The Sentinel: Legal News

Immigration courts offer many barriers and too few solutions to a complex process

Garcia noted it is a misconception most immigrants speak Spanish. She has heard many other languages, from Arabic to Creole to Mandarin.

courtroom

Photo: Saúl Bucio/Unsplash

by Judith Ruiz-Branch
Illinois News Connection

CHICAGO - As the Trump administration's deportation efforts continue, more people find themselves in immigration court.

Immigration law is complicated, and most immigrants who navigate the court system do so by themselves.

Kelly Garcia, a reporter for Injustice Watch who covers immigration courts in Chicago, said the lack of legal representation and language barriers add to the complexity. Garcia noted almost no one she has encountered in the Chicago court speaks English, yet all the signs and case sheets are in English. Many show up late or miss their hearings because of it.

"If you miss your court hearing, the judge can order your removal," Garcia pointed out. "These barriers have very serious consequences for people - and it's very sad, honestly. It's very sad to witness that."

Garcia noted it is a misconception most immigrants speak Spanish. She has heard many other languages, from Arabic to Creole to Mandarin and said most people do not know they need to request a court interpreter in advance of their hearing or risk having their case delayed. Those who show up late or not at all could be immediately removed from the country.

Research shows those with legal representation fare better in court. But people in immigration court do not have the right to an attorney if they cannot afford one. The burden of proof, to show they were charged incorrectly or request temporary relief through asylum, falls on them.

Groups like the National Immigrant Justice Center and Legal Aid Chicago are on-site to help address some gaps. As the daughter of an immigrant, Garcia emphasized she can relate to the range of emotions she sees in court.

"It just feels very personal to me, because I know how it impacted my mom," Garcia recounted. "I know how hard and difficult that was for her and I also recognize that it's only gotten harder for a lot of people, especially for people who have migrated [from] very dangerous conditions, here."

Garcia added she has seen many people come to the U.S. for reasons beyond their control. She said her time covering the immigration court has prompted her to work on creating an "explainer" story to help answer the many questions she hears from defendants every day.

Other interesting articles:

Farmers say Illinois' John Deere right to repair suit is 'common sense'

Photo: Insa Osterhagen/Pixabay

by Judith Ruiz-Branch
Illinois News Connection

Many states have considered so-called "right to repair" legislation, but only Colorado has passed a law specifically related to farm equipment.

CHICAGO - Some Illinois farmers say a lawsuit against equipment manufacturing titan John Deere is long overdue, and they hope the outcome is not more laws but rather, the right to repair their own equipment.

The Federal Trade Commission and Attorneys General from Illinois and Minnesota have sued Deere for monopoly practices they allege unfairly drive up costs and resolution times for fixing farm equipment.

Rob Larew, president of the National Farmers Union, said manufacturers use intellectual property as an excuse to not share the details of their equipment technology.

"If folks could imagine being told by the manufacturer of their car, their minivan or their pickup truck that they, number one, cannot repair it on their own -- that they have to take it into the dealer and get the dealer equipment every single time and get those repairs made -- that would be outrageous," Larew contended.

As a company, John Deere said it has taken a number of steps to support customers' ability to maintain their machines and called the lawsuit "baseless."

Many states have considered so-called "right to repair" legislation, but only Colorado has passed a law specifically related to farm equipment. Larew noted manufacturers have long used promises or nonbinding agreements with equipment dealers to maintain their autonomy.

"In those agreements, it actually prevents farmers from fighting for their right to repair, and in exchange for that they promise to do better and to grant some additional access," Larew explained. "But I think as farmers, we see this really as pretty straightforward, common sense, and we need this issue completely resolved."

Larew added it is a bipartisan issue and is hopeful for a resolution, either through legal or legislative channels. President Donald Trump's new appointee for FTC chair, Andrew Ferguson, has said while he is in favor of right to repair legislation, he does not agree with the decision to file a lawsuit.

