligence, AI, Lawyer, attorney, litigation
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As we move into March, we thought it’d be a good time to look back at what committees in both chambers of the Ohio General Assembly got up to in February. Committees in both the House and Senate are considering bills to regulate carbon capture, change the levy process, study the effects of data centers, and more. Here is an update on the bills we are following.
H.B. 170, Carbon Capture—On Tuesday, February 17, the Ohio Senate Energy Committee held its first hearing on House Bill 170, which would give the Ohio Department of Natural Resources (ODNR) the authority to regulate carbon sequestration in the state. We previously wrote about H.B. 170, sponsored by Representatives Robb Blasdel (R-Columbiana) and Peterson (R-Sabina) when it was passed by the Ohio House in October 2025. For a more detailed discussion of the bill, please see our previous blog post, available here.
The Senate Energy Committee heard testimony from Representative Peterson, along with five proponents of H.B. 170. Most of the testimony centered on the idea of the state gaining “primacy,” or in other words, seeking approval from the U.S. EPA for the state to regulate Class VI injection wells instead of the federal government through the U.S. EPA. Basically, sponsors and proponents argued that if the state can regulate Class VI injection wells within Ohio, that will result in a faster permitting process for carbon sequestration projects within the state. Representative Peterson pointed out that by gaining “primacy,” the regulatory decisions would be more connected to the Ohio communities where the wells are located.
Several proponents of the bill also testified, including the American Petroleum Institute, the Ohio Oil & Gas Association, Vault 44.01, Tenaska, and Hocking Hills Energy and Well Service, LLC. Proponents testified that states with primacy over Class VI injection wells were usually able to approve a project within 9-12 months, whereas the federal EPA process could take around two years. Furthermore, not obtaining primacy could mean that Ohio might lose projects and jobs to other states who do have primacy. Faster state approval could create jobs and economic benefits in Ohio for projects that the proponent companies are considering. Some of those projects would be centered around sequestering carbon from ethanol facilities located in Ohio. At present, North Dakota, Wyoming, Louisiana, West Virginia, Arizona, and Texas have obtained primacy to regulate Class VI injection wells. Indiana, Pennsylvania, and Michigan are currently considering legislation to gain primacy. You can read H.B. 170 here.
H.B. 420, Property Tax—House Bill 420 had its first hearing in the House Ways & Means Committee on February 11. Sponsored by Representatives Click (R-Vickery) and Willis (R-Springfield), H.B. 420 would prohibit new continuous levies from being placed on ballots, require continuous levies currently on the books to be converted to fixed-term or renewed levies prior to 2030, and prohibit continuous levies in the state after 2030 unless such levies are specifically authorized by voters. The House Ways & Means Committee heard sponsor testimony from Representatives Click and Willis. Representative Click argued that “each generation deserves the right” to approve or disapprove of a levy tax, and that continuous levies prohibit this right by imposing taxes upon people who didn’t originally vote for them. Questions from members of the committee clarified that if passed, the longest levies would last 10 years, however, levies could also exceed that timeframe if they are fixed to loans for long-term investments made by a school, locality, etc. Representative Rogers (D-Toledo) expressed concerns that if passed, the bill could lead to an upheaval in local funding. You can read H.B. 420 here.
House bill 420 is part of what Representative Click has dubbed a “Taxpayers Freedom Trilogy” bill package that also includes House Bills 421 and 422. H.B. 421 would allow ballot measures to reduce inside millage, and H.B. 422 would establish higher thresholds for levy requests over 1 mill (60%) and 2 mills (66%). Neither of the second or third parts of the “trilogy” have received committee hearings yet. Of note, a second hearing on H.B. 420 was scratched from the February 18 House Ways & Means Committee agenda, and House Speaker Huffman has indicated that it is unlikely that these property tax proposals will pass the House before the summer legislative recess. You can find H.B. 421 here and H.B. 422 here.
H.B. 646, Create the Data Center Study Commission—House Bill 646 had its second hearing in the House Technology & Innovation Committee on February 24. We covered the details of H.B. 646, sponsored by Representatives Click (R-Vickery) and Deeter (R-Norwalk) in an earlier blog post, available here. The hearing drew interested party testimony from numerous groups and individuals, including the Ohio Chamber of Commerce and the Ohio Farm Bureau. The Ohio Chamber of Commerce supported the creation of a Data Center Study Commission but implored the committee to include representation from the tech industry on the Commission, noting that data centers would bring with them jobs, increased GDP, and increased local revenues. Ohio Farm Bureau supported the creation of a Commission to study the impacts of data centers, including the impacts on agricultural land and resources long term, water use, water quality, and other potential environmental impacts. Ohio Farm Bureau also cited the need for a robust regulatory framework for data centers and long-term land use planning, worrying that without such planning, agriculture in the state of Ohio will suffer from loss of land to development and other problems. Individual citizens testified that they would like H.B. 646 to include a moratorium on building data centers while the study takes place and noted that the Commission should consider what happens to data center property after it is no longer in use. You can find H.B. 646 here.
S.B. 285, Recoupment Charges—The Senate Ways & Means Committee heard proponent testimony for Senate Bill 285 during its February 10 meeting. S.B. 285, sponsored by Senator Schaffer (R-Lancaster), would make it explicit that agricultural land converted to certain conservation uses would be exempt from a CAUV recoupment penalty if it was previously used for agricultural purposes. Specifically, land would be exempted if it is given to the Ohio Department of Natural Resources (ODNR) to use as a nature preserve, if it is owned or held by an organization with the purposes of natural resources protection or water quality improvement. The president of the Stream and Wetlands Foundation, based in Lancaster, Ohio, explained during his testimony that the bill would basically be a small technical clarification to previous legislation passed in 2022. Since 2022, some county governments have interpreted current law as requiring CAUV recoupment charges to be paid for land used to protect natural resources, while other counties have not. S.B. 285 would clear up this confusion and affirm that CAUV does not apply to exempted land used for conservation purposes. S.B. 285 is available here.
