Farmers and the Law

Last issue of Small Farmer’s Journal we ran this statement: what follows are an assortment of responses.

PROTECTIONS FOR LAND, LANDOWNERS AND THOSE WHO ARE FARMERS

In keeping with this issue’s discussion on farmland we are offering a legal ‘what if’ to the lawyering minds in our far flung community. Imagine with me if you will that a young family is interested in a farming tenure on idle land held in trust and/or estate. If they were to make formal application to the trustees of and for that land to enter into a long term, transferable lease, allowing them (with suitable precautions for all parties) to reside there, farm there, and improve said property (while maintaining a record of said improvements, their cost and value); is there a better form to the proposed legal document than a customary lease, a form which allows for the depth of detail which would anticipate problems and advantages in ways geared towards long term success? Is there such an instrument which, from state to state, would serve the third concern that said land be preserved and protected in perpetuity as farmland farmed?

Perhaps put in simpler terms; how does one go about protecting the land owner, the farming tenant and the farmland all at the same time? LRM

I’ll give your hypothetical a general response:

If we are considering idle land held in trust, then the trust itself could include rules and mechanisms to protect the farmland from extractive/abusive practices and afford the tenants security/flexibility/equity in improvements. In this situation the trust would essentially prescribe the basic minimum terms of the long term, transferable lease, terms which any applicant would be required to accept. The result would be far from a customary lease; rather it would be considered a “ground lease” which transfers only rights/ obligations to land, while buildings atop are owned separately. Depending on the applicable estate laws, such a trust could not exist forever, since that violates the premise that land should be freely marketable rather than locked up as private wealth (this is called “Rule Against Perpetuities”).

Alternatively the land could be held by a 501(c)(3) non-profit land trust, which exists in perpetuity and fulfills a stated mission of farmland access, affordability, etc. Alternatively to that, the land could be held by government at the local, state, or federal level, with the broader mission of public good (but perhaps less administrative capacity or local control).

Final thought: lawyers, appraisers, financial consultants, land trusts, etc. can draft such an instrument to navigate the laws and finances for a desired outcome, but projects succeed or fail based on their relationships (human, ecological). The best-drafted instrument is a memorialization of strong relationships, not just a record for future adjudication.

Kind regards, Jack Hornickel, Esq.

Staff Attorney | Food & Farm Business Law Clinic | Elisabeth Haub School of Law at Pace University
80 North Broadway
White Plains, NY 10603

Thank you Jack,

I must caution readers who are inclined to go the route of nonprofit organizations or government agencies to exercise extreme care. Do not for one minute think that such bodies are guaranteed to have the best interests of farmland (as regards land to farm) preservation at their core. Know and understand the difference between protecting land for farming as opposed to protecting open spaces. While both important goals, these two efforts serve different purposes and masters. LRM

Dear Lynn,

You asked your readers to respond to the very complex topic of farmland protection.

Well, let’s start with the legal side. In the original Declaration of Independence Thomas Jefferson wrote about the inalienable rights of Life, Liberty and Property. He wanted to emphasize that autocratic rulers had no right to take land away from property owners, like it used to be under the autocratic rulers of the past. Of course, things didn’t change that much when minorities or majorities had the political power to decide about landownership. When George Washington was elected president only 6 % of white males owned enough property to vote which was a requirement for suffrage at that time. We all know that the European, later American settlers of the North American continent seized land from the indigenous populations. If they cared enough to explain why they felt entitled to do so, they claimed that Indians were savages and didn’t use the land properly. In other words, they put value on their own way of land use and didn’t recognize it when others used it differently. Today’s practice of preferring ‘development’ over agricultural use is a continuation of that thinking, by the way often unopposed by farmers when they believe they can make more money out of their land holdings in this manner.

In my own vicinity at the outskirts of Kansas City presently 3000 acres of good farmland are being developed into an industrial logistic park and further south 250 acres are at risk to be converted into a landfill.

You ask ‘where does this leave the little guy’? Looking at American history realistically we can see that this hardly ever was a central question for the policies of the country, even taking into account that there were farmers’ and workers’ unions which tried hard to make their voices heard. The promise of riches if one worked hard and played by the rules always stifled the general population’s political will to do more for the lesser propertied ones and outweighed concerns of social justice. So no wonder, that there is not exactly a big outcry when farmers lose their land.

You indicate that landownership maybe should be reconsidered and converted into land use rights with certain stipulations. That would not be in alignment with how property rights are handled in this country, which allows the accumulation of immense wealth in the hands of the few despite its obvious detrimental effects on society as a whole. The question still remains who would be in control of decisions about land allocation? Few people know that at the beginning of the republic there were for example in Pennsylvania radical efforts to limit landownership to 2000 acres. This move was naturally thwarted by land speculators, of which George Washington was one, who had acquired the rights to 52,000 acres in the so-called Northwest Territory, although it didn’t work out for him financially. So legally to protect farmland the US population has to agree to different approaches.

