Final Paper Legal Considerations in Dairy

8/3/2019 Final Paper Legal Considerations in Dairy

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FINAL PAPER

Legal Concerns of a Dairy

OperationMBA 570 Legal Aspects in ManagementPamela Koehler-Zastrow

8/17/2011

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Farming in the 21st century has its own unique set of challenges. From dealing with chaotic

weather patterns, trends in environmental protection and the different types of individuals working on

the farm, operators have a slew of new challenges facing their day-to-day operation. From a legal

standpoint, dairy operators must understand legal situations that can develop in the establishment of

their business, regulations from government agencies, dispute resolution, employee relations, vendor

relations, contracts, mergers and liabilities, and succession planning. This paper will explore the legal

challenges facing an individual who wants to start and operate a dairy farm. The paper will explain

topics that have the potential to result in a criminal or civil lawsuit if not handled appropriately. It will

also explore ways to avoid litigation and when it is important to consult legal counsel.

Todays dairy industry is infiltrated with new technological features and an ever changing

economy, both domestically and abroad. With the average age of todays dairy farmer being 55 years

old, the industry is seeing a significant decline in new dairy start ups (farmaid.org).

The farming industry in general is a driver for the American economy through its production and

sale of raw materials that are used in almost every aspect of everyday living. Enticing interested

individuals to enter the dairy industry is an important factor in dairy today. Having a well-organized plan

in starting a dairy operation is essential for operator success and growth for the industry. For

generations, an individual interested in starting a dairy operation usually inherited or purchased a farm

and milking herd that was already within the family. This alleviated the need to search for purchasable

property, establish a milking herd, and acquire equipment. However, with the changing landscape of

the dairy industry, many smaller (aka starter) farms have been purchased by larger conglomerates, such

as a larger farm, or land developers. Many farmers have left the industry due to economic strain and

have sold off the farm to generate capital and pay off debt. In a family farm situation, the assets of a

farm may be sold before a son or daughter is capable of taking over and purchasing the assets from the


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parents. Also, there is a rise of individuals from a non-farming background going into farming. Though

the percentages are small, approximately 12 percent, individuals without farming backgrounds in the

largest in industry history (Barham, 2001). Successful entrepreneurs are utilizing other means to start up

a dairy farm, including the use of sharemilking to gradually build equity to start a sole proprietorship,

limited liability company (LLC), or a partnership.

According to the Center for Integrated Agriculture Systems at the University of Wisconsin

Madison:

In a sharemilking agreement, a young farmer operates a farm on behalf of the farm owner for

an agreed share of farm income and expenses. The arrangement offers young farmers a way to

build assets and dairy management skills without requiring a large amount of capital input at the

beginning of their careers. (Barham, etc. 2001).

This is a negotiable agreement where the young farmer received usually 20 to 30 percent of the farm

income in return for operating the farm for the established farmer. To build workable equity quickly,

the young farmer should receive part of his or her payment in the form of cattle, particularly heifer

calves, which will grow in to milking cattle. This allows the young farmer to build equity and the

established farmer to exit or retire from the industry. New Zealand has a long tradition of sharemilking

and according to a study by Larry Tranel, Dairy Field Specialist for the Iowa State Extension Office, its

important for the longevity of the industry:

"Sharemilking is a vital cog to our (New Zealand) dairy industry and it would be very difficult, ifnot impossible, for young farmers who are not farmers' sons, to achieve farm ownership withoutthe benefit of a few years in this form of occupation. Not only does Sharemilking provide aspring-board (from working for a labor rate or percentage wage) directly into farm ownership, italso allows farm owners to semi-retire gracefully (Tranel, 2006).

The secondary or alternative component of sharemilking is the 50-50 split between the young

farmer and the established farmer. This usually occurs one year into the sharemilking agreement, and

the young farmer owns the dairy herd and the equipment. The established farmer owns the buildings


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and the land, and the income generated from the operation is split between the two parties equally

(Barham, etc. 2001).

Hybrid agreements are also common in sharemilking where the two parties involved will draft

an original agreement on the division of property and profits. Because of the organic nature of hybrid

agreements, there is no set structure on how they are developed, but both parties must agree and be

comfortable with the arrangement.

A main issue that can arise in this type of agreement is the fluctuation in the value of land and

cattle. According to a study conducted by South Dakota State University, agricultural land values have

increased 10 percent from 2010 to 2011 (Janssen, 2011). However, the value of dairy herds have seen

increased volatility due to decreased government funding, increased grain and fuel pricing, global trade

agreements, environmental factors and economic controls (Novakovic, 2011).

Sharemilking agreements usually last only one to three years (Tranel, 2006). With the increase in

land pricing, the young farmer may need to stay in a sharemilking state longer than anticipated in order

to meet the market value needed to fully take over the farm, or the established farmer may feel he or

she can capitalize on land value through land speculation or external sale outside of the sharemilking

agreement. Because of the volatility of land and dairy pricing, it is important to create a written, binding

agreement that details how the sharemilking operation will be established and how full takeover by the

younger farmer will be fulfilled, yet give the established farmer fair value for the property, buildings and

equipment being purchased.