S.B. 361, Eminent Domain—During its meeting on February 17, the Senate General Government Committee heard sponsor testimony from Senator Schaffer (R-Lancaster) on Senate Bill 361. The bill would prohibit the taking of land by eminent domain for use as a trail for hiking, bicycling, horseback riding, ski touring, canoeing, or other nonmotorized forms of travel. During his testimony, Senator Schaffer gave an example of a property owner in his district whose land would be cut in half by a recreational trail, and asserted that local government shouldn’t be able to take land from a property owner just for recreational purposes. Senator DeMora (D-Columbus) asked for clarification about whether pathways for pedestrian and bike safety along roadways would fall under this prohibition. Senator Schaffer responded that that is not the intent of the bill, and that he would be willing to work with the Committee on language if necessary. S.B. 361 is available here.
Tags: Ohio legislation, property tax, cauv, carbon capture and storage, eminent domain, data centers, land use
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Over the past several years, numerous lawsuits have been filed against the Monsanto Company regarding the safety of its herbicide Roundup and its main ingredient glyphosate. On January 16, 2026, the Supreme Court of the United States granted the Monsanto Company’s petition to review one of these cases from the Missouri Court of Appeals, Durnell v. Monsanto Company.
Background of the case
In 2019, John Durnell of St. Louis sued Monsanto in Missouri state court, arguing that exposure to glyphosate contained in Roundup caused his non-Hodgkin’s lymphoma. Mr. Durnell argued that Monsanto should be found strictly liable for defective design of its product and for failure to warn users of the danger of using Roundup, as well as negligence.
At trial, the jury sided with Monsanto on the defective design and negligence claims, meaning that the company was not found liable for these claims. On the remaining claim, the 12-person jury unanimously found Monsanto to be strictly liable for its failure to warn of the risks of using glyphosate, granting Mr. Durnell $1.25 million in compensatory damages.
Eventually, Monsanto appealed the case to the Missouri Court of Appeals, claiming that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempts failure to warn claims under state law. Federal preemption of state law can happen either expressly or impliedly. Express preemption happens when a federal statute contains language that specifically says that other laws or requirements cannot be imposed. Implied preemption happens when there might not be explicit language in a statute calling out the preemption, but Congress’s intent to supersede state law is implicit due to the nature of the statute. Here, the appeals court did not find Monsanto’s preemption argument persuasive; instead finding that the language in FIFRA did not expressly preempt Mr. Durnell’s failure to warn claim, and that there was no implied irreconcilable conflict between the state and federal law. You can read the Missouri Court of Appeals opinion in its entirety here.
Since the Missouri Supreme Court declined to hear the case, Monsanto filed a petition with the Supreme Court of the United States to review the Missouri Court of Appeals’ decision on April 4, 2025. On January 16, 2026, the Supreme Court granted Monsanto’s petition, agreeing to review the case. The Court has limited its review of the case to one question: “whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to-warn claim where EPA has not required the warning.”
What are each side’s arguments for the Supreme Court?
In the lead up to a Supreme Court determination to hear a case, the legal teams for both parties file documents explaining why or why not the case should be heard. The party asking the Court to hear the case (in this case, Monsanto) files a petition for writ of certiorari, laying out their reasons for asking for review. Then the respondent (Durnell), has a chance to file a brief with the Court detailing their arguments as to why the lower court’s decision should stand. These documents can give us some insight into how each party may form its arguments if the case is heard before the Supreme Court.
Between the two parties in this case, there are hundreds of pages laying out their lines of reasoning for hearing or not hearing the case. In its most basic form, Monsanto’s argument is that language in FIFRA expressly preempts state requirements for the labeling and packaging of herbicides like Roundup. The language they point to is in Chapter 7 of the U.S. Code, Section 136v(b) and reads: “state(s) shall not impose or continue in effect any requirements for labeling or packaging in addition to or different from those required under this subchapter.” You can see the statute here. FIFRA requires pesticides to be registered with the federal Environmental Protection Agency (EPA) before they can be sold or distributed in the country. Monsanto asserts that because EPA continues to accept Roundup’s product registration under FIFRA without requiring the company to include any warning or caution statement about the possible health risks of glyphosate on its labeling, any state law claim that would require such a warning should be overridden. You can read Monsanto’s petition for writ of certiorari here.
For their part, Mr. Durnell’s legal team points to a case previously decided by the Supreme Court in 2005, Bates v. Dow AgroSciences LLC (you can read that case here), in which the majority determined that state common-law claims like failure-to-warn are not automatically preempted by the language of FIFRA Section 136v(b). In Bates, the Court found that while FIFRA does preclude states from imposing different or additional labeling requirements for pesticides, it does not preclude states from imposing different or additional remedies. In other words, since “FIFRA does not provide a federal remedy to farmers and others who are injured as a result of a…violation of FIFRA’s labeling requirements, nothing in [FIFRA] precludes the states from providing such a remedy.” Furthermore, Mr. Durnell’s lawyers argue that EPA’s continued acceptance of Roundup’s product registration does not necessarily prevent the requirement of a cancer or health warning on the label, it just means that that Monsanto has not provided any evidence of glyphosate’s potential health effects or asked EPA to consider including such a warning. You can read Durnell’s response here.
What’s next?
While it can be fun to predict the outcome of Supreme Court cases, between the language of FIFRA and case law, I can’t begin to guess where the Court will end up in this case. What is certain is that the Court will examine “whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to-warn claim where EPA has not required the warning.” Oral arguments for each side will happen sometime between October 2026 and April 2027, and the Court may release an opinion on the case in May or June of 2027. Additionally, the Court’s final decision will likely have implications for similar lawsuits regarding Roundup and glyphosate throughout the country. We will do our best to keep you updated on this complicated case as it works through the system. In the meantime, additional court documents and filings on the case can be found here.