Other interesting articles:

Researchers find African-Americans receive inequitable sentencing and remain over-represented in Illinois jails

by Terri Dee
Illinois News Connection

CHICAGO - Data show troubling disparities on the number of justice-involved individuals within the Illinois Department of Corrections.

Pew Research figures show Black people remain over-represented in jail populations and receive longer sentences.

The John Howard Association is a non-partisan prison watchdog group that monitors the treatment of justice-involved individuals and says change needs to happen at many levels.

Executive Director Jennifer Vollen-Katz said the population of Black people in Illinois is around 14%. For white people, that number is around 68%.

IDOC's 2024 fact sheet shows a sharp contrast.

"But when you look at the racial makeup of the population in the Illinois Department of Corrections," said Vollen-Katz, "we find somewhere between 52% and 54% of the individuals inside IDOC are black - and about 32% of the people inside our prisons are white."

Conversations with IDOC workers and administrators are part of JHA's research, and pair with inmates' perspectives and experiences.

The goal is to increase public awareness and IDOC's transparency. Illinois.gov lists 29 correctional buildings statewide.

Katz said she wants equal treatment in the justice system - regardless of background or race - and a deeper look at law enforcement's relationships with different communities.

She said prosecutors wielding enormous power in making legal decisions is a huge problem in the early stages of the criminal justice system, and said she feels discrimination should be identified at its source.

"The disproportionate representation in our prison system is reflective of the lack of equity throughout our criminal legal and law enforcement systems," said Vollen-Katz, "and so we can't look at any one system to solve the problem. We need to start at the very beginning and do things quite differently if we're going to address this problem."

Katz affirmed that differences in the outcomes of charges, trials, and plea deals in sentencing are additional areas for reform.

She said more information is needed to improve the back end of the justice system - mandatory supervised releases, parole, and early discharge.

A May 2023 study from the anti-mass criminalization group The Prison Policy Initiative shows 28,000 Illinois residents are in state prisons, 17,000 are in local jails, and 6,100 are in federal prisons.

Related articles:

Juvenile justice court alternative proves successful in Illinois

by Terri Dee
Illinois News Connection

CHICAGO - Anyone age 18 or younger accused of violating Illinois law, who has formal charges filed against them, has historically had their case tried in a courtroom but some judges are choosing another option in hopes of keeping young people out of the system.

Courts in Avondale, Englewood, North Lawndale and Sauk Village in Cook County use restorative justice for nonviolent felony or misdemeanor cases for people ages 18-26. They attend court-appointed conferences or "peace circles" with family, friends and community members to encourage accountability.

Elizabeth Clarke, founder and executive director of the Illinois Juvenile Justice Initiative, thinks the restorative justice model should be expanded.

"Cook County should be using it, not just in low-level cases, but in really serious felony cases," Clarke contended.

Victims and survivors of crimes may volunteer to participate in the conferences. This Friday, the Juvenile Justice Initiative will host two restorative justice practitioners with the Youth Justice Agency in Belfast, Northern Ireland, speaking at the Adler Institute on Public Safety and Social Justice in Chicago.

The Cook County Circuit Court website said a "Repair of Harm Agreement" lists what a young offender must complete, from performing community service and writing a reflection letter, to attaining a high school equivalency diploma and finishing a substance abuse program.

Joshua Brooks restorative justice hubs coordinator for the Institute on Public Safety and Social Justice at Adler University, said restorative justice is a practice; a way of life borrowed from Indigenous beliefs.

"It's really based on the principle that we belong to each other, and we need to do right by each other," Brooks explained. "There are just several different principles and values that include relationship building, confidentiality, repairing harm, community building, shared power. And the way that it's practiced is usually through circles."

Brooks argued strengthening relationships with community members and bringing them into a place where they can trust one another is also important. If the young person completes the items on their list, criminal charges are dismissed and the case is expunged.