An ethical consideration anyone must address before venturing into sharemilking is the

expectations for both parties, particularly with job performance. New Zealand has a long sharemilking

tradition and most arbitration cases come from first-time sharemilkers who are managing a herd on

their own for the first time (Transel, 2006). Both parties must come to the partnership with the attitude

that they are working together. Parties need to be honest about the overall farm profitability, farm size


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and efficiency, living accommodations, local environmental impacts and impacts on neighbors and

school districts (Transel, 2006). A general rule is each party should share returns of the farm business

in the same proportions that they share the costs. (Transel, 2006).

Outside the sharemilking scope, farming generally has ethical issue that must be acknowledged

by the farmer/ partners involved in the farm operation. Questions such as farm size, herd health

measures, animal welfare, bio-waste disposal, and use of controversial farming practices like use of

genetically modified crops, hormones, and antibiotics all should be discussed and address when two

parties are creating a sharemilking agreement.

Once the sharemilking agreement has been solidified, the goal of the sharemilker is to

eventually take over full ownership of the dairy operation to become a sole proprietor with or without

LLC standing, a partner (possibly with the established farmer or a spouse), or possibly build the

operation into a larger corporation or conglomerate. The most popular option for farmers is a limited

liability company (LLC) where the farmer has liability protection but still is taxed as a sole proprietor.

According to an article by David Ingram ofwww.legalzoom.com:

As an LLC, a farm has a right to produce, raise and sell agricultural products and livestock underits own name while being owned by one or more members. LLCs do not have to be actively

managed by their owners, making this unique business structure ideal for large land owners

who place others in charge of their property. (Ingram, 2011).

Once established, the dairy operator will face a mine field of potential legal issues, such as

dealing with the government, employees, neighbors, property and his or her product. These aspects of

farming all carry their own risks, which can have the potential to take down the dairy operation.

Understanding these pitfalls is essential to any dairy operator or to anyone who has invested in a dairy

operation, so they can keep their investments and livelihood safe.

Dairy farmers are regulated by local, state, and federal agencies. Locally, farmers need to

comply with county ordinances regarding noise, air pollution, land runoff and waste disposal. Most
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notably, local officials are the first to respond to investigate food-borne outbreaks (DATCP draft, April

2010). Its important that a producer understands the restrictions regarding operation expansion, water

usage and bio-waste controls. Operators in Wisconsin can find resources and information about

restrictions by contacting their local cooperative extension office. The cooperative extension office has

individuals with agribusiness expertise who specialize in assisting farmers in the county that they

service. (www.uwex.edu, 2011).

At the state level, dairy producers are regulated by the Wisconsin Department of Agriculture,

Trade and Consumer Protection, which is often abbreviated as DATCP. The DATCP issues licenses to

Grade A dairy farm operators and entities that process milk into consumer goods (DATCP draft, 2010).

In addition to the issuance of operator licenses, the DATCP monitors potentially dangerous illnesses and

pathogens in the agriculture sector, provides protocols for veterinarians and producers regarding the

reporting of diseases, treatment of diseases and proper disposal of animal carcasses (www.datcp.wi.gov,

2011). In addition, the DATCP implements provisions from the federal Food and Drug Administration

and works with the Wisconsin Department of Natural Resources.

A dairy producer needs to be aware of the diseases and pathogens that can negatively affect his

or her dairy herd. Disease outbreaks have the potential to cause panic within the industry and warrant

sanctions or closed border regulations from neighboring countries or states resulting in decreased

revenue and economic hardship for the industry (www.datcp.wi.gov, 2011). The DATCP is especially

concerned with diseases that are highly contagious and/or have the ability to jump species. Diseases

affecting the dairy industry include, but are not limited to: tuberculosis, brucellosis, foot and mouth

disease, Johnes Disease, Bovine Spongiform Encephalopathy (otherwise known as Mad Cow Disease

or BSE), and rabies. To help ease requirements for interstate and international sale of cattle and farm

goods, the DATCP also issues disease-free status certifications to dairy farmers who meet specific
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guidelines and inspections from certified personnel (www.datcp.wi.gov., 2011). A dairy producer who

plans on purchasing and/or selling cattle across state or national borders would benefit from procuring

disease-free status from the DATCP.

In addition to disease-free status, the DATCP provides dairy producers advice on how to prevent

disease contamination of their dairy herds. Though these guidelines are not mandated by the DATCP,

its important that a producer understands the reasoning for a disease prevention plan. Having a

written and implemented plan offers an added level of protection, if there is ever a disease

contamination or outbreak within the herd (www.uvm.edu, 2011). Producers are encouraged to not

only implement a plan, but to share it with friends, family members, and neighbors to ensure everyone

understands the importance of following bio-security protocols while on the operation premises.

(www.uvm.edu, 2011). The guideline is helpful in training, prevention and crisis planning and response.