Tags: pesticides, herbicides, roundup, Monsanto, glyphosate, EPA, FIFRA, Supreme Court, Supreme Court of the United States, U.S. Supreme Court
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We are back with another edition of the Ag Law Harvest, where we bring you rulings, laws, and regulations that affect the agricultural industry. This month's Ag Law Harvest is bringing the heat with H-2A wage rule injunctions, cultivated meat ban challenges, sales and use tax issues, and an emergency order from the EPA.
Federal Judge in Georgia Blocks H-2A Wage Rule for Named Plaintiffs. A Georgia federal judge has limited the U.S. Department of Labor's enforcement of a rule titled "Improving Protections for Workers in Temporary Agricultural Employment in the United States" (the “Final Rule”). This rule, challenged by 17 states led by Kansas and Georgia, as well as by Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association (the “Plaintiffs”), is claimed to be unconstitutional. The Plaintiffs argued that the Final Rule violates the 1935 National Labor Relations Act (the “Act”) by granting H-2A farmworkers greater organizing and collective bargaining rights than those afforded to U.S. citizen agricultural workers, effectively bypassing the Act. The U.S. District Court in Georgia sided with the plaintiffs, ruling that the Department of Labor's Final Rule improperly creates a right that Congress did not intend and did not create by statute. The court emphasized that administrative agencies, including the DOL, cannot create laws or rights that Congress has not established. The court criticized the DOL for overstepping its authority, stating that while the DOL can assist Congress, it cannot assume the role of Congress. The court granted a preliminary injunction prohibiting the DOL from enforcing the Final Rule, but only for the Plaintiffs. Thus, the preliminary injunction will only apply in Georgia, Kansas, South Carolina, Arkansas, Florida, Idaho, Indiana, Iowa, Louisiana, Missouri, Montana, Nebraska, North Dakota, Oklahoma, Tennessee, Texas, and Virginia. The injunction will also apply to Miles Berry Farm and the Georgia Fruit and Vegetable Growers Association. We will keep you updated as the case goes up on appeal and how this ruling affects other H-2A lawsuits across the country.
Florida Cultivated Meat Ban Challenged. A California business has filed a federal lawsuit against the state of Florida, challenging a law that bans the sale of cultivated meat. The company argues that Florida's prohibition is unconstitutional, claiming it violates their right to engage in interstate commerce by restricting their ability to sell their products across state lines. Upside Foods, Inc., the California based company, alleges that Florida Senate Bill 1084 (“SB 1084”), which bans the manufacture, distribution, and sale of cultivated meat, violates the U.S. Constitution’s Supremacy Clause because SB 1084 “is expressly preempted by federal laws regulating meat and poultry products.” Furthermore, Upside Foods alleges that SB 1084 violates the U.S. Constitution’s Dormant Commerce Clause because SB 1084 “was enacted with the express purpose of insulating Florida agricultural businesses from innovative, out-of-state competition like UPSIDE.” Upside Foods has asked the district court in Florida to declare SB 1084 unconstitutional and to issue an injunction preventing SB 1084’s enforcement. Proponents of SB 1084 argue that the law protects Floridians, however, Upside Foods alleges that the Florida ban isn’t meant to protect the public, rather it was passed to “protect in-state agricultural interests from out-of-state competition.”
Board of Tax Appeals Finds Utility Vehicle Not Exempt Under Agricultural Sales Tax Exemption. Claugus Family Farm LP (CFF), an Ohio timber farm, purchased a 2015 Mercedes-Benz utility vehicle and claimed it was exempt from sales tax under Ohio’s Agricultural Sales Tax Exemption. After an audit, the Ohio Department of Taxation assessed the sales tax on the vehicle. CFF petitioned for reassessment, but the Ohio Tax Commissioner determined that CFF did not provide enough evidence to prove the vehicle was primarily used for farming as required by law. CFF then appealed to the Ohio Board of Tax Appeals, arguing that the vehicle was mainly used for farming operations, such as transporting people around the farm, monitoring tree health, applying pesticides, maintaining equipment, and carrying supplies. CFF claimed the vehicle was used 95% of the time on farming activities. Upon review, the Board of Tax Appeals noted that “the use of vehicles for transportation around a farm, as well as general uses such as delivering parts and cutting and hauling of wood and brush, do not constitute direct farming activities.” The Board held that the vehicle was used primarily for these purposes and not directly in farming and thus found the vehicle to be subject to Ohio’s sales and use tax.
EPA Emergency Order Suspends Use of Pesticide DCPA/Dacthal. On August 7, 2024, the U.S. Environmental Protection Agency (“EPA”) issued an Emergency Order immediately suspending the registration and use of all pesticides containing dimethyl tetrachloroterephthalate (“DCPA” or “Dacthal”). The EPA cited the danger the substance poses to pregnant women and unborn babies. The agency determined that the continued sale, distribution, or use of DCPA products during the cancellation process would present an imminent hazard, justifying the emergency suspension without a prior hearing. Despite efforts by AMVAC Chemical Corporation, the sole registrant of DCPA products, to address these concerns, the EPA concluded that no practicable mitigations could make the use of DCPA safe.
Tags: ag law harvest, H-2A, pesticides, EPA, Cultivated Meat, U.S. Constitution, Ohio Sales Tax, Agricultural Sales Tax Exemption, Ag Law, Farm Law
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With Memorial Day behind us, the unofficial start of summer is here, and we are back to bring you another edition of the Ag Law Harvest. In this Harvest we discuss OSHA’s proposed workplace heat hazard standards, DOL’s new H-2A Farmworker rule, an interesting income tax credit in Colorado, and a proposal to limit Ohio property tax increases.
OSHA Advances Proposed Rule to Mitigate Workplace Heat Hazards.
