The agriculture community has faced problems with animal welfare organizations using undercover videos that are sensationalizing alleged acts of animal cruelty on livestock operations.  Larger livestock farmers using conventional production practices and concentrated animal feeding operations are at greater risk.  Due to the media attention from these undercover videos, several states have developed legislation aimed to proscribe undercover video surveillance on farms (referred to as “ag gag” laws by opponents).  This type of legislation has been controversial in the American public questioning the constitutionality.

States That Currently Prohibit Undercover Investigations

Kansas

Kansas was the first state to pass an animal terrorism statute in 1990.  In summary, Kansas gives criminal liability to those who, absent consent from the owner (a) with the intent to damage or destroy the animal facility actually damage or destroy an animal facility (or any animal or property therein), (b) exercise control over an animal facility with the intent to deprive the owner of such facility (or any animal or property therein), (c) with the intent to damage or destroy the animal facility enter an animal facility and/or remain concealed with the commit or attempt an act prohibited by this statute and/or take photographs or video coverage.  See K.S.A. § 47-1827(a)-(c).

Furthermore, the criminal statute proscribes a person, without consent from the owner, and with the intent to damage the enterprise conducted at the animal facility, enter and/or remain in the animal facility if the person had notice that they were forbidden or received notice but failed to leave the premises.  See K.S.A. § 47-1827(d).  Both oral and written communication (e.g., signs posted on the facility) by the owner or someone with apparent authority (e.g., employee) or fencing or some other type of enclosure by the owner constitutes “notice.”   Furthermore, K.S.A. § 47-1828 sets forth a civil cause of action in district court for any person who has been damaged by 47-1827 (the criminal statute).  The plaintiff may be entitled to “three times all actual and consequential damages. . .” (including production, research, testing, replacement and crop/animal development), court costs and reasonable attorneys fees.   Importantly, the criminal statute does not apply to “lawful activities of any governmental agency or employees or agents thereof carrying out their duties under law.”  K.S.A. § 47-1827(h).

Montana and North Dakota

In 1991, Montana enacted the “Farm Animal and Research Facilities Protection Act”, M.C.A. § 81-30-101 et seq., with similar criminal prohibitions and civil relief as Kansas.  Both government officials carrying out their duties and “humane animal treatment shelter or its employees whose primary purpose is the bona fide control or humane care of animals or the enforcement” are exempt from this statute.  Likewise, North Dakota also followed in Kansas’s footsteps in 1991 enacting similar criminal/civil provisions.  See Chapter 12.1-21.1-01 et seq.

Iowa and Utah

Iowa enacted a statute in March 2, 2012 attributing misdemeanor liability to “animal production facility fraud.”  Under section 717A.3A(1), a “person is guilty of animal production facility fraud” if they (1) obtain access to an agriculture production facility under false pretenses, or (2) make a false statement on an employment application with the intent to commit an act that is knowingly prohibited by the owner of the agricultural facility.  See section 717A.3A(3).  The statute also proscribes aiding and abetting the commission of animal production facility fraud.  Similarly, Utah enacted “Agricultural Operation Interference” statute on March 20, 2012.   The Utah statute also prohibits farm employees and criminal trespassers to take unauthorized photographs, videos and sound.  See U.C.A. § 76-6-112(c)-(d).

States With Pending “Ag Gag” Legislation

Illinois, Indiana, Minnesota, Nebraska, Tennessee and New York currently have pending “ag gag” legislation.  Florida’s recently died in budget.  Missouri also has pending legislations allowing unedited surveillance to be taken and then turned over to the police.

Yesterday I had an opportunity to talk about being an agriculture lawyer to an undergraduate agriculture careers class in Wisconsin via Skype.  I remember being that age and not really knowing what I wanted to do.

