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Published August 06, 2012, 10:52 AM

Educating your attorney

On-farm visits beneficial to understanding issues farmers and ranchers face

By: Derrick Braaten, Agweek

BISMARCK, N.D. — Recently, I was fortunate enough to have a farmer invite me out to his place to show me around a bit. His goal was to help me understand some of the significant, everyday impacts oil and gas development can have on a farmer or rancher out in northwest North Dakota.

This visit opened my eyes to the details that often fall through the cracks when a farmer or rancher is relaying the effects that development has on his or her operation to the attorney sitting in an office miles away.

For example, in many pipeline easements, there are provisions that require the easement holder to return the surface of the easement right-of-way to its original condition. Most attorneys can craft some standard language to this effect in an easement. Understanding the problems that arise when the surface condition is not restored, however, helps an attorney draft language to avoid a real problem, rather than an abstract concern.

While I traveled around the farmer’s field, he showed me the edge of an oil pipeline right-of-way, which had a ridge between 6 to 10 inches high. His son, just a day before my visit, had attempted to cross the small ridge and had broken a chain on his equipment.

Another useful example relates to the rocks pushed onto this farmer’s hayfield from a nearby access road. An oil company built the road to access one of its wells in the area, and during a long winter of heavy snow, the company regularly plowed the snow out into the farmer’s field.

Unfortunately, with the snow came a significant number of rocks and other debris. Additionally, the snowplows turned up areas of the field making it extremely uneven in places. The farmer explained that he and his son had baled hay in two nearby sections and he had broken only a few guards on their baler. In this single field, which had all the rocks pushed into it, they broke about 15 guards in only a few passes before giving up on haying a large part of the field.

As attorneys, we see a lot of easements and other legal documents that often contain stock phrases and typical provisions. Although we understand the legal implications of the language, its practical application and importance to the landowner’s day-to-day life can be overlooked or unrealized by the drafting attorney.

Most of these issues are obvious to a farmer, and luckily North Dakota is blessed with a large number of attorneys who grew up on the farm and can carry that experience into their legal practice. There are a number of issues for which farmers and ranchers may find themselves needing the advice or services of an attorney. When it is necessary to use an attorney, I would encourage farmers, ranchers and attorneys alike to discuss not simply the legal issue at hand, but specifically how that issue bears on the practical daily workings of the farm.

Although my recent trip taught me a little more about the frustrations and problems farmers and ranchers are facing in the oil patch, this advice is relevant for all farmers and ranchers. Whether it is a pipeline easement or an easement for a road running through the back 40, if an attorney understands exactly what you do with that back 40 and how that easement is going to affect your daily life, he or she will be better able to tailor a legal agreement to meet your needs and get to the heart of the issue.