The U.S. Department of Labor's Occupational Safety and Health Administration (“OSHA”) announced that it is advancing a proposed rule to mitigate workplace heat hazards, following unanimous approval from an advisory committee. The rule aims to protect workers from heat-related illnesses and fatalities, particularly in agriculture. While OSHA works to finalize the proposed rule, OSHA “continues to direct significant existing outreach and enforcement resources to educate employers and workers and hold businesses accountable for violations of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1) and other applicable regulations.” Assistant Secretary for Occupational Safety and Health Doug Parker explained that as OSHA moves through the regulatory process, “OSHA will use all of its existing tools to hold employers responsible when they fail to protect workers from known hazards such as heat. . .” Since 2022, OSHA's National Emphasis Program has conducted nearly 5,000 inspections to proactively address heat-related hazards in workplaces with high heat exposure. The agency prioritizes inspections in agricultural industries employing temporary H-2A workers, who face unique vulnerabilities. Employers are reminded that they are legally required to protect workers from heat exposure by providing cool water, breaks, shade, and acclimatization periods for new or returning workers. Training for both workers and managers on heat illness prevention is also essential.
Department of Labor Finalizes and Publishes Rule Enhancing Protections for H-2A Farmworkers.
The U.S. Department of Labor (“DOL”) announced a final rule to strengthen protections for H-2A farmworkers. The new rule titled “Improving Protections for Workers in Temporary Agricultural Employment in the United States” includes the following provisions:
- Adding new protections for worker self-advocacy: The final rule enhances worker advocacy by expanding anti-retaliation protections and allowing self-organization and concerted activities. Workers can decline attending employer-led meetings that discourage union participation. The rule permits workers to consult legal and other key service providers and meet them in employer-furnished housing. Additionally, workers can invite guests, including labor organizations, to their employer-provided housing.
- Clarifying “for cause” termination: The final rule clarifies that a worker is not “terminated for cause” unless the worker is terminated for failure to comply with an employer’s policies or fails to adequately perform job duties in accordance with reasonable expectations based on criteria listed in the job offer. Additionally, the rule identifies five conditions that must be met in order to ensure that disciplinary and/or termination processes are justified and reasonable: These five conditions are: (1) the worker has been informed, in a language understood by the worker, of the policy, rule, or performance expectation; (2) compliance with the policy, rule, or performance expectation is within the worker’s control; (3) the policy, rule, or performance expectation is reasonable and applied consistently to H-2A workers and workers in corresponding employment; (4) the employer undertakes a fair and objective investigation into the job performance or misconduct; and (5) the employer corrects the worker’s performance or behavior using progressive discipline.
- Seat Belts: Any employer provided transportation must have seat belts if the vehicle was manufactured with seat belts. All passengers and the driver must be wearing seat belts before the vehicle can be driven.
- Ensuring timely wage changes for H-2A workers: The final rule establishes that the effective date of updated adverse effect wage rates is the date of publication in the Federal Register.
- Passport Withholding: The final rule prohibits an employer from holding or confiscating a worker’s passport, visa, or other immigration or government identification documents. An employer may, however, hold a worker’s passport for safekeeping only if: (1) the worker voluntarily requests that the employer keep the documents safe; (2) the employer returns the documents to the worker immediately upon their request; (3) the employer did not direct the worker to submit the request; and (4) the worker states, in writing, that the three conditions listed above have been met.
The final rule is effective on June 28, 2024. However, the DOL has made it clear that H-2A applications filed before August 28, 2024, will be subject to the current applicable federal regulations. Applications submitted on or after August 29, 2024, will be subject to the new rule. For more information, visit the DOL’s “H-2A Employer’s Guide to the Final Rule ‘Improving Protections for Workers in Temporary Agricultural Employment in the United States.’”
Colorado Establishes State Income Tax Credit for Qualified Agricultural Stewardship Practices.
Beginning in 2026 Colorado farmers and ranchers will be able to qualify for an income tax credit for actively engaging in conversation stewardship practices. The newly enacted legislation creates three different tiers of income tax credits.
- Tier 1: A state income tax credit equal to at least $5 and no more than $75 per acre of land covered by one qualified stewardship practice, up to a maximum of $150,000 per tax year.
- Tier 2: A state income tax credit equal to at least $10 and no more than $100 per acre of land covered by two qualified stewardship practices, up to a maximum of $200,000 per tax year.
- Tier 3: A state income tax credit equal to at least $15 and no more than $150 per acre of land covered by at least three qualified stewardship practices, up to a maximum of $300,000 per tax year.
However, only $3 million worth of tax credits can be issued in one tax year. Any claims for the tax credit beyond the $3 million dollars are placed on a waitlist in the order submitted and a certificate will be issued for use of the agricultural stewardship credit in the next income tax year. No more than $2 million in claims shall be placed on the waitlist in any given calendar year. Additionally, only one tax credit certificate may be issued per qualified taxpayer in a calendar year, and the taxpayer can only claim the credit for up to three income tax years.
Ohio House of Representatives Proposes Joint Resolution to Limit Property Tax Increases for Ohio Property Owners.
The Ohio House of Representatives have proposed to enact a new section in Article I of Ohio’s Constitution. Section 23 would limit property tax increases on Ohioans. Under the proposed change, the amount of real property taxes levied on a parcel of property cannot exceed the amount of tax levied on that parcel in the preceding year plus the rate of inflation or four percent, whichever is lower. There are some exceptions that allow a one-time increase in property tax liability in excess of the four percent limit. The exceptions include: (1) when a parcel is divided; (2) the expiration of a tax exemption, abatement, or credit that applied to the parcel in the preceding year; or (3) when a building is completed or significantly improved and is added to the tax list on the parcel. We will continue to closely monitor how the proposed resolution fares in committee and beyond. If the resolution passes both chambers of the Ohio Legislature, the proposed change would be voted on in the November 5, 2024, election.
Tags: OSHA, Department of Labor, H-2A, Income Tax, Colorado, Ohio, property tax
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As April comes to a close, we bring you another edition of the Ag Law Harvest. This month’s harvest brings you laws and regulations from across the country regarding a national drinking water standard, the Endangered Species Act, Ag-Gag laws, noncompete agreements, and pollution.