Psychologically we know that owning a piece of land and using it ties people to the place. In modern America we have a population with a high degree of geographic mobility, because finding and keeping a source of income, a job, requires that of people. In other words, our modern economy separates people from each other, from the places where they were born and raised, in a way makes them lose or give up connections. The latter ones are very important for contentment and happiness in life. Few people, except for farmers, can live at the same place where they work, and hardly ever over a lifetime like it used to be. I do not want to idealize staying in one place, it has its downsides, too, since it may lead to narrow-mindedness of perspective and blindness towards other people’s lives. Jefferson’s ideal of independent yeomen who would be rooted in the land never came to widespread fruition in the USA. Certainly farmland protection would make it easier for people to stay rooted if they had access to that land.

An ecological point of view shows this: Our present abundance of food and the ability to share it with the world by means of exports is not only the result of huge swaths of land but also a consequence of enormous inputs of farm chemicals of all kinds, fertilizers, pesticides and the accompanying technology in the form of sophisticated farm machinery and IT, by the way all very capital intensive. Our minds lead us to what psychologists call ‘normalcy bias’, meaning we got so accustomed to it, that we cannot imagine it could change drastically. But it can: This entire system is based on high energy use, here and abroad. But disruptions are possible, the war in Ukraine has shown one source of disruption, on a finite planet the production of fossil fuel is not limitless, other forms of energy also in their initial stages require gigantic amounts of fossil fuel and finally there is climate change. In the last couple of years California has proven that the impact on agricultural production can be enormous. Taking these risks together it is highly unlikely that today’s agriculture can persist in the long run, especially on very large farms. It is proven that the output per unit of land creates more value on small land holdings than on large ones, because small farmers can invest more diligence on their smaller parcels. It may become necessary in the future that food production migrates to those small farms, especially in the vicinity of population centers. This makes the protection of farm land a necessity in urban areas or close to them. It should also be noted that generally large farms make it much harder to consider the needs of nature. In our area one still can see hedges being torn up, individual trees being removed, drainage pipes being put down, contours being razed with bulldozers, all to make the fields more accessible to large machinery. These practices are detrimental to natural systems, admittedly they may increase yields in the short run.

So, I think farmland protection would be important. Will our nation think ahead and consider the possible consequences of the paths we have taken or will we change our ways? Neither agriculture nor other aspects of how we conduct our lives make me optimistic. And let’s not forget, we cannot demand our governments to rescue us from ourselves if our own efforts fall short.

– Klaus Karbaumer

Concerning the Future of Agriculture

I have been farming in West Virginia for nearly a decade, growing a wide range of vegetables, mushrooms, and raising livestock. I’ve stacked hay in the barn, and run stocks of barley through an old 38’ thresher. I’ve grafted hundreds of apple trees, and helped in fermenting vats of mead and cider. Connecting to land, feeding its people, and bridging the past and future through daily practice, is a way of life. During this decade I’ve been a landless farmer. My name has never been on a mortgage or title of ownership, and though my practice and intentions around farming will contribute to the health and fertility of the land for generations to come, there is no guarantee I will harvest from that land within my lifetime.

Despite this lack of security, being a freelance farmer has been rich with meaning. I have built relationships with fellow farmers and gotten to know the nuance of each landscape; its soil, people, and microclimates, these dynamics and the poetry inherent. Farmers around the country are experiencing a crisis, and land access is at its core. Land stewardship is the means by which the farmer may sustain local economies and ecologies, and subsequently make meaning in life. Landscape is a sculpture of time, and the farmers’ collaboration with nature takes decades, at best, to find homeostasis. In this, we see that multi-generationality is at the heart of sustainability – it’s what allows roots to take hold. Whereas, to be landless, to be subject to the whims of a changing climate, and the whims of a global market, is to start over again and again; a cycle that, at times, can feel quite meaningless. We must work together as a society to secure farmland for generations to come, by working beyond the traditional modes of family lineage. Even with land ownership’s troubled history aside, this no longer functions properly as a means to maintain a diverse and functional percentage of land in the hands of farmers.

I tried once, in earnest, to buy a farm. Being that I had mostly been operating as either a contract worker or under-the-table, farm lending from the United States Department of Agriculture (USDA) was out of the picture. Looking further into loans, business plans and creative land-use, the numbers didn’t line up. About six years later, the price of land in my county has gone up more than 25%. In the US, farmers under 35 have an average debt-to-asset ratio of 28%. Without inheriting land or building on external assets, jump-starting a farm is seldom viable. This reality of a systemic hardship surrounding farmland access has created a generation that rarely considers farming as a life path.

The average farm owner in the U.S. is 60 years old and 98% of this farmland is owned by white individuals, a disparity with serious consequences to all aspects of our society. This dynamic has come about through a history of poor public policy, one that has facilitated the dispossession of millions of acres from Black, Indigenous, and other people of color (BIPOC). Through policies such as the Indian Removal Act of 1830, the Homestead Acts of the mid-1800s, the revocation of Field Order No. 15, and the Alien Land Laws of the early 1900s, among others, Congress has been responsible for the dispossession of hundreds of millions of acres from Indigenous people and other people of color, while facilitating land ownership and access for white Americans. Continuing on this path, policy has pushed ownership away from farmers and towards corporate interests: leaving the poor without access, and quaint “heritage farms” in the hands of distant owners; a food system that lacks resilience in a world of crisis. Previous policies have been at the core of these struggles for land access and subsequent empowerment, yet through policy we can re-incentivise the next generation of farmers and build an equitable and just future: one where people have the means to grow their own food.