Chicago Appleseed for Fair Courts data show between 2020 and 2023, 100 people completed a restorative justice program. By March 2023, 94% had their charges dropped or dismissed.

League of Women's Voters to discuss recent SCOTUS decision on Social Media Censorship

CHICAGO - Does the First Amendment allow U.S. government officials to intervene and prevent the spread of misinformation and disinformation on social media?

Jill Wine-Banks, a distinguished attorney and MSNBC Legal Analyst known for her prominence in political and legal discourse, is scheduled to speak about the U.S. Supreme Court’s recent action on social media censorship. This virtual event will take place on Tuesday, August 20, at 7 p.m. via Zoom. The program is free and is presented by the League of Women Voters of Illinois’ Mis/Disinformation Task Force.

The U.S. Supreme Court recently had an opportunity to rule on this question. Instead, they declined to issue decisions in two cases, punting them back to officials in Texas and Florida.

Among her many accomplishments, Wine-Banks was named General Counsel of the U.S. Army by President Carter, where she supervised what was, in essence, the world's largest law firm.

She started her legal career as the first woman to serve as an organized crime prosecutor at the U.S. Department of Justice in Washington, D.C. Four years later, she was selected to be one of the three Assistant Watergate Special Prosecutors in the obstruction of justice trial against President Nixon's top aides. Nixon was named an unindicted co-conspirator in that case, but the evidence presented led to Nixon’s resignation.

In 2014, she was named by the Secretary of Defense to the Judicial Proceedings Panel’s Subcommittee on Sexual Assault in the military, where she served until 2017. She was also the first woman to serve as Executive Vice President and Chief Operating Officer of the American Bar Association.

Those who wish to join the online talk can register for the event here.

To tackle the concerning increase in misinformation and disinformation, particularly its impact on our elections, the League of Women Voters of Illinois established the Mis/Disinformation Task Force in January 2024. The goal of the task force is to educate the public about misinformation and disinformation. For more information, please visit lwvil.org/misdis-info.

Commentary |
State-Level marijuana legalization has been a stunning success

Contrary to some critics’ claims, legalization states have not experienced any spike in either psychosis or mental illnesses.

by Paul Armentano

It’s been over a decade since Colorado and Washington became the first two states to legalize marijuana for adults. With the benefit of hindsight, it’s fair to ask: Has this policy been successful?

Absolutely. A policy of legalization, regulation, and education is preferable to a policy of criminalization, stigmatization, and incarceration.

Let’s be clear. Legalization didn’t create or normalize the marijuana market in the United States. The market was already here.

Illustration by Gordon Johnson/Pixabay

But under a policy of prohibition, this market flourished underground — and those involved in it remained largely unaccountable. They didn’t pay taxes, they didn’t check IDs, and they didn’t test the purity of their products. Disputes that arose in the illicit marketplace were not adjudicated in courts of law.

By contrast, under regulation, cannabis products in many states are now available from licensed manufacturers at retail stores.

Cannabis is cultivated, and products are manufactured, in accordance with good manufacturing practices. Products are lab tested and labeled accordingly. And sales are taxed, with revenues being reinvested in the community. Since 2014, retail sales of adult-use cannabis products have generated more than $15 billion in tax revenue.

Most importantly, millions of Americans — many of them young adults — are no longer being arrested for possessing a substance that is objectively safer than either tobacco or alcohol.

According to data compiled by the Federal Bureau of Investigation, the annual number of marijuana-related arrests in the United States fell from 750,000 in 2012 to 227,000 in 2022, the last year for which data is available.

In short, these state-level policy changes have resulted in countless Americans being spared criminal records — and the lost opportunities that accompany them — in the past decade.

Teen use of cannabis has not grown with legalization. A CDC report says use has actually dropped among high school students.

Photo: Dimitri Bong/Unsplash

And contrary to opponents’ fears, cannabis use by teens has not risen in parallel with legalization.