In addition to the DATCP, the Department of Natural Resources (DNR) is another state agency

that regulates dairy farming. Specifically, the DNR is concerned about the proper utilization of water

and land, and methods used to ensure these resources are available to future generations. Farms with

more than 1,000 head of cattle are considered a Concentrated Animal Feeding Operation (CAFO) and

must apply for a DNR-issued water quality protection permit (www.dnr.wi.gov, 2007). This permit is

designed to ensure larger farms use proper planning, construction and manure management to protect

area waters. Some farms that are smaller than 1,000 head may be required to get the permit if certain

conditions, which are not outlined on the administrations website, are present (www.dnr.wi.gov, 2011).

Proper protection includes having a waste management plan, having 6 months of storage for liquid

manure, no liquid manure spreads during frozen conditions, collection of records and a controlled

feedlot runoff to a zero discharge standard (www.dnr.wi.gov, 20 11). In March 2010, the DNR began

working on a CAFO permit requirement for farms with less than 1,000 head of cattle (www.dnr.wi.gov,
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2011). Ultimately, all farms will need a comprehensive waste management plan available for

administrative review.

Another area the DNR regulates is on-site farm composting, which includes the composting of

farm wastes such as manure, yard clippings and animal carcasses (Composting Farm Wastes, 2009).

Again, this regulation is designed to protect natural waters from runoff contaminations from

decomposing carcasses, nutrient-rich yard/field waste, and manure (Composting Farm Wastes, 2009).

Because of the sanctions issued in the composting of carcasses, most dairy farmers tend to send

carcasses to rendering plants for disposal.

Beyond the state level, dairy farms are regulated by the federal government, particularly by the

Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA). The FDA regulates

milk in interstate commerce, prohibits the sale and distribution of unpasteurized milk or fluid milk

products for sale to consumers, and administers the Interstate Pasteurized Milk Ordinance. More

generally, the FDA regulates food safety, labeling requirements, biotechnology policies, exporting and

importing regulations, and interstate shipment of milk (www.fda.gov, 2011).

A controversial area regulated by the FDA is the advancement of biotechnologies such as

genetically modified crops and animals. Issues such as the safety of milk from cows injected with rBST, a

synthetically generated growth hormone, labeling of products from genetically modified animals and

approvals for drugs used in animal operations are all regulated by the FDA. Dairy operators need to stay

current on approved usage of drugs, genetically modified feeds and any disclosers or restrictions

involved with their usage. According to the FDA website, any genetically modified animal is monitored

by the FDA and requires pre-market approval prior to introduction into the marketplace, and genetically

modified animals are considered to contain drugs and must be labeled as such (www.fda.gov., 2011).
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The other federal regulator, the USDA, administers federal milk marketing orders and dairy

product grading programs (www.dacpt.wi.gov, 2011). The USDA inspects dairy farms in order to issue a

grade to the operation. Grade A milk, for example, is the only milk that can be utilized in fluid milk

product and farms that hold a USDA Grade A tend to receive more revenue for their milk.

Now that we understand the administrations that regulate the dairy industry, lets address

common disputes and their resolutions within the dairy industry. A common dispute in the industry is

the issuance of agricultural loans, issues related to farm programs, conservation, wetlands, rural

business and housing, crop insurance and grazing (www.fsa.usda.gov, no date). Essentially, disputes can

occur in any area of farming where two people have a disagreement. This can be with a neighbor, a

supplier, an employee, family members, and local, state or national government ordinances.

To help navigate and alleviate these issues, the USDA has developed a mediation program

where farmers are able to talk through issues and find solutions. USDA Mediators are able to answer

questions the bank or other entity involved may not be able to address and ask questions the farmer

may not know to ask.

Also, dairy operators should establish a relationship with an attorney who is familiar with

agriculture issues and procedures. Many firms located near rural areas have individuals who specialize

in agricultural law. Discussions with the farmers network, such as with suppliers or neighboring farmers

is a great way to find references for an agricultural focused attorney. This relationship is essential to

litigating potential cases, answering questions about contracts and procedures and emergency

situations.

The relationship between a dairy operator and his or her employees is also critical in running an

efficient operation. Operating a dairy farm requires working in conditions that is not equivalent to

todays 9 to 5 culture. The hours are long, and the operation cannot take a break for social events or
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holidays. The weather, dirt and hospitality of the cattle can be less than ideal. Because of the inherent

difficulties associated with operating a dairy farm, its important that the dairy operator understands

and practices procedures that foster a positive employer-employee relationship. The operator must be

aware of the legal requirements in the sourcing, hiring, training, and compensation of employees.

The agriculture sector employs approximately 1.9 percent of the U.S. population as of the year

2000 (USDA, 2006). At the beginning of the 20th century, agriculture employed approximately 41

percent of the U.S. workforce. The decrease is a result of a cultural shift from agriculture to

manufacturing and the move from rural to urban living. Why is this important? Well, back in the early

1900s it was relatively easy to find a potential employee who had experience or at least substantial

exposure to working in a farm setting. Today, most people have not stepped foot on a farm operation,

let alone spent enough time to acquire the skills that are unique to the industry.

