Final report for LNC19-415
This project, “Empowering sustainable farmers with proactive, community-centered farm law education, resources, and networks,” delivered the following outcomes:
- Reduce Risk: 208 farmers learned 12 core principles of farm law and took at least one of 10 specific legal risk-reducing practices across 5 farm law subjects, in both English and Spanish.
- Empower Farmers: 167 farmers felt empowered: they recognized their inherent abilities to address legal risk in their operations.
- Train Farmer-Leaders: 8 farmers receive specialized training as a workshop co-presenter and take a leadership role in assisting peers with farm law risk reduction.
- Train Attorneys: We had to eliminate this part of the project due to the burdens of additional time, cost, and delay of managing the pandemic circumstances.
Issues surrounding business formation, sales contracts, farmland leases, loans, employment law regulations, food safety liability, crop insurance, liability for slips or falls, partnership negotiations, succession and more plague farmers during the life cycle of the farm. Distracting them from their core work and draining the farm of resources, these issues destabilize our innovative direct to consumer and organic farms the most. This project changed that by fostering an ecosystem of support where farmers are empowered with to reduce legal risk and leverage legal opportunity.
This project achieved these results through workshops titled “Cultivating Your Legally Resilient Farm,” for the in-person version and "Discovering Resilience" for the online version, as well as farmer leadership development. The key was our curriculum which has a track record of at least 70% of farmers reducing legal risk through at least one action step taken within 3 months. The curriculum has also seen at least 63% of farmers become more empowered to recognize their capabilities. Workshops were led by trained farmers and Farm Commons staff together, under a curriculum that emphasizes creativity, relationships, and social values as keys to proactively addressing legal complications.
We planned to host 12 workshops in person, one in each North Central Region state over 2 and half years, reaching 40 farmers each. The workshops were complemented by a workshop Toolkit. Farmers created an individual “My Farm Law Action Plan,” for reducing their farm’s vulnerabilities. Peer-cohort groups supported farmers as they move forward on their action plan.
Because of the global pandemic, the project experienced significant changes. We were able to host 4 in-person workshops before canceling the remainder and converting to the online format. The conversion took 9 months and we lost valuable outreach time. But on the positive side, we were able to translate the workshop into Spanish (complemented by separate additional funding for translation) and make it available nationwide. We are also able to host these online workshops indefinitely. We are confident hundreds more farmers will benefit from expanded resilience as a result of this project.
These were our original objectives:
- 744 farmers learn 12 core principles of farm law.
- 744 Farmers take at least one of 10 specific, legal risk reducing practices.
- 703 farmers feel more empowered to recognize and address legal risk on their operations.
- 24 farmers receive specialized training and serve as workshop leaders in assisting peers with farm law risk reduction practices.
- 6 attorneys are trained in farm law and assist at least 25 farmers in meeting their risk reduction goals.
Please see Optional Attachment for a list of the 12 core principles, risk reducing practices, and farm law subjects.
When a business owner in the United States needs legal information, they seek an attorney. Any beginning business owner receives the constant recommendation is to meet with an attorney to arrange legal issues. As a result, 73% of small businesses have worked with an attorney in the last 3 years. (1) When it comes to farm businesses, this recommendation is not working. 16% of farmers chose to meet with an attorney about their most important legal issue, over the entire course of their business. (2) When asked why, farmers give two most important reasons: 1) Attorneys do not help, and 2) Attorneys do not understand. (3) Farmers are pointing to a deeper, more systemic problem in the legal services industry as a whole. Many industries are growing frustrated with a lack of clear, helpful services from attorneys about how to launch and grow their businesses. (4)
The state of farmers’ legal risk management is not good. Farmers are operating with serious legal vulnerabilities. The wide majority of farmers are vulnerable to regulatory enforcement, partner or vendor disputes, liability exposure, and more. According to data gathered on an ongoing basis at Farm Commons, 51% of farmers are vulnerable to losing their lease, 42% are vulnerable to a zoning code enforcement. 45% of farmers do not have basic liability insurance for their operations. (5) Noncompliance with farm employment laws is endemic, although hard data is difficult (and unethically hazardous) to track. We estimate that half of all farmers are not familiar with their obligations under minimum wage, overtime, and payroll reporting for all their workers.