EPA Finalizes First-Ever PFAS Drinking Water Standards
Earlier this month, the U.S. Environmental Protection Agency (“EPA”) announced a final rule, issuing the “first-ever national, legally enforceable drinking water standard to protect communities from exposure to harmful per-and polyfluoroalkyl substances (PFAS), also known as ‘forever chemicals’”. The final rule sets legally enforceable maximum contaminant levels for six PFAS chemicals in public water systems. The EPA also announced nearly $1 billion in new funding to “help states and territories implement PFAS testing and treatment at public water systems and to help owners of private wells address PFAS contamination.” The EPA suggests that this final rule “will reduce PFAS exposure for approximately 100 million people, prevent thousands of deaths, and reduce tens of thousands of serious illnesses.”
Interior Deptartment Finalizes Rule to Strengthen Endangered Species Act
The Department of the Interior has announced that the U.S. Fish and Wildlife Service finalized revisions to the Endangered Species Act (ESA). These revisions aim to enhance participation in voluntary conservation programs by promoting native species conservation. They achieve this by clarifying and simplifying permitting processes under Section 10(a) of the ESA, encouraging greater involvement from resource managers and landowners in these voluntary initiatives. For more information about Section 10 of the ESA visit the U.S. Fish and Wildlife Service’s website.
Kentucky Passes Ag-Gag Statute
On April 12, 2024, the Kentucky legislature overrode the governor’s veto to pass Senate Bill 16 into law. The new law, titled “An Act Relating to Agricultural Key Infrastructure Assets,” expands the definition of “key infrastructure assets” to include commercial food manufacturing or processing facilities, animal feeding operations, and concentrated animal feeding operations. It criminalizes trespassing on such properties with unmanned aircraft systems, recording devices, or photography equipment without the owner's consent. The first offense is a Class B misdemeanor with up to 90 days imprisonment and a $250 fine, while subsequent offenses are Class A misdemeanors with up to 12 months imprisonment and a $500 fine.
Federal Trade Commission Bans Non-Compete Agreements
The Federal Trade Commission (“FTC”) announced a final rule banning noncompete agreements and clauses nationwide. This move aims to promote competition by safeguarding workers’ freedom to change jobs, increasing innovation and the formation of new businesses. Under the FTC’s new rule, existing noncompetes for the vast majority of workers will no longer be enforceable after the rule’s effective date. However, existing noncompetes for senior executives – those earning more than $151,164 annually and in policy making positions – remain enforceable under the new rule. Employers will have to notify workers bound to an existing noncompete that the noncompete agreement will not be enforced against the worker in the future. The final rule will become effective 120 days after publication in the Federal Register.
EPA Announces New Rules to Reduce Pollution from Fossil Fuel-Fired Power Plants
The U.S. Environmental Protection Agency (“EPA”) unveiled a set of final rules designed to decrease pollution from fossil fuel-fired power plants. These rules, developed under various laws such as the Clean Air Act, Clean Water Act, and Resource Conservation and Recovery Act, aim to protect communities from pollution and improve public health while maintaining reliable electricity supply. They are expected to substantially reduce climate, air, water, and land pollution from the power industry, aligning with the Biden-Harris Administration's goals of promoting public health, advancing environmental justice, and addressing climate change.
Tags: EPA, ag law harvest, ag-gag, FTC, Noncompete Agreements, endangered species act, Clean Air Act, Clean Water Act, Resource Conservation and Recovery Act
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Spring has officially sprung, and so have a few interesting legal updates. In this edition of the Ag Law Harvest we cover aggravated vehicular assault in a farm utility vehicle, "Made in the USA" labels, the Corporate Transparency Act's legal woes, USDA's Dairy Margin Program, and the U.S House Committee on Agriculture's Agricultural Labor Working Group's final report.
Driver of Farm Utility Vehicle Cannot be Found Guilty of Aggravated Vehicular Assault.
The Supreme Court of Ohio ruled that a driver of a farm utility vehicle involved in a crash cannot be convicted of a felony for injuring passengers because the vehicle does not meet the definition of a “motor vehicle” under Ohio’s criminal code. Joshua Fork of Sandusky County crashed his Polaris utility vehicle while driving under the influence at a party in 2020. Two of Fork’s passengers sustained serious injuries as a result of the accident. Fork was convicted of operating a vehicle under the influence (OVI), and two counts of aggravated vehicular assault. Fork did not contest his OVI conviction but did appeal his aggravated vehicular assault conviction to the Sixth District Court of Appeals. The case eventually made its way to the Supreme Court of Ohio.
In its decision, the Court found that Ohio law has two definitions of “motor vehicle.” One definition applies strictly to traffic laws and the other applies more broadly to Ohio’s “penal laws.” The Court held that the definition of “motor vehicle” that applies to penal laws, such as aggravated vehicular assault, exempts utility vehicles. The Court concluded that because of the utility vehicle exemption and the fact that the utility vehicle’s principal purpose is for farm activities, Fork cannot be found guilty of vehicular aggravated assault. To read more on the Supreme Court’s decision, visit: https://www.courtnewsohio.gov/cases/2024/SCO/0321/230356.asp
USDA Announces Final Rule on “Made in the USA” Labels.
The U.S. Department of Agriculture (“USDA”) announced the finalization of a rule to align the voluntary “Product of USA” label claim with consumer understanding of what the claim means. The USDA's final "Product of USA" rule permits the voluntary use of the "Product of USA" or "Made in the USA" label claim on meat, poultry, and egg products. However, these labels can only be used if the products are derived from animals that were born, raised, slaughtered, and processed in the United States. The rule aims to prevent misleading U.S. origin labeling, ensuring that consumers receive truthful information about the origins of their food.
Under the final rule, the "Product of USA" or "Made in the USA" label claim will remain voluntary for meat, poultry, and egg products. It will also be eligible for generic label approval, meaning it won't require pre-approval by the USDA's Food Safety and Inspection Service (“FSIS”) before use, but establishments must maintain documentation supporting the claim. Additionally, the rule permits other voluntary U.S. origin claims on these products, provided they include a description on the package of the preparation and processing steps that occurred in the United States upon which the claim is made.