Sourcing labor is an ongoing struggle for most dairy operators due to the shift from rural to

urban living and the diversification of the job market. According to the University of Missouri-Columbia

Extension office, farm managers traditionally found quality workers through word-of-mouth or through

classified advertising in the local newspaper (Parcell, No date). Today, operators are relying on seasonal

employees, either in the form of college students or migrant worker, and individuals from the baby

boomer generation (Parcell, No Date). The perks to hiring a seasonal employee include having an

individual who has a gap of time, like a summer break from college or a break from another job, to

devote to employment. Because farm work can by cyclical in nature, an operator can align hiring of

seasonal workers with higher work load periods on the farm. Baby boomers usually do not require a

high wage due to their qualification for social security benefits. This group is attractive to farm operators

who must strictly manage their overhead expenses. Overall, flexibility in dealing with potential hires is

important in securing a committed workforce.


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When hiring an employee, a dairy operator must accurately represent the work that will be

completed by the employee. By writing a job description, the dairy operator gives himself or herself a

guide on what the job will entail and give clear definition about chain of command and authorization

policies. Also, a job description can give an employer justifiable grounds to terminate an employee if he

or she is not performing the duties in a satisfactory manner (Keown, 1995). During the interview process

the operator can focus on the qualifications based on the job description and avoid asking questions

that may refer to an applicants protected status. The operator is allowed to present farm-related

situations and ask the applicant how he or she would respond to that situation (Parcell, No Date). This

process helps operators find qualified applicants and determine the level of training that will be needed

for each.

Legally, the dairy operator must meet a number of requirements in order to hire and employ an

individual. The operator must obtain an Employer Identification Number, which is used in the reporting

of taxes, Social Security and Medicare withholdings from all employees (Parcell, No Date). All

employees must complete an INS form I-9, which verifies that the employee is legal to work in the

United States. I-9s must be kept on file by the dairy operator for 3 years after the employee leaves the

operation. Each state also has requirements for the collection of state withholdings and other programs

that effect employers. (Parcell, No Date).

Agriculture is exempt from a number of regulations, specifically when it comes to the

employment of minors. In most sectors, the minimum age to work is 14 years old and these minors must

have a child labor permit (DWD, 2010). For individuals in agriculture, the minimum age to work on a

farm is 12 years old and operators are not required to have a permit or post Child Labor & Street Trade

Information posters (DWD, 2010). However, dairy operators must abide to certain job restrictions in the

employment of minors. All minors are prohibited to use any sort of saw, work with hazardous materials


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like asbestos, participate in the slaughter of animals, or demolition work. Minors under the age of 16

are prohibited to use certain power-driven equipment (DWD, 2010).

In addition to legally hiring employees, dairy operators must create a reasonably safe

environment for his or her employees. Farms can be dangerous places to work because of the different

hazards that are part of everyday life on a farm. This includes working with heavy duty equipment,

handling pesticides, moving cattle, and working in confined spaces like bunkers and silos. In 2006,

Wisconsin experienced 26 farm-related fatalities with the majority of deaths involving a tractor

(Skjolaas, 2006). Proper training and documentation of the training is needed to help prevent work-

related injuries or death.

Training usually consists of on-the-job training, such as having a new employee shadow an

experienced employee for a few days. This type of training should be supplemented with some sort of

documentation where the trainer and trainee sign off on the items that need to be discussed and

understood. By creating a checklist, the dairy operator can gage what areas, if any, still need to be

covered, and this checklist gives the operator substance if the employees job performance is not

satisfactory and needs to be terminated.

If an operation has 10 or more employees, the dairy operator is subject to regulation from the

Occupational Safety and Health Administration. OSHA regulations include providing safety shields on

certain farm equipment and protective devices that counteract the effects of certain chemicals (Parcell,

2010). The U.S. Environmental Protection Agencys Worker Protection Standards also has regulations

for employees working with pesticides (Parcell, 2010). Even if an operator has less than 10 employees, it

would be advisable to take extra efforts to protect employees from injury and harm since the operator

may be liable for employee injuries that occur on the farm.


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After an employee has been hired and trained in his or her job role, the employee will need to

be paid for the work he or she completes. The wage the employee received can be determined on an

hourly, weekly, or monthly basis (Parcell, No Date). Dairy operators may also include benefits and

incentives as part of the total compensation for the employee. Health insurance, paid vacation time,

and sick leave are some benefits that a dairy operator could offer. Incentive plans based on the amount

of milk produced, total sales, or a performance bonus. Incorporating benefits and incentives into the

total compensation package is a tactic to help keep workers longer resulting in fewer turnovers (Parcell,

No Date).

Additional incentives that may be positive to the dairy operator-employee relationship is the use

of recognition tools, providing opportunities for advancement, education opportunities, and focusing

relations around positive communications. Incorporating these tools accounts for the employees

mental wages (Parcell, No Date).

The employment of immigrant workers is a huge debate in the agriculture sector. According to

an article in the Wall Street Journal, immigrants account for 40 percent of the dairy labor force and are

responsible for almost two-thirds of the U.S. milk production (Jordan, 2009). Many of these workers are

in the United States illegally and gain employment by finding operators who disregard their legal status

or the employees obtain false documents claiming they are in the United States legally. Dairy operators

and agriculture unions argue that immigrant workers are vital to the industry and are petitioning

Washington to create a foreign-guest worker amnesty program for illegal dairy laborers (Jordan, 2009).