These vulnerabilities are pervasive. Nearly every farm that treats interns differently than regular employees is vulnerable to minimum wage, workers’ compensation and unemployment insurance lawsuits. Every farm with a verbal lease could lose access to that land within a year. Without a written lease, farmers cannot rely on state law to protect their cover cropping or other sustainability strategies. Insurance companies won’t offer assurance that food safety incidences are covered if farms sell directly to consumers. Local zoning authorities shift their interpretation of agricultural zoning codes, to the peril of anyone who has started an agritourism or education venture. Farms are receiving advice to form LLCs and corporations, without mention of how crucial it is to divide their business from personal bank accounts. Partners and spouses farm together without creating any written partnership agreement, later discovering they have no way of parting ways without destroying the farm’s viability. (6)
On a community-wide scale, these vulnerabilities risk the incredible promise of sustainable, direct to consumer and organic farm businesses represent to the North Central Region’s agricultural community.
Many of these vulnerabilities can be resolved with proactive, contentious decision-making, grounded in knowledge. Other vulnerabilities can be resolved when farmers work together to create community-level solutions and influence government agency interpretation or insurance company policies. The point is: each of these problems has a solution, if we choose to work towards it.
Farm Commons was founded with the mission of resolving the legal vulnerabilities faced by farming communities, especially the difficult and nuanced issues of direct to consumer, organic, and agritourism operations. Our solution is twofold: 1) We write and distribute an extensive print, audio and curricular resources on farm law matters and 2) We use the principles of effective adult education in farm law education. The second solution is certainly difficult, but every bit as crucial as the first.
Adults need educational experiences that allow them to reflect on their own situation, leverage their learned experiences, and engage with peers. (7) Too many farm educators are doing legal education by bringing in an attorney to present for an hour or two. The result often looks more like a sales pitch than a workshop. Farmers don’t gain decision-making tools or practice with risk reduction skills.
Farm Commons develops of farm law curriculum that empowers farmers to understand and create solutions to complex farm business law issues, within an ecosystem of support. The Approach and Methods section will explain how we achieve that. The remainder of this section will explain why our particular approach is so important and timely.
North Central SARE has funded essential projects on farm law education, but none have done extensive workshops for farmers themselves. In 1999, NC SARE funded the development of, “The Legal Guide for Direct Farm Marketing,” which, although out of print, continues to be a necessary resource. (8) Farm Commons received a 2013 NC SARE Research and Education grant to host a series of webinars and write 4 publications on farm law, with the most significant being a 325 page, “Farmers Guide to Business Structures.” (9) That project resulted in a “real” book, released for sale through SARE in 2018. (10)
There is a limit to what print and webinar-based education can achieve. Most people do not learn best through print materials or webinars. It can be difficult and isolating to discover one’s legal vulnerabilities, alone in one’s house. Without any connection to others who are also going through the same experience, farmers can quickly feel overwhelmed and powerless. A farmer may discover her or she needs to talk with an insurance agent from a book… but has no one to turn to when the insurance agent gives a confusing response. The power of in-person workshops that create peer-to-peer networks is unmatched. Considering how difficult it is to get farmers in a room together, online opportunities are still needed compliment in person workshops. Workshops can cultivate strong community dialogue and connections, so that online have a dialogue to connect into.