To tell you the truth, I grew up looking up to Colleen Callahan and wanted to *be* her…with a career in agriculture journalism/communications.  For a brief moment, I was particularly interested in agriculture literacy with school aged children.   I even started my undergraduate career at Texas A & M University majoring in agriculture journalism.   Perhaps it was because I was attending a renown animal science department (second only to Cornell .. arg) but the animal science world pulled me in.   I loved using that part of my brain.  To date, some of my favorite professors were in the Department of Animal Science at Texas A & M University and I don’t regret for a second obtaining my bachelors of science there.

Wow- here's a blast from the past. I'm with my parents here at my graduation from Texas A & M University.

And then graduation hit and I was faced with the question that every graduating senior has — what next?  I used to kid people about how “if I wanted to make money in this lifetime, I should go to law school.”  But the truth is, I didn’t have a clue what attorneys did nor did I know many attorneys growing up.  I especially didn’t know any agriculture lawyers.  It wasn’t until I spent time in Washington D.C. with this internship program that I become particularly interested in law and policy.  At that point, I had already accepted an offer to pursue my masters studies at the University of Illinois in beef cattle nutrition.  Sometimes you just have to take a leap of faith and grab an opportunity when you can to see life from a different perspective.  I learned a lot that summer.  I learned a lot about politics including why the Potomac is green…I learned to like powersuits and late night talks about agriculture policy… and I met a few lawyers who inspired me a bit about the practice of law and somehow trying to make difference.  That experience sparked something inside of me that is very much part of who I am.

Intern for Congressman Kevin Brady (R-TX)

Giving an Aggie "whoop" at the Lincoln Memorial

I am continually asked, “how did you get here?”  Well, it took a lot of hard work.  I didn’t ace the LSAT or coast through law school.  I didn’t start my law practice with a fat bank account, a decade of experience or a single client.  It’s been pure doggedness and good ol’ fashioned work ethic that got me through law school and got me to the point where I have a solid agriculture law practice.  The type of work ethic that you learn growing up on a farm walking beans, bailing hay, cleaning the barn, and rinsing cattle… when your friends are enjoying the beach.   Yep – that’s how I grew up.  And that part of me is with me every single day… no matter where my address is.

The Rincker Ranch

Here are some of the questions that I received yesterday and my responses:

What should I study in undergrad if I want to go to law school?

Doesn’t matter.  Study what you want to study.  Unlike medical school, veterinary school, or even some business schools, law school doesn’t require any particular classes or majors.  That being said, because of my bachelors and masters in science, I am eligible to take the patent bar.  If you are interested in being an intellectual property lawyer and being admitted to the patent bar, I suggest looking at the science requirements with the U.S. Patent and Trademark Office (“USPTO”).

What is the best way to prepare for law school applications?

Take a LSAT prep course.  Listen, I abhor standardized tests.  I think it’s a horrible way to sort people and evaluate somebody’s ability.  However, it’s the way of the world and you have to learn to play the game.  Is the bar exam like practicing law?  Nope.  But it was a threshold I had to cross.  So is the LSAT.  In my experience, law schools put more emphasis on LSAT scores than undergraduate GPA’s.  Do as best you can and let the chips fall where they may.

Additionally, I suggest thinking about letters of recommendations and start building relationships with instructors, employers, or others who you have a professional relationship who may put in a good word for you.  Please take the time to thank these people.  They are taking time out of their busy schedules for you.

What was your biggest challenge in law school?

I was top of the class in undergrad.  Law school was the first time when I shoved in a class with other “top students.”  And there was a mandatory curve in my first year.  It was easily the most competitive and challenging academic chapter of my career.  I spent my nights reading court cases and my weekends outlining my notes.  It’s a huge commitment emotionally, mentally, and socially.

What exactly is “agriculture law?”

I get asked this all the time.  If only the definition was so simple.  The way I look at it is this:  agriculture law touches upon every kind of law, it’s just geared towards a specific industry.  It’s contract drafting, estate planning, environmental law, food labels, criminal law, corporate law, property rights, zoning, tort litigation, commercial transactions, partnership law, and international law.  Nearly every kind of law touches the food and agriculture industry.  That’s what I do.  In a sense, I’m a generalist.

What is the best way for farmers in a dispute to stay out of court?

