Be smart, and don’t be dumb

By Leisa Boley Hellwarth

My contracts law professor used to begin every exam by encouraging us “to be smart, and don’t be dumb.”  At the time, I thought that was the most irritating, condescending advice and an obnoxious way to start a test.  And then I graduated law school, passed the bar and started representing clients.  And you have no idea how many times I wanted to tell clients “to be smart, and don’t be dumb.”  In fact, some might have benefited from a wrist tattoo of those very words (and I am not a tattoo person), or at least an engraved medallion worn around their neck as a remembrance of the advice.

There is a case hot off the press from federal court in the Western District of Pennsylvania that illustrates less than intelligent behavior by defendants, and it is an agricultural case. United States of America v. Robert Yost and Jacob Reese.

Let’s start with the facts of the case.  The Edwards Farm has been in the family since 1911.  From 2003 through 2019, Keith Edwards managed the farm, including the informal lease arrangement with Yost Farms of New Galilee, Pennsylvania.  Two fields were leased to them, and one of the fields is next to a wetlands.  Yost Farms is owned by Robert Yost, and one of his employees is Jacob Reese.  The Edwards family and Yost enjoyed an amicable landlord/tenant relationship for years.

In 2019, Keith Edwards developed health issues that forced him to relinquish his management duties to his sister for a few months until his son, Benjamin, and daughter-in-law, Theresa, moved back to the farm and took over the daily operations.  This case is as much about how to deal with landlords as it is violating the Migratory Bird Treaty Act because geese are eating the soybean crop.

Benjamin and Theresa returned to the farm in June of 2019.  Just a year later, in June 2020, the trouble all began when Theresa Edwards observed and documented an employee of Yost Farms shooting out of a truck, parked on the road.  The shooting was directed at the Edwards field that adjoined a wetlands.  This shooting happened a second time.  Theresa Edwards reported the incidents to the Pennsylvania Game Commission.  Officer Gibbs responded but closed the case because there were no dead birds.  I am merely speculating, but it seems like Officer Gibbs sided with the local tenant  instead of the city transplant landlord.  Robert Yost should have realized that the leasing relationship had changed.  I would advise tenants to avoid disagreements, if possible, with landlords that take time to photograph activities they dislike plus call the authorities.

Instead of trying to keep the peace, Robert Yost decided to set traps.  Apparently, the geese were devouring the soybean crop.  Again, Benjamin and Theresa Edwards documented this and called the authorities.  Officer Gibbs discovered eight traps but said there was nothing he could do because no animals were harmed, and it was not clear what the traps were set to catch.  After this incident, Keith’s sister called Yost on June 19, 2020 and demanded the traps be removed, and no geese be harmed.  Robert Yost promptly removed the traps, which was a wise move.

Then just three days later, on June 22, 2020, Robert Yost and his employee, Jacob Reese, decided to deal with the issue of geese eating the soybeans in their leased field by spreading contaminated corn.  This was not a wise move.  And Benjamin and Theresa have the pictures to prove it.  On June 22, they observed and documented Robert Yost and Jacob Reese spreading something in the leased field from sacks.  One day later, they discovered dead birds—17 Canadian geese, 10 red-winged blackbirds and 1 mallard duck.  The Edwards again called the Pennsylvania Game Commission only this time the complaint and investigation turned into 3 federal charges for Robert Yost and 3 federal charges for Jacob Reese. I think they call that making a federal case.

Yost and Edwards talked to the authorities, without an attorney present, which is never a good idea.  In fact, their stories changed when they talked to different officials.  This is commonly called lying to a federal officer.  It’s how Martha Stewart ended up residing in Alderson Federal Prison Camp in West Virginia for five months in 2004.  But I digress…

When Officer Gibbs arrived for the complaint involving dead birds, he collected bird carcasses as well as corn that had been spread heavily in the field.  The lab determined cause of death for the birds was carbofuran toxicity,  Carbofuran was present in the corn.

Carbofuran can only be legally used in four food crop uses:  field corn; potatoes; pumpkins; and sunflowers.  There are only two non-food uses:  pine seedlings; and spinach grown for seed.

Change is never easy.  How farmers deal with chemicals and regulations are constantly being revised.  In the written ruling, the federal judge made it clear that farmers are expected to stay apprised on updates in legal uses of various inputs.  In other words, ignorance of the law is not a defense.

Benjamin and Theresa Edwards represented a change in expectations regarding the informal lease with Yost.  And they may have been difficult to work with.  I cannot, however, fault them for reporting the dead birds to the Pennsylvania Game Commission.  Landlords are ultimately responsible for what happens on their property.  And environmental laws are not to be ignored.  They needed to behave in a way that no one could allege they were colluding or complicit with the tenant.

 Charges were filed on November 8, 2021 that resulted in a bench trial on October 24 and 25, 2023.  A bench trial means that the defendants waived their right to a trial by jury.  The judge then became the finder of fact (the jury’s role) as well as the interpreter of the law.  It is common to avoid a jury when dealing with topics that may impact emotions such as dead birds.

A written decision was handed down on January 24, 2024.  Both defendants were found guilty of all counts.  Each one faces a sentence of up to 13 months incarceration and up to $31,000 in fines.  That makes for mighty expensive geese deterrent of soybeans.              

I was taken with the concern about the illegal use of carbofuran in the rural community evident in the ruling by Judge W. Scott Hardy.  Federal judges are appointed for life, so he was not worried about appeasing voters.  And before you think he is some East Coast crazy, Judge Hardy is from Pennsylvania and graduated from Allegheny College and Notre Dame Law.  He was appointed to the federal bar by President Trump.

Too bad no one encouraged Robert Yost and Jacob Reese “to be smart, and don’t be dumb.”

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