Farmers have been heavily involved in the creation of this project and our curriculum as a whole. Beginning with our 2013 NC SARE project, farmers told us that they wanted a longer workshop- a couple of hours wasn’t enough. They also told us that they wanted time to network and they preferred peer to peer learning. We first trialed our “farmer co-presenter” approach (detailed in the Method/Approach section) because a group of farmers invited us to do a presentation in 2014, under the requirement that we co-present with a farmer. It was wildly successful and their genius idea and is now the foundation of our curriculum! We routinely get calls from North Central Region farmers asking for a workshop. We then ask farmers, “What local or regional farm organization should we ask to host the workshop?” This project represents those answers- the Partner Organizations we recruited are those that farmers recommended to us. Ross Lockhart (a farmer involved in this project- see his letter of commitment) recommended the North Dakota Farmers Union, for example.
Workshops are essential because farmers need to take charge of creating solutions where solutions don’t exist. An example helps illustrate this. Farmer Sally discovers she is vulnerable without a thorough, written lease. Sally goes to Landowner Bob and asks to sit down with him to talk through their lease arrangement, hoping it will be easy to put something in writing over coffee. As Sally and Bob talk, they discover they aren’t sure who should be paying for the cover crop seeds or whether Sally should be allowed to deconstruct and take the hoophouse (which she rebuilt after a snowstorm) when the relationship ends. Instinct and cultural training suggest Sally and Bob should go to an attorney for answers. But in reality, an attorney doesn’t know any more than Sally or Bob does about what is fair in these circumstances (assuming the attorney even knows what a hoophouse is ;). Sally, Bob, and other farmers like them are in the best position to decide for themselves what is fair, as they are the ones most affected by the situation. It’s crucial that we create space for farmers to dialogue about challenging issues of fairness like these- and issues in employment law, spousal/business partnerships, succession and more. We need to create spaces (physical space and mental space) for these hard conversations to happen.
Of course, attorneys are an essential part of this process, too. Sally and Bob will likely come up with a terrific solution to their legal issues, if they have the knowledge and peer resources. But, they still need an attorney to make sure the proverbial ts are crossed.
Right now, a qualified attorney who understands farming is very difficult to find. (11) Two law schools in the country that focus on farm law. (12) About 10% of Farm Commons’ online users are attorneys and law students, as there are very few other sources of information on this unique field of law. Unless the attorney grew up on a farm or has farm work experience, it can be difficult to learn the nuances of this industry. Rural practitioners also suffer from a lack of support, as mentorship languishes and very few individuals choose a rural practice. (13)
This project addresses that limitation by training attorneys. First, this project provides education in the nuances of farm law and farm businesses. Then, we give attorneys the chance to work with farm businesses in a supportive environment. Although we only reach 6 total attorneys, as a community, we don’t necessarily need more than 2 attorneys in a single state, if they have remote practice capabilities. Law student debt and the expense of operating a rural practice serving clients with limited willingness or ability to pay are other difficult issues which this project is not designed to address.
Although we have a long way to go in building authentic, farmer-led problem-solving capacity for farm law complexities, we are at the starting line. We understand the vulnerabilities, and we know how to foster the solutions. Now is the time to invest, before things get bad. Right now, state and federal enforcement of farm employment law is not tremendously active. Farmer-landowner lease disputes are not widespread. Tragedies not covered by insurance haven’t materialized with any frequency. But, it’s a matter of time. If we succeed in growing the number of successful sustainable farms, but fail in addressing their legal vulnerabilities, we will watch many more farm businesses succumb to preventable legal problems.
Instead, let’s build the community’s capacity to create authentic, community-driven solutions to complex farm law issues!
(1) NFIB Research Foundation: National Small Business Poll. Volume 5, Issue 2, The Use of Lawyers, 2005.
(2) A Bryan Endres, et al. “The Legal Needs of Farmers: An Analysis of the Family Farm Legal Needs Survey,” 71 Mont. L. Rev. 135. 2010.
(3) A Bryan Endres, et al. “The Legal Needs of Farmers: An Analysis of the Family Farm Legal Needs Survey,” 71 Mont. L. Rev. 135. 2010.
(4) “Too Many Legal Awards—Too Little Client Satisfaction.” Mark Cohen, Forbes.com. July 2, 2018
(5) Unpublished survey data. Farm Commons, 2019.