Go to mediation.  I’m a fan of Alternative Dispute Resolution (“ADR”).  I was just in family court yesterday and petitions were flying back and forth and every direction.  Litigation can break down family relationships, not mend them.  Is there a dispute between a family farm, neighbors, or business partners?  Try having a conversation via a neutral mediator.  Even better, hire me to mediate! (kidding)

If you could do it again, would you do anything differently with law school?

I’m very thankful for my education from Pace University, School of Law.  Pace has an outstanding environmental law program and was located just north of New York City in Westchester County.  However, I have a lot of law school loans that I will be paying off for a very long time.  Somedays I wish I would have chosen a more fiscally responsible legal education with a state law school.

Congressman, if you are reading this blog, it is shameful that only $2K interest on my loans is tax deductible.  Please fix this.

What has been your biggest adjustment to living in the “Big City?”

New York City is really like 20,000 small towns shoved up against each other.  My coffee guy knows me.  My dry cleaner knows me.  My postman knows me.  My neighbors know me.  I run into friends, colleagues and clients at random places throughout the city.  New York City is really just a big small town.  It’s not that scary.

How much do you work?

I work too much.. more than I wish.  I have spent the last several weekends in my office.  I am striving for more balance in my life as my business continually grows.  Anyone who starts a business, no matter if it is a law practice, a farming operation, or a graphics design company, needs to be ready to put in a couple hard years.  But I promise that it’s worth it.

How much do you go to court?

Most attorneys spend very little time in court.  On average, I’m in court 1-2 times a week.  Some weeks I am not in court at all.  It really varies on the type of practice you have.  A lot of what attorneys do is research and writing. I spend a lot of my time visiting with clients.

Do you plan on relocating back to Illinois to be closer to family?

There’s no question that Illinois is a big part of me.  I have lot of family and friends there.  Once I am bar licensed in Illinois, I hope to open a satellite office there so I can travel back and forth between New York City and Illinois. Besides, I need a reason to go see my cows.

Interested in learning more about law school and being an agriculture lawyer?  Will be speaking about it again via Skype on June 1st.

I cannot take credit for this photo. It was taken by Alex Gibson, who now resides in Australia. These were my chickens when I lived at a farmhouse during graduate school at the University of Illinois.

I want to give a brief shout-out on a webinar presented by Elizabeth Rumley from the National Agricultural Law Center on the “Legal Issues in Animal Agriculture: Regulating Living Space.”  I had an opportunity to hear Elizabeth Rumley present during this online agriculture law class last year and she’s one smart cookie (she’ll be presenting again this year).  You can also read my previous post on the topic.

The webinar is on Thursday, May 10th from 12:00 – 1:00pm and costs $50.00.  You can register here.  Make sure to calendar a quick 45 min. lunch break so you can be back at your desk in time for this webinar on the local food movement with the American Bar Association (moderated by yours truly).

I had the opportunity to speak to a great crew via Skype last Friday about being an agriculture lawyer.  It’s casual “open mic” style so we talked about whatever the participants wanted to talk about.  I have been getting a lot of these types of inquiries lately from folks in many different stages of life/career.  I want to note a few points from our conversation that might be useful to many of you:

1.  Life is About Relationships. It’s never too early to start cultivating those relationships. Do so with a sincere heart and giving attitude.

2.  Nothing Replaces Face-To-Face Networking. I think it’s great that various job fairs and agriculture conferences offer an opportunity to submit a resume that gets distributed to participants; however, nothing beats personal relationships.  In 2012, Internet/social media makes it easy to network online.  Don’t forget to take those relationship offline if you can IRL (“in real life”).  See #1.  Life is about relationships.

3. Get Involved in Agriculture Organizations. I recommend the American Agriculture Law Association (“AALA”) and the American Bar Association’s (“ABA”) General Practice, Solo & Small Firm Division’s Agriculture Law Committee (which I chair).