The bill is currently part of the larger immigration bill that is being debated in Washington. Opponents

of the hiring of immigrants argue that there are enough unemployed people in the United States to

meet the labor needs in the dairy industry. The governor of Georgia recommended that farmers hire

individuals on probation and/or have been recently released from prison (A Hard Row to Hoe, 2011).


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No matter how the debate falls, immigrant workers are a huge player in the dairy industry and

understanding their unique needs is necessary to having a positive operator-employee relationship.

Operators may have to overcome language barriers, both verbally and written, in order to adequately

communicate with immigrant workers. Also, it would be beneficial if the operator educated himself or

herself about social and anthropological differences of the different Hispanic countries. For example, an

individual from Peru will have a different cultural perspective than an individual from Mexico. Just

because the two individuals speak the same language doesnt mean they have the same customs or

perceptions about authority, government or gender roles.

A dairy operators relationship with his or her employees begins at the sourcing process and is

affected by decisions made regarding hiring, training, and compensation. Understanding the

appropriate way to approach each aspect of the relationship is vital in keeping the operation running

smoothly and keeping the operation out of legal trouble. Its important that the dairy operator

understands who is legal for employment, federal and state documents needed for new hires, how to

train the employee, and safety measure that must or should be followed. By having a comprehensive

employee relations policy, a dairy operator can have a positive work environment.

In addition to relationship building with employees, dairy operators build relationships with

contractors, landowners and many other vendors who are vital to the day-to-day functions on a dairy

operation. Because of these relationships, dairy operators must understand when to establish a

contract. Most dairy operators rent land in order to supplement their operation. This land is often

used to grow feed for the dairy and offers a young farmer a way to redirect capital to other production

investments like machinery, livestock or improvements to buildings (Libbin, 2004). Dairy operators may

also enter contracts for the use of facilities and equipment, or even use of pasture land. They may also


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use contracts to lock in pricing for the sale of commodities such as milk, grain or use of storage space

for feed.

No matter what the contract is for, its important that the parties involved form a written

agreement. Written agreements are useful because it encourages both parties to: study all parts of the

agreement, outline details of the agreement and security features for all parties involved, provide a

record of the agreement in case of a dispute, outline ways to settle disputes among the parties of the

agreement, and outlining profitability for both parties (Libbin, 2004). All parties should have a copy of

the agreement and should be signed by all parties involved, including spouses. Depending on the type of

agreement, a written contract is often required in order to be legally legitimate. Oral contracts may also

be used in the agriculture industry, but these types of contracts opens up the parties involved to

difficulty. Specifically, it is very difficult to validate the terms of the agreement and determine who is

correct if a dispute occurs (Libbin, 2004).

As previously stated, many dairy operators lease land to supplement their operation. A land

rental agreement can take many forms, including: cash lease, crop-share lease, and a pasture lease. A

cash lease is the simplest form of an agreement. The tenant pays a flat fee for use of land for a specific

period (Libbin, 2004). Its a very flexible form of a contract where the tenant makes the management

decisions for the land, but incurs all of the risk. The flat fee may be difficult to pay if there is a period of

low yield or low market pricing for commodities.

Crop-share leases share the decision making management between the parties of the

agreement. Its a bit more complex than a cash lease, but both profits and liabilities are shared between

the parties. The contract outlines who is responsible for maintenance of the property, allocates

production expenses and outlines the split of the profit. This is an ideal contract for a dairy operator

who is venturing into a sharemilking operation (Libbin, 2004).


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A pasture lease is designed for an operator who is seeking pasture land for grazing purposes.

Dairy operators who practice more organic or natural farming practices may need to enter into a

pasture lease agreement. Pasture leases can be developed based on a rate per acre, a fixed rate per

animal per determined time period, fixed rate per-hundred-weight on pasture, a flat rate per pound of

gain, or a share of gain or profit (Libbin, 2004). In this agreement landowners provide the property,

tenants manage the livestock, and both parties hash out details about maintenance to the property like

fences, irrigation, and water sources.

Dairy operators can also enter into agriculture production contracts. These types of contracts

are an agreement between the producer and a contractor or processor where the producer agrees to

sell his or her product, which is raised in accordance of a manner outlined in the contract, to a processor

who pays the producer according to a formula established in the contract (Kunkel etc., 2009). This type

of contract is very popular for dairy operators who contract with an individual to raise heifers for the

farm. In this situation, the dairy operator would be the contractor, and the person raising the heifers

would sell the animals to the dairy operator at a contracted price (Kunkel etc., 2009). The advantage to

this type of contract is it reduces the risk of dealing with traditional market pricing fluctuations. In

essence it creates a more stable pricing environment which gives the parties involved more control in

terms of forecasting and business operations. Contractors see this type of agreement as a way to

purchase uniform commodities and control production cost (Kunkel etc., 2009).

Other types of contract relationships include sales contracts, personal service contracts, and

bailment. Sales contracts usually deal with the sale of crops where the producer owns the crops and

agrees to sell them on harvest to the contractor. This type of contract is subject to the Uniform

Commercial Code, which is a regulatory agency that oversees the sale of commercial goods. The UCC

provides remedies for sellers in the event a buyer breaches the contract.