According to data provided by the Centers for Disease Control and Prevention, the percentage of high schoolers who use marijuana actually fell 30 percent over the past decade. Compliance check data from California, Colorado, Nevada, and other legal marijuana states show that licensed marijuana retailers do not sell products to underage patrons.

Also contrary to some critics’ claims, legalization states have not experienced any spike in either psychosis or mental illnesses.

According to findings published last year in the Journal of the American Medical Association, rates of psychosis-related health care claims are no higher in jurisdictions where cannabis is legal than in those where it’s not. Stanford University researchers similarly reported last year that residents of states where cannabis is legal exhibit no higher levels of psychosis than those in non-legal states.

Legalization is also successfully disrupting the illicit marketplace. According to a 2023 survey, 52 percent of consumers residing in legal states said that they primarily sourced their cannabis products from brick-and-mortar establishments. By contrast, only 6 percent of respondents said that they primarily purchased cannabis from a “dealer.”

Many consumers in non-legal states also reported that they frequently traveled to neighboring legal states to purchase cannabis products rather than buying from illicit dealers in their own state.

Twelve years into states’ marijuana legalization experiment, public support for making marijuana legal nationwide has never been higher. To date, 24 states have legalized the adult-use market.

None of these states have ever repealed their legalization laws. That’s because these policies are working largely as voters and politicians intended — and because they’re preferable to cannabis criminalization.

After a century of failed policies and “canna-bigotry,” the verdict is in. Legalization is a success, and the end of cannabis prohibition can’t come soon enough.

Paul Armentano is the Deputy Director for NORML, the National Organization for the Reform of Marijuana Laws. This op-ed was adapted from an earlier version published at The Hill and distributed for syndication by OtherWords.org.

Commentary |
Cash bail is unfair and violates the right to due process

Photo: Sasun Bughdaryan/Unsplash

Election years are a scary time for people of color in the U.S. They are marked by race-based voter suppression efforts, a rise in racist political rhetoric, and even a surge in racist hate crimes.

by Sonali Kolhatkar

Many Americans haven’t heard of cash bail. But the idea is central to an election year battle over racism, policing, and mass incarceration.

When arrested on suspicion of committing a crime, everyone in the United States has the right to due process and to defend themselves in court. But in a cash bail system, when judges set bail amounts, those who cannot pay the full amount remain jailed indefinitely — a clear violation of their due process rights — while the rich can pay their way out of jail.

A 2022 report by the U.S. Commission on Civil Rights examined the impact of cash bail and found that between 1970 and 2015, the number of people jailed before trial increased by a whopping 433 percent.

There are currently about half a million such people stuck in jails across the nation who haven’t been tried or convicted of any crimes. The report also found “stark disparities with regards to race,” with Black and brown men most often subject to higher bail amounts.

Thankfully, many states and cities are moving to reform this unfair practice.

In 2023, Illinois became the first state to entirely abolish cash bail. Other states, such as New Mexico, New Jersey, and Kentucky, have almost entirely ended cash bail requirements in recent years. In California, Los Angeles County has also similarly eliminated cash bail for all crimes except the most serious ones.

But in this election year, Republicans are rolling back these efforts — most recently in Georgia.

The state recently passed a bill expanding cash bail for 30 new crimes, some of which appear to be aimed at protesters, such as unlawful assembly. Further, it criminalizes charitable bail funds — and even individuals — that bail out people who can’t afford to bail out themselves.

Marlon Kautz, who runs the Atlanta Solidarity Fund, called cash bail “a loophole” in the criminal justice system, allowing courts to indefinitely jail people without charges if they cannot pay exorbitant bail amounts.

“Police, prosecutors, and politicians want a bail system that allows them to punish their political enemies, poor people, and people of color without trial,” said Kautz, whose fund has bailed out people protesting a massive new police training facility opponents call “Cop City.” Kautz was one of three people affiliated with the fund to be arrested on apparently politicized charges last year.