(6) See many of Farm Commons resources including, “Farmers Guide to Business Structures,” “Hosting Safe, Legally Secure Farm Events,” “Managing the Risks of Interns and Volunteers,” and “Farm Insurance: Navigating Common Options.”
(7) Effective Presentations: How to Develop and Deliver a Farmer-Friendly Talk, by Seth Wilner, University of New Hampshire Extension.
(8) “The Legal Guide For Direct Farm Marketing,” By Neil D. Hamilton, 1999.
(9) “Protecting Diversified, Direct-Market, and Value-Added Operations with Smart Business Structures, Written Agreements, and Regulatory Compliance.” LNC13-348, PI: Rachel Armstrong
(10) Rachel Armstrong, et al. “Farmers Guide to Business Structures,” SARE Handbook Series ; 14.
(11) Robin Runge, “Addressing the Access to Justice Crisis in Rural America,” American Bar Association Human Rights Magazine, Vol. 40, No 3. September 2018; “Lawyer Shortage in Some Rural Areas Reaches Epic Proportions,” NPR Broadcast, December 26, 2016.
(12) “My Path Becoming an Agriculture Lawyer in New York City,” by Cari Rinker, www.rinkerlaw.com, Aug 30, 2012
(13) “Rural Wisconsin Lacking Lawyers, Especially Up North,” Wisconsin Public Radio Broadcast, August 23, 2016.
This project involves detailed legal research, which does not involve a hypothesis. In the sense that research is the process of analyzing information and arranging the results in a fashion that was not previously available to citizens, this project involves research. This project involves extensive and detailed analysis of the legal obligations and mechanics of direct to consumer and smaller scale farms and ranches in America. This kind of research involves researching statutes, regulations, and case law and creating a cohesive set of obligations. To analysis, the research team applies insight and perspective to arrive at a strategic risk mitigation strategy for farms. It is difficult for us to separate the research and education portions, as the process of legal research isn't as "pure" as compared to scientific research because of the necessity of applying insight and perspective to assemble the resulting strategic risk management plan.
The materials involved in legal research are access to Westlaw and Wolters Kluwer databases. Attorneys do a detailed study of the statutes and regulations, and analyze the material to arrive at a comprehensive articulation of the legal obligations. We were fortunate to leverage a team of volunteer attorneys to supplement project researchers, as the pandemic resulted in the project team having to completely re-write the workshop curriculum and to build an entirely new, online platform for hosting the workshop, which took significant staff time away from research. The result of the staff or volunteer attorney efforts are a legal memo. The research is then complete and the project shifts to the education phase, where the legal text is translated into a set of rational, prioritized action steps or priorities that a small business owner can use in the course of their business.
We have created a comprehensive set of detailed legal memos for each state in the North Central region, which we are using to craft our educational materials for the workshops.
The most urgent issues of legal research needed by farmers are those involving land leasing, employment regulations, and food safety regulations. This project made a strong initial dent in the research that needs to be done, but much remains. The "good" news is that farmers are quite busy taking stock of and adopting the recommendations of the basic level research done for this project. It can take a year or two to fully adopt baseline legal resilience recommendations like getting a lease in writing or writing an operating agreement between parties. For example, only once folks get to the point of writing a lease down is it practical to get deeper into the terms of multi-decade leases or how leases transfer upon death. We are seeing that progression happen and anticipate that the next few years will continue to show strong gains in farmer understanding of baseline legal issues.
Indeed, farmers need and deserve additional legal research into their vulnerabilities, their opportunities, and the best mechanisms for moving forward. Urgency is there because these issues can be farm-ending disasters. But, as the research becomes more granular, it also affects fewer and fewer farmers. For example, only so many producers will ever contemplate a multi-decade lease, so the total demand for the information only goes so high.
Prior to the COVID-19 pandemic, this project aimed to host an in-person farm law workshop in each state in the North Central region, plus a recorded workshop component for those unable to attend. Partners lined up to assist with recruitment in each state.