Corporate Transparency Act Loses First Federal Court Battle.
As we have previously reported (here), the Corporate Transparency Act (“CTA”) requires certain business entities to file Beneficial Ownership Information (“BOI”) with the Financial Crimes Enforcement Network (“FinCEN”) or face civil and criminal penalties. However, an interesting twist in the CTA saga has occurred. A federal court in Alabama issued an opinion ruling the CTA unconstitutional, concluding that the CTA exceeds the U.S. Constitution’s limits on Congress’s power, and issued an injunction against the U.S. Government from enforcing the CTA against the named plaintiffs in the case. Therefore, the named plaintiff, Isaac Winkles, and companies for which he is a beneficial owner or applicant, the National Small Business Association, and the approximately 65,000 members of the National Small Business Association are currently not required to report beneficial ownership information to FinCEN. Everyone else must still comply with the CTA and the BOI reporting requirements.
FinCEN released a statement acknowledging the court’s ruling but emphasized that only the named plaintiffs are excused from reporting beneficial ownership information to FinCEN at this time. On March 11, 2024, the U.S. Government filed a notice of appeal of the lower court’s ruling, hoping to reverse the injunction and the court’s decision. We will continue to monitor the situation and keep you informed of any updates to the CTA and BOI reporting requirements.
USDA Announces 2024 Dairy Margin Coverage Program.
The U.S. Department of Agriculture (“USDA”) announced that starting February 28, 2024, dairy producers in the United States can enroll in the 2024 Dairy Margin Coverage (“DMC”) program. Enrollment for the 2024 DMC coverage ends on April 29, 2024.
The USDA's Farm Service Agency (FSA) has made revisions to the DMC regulations to allow eligible dairy operations to make a one-time adjustment to their established production history. This adjustment involves combining previously established supplemental production history with DMC production history for dairy operations that participated in Supplemental Dairy Margin Coverage in previous coverage years. DMC has also been authorized through the calendar year 2024 as per the 2018 Farm Bill extension passed by Congress.
FSA Administrator Zach Ducheneaux encourages producers to enroll in the 2024 DMC program, citing its importance as a risk management tool. The program has proven effective, with over $1.2 billion in Dairy Margin Coverage payments issued to producers in 2023. Ducheneaux highlights the program's affordability, noting that it offers a sense of security and peace of mind to producers.
DMC is a voluntary risk management program that provides protection to dairy producers when the margin between the all-milk price and the average feed price falls below a certain dollar amount selected by the producer. In 2023, DMC payments were triggered in 11 months, including two months where the margin fell below the catastrophic level of $4.00 per hundredweight, marking a significant development for the program.
House Committee Releases Final Report Recommending Changes to H-2A Program.
On March 7, 2024, the U.S. House Committee on Agriculture’s Agricultural Labor Working Group (“ALWG”) released its final report containing policy recommendations for U.S. agricultural labor. The report includes significant reforms to the H-2A program, many of which, as announced by the ALWG, received unanimous support from the bipartisan working group. The recommended policies encompass creating a single H-2A applicant portal, implementing H-2A wage reforms, establishing a federal heat standard for H-2A workers, and granting year-round industries such as livestock, poultry, dairy, peanuts, sugar beets, sugarcane, and forestry access to the H-2A program.
Tags: Utility Vehicles, USDA, Dairy Margin Program, H-2A, Ag Labor, Food Labeling, corporate transparency act
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It’s getting hot! And we are here to bring you even more heat. This month’s Ag Law Harvest takes you across the country and even across our northern border as we highlight some interesting court cases, a petition to the USDA, and some legislation coming across the desks of Governors from Maine to Oregon.
Ohio Court Determines That Dairy Farm Did Not Intentionally Harm Employee.
In 2019, a dairy farm employee sustained serious injuries after getting caught in a PTO shaft while operating a sand spreader. After his injury, the employee filed a lawsuit against his employer for failing to repair or replace the missing safety guards on the PTO shaft and sand spreader. In his lawsuit, the employee alleged that the dairy farm’s failure to repair or replace the missing safety guards amounted to a “deliberate removal” of the equipment’s safety features making the dairy farm liable for an intentional tort. In other words, the employee was accusing his employer of intentionally causing him harm. Normally, workplace injuries are adjudicated under Ohio’s workers’ compensation laws, unless an employee can prove that an employer acted intentionally to cause the employee harm.
For an employer to be held liable for an intentional tort under Ohio law, an employee must prove that the employer acted with the specific intent to injure an employee. An employee can prove an employer’s intent in one of two ways: (1) with direct evidence of the employer’s intent; or (2) by proving that the employer “deliberately removed” equipment safety guards and/or deliberately misrepresented a toxic or hazardous substance. Because there was no direct evidence to prove the dairy farm’s intent, the employee could only try his case under the theory that the dairy farm deliberately removed the safety guards, intentionally causing him harm.
The case went to trial and the jury found the dairy farm liable and ordered it to pay over $1.9 million in damages. The dairy farm appealed to the Twelfth District Court of Appeals arguing that its failure to repair or replace does not amount to a “deliberate removal” of the safety guards from the PTO shaft and sand spreader. The appellate court agreed.
The Twelfth District decided to apply a narrow interpretation of the term “deliberate removal.” The court held that a “deliberate removal” is defined as the “deliberate decision to lift, push aside, take off, or otherwise eliminate.” The evidence presented at trial showed that the shaft guard may have simply broken off because of ordinary wear and tear. Additionally, the evidence could not establish who removed the connector guard or if the connector guard did not also break off due to ordinary wear and tear. Thus, the Twelfth District found that the evidence presented at trial did not support a finding that the dairy farm made “a careful and thorough decision to get rid of or eliminate” the safety guards. Furthermore, the Twelfth District reasoned that an employer’s “failure to repair or replace a safety guard is akin to permitting a hazardous condition to exist” and that the “mere knowledge of a hazardous condition is insufficient to show intent to injure. . .” The Twelfth District vacated and reversed the $1.9 million judgment and entered summary judgment on the dairy farm’s behalf.