Reversing progress on bail reform is a new flashpoint in the GOP’s culture wars. “It could be a sign that Republicans intend to bash their Democratic opponents as soft on crime,” the Associated Press reported. Alongside Georgia, Republicans in Indiana, Missouri, and Wisconsin have introduced numerous bills expanding the use of cash bail.

Expanding the racist criminal justice system is a cynical GOP election-era ploy, one that has little to do with public safety.

“It is exceedingly rare for someone who’s released pretrial to be arrested and accused of a new offense that involves violence against another person,” said Sharlyn Grace, an official at the Cook County Public Defender’s office in Illinois. “Fears about public safety are in many ways greatly overblown and misplaced.”

“National studies contradict” the claim, the AP adds, that people are any less likely to show up for a court date if they’re released without bail.

Election years are a scary time for people of color in the U.S. They are marked by race-based voter suppression efforts, a rise in racist political rhetoric, and even a surge in racist hate crimes. The expansion of cash bail laws is yet another attack on Black and brown communities — one that must be exposed and confronted.

We shouldn’t let reform efforts fall victim to election year politics.

Sonali Kolhatkar is the host of “Rising Up With Sonali,” a television and radio show on Free Speech TV and Pacifica stations. This commentary was produced by the Economy for All project at the Independent Media Institute and adapted for syndication by OtherWords.org.

300 new Illinois laws set to begin on January 1

by Terri Dee
Illinois News Connection

CHICAGO - At the stroke of midnight on New Year's Eve, Illinoisans will see more than 300 new laws take effect - with changes that impact the state's healthcare, public safety and employment sectors.

Photo: Tim Zänkert/Unsplash

The Paid Leave for All Workers Act will require most employers to provide their workers with at least 40 hours of annual paid leave. And minimum wages will increase from $13 to $14 per hour.

Illinois Legal Aid Online offers online support for some of the state's underserved residents. Executive Director Teri Ross said she understands many will want to know how the new laws affect them.

"We take the legislation, which is often difficult to read and somewhat opaque, and we translate that into a plain language explanation," said Ross, "and in some cases, into some tools that people can use to assert their rights and to understand their rights."

Under a new Telehealth Services law, Illinois mental-health and substance-use patients will continue to receive telehealth coverage for treatment.

And a patient's medical care cannot be delayed while a hospital staffer verifies their payment method or insurance status.

Ross said hospitals will also be required to screen uninsured or underinsured patients for public financial assistance eligibility before their bill is sent to collections.

Another new law on the books has stirred up concerns about immigrants applying for jobs in public safety.

It allows a person who is not a citizen - but is legally authorized to work in the U.S. - to apply to become an Illinois police officer.

Ross said low numbers on police forces are due to veteran officers retiring and a lack of new applicants - and claimed policing overall needs to change.

"One of the problems that we have, in our society generally," said Ross, "is that law enforcement has been focused on communities of color, and is often not made up of people who are of color."

Applicants who are non-citizens and possess a green card that allows them to live and work in the U.S. must be authorized under federal law to obtain, carry, purchase or otherwise possess a firearm.

Some things to keep in mind when you need a law firm

StatePoint Media - Let’s face it, no person or business gets a thrill out of hiring a law firm. Fortunately, peer-reviewed rankings have simplified the process.

Best Lawyers, which has been tracking trends and innovations in the legal industry for more than four decades, serves as a trusted resource for identifying what it takes to be a preeminent law firm in the United States. Their recently released 14th annual rankings of Best Law Firms, found at bestlawfirms.com, provides keen insight, not only into the most successful law firms, but also the key factors to keep an eye out for when going through the reliably trying task of retaining counsel.

Here is some of Best Lawyers’ advice:

1. Does the firm use the latest technology?

Right now, even the legal profession is abuzz about generative Artificial Intelligence (gen AI) tools. With its ability to parse information more quickly, gen AI offers the immediate potential to automate routine tasks such as research; summarizing long, complex content; and writing first drafts of simple documents such as NDAs. All of which can save both time and money.

