Scientific developments, technological efficiencies, global trade, and government support and regulation have changed food and fiber production in the United States into a sophisticated and complex business. From a farmer’s field to a consumer’s kitchen table, complicated legal issues now arise for growers, agribusinesses, distributors, brokers, and food retailers. Hall Booth Smith (HBS) specializes in providing legal counsel to and litigation and regulatory advocacy for farmers and agribusinesses.
Because most of our Agriculture Law Practice Group attorneys either grew up on a farm, earned degrees in agriculture, or have spent their careers counseling farmers and agribusinesses, our specific and keen understanding of the business practices and needs of farmers and agribusinesses superiorly position us to handle any agricultural matter. With six offices located throughout Georgia and offices in South Carolina, Tennessee and Florida, we couple the expertise and reputation of a large firm with the accessibility of a local firm.
The legal issues farmers and agribusinesses face are often unique to the agriculture sector. For example, HBS handles issues for buyers and sellers under the Perishable Agricultural Commodities Act (PACA), a complex federal statute which establishes a code of fair business practices that protects businesses dealing in fresh and frozen fruits and vegetables. In many cases, the laws relevant to the issues facing agriculturists arise out of the laws and regulations that are applicable to any contract, insurance policy, property right, business organization, or succession plan.
United States Department of Agriculture Programs
Created in 1862 by President Abraham Lincoln, the United States Department of Agriculture (USDA) continues to play an essential role in regulating, supporting, and promoting agriculture in the United States. The attorneys at HBS assist farmers and agribusinesses as they navigate USDA’s alphabet soup of programs and pisions. We counsel fruits and vegetable producers, suppliers, and buyers about their rights and obligations under the Perishable Agricultural Commodities Act (PACA) and help them understand USDA’s informal dispute resolution program under PACA. Our attorneys assist clients with the filing or defending of formal PACA complaints pending before USDA or the local federal district court.
We also aid clients with appeals of Farm Service Agency (FSA) Payment determinations and issues arising out of the Packers and Stockyards Act and the Agricultural Marketing Agreement Act. Our agricultural attorneys assist qualifying entities submit competitive grant applications to USDA through the Farmers Market Promotion Program (FMPP), a federal program meant to improve and expand domestic farmers markets, roadside stands, community-supported agriculture programs, agri-tourism activities, and other direct producer-to-consumer market opportunities.
Agribusiness Organization and Transactions
Historically, many farms and small agribusinesses have operated as a sole proprietorship, meaning individual owners remained personally liable on contracts and for the tortuous conduct of their employees. As farms and agribusinesses have grown, their owners have sought the limited liability protection associated with the creation of a limited liability partnership, limited liability company (LLC), or a closely-held corporation. Generally, such incorporation helps protect the personal assets of partners, members, or shareholders of the legal entity in cases where insurance does not cover a loss or where bankruptcy of the organization is unavoidable. HBS attorneys have extensive experience with the formation of such legal entities, with special awareness of how such corporate entities may affect the availability of federal farm support payments and federal income taxes.
Production of our nation’s food and fiber is a series of performed contracts. While it may be easy to see how the purchase, sale, or financing of a pivot, tractor, or harvest equipment is a contract, since it often implicates the Uniform Commercial Code (UCC), we may not think of how a similar transaction for fertilizer, seed, labor, or pesticide is a similar promise to perform or pay. The common practice of entering into forward contracts for the delivery of raw commodities certainly involves contractual principles. One of the best ways to avoid a contractual dispute is by a thorough review of the terms and conditions of an agreement prior to its execution. HBS attorneys specialize in the review of such commercial agreements
Additionally, our agricultural attorneys, working closely with our Wills, Trusts & Estates group, can help ensure that property held by an LLC, corporation, partnership, or sole-proprietorship passes to the next generation with minimal probate costs and limited federal and state gift and estate taxes.
Litigation and Dispute Resolution
HBS Agriculture Lawyers have years of civil litigation and alternative dispute resolution (ADR) experience. This experience, while valuable at the negotiation table, is even more critical when our farm and agribusiness clients find themselves in a courtroom or formal dispute proceedings.