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Personal service contracts pertain to the exchange of services rather than commodities. Dairy

operators may deal with this type of agreement through custom field work contracts or through a

contract with veterinary or nutrition services. Again, its very important that these contracts are in

writing because written contracts aide in dispute resolution and to record the terms of the agreement.

Bailment refers to the legal relationship that is established between the dairy operator and

someone else who is entrusted with the possession of property, but doesnt hold ownership of that

property (Kunkel etc., 2009). This type of agreement is necessary in a situation where a farmer may

store grain at a grain storage facility.

In additional to contracts, dairy operators may deal with other forms of legal agreements.

Specifically, operators may have to deal with a farm merger or acquisition. According to Danny

Klinefelter, a professor at Texas A&M University, if a commercial farmer wants to remain competitive,

growth is necessary and not a luxury (Klinefelter, no date). Acquiring another dairy operation or

merging with another operator is a way for a dairy operator to expand his or her business. These types

of agreements may allow for the acquisition of higher producing herds, partnerships with business-

minded individuals, management information systems, people management skills or a better supply

chain relationship (Klinefelter, no date).

Mergers and acquisitions take a lot of time, effort and commitment in order to be successful.

Its important that all parties involved have similar goals, are transparent in their expectations of the

agreement, and involve legal counsel who has expertise in farm mergers and acquisitions. Because there

is a huge financial commitment with a merger or acquisition, this is an option for dairy operators who

are currently established in the industry and are looking to grow or get out of the industry. Acquisitions

are a way for older farmers to leave the industry and enter retirement (Klinefelter, no date).


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Through a merger or acquisition, there are a number of issues that need to be addressed. A few

that must be addressed include: value of assets, rights of first refusal, purchase terms, permitted

transfers, voting rights, provisions for sale and purchasing, antidilution provisions, take along rights,

management and board compensation restrictions, and arbitration or mediation provisions (Klinefelter,

no date).

Dairy operators may also be affected by mergers and acquisitions of the processors they deal

with. For example, the processor who purchases the milk from a dairy operator may be acquired or

merge with another processor. This event may change the terms of the agreement established with the

original processor, so it is important that the dairy operator understands issues that may occur with

these types of mergers and acquisitions.

When a processor enters into a merger or acquisition, the agreement is monitored by the

Federal Trade Commission, the Antitrust Division of the Justice Department, and the USDA. These

regulatory agencies regulate mergers and acquisitions to ensure a fair trade environment, control

deceptive trade practices and restrict the rise of monopolies (MacDonald etc., No Date). These types of

mergers are prevalent in meat packing, dairy, seed companies and processing plants. The regulatory

bodies also help ensure that there are not deceptive practices that could affect the pricing of

commodities resulting on an adverse affect in the general marketplace.

With the shift from small dairy operations to larger, more complex dairy conglomerates, farmers

are able to capitalize on larger economies of scale, find stability in an often unstable market pricing

system and create efficiencies through mergers and acquisitions (MacDonald, 2006). When mergers and

acquisitions will significantly change the competitive nature of the marketplace, the Federal Trade

Commission will evaluate the merger and declare if it is legal to proceed. This aspect is part of the

Sherman Act, which was designed to break up monopolies and promote competition in the workplace.


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Recently, the nations largest milk processor, Dean Foods, experienced an antitrust suit after the

organization made arrangements to purchase the consumer products division of Foremost Farms USA

(Catan, 2011). The merger was challenged because it reduced competition in the fluid milk market,

specifically to school districts in Wisconsin, Il linois and Michigan, from four competitors to three (Catan,

2011). Through the litigation process, Dean Foods agreed to sell off part of the Foremost Farms plants in

order to settle the case from the Justice department (Catan, 2011). Though the Deans Foods case

doesnt seem to affect a dairy operator directly, a merger decision by a dairy processor can limit where

an operator can sell his or her raw milk. Its important that an operator stays up-to-date on mergers or

acquisitions happening within the industry that may directly affect his or her bottom line.

Other issues that may affect the bottom line or business in general are all of the liability issues

prevalent on a dairy operation or any farm operation for that matter. Heavy machinery, large animals,

vast landscapes and the mixture of human interactions have the ability to combine and cause serious

legal troubles for the nave operator. Understanding liability issues that can occur on a dairy operation

is essential to preventing litigation, lawsuits and even the total loss of the farm. Liability hazards

prevalent on a dairy operation, including loose animals, employee actions and liability concerns

regarding milk contamination are some of the situations that can cause legal issues for the operator. He

or she is obligated to protect visitors, employees and even trespassers on the farm.

Visitors to the dairy operation pose a huge liability threat to the farmer. Because of the nature

of the business, visitors are often a frequent occurrence on a farm. Feed distributors, equipment repair

specialist, veterinarians, milk truck drivers and neighbors are just a few of the individuals who may have

interest to be on a dairy farm. According to the University of Kentucky Cooperative Extension office,

the [dairy operator] has a legal duty to prevent harm to a visitor on the property (Lyons, 2004). If the


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visitor has permission to be on the farm, the operator has a high level of obligation to protect the visitor.

If the individual is a trespasser, the level of liability is much less.