Up to March 2020, we developed the in-person workshop curriculum for a 8-hour, day-long workshop with lunch and breaks. We structured the workshop with 5 modules, each containing interactive activities and group discussion. The instructional portion of each module was divided between an expert attorney presenting the legal logistics and farmer co-presenter offering practical perspective and input.
Then, the COVID-19 pandemic forced us to cancel all remaining workshops and do a complete overhaul of the strategies used to achieve our core objectives. We simply could not convert an 8-hour in-person workshop to an online program without major changes. Although our in-person curriculum was good, it's success rested on the energy of our presenters combined with food and activities that made legal content palatable. Putting it online would not have maintained people's attention for that long- and we couldn't simply cut the activities- we had to create new activities for an online environment that would still cultivate peer-to-peer exchange. People learn differently in an online environment and we had to make significant changes to still be successful.
So, here is what we did over 2020 to preserve our ability to meet our outcomes in a pandemic environment. (We are very proud of these developments and feel that the curriculum is much better as a result. It was a great opportunity to make some improvements.):
- We completely redeveloped our workshop curriculum to convert the 7-hour in-person experience to a series of 5 modules, held over 5 weeks. Each module includes pre-work, which is 1-2 pre-recorded videos that teach farmers the core legal knowledge they need. The videos are complemented by selected reading homework. Learners also complete an individual assessment each week.
- Then, learners attend an online group meeting each week. The group meeting focuses on developing the communication and dispute resolution skills that are essential to legal resilience. Learners go through activities and discussions in large and small groups together as well as through a physical workbook which we send via postal mail. As a result, each learner engages in a wide variety of learning forms from watching videos, to doing activities in a book, to participating in online discussion.
- We had to redevelop the partnership element of this project, as the prior role of the partners was to select a venue, assist with lunch/refreshments, and recruit participants. The first two responsibilities became irrelevant, and the third was awkward. Many of our partners had timed the workshop to other in-person activities that were also canceled. At the same time, some of our partners are looking at changed circumstances post-COVID, and our workshop no longer fits their strategic priorities. Only 2 of our partners chose to continue in the online environment.
- We also had to renegotiate the nature of our farmer-co-presenter program. Farmers could no longer talk with their fellow local farmers in an in-person event; they had to record their segments as a video for integration into the online course. This did not work very well in the end, as discussed elsewhere in this report.
The online course also allowed for two valuable developments: 1) a self-paced version of the workshop and 2) a self-paced Spanish -language workshop (with substantial support from a separately-funded collaboration). The self-paced versions were effective in increasing the diversity of audiences we were able to reach. However, we would not recommend a self-paced course as the primary feature, as the skills development and networking of the online class element are so crucial to legal resilience.
Educational & Outreach Activities
Although many Research and Education projects spend the bulk of the time and money on research, with education as a necessary follow up, this project was the opposite. We needed to do the research yes, but that part didn't take nearly the time and money that was required for the education.
For education, we did all the activities described in the activities session:
- Held 4 in-person workshops on farm law over the course of an 8-hour day
- Held 7 online trainings in farm law with each workshop occurring over 5 weeks with a live weekly 2-hour meeting in addition to pre-work.
- Created/distributed 1 self-paced online training in farm law
- Writing governance documents can help establish expectations and create solutions to the individual's/operation's needs and circumstances
- Business structures like LLCs and corporations do not protect business assets from business liabilities
- Insurance is the only mechanism to protect business assets from business liabilities
- A farmer who is making more in personal income from farming/ranching than the average farmer/rancher may benefit from filing as an S corporation (which an LLC or a corporation may do).
- Injuries from agritourism, educational activities, value-added production, and other non-farm activities are usually NOT covered under plain farm liability policies, without a specific endorsement.
- Whether or not a farmer is liable for a specific injury depends on what other farmers typically do
- Property insurance should be renewed and updated annually to account for changes in type or valuation of farm buildings, equipment, and facilities.