We are at a critical point in history. Over the next 20 years, nearly half of U.S. farmland is expected to change hands, while 2,000 acres of farmland are lost daily to development. It is vital that we keep this land in the hands of the growers who will feed our future. According to the National Young Farmer Coalition’s (Young Farmers) 2022 survey, land access is the number one reason farmers are leaving their trade. Here in West Virginia, those under the age of 34 comprise only 8% of farmers.

The 2023 Farm Bill must engage this pending crisis and remedy the inequities of our past. Young Farmers is proposing that lawmakers invest $2.5 billion in equitable access to land, in the ‘One Million Acres for the Future’ campaign. This campaign calls for programs that focus on incentivising farmland transition, keeping land in the hands of growers. It will facilitate USDA lending through pre-approval programs, and invest in data collection. It will expand access to credit, helping farmers compete in the real estate market, and address issues of student loans and the mounting debt of modernity. At the core of this campaign is the call to address the systemic racism and inequity of our farmland policies. Young Farmers is calling on lawmakers to invest in land access for BIPOC farmers, which would manifest as a fundamental change of ethics within governing agencies so that our farmers represent the diversity of the landscape.

Farmers and the land they steward are central to the poetics of place; they are essential to the health and resilience of society. Relationship between land, culture, and politics is nuanced–it’s a relationship through time, of form and forethought, like a well placed fruit tree. Within this metaphor, thoughtful public policy can act as the trellis upon which all can flourish. As they say, “the best time to plant a tree was yesterday.” Let’s make this change now.

As a part of Young Farmers’ One Million Acres for the Future campaign, I am asking my Members of Congress, Sen. Manchin, Sen. Capito and Rep. Mooney, to pass a 2023 Farm Bill that makes this historic investment in equitable land access. We need to actively remove the roadblocks that are keeping young farmers off the land. Secure, equitable access to farmland is an issue that impacts us all, and the future of our food and agriculture systems. All of our voices are important in calling on Congress to create a 2023 Farm Bill that supports young farmers. To get involved with the campaign and receive action alerts, sign up here: p2a.co/land. This is a pivotal moment to make investments in the individuals who will steward agricultural land and grow food for our communities into the future. Our nation must act now to secure affordable access to land for young farmers and farmers of color—there is no time to wait.

– Kyle Rooke

Hello,

I am a recent resident of Southwest Michigan, but spent most of my life in Maryland, a densely populated state. Relative to your recent editorial on farmland preservation, you might be interested in The Maryland Agricultural Land Preservation Foundation. I copied this from their site: “Created in 1977 within the Department of Agriculture, the Maryland Agricultural Land Preservation Foundation is one of the first programs in the nation dedicated to the preservation of agricultural lands by purchasing easements that restrict any future development of farmlands or woodlands. By the end of Fiscal Year 2021, the Foundation had preserved some 337,182 acres. By 2030, the Maryland Agricultural Land Preservation Foundation and its State and local government partners seek to preserve 1,030,000 acres of agricultural land, including farmland, wooded areas, and open space. As of November 9, 2021, some 853,527 acres toward that total, or nearly 83%, have been preserved. Also in 2021, to help with agricultural land preservation, the General Assembly authorized two more programs, the Maryland Environmental Trust (MET) and the Next Generation Farmland Acquisition Program (Chapter 285, Acts of 2021).” https://msa.maryland.gov/msa/mdmanual/01glance/html/agri.html

For the sake of this country, I wish you great success in your advocacy of permanent small farmer Farmland preservation.

– Carol Iverson of Lawrence, MI

Forbidden Fruit

Horace Gray of Washington, DC, 1893

The only witnesses called at the trial testified that neither vegetables nor fruit had any special meaning in trade or commerce different from that given in the dictionaries, and that they had the same meaning in trade today that they had in March 1883.

The passages cited from the dictionaries define the word fruit as the seed of plants, or that part of plants which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed. These definitions have no tendency to show that tomatoes are “fruit,” as distinguished from “vegetables,” in common speech, or within the meaning of the tariff act. There being no evidence that the words fruit and vegetables have acquired any special meaning in trade or commerce, they must receive their ordinary meaning. Of that meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted not as evidence but only as aids to the memory and understanding of the court.

Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.

– From Lapham’s Quarterly, Rule of Law

The law is like a potted plant, somewhat ornamental, occasionally stalwart, with many layered leaves, some in focus and appropriate, others, almost as if intended, out of focus and fluttering without breeze, hoping to avoid strict interpretation. Our mistake is in seeing it as a just and encouraging tool. It is not a tool, it is a plant: and the plant that is our law is not made to encourage but to restrict and to punish. So our job, young man, is to find ways that restriction protects while it creates opportunity and allowance.

– from Roots in a Lovely Filth, L.R. Miller