Protection includes the use of protective barriers and mechanisms, such as fences, guards,

protective clothing and other protective measures. Locking equipment and prohibiting access to

hazardous areas on the farm are other measures a dairy operator can take. Protection also includes the

communication of hazards and restriction to hazardous areas (Lyon, 2004). Communications may

include the use of signage, instructions, ropes, or anything else that clearly defines a warning.

Communicating a warning is especially important if there is a hazard, like the opening of a silo that can

produce fatal gases, which may not be apparent to the visitor until its too late to prevent injury or

death. The way the communication is distributed is also important. Having written warning, in terms of

signage or waivers, informs the individual of the potentially hazardous area and gives the dairy operator

proof that an attempt to protect the visitor has taken place. A documented inspection of the property

provides proof of knowledge to hidden dangers, like rodent traps or defects in flooring, and then can be

communicated with visitors to the dairy operation (Lyon, 2004).

Liability to a trespasser is different than a visitor to the farm. Unlike a visitor, the trespasser

does not have permission to be on the premises, whether the individual is on the property without the

operators knowledge or the individual has been asked to leave (Lyon, 2004). If the trespasser is a child,

the dairy operator must take additional cautions in order to avoid an Attractive Nuisance lawsuit

(Moore, 2003). The attractive nuisance doctrine states that a landowner must take preventive

measures to prevent injury to child-age trespassers. Because children are easily enticed to play in

ponds, like manure lagoons, or heavy equipment, the owner is liable for injuries/death if preventive

measures are not enforced (Moore, 2004). The idea behind the doctrine suggests children do not have


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the mental capacity to see hidden dangers whereas an adult trespasser is deemed to understand that

certain equipment, lagoons or storage facilities hold an inherit danger (Moore, 2004).

In order to apply the Attractive Nuisance Doctrine in a civil suit setting, the injured party must

prove five elements: 1) the landowner knows or is likely to know that children are likely to trespass on

his or her property, 2) certain conditions on the property pose a risk of harm to children, 3) children may

not discover the danger or understand that a danger exists, 4) there is a reasonable way to prevent the

risk, and 5) the landowner failed to provide preventive measures to prevent the risk to children (Moore,

2004). If an adult trespasses in an attempt to rescue a child, the farmer is liable for injuries that occur to

the adult in this type of situation. The doctrine also states that certain types of animals may be

considered an attractive nuisance, but the doctrine often doesnt apply to domestic or farm animals.

However, there have been court cases where properties with horses and aggressive dogs have been

included under the doctrine (Moore, 2004).

Animals cause another source of liability for the dairy operator because of the potential damage

and injury that can be caused by cattle. If cattle become loose and damage property, such as a

neighbors yard, the dairy operator is liable. The only exception is outlined in Wisconsin State Statue

895.57 (2), which states that if an individual intentionally releases an animal that is lawfully confined

without consent of the owner, that individual is liable for all damages, punitive damages, attorneys

fees, and interest occurred from the damages (Wisconsin Stats Database, 2011). However, if the

trespasser or individual who is trying to release the animal is injured or killed by security devices

designed to cause great bodily harm, the dairy operator is liable in this scenario (Wisconsin Stats

Database, 2011).

Operators can also be held liable for communicable diseases that are transmitted from their

animals. If the owner knows about the disease but doesnt take action to resolve it, he or she can be


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found negligent. A specific example would be rabies spread from a dog to a human or Foot and Mouth

disease spread from one herd to another (Matthews, 1999). Owners must properly dispose of any dead

animals and put down any vicious animal that is known to cause harm to humans (Matthews, 1999).

Employees are another avenue of liability concern for dairy operators. If the employee causes

injury to another individual and was acting within the scope of his or her job duties, the dairy operator is

liable for any damages incurred by the injured party (Matthews, 1999). Employees who are given

authority, actual or apparent, can cause liability issues for the dairy operator. For example, if the

employee purchases feed and credits the operators account, the operator is liable to pay the bill

(Matthews, 1999). Operators are also liable for employee injuries, if the injury is a result of negligence

on the part of the dairy operator. If the worker assumed the risk of the injury-causing activity, the

operator is not liable for the injuries.

The relationship among the dairy operator, the milk hauler and the milk processor has potential

to lead to a liability or even a product contamination situation. A dairy operator uses a milk hauler to

transport milk from the farm to the processing plant. Often the milk hauler is an independently

contracted driver for the processor and earns a fee for the amount of milk brought to the plant. The

processor can refuse or dump a shipment of milk if its deemed contaminated. Contamination can occur

through the bacteria present in the milk truck tanker, bacteria in the milk from the dairy operator, or

antibiotics within the milk from the dairy operator. In order to determine liability, the processor

samples all tankers prior to entering the plant, and the milk hauler takes a sample of milk from each

farm he or she visits. The dairy operator can voluntarily have his or her milk tested to verify bacteria

levels. Dairy operators are also prohibited in the sale of milk or meat containing antibiotic residue and

can be held liable for damages caused by contaminated milk (Wisconsin Consumer Protection Laws, No

date). If the farmer is found liable for contamination of a milk shipment, he or she can pay damages to


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the milk hauler, the processor, and other farmers whose milk was comingling in the milk haulers tank at

the time of contamination (Wisconsin Consumer Protection Laws, No date). Its important that the dairy

operator follows sanitation procedures and antibiotic withdrawal dates to avoid a milk contamination

liability suit.