- The classification of workers on a farm/ranch as independent contractors, interns, volunteers and/or employees is legally defined by state/federal law.
- Workers' compensation insurance prevents lawsuits against the farm/ranch business; operations without workers' compensation must purchase liability insurance if they want coverage for worker injuries
- Nearly everyone who does work on a farm/ranch is considered an employee, legally speaking, even volunteers and interns.
- Whether a farm can utilize exemptions from standard employment laws depends on whether the worker is performing agricultural labor.
- A good land contract and/or lending documents are ones that prevent problems before they occur by helping those involved come to consensus on a wide range of issues including default, payment rates, etc.
- A good lease is one that prevents problems before they occur by helping the farmer/rancher and landowner come to consensus on a wide range of issues
- Due diligence is an important process to determine if farm/ranch land will be suitable for my operation from a legal perspective
- Zoning codes can prohibit many forms of farm diversification
- Insuring diverse farm activities often requires an additional insurance endorsement or product
Form an LLC, Corporation, or other entity that protects my personal assets from business liabilities.
Draft a through governance document for my farm/ranch.
Talk with my insurance agent about whether risk of injury from all aspects of the farm/ranch are covered
Talk with my insurance agent about whether my property insurance is sufficient
Carry workers' compensation to assure that worker injuries will be covered in case of injury
Modify business plan/strategy to meet legal obligations for minimum wage, overtime, and unemployment insurance obligations
Have a through discussion with your landlord/tenant or lender/borrower that results in consensus
Do due diligence on land for which you are/will lease or purchase
Research the zoning code
Get insurance for the specific type of diversification planned
I found this workshop immensely helpful. Farm law is overseen by so many different departments at the state and local level, it can be hard to know if your farm is on sound legal footing in all ways. This workshop covers all the bases, so you know where you're sound, and where you have weaknesses, how to assess those weaknesses, and how to move forward.
It was so worth it for me, discovering that I might enter into legal "agreements" without even knowing I was doing so. Really alerted me to some of the potential perils and pitfalls, and did so in a really empowering way. I know it's a bummer to have to learn all this legal stuff AND also know how to farm well, but better to be forewarned. This course put many of my fears to rest, and helped me understand the risks so much better.
Farmers know how to farm. Most of us are not trained to run a business and understand the legal implications of our activities. Discovering Resilience is a great workshop that addresses these topics from the perspective of small farmers. Their teachings are concise, and easy to understand, and most importantly, essential for long-term sustainability of your farm business.
I really liked the combination of pre-meeting videos/activities and live information sharing and group activities. The Action Plan workbook is great. There was also plenty of time for questions. I felt like this workshop really met my current needs/challenges. Thanks!
The whole course was very helpful & the action steps were clear. Specifically, I will be reviewing my LLC Operating Agreement, getting worker comp insurance, setting up payroll for my first employee and updating our lease. Then, as I progress onto diversification, I will review the action steps regarding zoning, permitting, licensing, and liability insurance for those ideas.
The workshop has been very informative and helpful in introducing me to the stuff 'I didn't know that I didn't know.
This is a well-thought-out, planned, and implemented workshop. Thank you! I am very interested in maintaining access to Farm Commons for information and advice!
Farm law research and education can be very tricky. It's an area where people do not know what they don't know (see one of the quotes above!). In that way, it can be very difficult to motivate attendance at our workshops. But, people are thrilled with the content and impressed with what they can do for themselves as a result. We use but need stronger peer-to-peer influences to help folks realize what they have to gain by paying attention to this issue. But yet, we also have to address that when a legal issue finally does feel important and pressing, folks look to an outside expert- not to themselves. This may be appropriate, but it also may not be.
In short, I'm saying that legal education requires a tremendous amount of ground work to be successful with a farmer audience. We have to orient folks to what is (and is not) possible, before we can get to education. Yet, this work is crucial. We are so pleased with what our farmers and their supporters are able to do with a little bit of accurate information about the law's dynamics.