My eight-year old Doberman cross would be shocked to learn that I am praising his approach to life. Luke loves to eat, especially bread. He isn’t picky — any type bread or crackers or bakery product will do. As a result, we have Luke-proofed the kitchen, or attempted to. We purchased a bread box, but Luke figured out that was not in his best interest, so he knocked it off the cupboard and sent it packing. We used the microwave for storage of bread items, until Luke figured out how to open the door. (I could probably teach Luke to line dance, if I dangled bread in front of him.) Our current bread storage is the oven, but I have observed Luke studying that, so I know it is only a matter of time until he masters that handle.
Several years ago, while he was left alone inside the house and unable to reach his desired carbohydrates, Luke attempted to bake his own bread. At least that is what it looked like happened. I returned from calf feeding to find a 120-pound black dog and the kitchen floor covered in flour. Luke just looked up at me with big innocent eyes, as if to say the flour just fell from the cupboard, and he was far more surprised than I was.
Remember this approach if an environmental incident happens on your farm. I have practiced law long enough that I remember the good old days when ag lawyers prided themselves in not dealing with criminal prosecutions. Ag law was all about estate planning, business agreements and land acquisitions and the like. Court cases were civil, or maybe administrative, but agricultural concerns were rarely criminal.
All of that changed with environmental laws and the zealous enforcement thereof. And the criminalization of agriculture continues. The folks prosecuting these cases do not acknowledge that even with the best of intentions, proper safeguards and state of the art methodology, that accidents can happen. To them, an environmental accident is a potential criminal prosecution.
The instant that you discover an environmental concern on your property, call your lawyer. Request their presence on your property as you start building your defense in the event charges are pressed. Keep in mind that the state may have years to file charges, based on applicable law. The best time to create an effective defense against this possibility is immediately upon discovering a possible situation.
Take many pictures. Document everything that you recall leading up to the discovery of the issue. Pull samples of your own. Write down everyone that appears on your farm to investigate the matter. And, of course, take immediate steps to correct the situation.
Chances are, numerous governmental agencies with various alphabet acronyms will soon appear on the scene. They will also document everything they see, but their goals are not necessarily identical to yours. Of course, all parties involved want to rectify the situation as quickly as possible. But everyone present will have an agenda, and a farmer needs legal counsel to protect his rights and start building a defense based on precisely what happened and what steps the farmer did to remedy the problem.
Do not assume that everyone that shows up in an official capacity will understand what has happened. Be aware that if the powers that be determine criminal charges should be brought it is very likely the farmer may end up paying for whatever agency is involved to create and document a criminal case against him.
Obviously, it is important to cooperate with all agencies involved. Just do so in a manner that protects your interests. I can assure you all those responding to the emergency will be doing the same.
Wisely dealing with an environmental spill is much like handling a vehicle accident. Remember the often-quoted advice to provide insurance information and remain quiet? Obviously, listen to advice of your attorney handling the situation. And keep in mind it is likely that anything you say during discovery and correction of the environmental issue will be ruled admissible in court as an exception to the hearsay rule, because it may be considered an admission.
This is contrary to the way farmers and other honorable folks behave. No one understands this better than Kristian Bush. He is half of the country duo Sugarland. Remember the horrific accident that occurred on August 13, 2011 when a wind gust from an approaching severe thunderstorm hit the Indiana State Fair’s temporary roof structure causing it to collapse and kill 7 and injure 58? Bush told Rollingstone Magazine that he was ordered to be quiet even though he wanted to reach out to his injured fans and express his sorrow and sympathy over the accident. He said maintaining this silence was one of the most difficult things he has ever done. Unfortunately, what may feel right could just lead to legal liability. Specific details of the settlement with the families was not disclosed, but Sugarland and the other 17 defendants reportedly settled by paying damages in excess of $39 million. When Bush had to remain silent, he poured his energy into his music and recently released a new solo album, Southern Gravity.
Here’s hoping that you never need any of this information. If an environmental issue arises, however, call your lawyer, document and correct that matter as quickly as possible. And when in doubt, look innocent and remain silent. It worked for Luke.