4.  Find the Location That Is Best For You, Wherever It Is, and Plant Seeds For Career Growth. Find the place geographically that is right for you… at least at this juncture in your life (life will inevitably change).  For me, that is New York City.  For you, that might be in the middle-of-nowhere Texas, close to family in Indiana, or within the Beltway in Washington D.C.  As one of the participants pointed out, I have moved a lot.  But that isn’t necessarily the best thing to do.  Every time I have moved I have learned something about myself so I don’t regret any of the moves.  To illustrate, I think I needed to move away from New York City after law school to realize that (as strange as it is for an agriculture lawyer) this is my home.

5.  If You Want To Start a Business, Make Sure You Have Ample Cash Flow. Starting a business is hard – whether it is a law practice, a bakery or a photography business.  If you are a business start-up, have a plan for cash flow from the beginning.  Perhaps you will work on a contract basis full or part-time, or perhaps you can live off of a spouse’s salary.  Or perhaps you are one of the lucky few who can start a business with plenty of cash in savings.

6.  If You Are Interested in International Agriculture Law, Check Out FAO. I completed a consultancy with the Food and Agriculture Organization of the United Nations (“FAO”) researching the legal framework of livestock biodiversity.  I worked in Rome, Italy but there are small regional offices scattered throughout the world including a small liaison office here in New York City.

7.  Even If You Think You Know What You Want To Do, Don’t Be Afraid To Try Something Different. Do you think I planned on being a matrimonial attorney when I graduated from law school?  Heck no- but I am.. and I really enjoy helping people through hard chapters in their life.  It’s sharpened my litigation skills.  Perhaps you have your heart set on working at Farm Bureau or another agriculture commodity group.  You might be a better attorney for them later if you work for a law firm first to get some practical skills.  Alternatively, you might have your heart set on being a transactional agriculture lawyer.  I think some litigation experience helps transactional lawyers understand the issues that become litigated and how a court handles them.

8.  If I Could Do It Again, What Class Do I Wish I Had Taken During Law School? I am thankful to have obtained certificates in environmental law and international law at Pace; however, in hindsight I wish I would have spent more time learning different practice areas.  Afterall, agriculture law is really every kind of law geared to a specific industry.  More specifically, I would have would have taken more business law courses.

And there ya have it.  As a reminder, I’m setting aside the first Friday of every month from 2-3pm ET to have a live video chat.  Some folks have already RSVPed on Facebook.  If you are interested in participating, please email me at cari@rinckerlaw.com and give me your Skype username.  Skype group calls are limited to 10 people.  I am going to go ahead and limit participation to that number to ensure a quality conversation for those participating.

“But I would like to ask you some questions privately – why do I have to participate in a group conference call?”  A few points.  First, I have a busy law practice and am a solo practitioner.  It’s very difficult for me to set aside an hour for every person who wants advice on building an agriculture law career.  Second, after speaking with many people individually I realized that many people have the same types of questions.  It is more efficient to address those same questions to a small group.  When I have time, I hope to write more in this area.  Third, I think there is a lot to gain from one another.  Folks on the call might think of questions that you might not have thought about or perhaps you can glean something from my answer to another person’s question. Fourth, it helps build the agriculture law community that we all need.

On a final note, if you have questions that you do not feel comfortable asking in front of others, feel free to email me afterwards.  If appropriate (and time permitting) we can set-up a time to speak.

I took this photo several years ago when I interned on Capitol Hill for the Hon. Kevin Brady (R-TX). I always look forward to being back in Washington, D.C.

I will be speaking at the 2012 Animal Agriculture Alliance (“AAA”) Stakeholders Summit next month in Washington, D.C. on livestock animal welfare law.  More specifically, I will be presenting on May 3rd  during the “Legal Workshop” part of the program.

The title of the presentation is “When Activists Come Calling – Know Your Rights.”  I will give an overview of livestock animal welfare law, preventative measures for farms and ranches, and some general guidance on how to react to allegations of animal abuse from animal welfare organizations and/or government officials.  Furthermore, I will briefly touch upon “ag gag” legislation.