USDA Receives Petition Over “Climate-friendly” Claims.
The Environmental Working Group (EWG) has petitioned the U.S. Department of Agriculture (“USDA”), asking the USDA to: (1) prohibit “climate-friendly” claims or similar claims on beef products; (2) require third-party verification for “climate-friendly” and similar claims; and (3) require a numerical on-pack carbon disclosure when such claims are made. The core legal issue is whether such “climate-friendly” labels and numerical carbon disclosures are protected and/or prohibited by the legal doctrine of commercial speech, which is protected under the First Amendment of the U.S. Constitution. EWG argues that the USDA has the authority to regulate such speech because commercial speech is only protected if it is not misleading. Additionally, EWG claims that requiring numerical carbon disclosures advances a substantial governmental interest by protecting consumers from fraud and deception. Although EWG has the legal right to petition the USDA, the USDA does not have to grant EWG’s petition, it must only consider the petition and respond within a reasonable time.
Maine Governor Vetoes Ag Wage Bill.
Earlier this month Maine Governor, Janet Mills, vetoed Legislative Document 398 (“LD 398”) which required agricultural employers to pay their employees a minimum wage of $13.80 and overtime pay. Governor Mills stated that she supports the concept of LD 398 but was concerned about some of the bill’s language. The Maine legislature had the opportunity to override the Governor’s veto but failed to do so. After the legislature sustained her veto, Governor Mills signed an executive order establishing a formal stakeholder group to develop legislation that will establish a minimum wage for agricultural workers while also addressing the impacts the future legislation will have on Maine’s agriculture industry.
A Big Thumbs Up!
A Canadian judge recently found that a “thumbs-up” emoji is just as valid as a signature to a contract. In a recent case, a grain buyer, South West Terminal Ltd. (“SWT”), sent through text message, a deferred grain contract to a farming corporation owned and operated by Chris Achter (“Achter”). The contract stated that Achter was to sell 86 metric tonnes of flax to SWT at a price of $17 per bushel. SWT signed the contract, took a picture of the contract, and sent the picture to Achter along with a text message: “Please confirm flax contract”. Achter texted back a “thumbs-up” emoji. When the delivery date came and passed, Achter failed to deliver the flax to SWT which prompted SWT to file a lawsuit for breach of contract. SWT argued that Achter’s “thumbs-up” meant acceptance of the contract. Achter, on the other hand, claimed that the use of the emoji only conveyed his receipt of the contract.
The Canadian court ultimately ruled in favor of SWT. The court relied on evidence that Achter and SWT had a pattern of entering into binding contracts through text message. In all previous occurrences, SWT would text the terms of the contract to Achter and Achter would usually respond with a “looks good”, “ok”, or “yup”. This time, Achter only responded with a “thumbs-up” emoji and the court concluded that an objective person would take that emoji to mean acceptance of the contract terms. Achter was ordered to pay over C$82,000 ($61,442) for the unfulfilled flax delivery. As the old saying goes: “a picture is worth a thousand words or tens of thousands of dollars.”
Oregon Governor Signs Agriculture Worker Suicide Prevention Bill into Law.
Earlier this month, Oregon Governor Tina Kotek signed a bill that creates a new suicide prevention hotline for agricultural producers and workers into law. Senate Bill 955 (“SB 955”) provides $300,000 to establish an endowment to fund an AgriStress Helpline in Oregon. Proponents of the bill believe the AgriStress Helpline will be able to specifically address the needs of agricultural producers and workers which “[s]tatistically . . . have one of the highest suicide rates of any occupation.” Oregon becomes the 7th state to establish an AgriStress Hotline joining Connecticut, Missouri, Pennsylvania, Texas, Virginia, and Wyoming.
Tags: ag law harvest, contracts, Mental Health, Agriculture Minimum Wage, Employer Intentional Tort, USDA
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Happy last day of June! We close out the month with another Ag Law Harvest, which brings you two interesting court cases, one about an Ohio man asserting his right to give away free gravel, and another which could decide the constitutionality of “Ag-Gag” laws once and for all. We also provide a few federal policy updates and announcements.
Ohio Department of Agriculture Prohibited from Fining a Landowner for Charging to Load Free Gravel. In May of 2020, Paul Gross began selling gravel and topsoil (collectively “gravel”) that he had accumulated from excavating a pond on his property. Gross charged $5 per ton of gravel, which was weighed at a scale three miles from his property. After receiving a complaint of the gravel sales, the Madison County Auditor sent a Weights and Measures Inspector to investigate Gross’s gravel sales. The Inspector informed Gross that the gravel sales violated Ohio Administrative Code 901:6-7-03(BB) (the “Rule”) because the gravel was not being weighed at the loading site. Under the Rule, “[s]and, rock, gravel, stone, paving stone, and similar materials kept, offered, or exposed for sale in bulk must be sold . . . by cubic meter or cubic yard or by weight.” As explained by the Inspector, Gross’s problem was that he was selling gravel by inaccurate weight measurements because the trucks hauling the gravel lose fuel weight when traveling the three miles to the scale.
Instead of installing scales on his property, Gross decided to start giving away the gravel for free. However, Gross did charge a flat rate fee of $50 to any customer that requested Gross’s help in loading the gravel. According to Gross, this $50 fee was to cover the cost of his equipment, employees, and other resources used to help customers load the gravel. Unsatisfied with the structure of this transaction, the Ohio Department of Agriculture (“ODA”) decided to investigate further and eventually determined that even though Gross was giving away the gravel for free, the flat fee for Gross’s services represented a commercial sale of the gravel and, therefore, Gross was in continued violation of the Rule.
For the alleged violation, the ODA intended to impose a $500 civil penalty on Gross, who requested an administrative hearing. The hearing officer recommended imposing the penalty and the Franklin County Court of Common Pleas agreed. Gross appealed the decision to the Tenth District Court of Appeals, which found that Gross was not in violation of the Rule.