As an example, when any seed purchaser alleges to have been damaged by the failure any agricultural, flower, tree, shrub, or vegetable seed (with limited exclusions) to conform to or perform as represented by a label or by warranty, as a prerequisite to the purchaser's right to maintain a legal action against the seller, the purchaser must submit a complaint to the Commissioner of the Georgia Department of Agriculture against the seed seller alleging the damages sustained. Once the Commissioner refers the complaint to the Georgia’s statutorily-created Seed Arbitration Council, HBS attorneys bring the ability to aid farmers or the sellers of the seed in navigating through the Council’s procedural rules.
HBS litigation attorneys are experienced in the litigation of crop insurance claims and casualty claims related to the loss of tractors and farm equipment. Additionally, partnering with out Intellectual Property practice group, our agriculture practice group can assist farmers or seed producers in defending or prosecuting patent infringement and breach of licensing agreement cases related to re-use of advanced seed technology.
Farmers, forest owners, and agribusinesses are inherently tied to the land. Attorneys are often needed when the rights associated with property ownership are implicated by nuisance claims, eminent domain, zoning and comprehensive planning, and environmental regulations. As an example of our expertise in such areas of the law, HBS attorneys recently won a client a defense verdict where a nuisance claim was made arising out of the operation of poultry houses near a new subdivision. HBS attorneys are well-versed on Georgia’s “Right to Farm” law, the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the federal Clean Water Act, and the federal Clean Air Act.
People often own property together either by choice or as a result of an inheritance or gift. When several people own property as tenants in common or as joint tenants, unique issues regarding property rights arise. Specifically, our firm is experienced in handling partition actions and claims involving an accounting between co-tenants.
In 2008, hunting leases and agri-tourism accounted for $138 million in farm gate value in Georgia. Increasingly, landowners who lease their property for such recreational use must be concerned with how to limit their liability when people use their property. HBS attorneys will negotiate appropriate leases and ensure compliance with the warning requirements of Georgia's agri-tourism immunity statute. Our agricultural attorneys defend landowner interests in cases of an invitee's or licensees’ personal injury during agri-tourism, hunting, and fishing activities.
The agriculture law group of HBS also helps large land owners create conservation easements to gain select tax benefits and assist taxpayers in defense of Conservation Use Valuation Assessment (CUVA) and Georgia Forest Land Protection of Act (FLPA) disputes with local tax assessors.
Agricultural Water Withdrawal Permits and Water Law
Increasingly, water is a scarce resource in the Southeastern United States. Already, areas of Georgia have experienced moratoriums on new water withdrawal permits, and residential uses have been limited during period of droughts. Attorneys at HBS work with farmers and agribusinesses to determine if water withdrawal permits are needed and then, if needed, coordinate with the Georgia’s Environmental Protection Division (EPD) to expedite the issuance of ground and surface water withdrawal permits for agricultural uses.
Our attorneys have been involved in the development and applications by EPD of all major water legislation passed since 2000 and have drafted regulations for the Georgia Soil and Water Conservation Commission. Our agricultural attorneys have also represented the Flint River Water Policy Center and Flint River Water Council, Inc.
Government and Regulatory Affairs
Partnering with our Government Affairs practice group, HBS’s agricultural lawyers are available to track legislation and offer draft amendments and substitutes to bills pending before the Georgia General Assembly. On cases involving nuanced areas of the law, HBS attorneys are able to provide expert testimony before legislative committees on behalf of individual farmers, agribusinesses, or trade associations. We also work with individuals and trade associations to ensure compliance with state and federal ethics laws.
HBS agricultural attorneys also defend users of certain pesticides who are accused of violating Georgia’s Pesticide Use and Application Act of 1976. Partnering with our Energy, Regulatory, and Utilities group, we have represented agricultural trade associations on matters such as the negotiation of propane supply contracts and agricultural electric rate matters. We also represent clients before the Georgia Public Service Commission who are accused of violating the Georgia Utility Facility Protection Act (GUFPA), which requires excavators using mechanized equipment, which often includes farmer, to call for a utility facility locate prior to excavating or blasting.
Working with our International Trade group, HBS attorneys are able to help our agricultural clients export commodities throughout the world. Our team is knowledgeable about the United States Department of Agriculture unique export and import requirements and financing opportunities available for the exporting of agricultural commodities.