I will have substantive handouts and materials available for the attendees.  I attended the AAA Stakeholders Summit several years ago and it was outstanding.  I highly recommend it to anyone involved in the agriculture industry that interested in livestock animal welfare.

I will plan on being there in for the entire two-day conference (May 2-3).  If you are there, please come by and say hello.  If you cannot make it, you can follow my tweets from the event (@CariRincker & @RinckerLaw).  You can also follow AAW on YouTube, Twitter and Facebook.

As I noted in this blog, I’m very excited to announce that the American Bar Association’s (“ABA”) General Practice, Solo and Small Firm Division’s Agriculture Law Committee will be hosting a CLE webinar on Thursday, May 10, 2012 titled “Counseling the Local Food Movement:  What a Practitioner Should Know.”  This is a very substantive CLE that will be two hours.  It will run from 2-4pm ET.  Yours truly is the moderator/coordinator for the CLE.

The CLE is geared towards the private practitioner but attorneys, law students, and non-attorneys in other segments of the industry are certainly welcome.  For those of you who know me, I am a very practical person.  I don’t enjoy long heady debates about policy and theory.  This CLE will lay the fundamental groundwork and build to the intermediate level on a myriad of legal issues affecting the local food movement. I want agriculture attorneys to get the “know-how” they need to properly counsel various segments of the industry.  If you are an agriculture attorney or have interest in this area, I believe this will be useful educational webinar.

The faculty for the event include the following:

Dr. Stan Benda -Adjunct Professor at Osgoode Hall Law School and Ryerson University, Business School;

Derrick Braaten – Partner, Baumstark Braaten Law Partners;

Jason Foscolo – Principal, Jason Foscolo LLC;

Prof. Neil Hamilton – Professor and Director of the Agriculture Law Center at Drake University Law School;

Prof. Erin Hawley- Associate Professor at the of Missouri;

Leon Letter- Principal at the Law Offices of Leon J. Letter, PLLC;

Prof. Jesse Richardson, Jr. – Associate Professor at Virginia Tech;

Rich Schell – Of Counsel to Wagner & Schell, LLP; and,

Prof. Patricia Salkin – Associate Dean and Director at the Albany Law School.

The faculty will describe the history and current legal framework affecting the local food industry at the federal, state and local levels.The faculty will broadly discuss a myriad of legal issues affecting “local food” including:

(1) Federal Government Programs including the Women, Infant, and Children (“WIC”) Farmers’ Market Nutrition Program, Supplemental Nutrition Assistance Program (f/k/a “food stamps”), Seniors Farms’ Market Nutrition Program, Know Your Farmer, Know Your Food, Farmers’ Market Promotion Program;

(2) Procurement and Preference Laws including the Federal Procurement Policy Act and state reciprocity laws;

(3) Direct Marketing (e.g., farmers’ markets, roadstands, Community Supported Agriculture (“CSA’s”)) including the sponsorship/administration of farmers’ markets, market rules on producer eligibility and food safety, CSA member agreements, CSA delivery and drop-off issues, and labor issues (e.g., “work shares”);

(4) Food Safety Modernization Act (“FSMA”) compliance and exemptions including inspection of records, retail food establishments, hazard analysis, science-based risk analysis, performance standards;

(5) “Cottage Food Operation Laws” (i.e., “home-based kitchens”) including inspections, licenses, insurance and limitations on (a) the types of food produced, (b) marketing/labeling, (c) distribution, and (d) gross sales;

(6) Food Labeling Regulations including the National Organic Program (“NOP”), Process Verified Program, and Country of Origin Labeling (“COOL”);

(7) Land Use and Zoning Concerns with Urban Agriculture including a discussion on rooftop gardens, backyard chickens and bees;

(8) “Agri-tourism” and “agri-tainment” as it applies to the local food industry;

(9) Liability concerns (e.g., premise and product liability) and prevention;

(10) Liability insurance issues involved in the local food movement and direct marketing including choices in coverage (e.g., Farmer’s Comprehensive Liability Insurance Policy, Products Liability Insurance); and,

(11) Raw milk including its legal status at both the federal and state level and schemes to avoid regulation (e.g., cow shares, pet food).