Running a dairy operation opens up the operator to a number of liability issues. From visitors

and employees to animals and milk contamination, the threat of a liability suit is always prevalent. Its

important that the operator understands the potential liability situations that exist, how to prevent

them and the defenses available to fight a liability suit. Written documentation, clear instructions and

protocols are necessary to create a defense in a liability situation. By understanding the laws and

working with the competent legal advisor, a dairy operator is able to avoid most liability situations and

run an efficient dairy operation.

Even if the operator can avoid pitfalls within the day-to-day operation of his or her farm, the

operator must take steps to ensure a graceful exit from the industry. A dairy operator needs to be

educated on how to keep his or her investments safe, especially if the operator is approaching

retirement or an exit from the industry. A comprehensive estate and succession plan is necessary to all

dairy operators. According to the Farmland Information Center, an estate plan should meet four goals:

transfer of ownership and management of the operation, avoidance of unnecessary transfer taxes,

assurance of financial security for the next generation, and development of the next generations

management capacity (American Farmland Trust, 2004).

In order to build an estate plan, the dairy operator needs to maintain a current list of all

property and debts (Estate and Succession Planning etc. 2011). This includes any investments, farm

equipment, retirement funds, and even jewelry and artwork. After developing the list, the dairy

operator and his or her spouse should consult with an estate planning attorney and create a will or trust.


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A will outlines how an operator wants his or her assets transferred upon death. A trust gives an

operator a way to transfer assets prior to and after death occurs (Hawbaker, 2010).

Knowing the worth of the assets is essential. When the assets are transferred, they can be

subject to estate taxes. Estate tax is a federal tax paid on the transfer to another individual when the

owner dies (Hawbaker, 2010). In 2010, the federal tax rate was 46 percent, and the tax is designed to

keep wealth available to everyone. However, very few Americans pay federal estate taxes because the

law, as of 2010, only taxes transfers of $2 million or more. However, it is possible for a dairy operator to

have assets worth this amount. Operators with less than $2 million in assets avoid the federal estate tax

because of the unified credit (Hawbaker, 2010).

Operators who are approaching retirement can gift part of their assets to the next individual

who will take over the farm. The annual gift tax exclusion allows individuals to give up to $12,000 per

year without the penalty of a gift tax (Hawbaker, 2010). Gifting also brings down the operators unified

credit, so if an operator is just over the $2 million threshold, he or she could gift out some of their assets

to avoid the estate tax.( Hawbaker, 2010).

Other issues that can affect the value of the estate include basis and capital gains. Basis refers

to the cost of an asset to the operator. For example, if an operator purchased a field for $500 per acre

and now the field is worth $1,000 per acre, the basis would be $500 (Hawbaker, 2010). The $500 that

the price of the land increased is the capital gains on the land.

The operator can also set up a revocable trust, where the operator can move his or her property

to a trust but still hold management over the property. Setting up a trust costs more than a general will,

but it essentially allows the operator to have the land transfer to the next generation with avoidance of

the capital gains tax (Hawbaker, 2010). The operator can also place a conservation easement on the

property, so that the land is protected from certain types of development (Estate and Succession


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Planning etc. 2011). The conservation easement is usually set up between the dairy operator and the

government or a not-for-profit organization. This type of arrangement is ideal for dairy operators who

are looking to preserve natural resources or a particular way of living.

Having key documents in place can help streamline the succession process. These documents

include a will, both standard and living, a durable power of attorney, health care power of attorney, and

a written list of current financial advisors, including information about the attorney and the accountant

the dairy operation utilizes (Estate and Succession Planning etc. 2011).

In addition to the legality of passing down the farm, there are a number of emotional issues that

can adversely affect a farm transfer. For instance, if the dairy operator plans to pass on the farm to a

son or daughter, there may be differences in opinions on how the operation should be managed. Also, if

there are multiple children, the dairy operator may struggle with how to fairly distribute the assets of

the farm, especially if one of the children is a primary resource around the operation. Communication is

essential to determine what the stakeholders expect from the succession plan. Also, considerations for

the dairy operators retirement needs such as medical expenses, living expenses, and the potential for

long-term care must also be considered.

Overall, operating a dairy farm is a rewarding and challenging profession. However, if an

operator is not educated about the different topics that can lead to a legal situation, he or she may face

litigation or even lose his or her investment. Creating a comprehensive business plan which includes the

set up of the business entity, details about employee and vendor relations, affects of mergers and

acquisitions, areas of potential liability and an exit strategy, helps the operator better manage and

protect his or her business. Also, having a team of experts, such as legal counsel and an accountant who

specialize in agriculture issues is essential in creating a legit operation. By addressing the topics outlined


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in this paper, a dairy operator will be more equipped to avoid potential legal pitfalls and recognize when

its important to consult with experts in the field.


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Documents

Final Paper Legal Considerations in Dairy