The Tenth District reasoned that customers were paying for the service of moving the gravel, not for the gravel itself. The court explained that the purpose of the Rule is to protect consumers by ensuring transparent pricing of materials like gravel. Since Gross was not in the business of selling gravel and the transaction was primarily for services, the court concluded that the ODA’s fine was impermissible.
North Carolina Asks U.S. Supreme Court to Review “Ag-Gag Law.” In 2015, the North Carolina Legislature passed the North Carolina Property Protection Act, allowing employers to sue any employee who “without authorization records images or sound occurring within” nonpublic areas of the employer’s property “and uses the recording to breach the [employee’s] duty of loyalty to the employer.” After the act’s passage several food-safety and animal-welfare groups, including the People for the Ethical Treatment of Animals (“PETA”), challenged the Property Protection Act in an effort to prevent North Carolina from enforcing the law.
A federal district court in North Carolina struck down the law, finding it to be a content-based restriction on speech in violation of the First Amendment of the United States Constitution. The 4th Circuit Court of Appeals upheld the district court’s ruling also reasoning that the law’s broad prohibitions restrict speech in a manner inconsistent with the First Amendment. Now, the North Carolina Attorney General, Josh Stein, has petitioned the Supreme Court of the United States (“SCOTUS”), asking the Court to reverse the 4th Circuit’s decision. If SCOTUS decides to hear the case, the justices will be tasked with determining “[w]hether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.”
We have reported on several Ag-Gag laws and the court challenges that have followed. If SCOTUS decides to take up the case, we may finally have a definitive answer as to whether Ag-Gag laws are constitutional or not.
Lab-grown Chicken Given the Green Light by the USDA. The United States Department of Agriculture’s (“USDA”) Food Safety and Inspection Service granted its first approvals to produce and sell lab-grown chicken to consumers. Upside Foods and Good Meat, the two entities given the green light by the USDA, plan on initially providing their “cell-cultivated” or “cultured” chicken to patrons of restaurants in the San Francisco and Washington D.C. areas. However, the timeline for such products showing up in your local grocery store has yet to be determined.
USDA Suspends Livestock Risk Protection 60-Day Ownership Requirement. The USDA’s Risk Management Agency issued a bulletin suspending the 60-day ownership requirement for the Livestock Risk Protection (“LRP”) program. Normally under the LRP, covered livestock must be owned by the producer within the last 60 days of the specified coverage endorsement period for coverage to apply. According to the bulletin, “[d]ue to the continuing severe drought conditions impacting many parts of the nation, producers are struggling to find adequate supplies of feed or forage, causing them to market their livestock sooner than anticipated.” In response, the USDA is allowing producers to apply to waive the 60-day ownership requirement, subject to verification of proof of ownership of the livestock. The USDA hopes this waiver will allow producers to market their livestock as necessary while dealing with the current drought effects. Producers will be able to apply for the waiver until December 31, 2024.
USDA Announces Tool to Help Small Businesses and Individuals Identify Contracting Opportunities. Earlier this month, the USDA announced a new tool to assist industry and small entities in identifying potential opportunities for selling their products and services to USDA. The Procurement Forecast tool lists potential contracting or subcontracting opportunities with the USDA. Until now, businesses could only access procurement opportunities through the federal-wide System for Award Management (“SAM”). The USDA hopes the Procurement Forecast tool will provide greater transparency and maximize opportunity for small and underserved businesses.
Tags: Ag Gag, Ag Law, USDA, ODA, Ohio department of agriculture, Gravel, livestock, Livestock Insurance, Insurance, Supreme Court of the United States, SCOTUS, First Amendment, Food Labeling
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I had the good fortune recently to attend the International Farm Management Congress in Copenhagen, Denmark, along with the pre-conference tour of farms through Norway and Sweden. It was not only a beautiful trip, but an opportunity to view farming practices and legal issues in other parts of the world. Some practices and issues were surprisingly familiar while others were quite different. As I visited farms and interacted with farm operators and agricultural business owners, I developed a list of observations about the similarities and differences. Here are a few of those observations.
- Farmland should stay in the family. Very old “allodial” and “concession” laws in Norway and Sweden prevent agricultural property from being sold outside the family or divided into smaller parcels and grant the eldest heir the right to inherit the property. It works. We visited several farms that had been in the same family for 12 to 14 generations.
- Environmental compliance and sustainability goals present both challenges and opportunities. Norway, Denmark, and Sweden have aggressive goals to reduce carbon emissions. While some businesses noted the challenges of complying with air and water regulations, they were committed to change because consumers want “more sustainable” products and experiences.
- Agritourism includes sleepovers. We visited several farms that capitalize on people’s desires to be on a farm, but they also include opportunities to stay over in a hotel or “caravan park” (campground) on the farm, and several also offer spa experiences. The “farm stay” concept that is so common in Scandinavia is just now beginning to spread across the U.S.
- Animal welfare laws concern livestock operators. As we see here in the U.S., new regulations on livestock housing have affected the bottom line of operators forced to make housing changes. Several operators noted the financial challenges of complying with new requirements, with some choosing not to continue under the new laws.
- Cooperative models are thriving. We visited a cooperative for fruit and vegetable producers in a mountain region of Norway, a sheep farm that developed a slaughterhouse to manage processing for other local livestock operators, and a start-up processing facility for pea and legume growers in Sweden, all using cooperative business structures similar to ours here in the U.S.
While some of the issues vary in Scandinavia, the attachment to farming is not all that different. One of my favorite quotes from the trip illustrates the similarity. The father in a father-son operation stated to us: “We are proudly farming, growing wheat and potatoes and having chickens.” Proudly farming—a practice shared by U.S. and Scandinavia farmers alike, in the midst of varying legal issues and opportunities.
Learn more about the International Farm Management Association at https://www.ifma.network/. The next IFMA Congress takes place in 2024 in Saskatchewan, Canada.
Tags: Scandinavia, IFMA, International Farm Management Association, Estate and Succession Planning, animal welfare, agritourism, cooperatives, environmental
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