Other areas of law affecting the local food movement will be discussed briefly. This two-hour CLE will be comprised of approximately 100 minutes of lecture and 20 minutes of Q & A.

The webinar is co-sponsored by the American Agriculture Law Association (“AALA”) and the ABA Section of Environment and Energy’s (“SEER”) Agriculture Management Committee. The cost for members of sponsoring ABA sections and AALA is $125.  You can register online here if you are an ABA member.  If you are not an ABA member, please dial 800.285.2221 and select “2” as the option Monday thru Friday from 8:30am to 6:00pm ET.  The event code is CET2LFM.  If you cannot attend the live webinar, the program will be available on audio CD after the event.

Yesterday, I enjoyed watching the livestream of the American Agri-Women(“AAW”) Mid-Year Meeting in Nebraska City, Nebraska (between Omaha and Lincoln).  Today is the last day of the mid-year meeting.  If you are a member of the agriculture community, I recommend taking some time todayto watch the livestream!  I think it is great that food and agriculture organizations, like AAW, are making video livestreams available.  AAW focuses on policies at the Mid-Year meeting before its annual fly-in to Washington D.C.

Although it cannot replace attending a conference in person, it is a great way to stay tuned into the discussion at the convenience of your home/office.  I encourage other food/ag organization to follow in AAW’s footsteps making information from conferences and meetings available online.

I am a proud member of American Agri-Women and the Founding Member/Past-President of New York Agri-Women.

I will be presenting tomorrow evening during the New York Agri-Women Annual Meeting on the “Shared Challenges” and “United Goals” of women involved in the New York agriculture industry.  I am oftentimes reminded on how divided the agriculture industry can be.  It’s not Big Ag vs. Small Ag.  Local Ag vs. Conventional Ag.  Organic Food vs. Food Inc.  We are one agriculture industry with the common goal of feeding a growing world population.

Women involved in the agriculture industry –whether it is in Brooklyn, Long Island, Upstate New York, Arkansas or Japan–share many of the same challenges and goals.  My hope for New York Agri-Women in years to come will be that the membership will focus on those shared challenged and goals instead of our differences.

Please plan on attending the reception on Friday evening and the conference on Saturday.  We have a great crew of speakers lined up ready to present on a myriad of subject areas.

I took this photo on the Rincker Ranch several years ago. I love black baldy cows! (and cowboys...)

I made it safe and sound to Opryland in Nashville, Tennessee, for the National Cattlemen’s Beef Association (“NCBA”) Annual Convention and Trade Show.  I will be at Cattlemen’s College today and this tweet-up this evening with these awesome ag tweeps.  Tomorrow afternoon and evening I will be at the Young Producer’s Council (“YPC”) (@YPCBeef)  meeting and reception.  I’m also on various NCBA Committees including the Agriculture Policy Committee, Tax & Credit Committee, and Property Rights and Environmental Management (“PREM”) Committee.

Throughout the week, you can follow my convention tweets from both @CariRincker and @RinckerLaw with the #NCBA12 and/or #CIC12 hashtag (Why are there two hashtags to follow?  Good question).

If you are at NCBA Convention, please come find me.  If you aren’t, you can follow the fun via Twitter.  I have always found reading tweets from agriculture conferences educational so I encourage you follow along.

As a final note, I will be tweeting on my iPad that I won last year at NCBA Convention from Pfizer (thanks again!).

I had some exciting news at the beginning of the month:  the ABA Journal selected this Food and Agriculture Law Blog in its Blawg 100 List.  It has been taking votes on the Top 100 Blawgs during the month of December.  If you have not voted yet, please do so today.  Registration only takes 30 seconds and you will find this blog in the “niche” category.  Also take a moment to vote on your other favorite law blogs (“blawgs”); here are mine.

Wishing you and your family a safe and happy 2012!   Huge thanks to my readers and clients for making 2011 a great year.