And smart firms are closely watching regulations and any risks that this new technology may bring, all while using it for the benefit of the firm and its clients.

2. What do other legal experts think about the way they do business?

There are better options available than just word of mouth when choosing legal representation. After all, hiring a law firm isn’t like choosing which novel to download next. Through Best Laywers’ research process, a firm’s performance is assessed by its peers, ultimately helping consumers make better-informed decisions.

Why is this important? At its heart, a robust peer-review process like Best Lawyers’ asks legal professionals to answer this key question: “If you had a legal issue and could not represent yourself, what firm would you hire?” This peer-review method is critical, and offers a straightforward way to help identify the most trusted firms.

3. Does the law firm embrace diversity?

Today’s leading law firms know that to be successful, the makeup of their staff should represent the communities they serve. Inclusion is a necessary element of well-rounded representation because a team with different backgrounds and experiences will bring diverse points of view to solving clients’ unique and complex challenges.

Fortunately, in recent years there has been an uptick in law firm diversity. In 2023, 21.6% of attorneys were members of traditionally underrepresented ethnic groups, according to an American Lawyer survey. That’s up more than 20% from the same survey just three years prior.

As a consumer, consider asking a law firm about its diversity track record. In fact, the best law firms will not only expect the question but welcome it.

National Labor Relations Board issues new rule that is hailed a win for workers

by Brett Peveto
Illinois News Connection

CHICAGO - The National Labor Relations Board recently issued a rule change that may have wide-ranging impacts for workers and businesses.

The update to the joint employer rule would require parent companies to negotiate collective bargaining agreements with employees even when using a staffing agency or subcontractor.

It also means franchisors and franchisees can both be held liable for unfair labor practices.

This replaces a Trump-era rule change that made it easier for companies to avoid a finding of joint-employer status.

Brian Petruska - general counsel with the mid-Atlantic regional organizing coalition of the Laborer's International Union of North America - said the rule change is a win for workers.

"It means that the employees' right to organize still is meaningful," said Petruska, "even in this modern world we live in with layers and layers of LLCs and corporations who are now defining the workspace."

The rule change now faces legal challenges including from the U.S. Chamber of Commerce, which filed suit against the board in federal court.

In a statement on its website, the Chamber says the rule change will "create chaos and more legal confusion that will harm both employers and workers."

The NLRB rule establishes that two or more entities may be considered joint employers of a group of employees when more than one entity possesses the authority to control employees' essential terms and conditions of employment.

The board says this change is more in line with established common-law agency principles.

Petruska said he sees opposition to the updated rule coming from a number of industries including restaurants, construction and hotels.

He also said the franchise business model will no longer insulate the parent company from labor issues.

"Now," said Petruska, "the fact that they have that control may cause them to be embroiled in local labor disputes that the franchisees are having with their employees."

The new rule will go into effect next February.

Protect yourself and family from holiday season scams

Jonathan Hammond /Pixabay

Statepoint Media - In today’s hyper-connected digital universe, cyber criminals have more information than ever before, with the ability to reach you through unsecure public Wi-Fi, your email inbox, via text message, and more.

According to a Scam and Robocall Report from T-Mobile, Americans lost an estimated $39.5 billion to phone scams in 2022. Lucky for you, there are several ways to protect and safeguard your personal information to help prevent scammers from scammin’ this holiday season.

1. Avoid Public USB Ports: Traveling by plane this holiday season? The FCC warns that cyber criminals can download malware to public USB charging ports to gain access to your information. Prevent this by using an AC power outlet instead.

2. Beware of Charity Scams: It’s the season of giving, but the FCC warns many cyber criminals take advantage by creating fake charities staged as real nonprofit organizations to gain access to your payment information. Woof. To prevent this, don’t click on suspicious email or text links and verify the organization is registered at the National Association of State Charity Officials or Better Business Bureau’s Wise Giving Alliance before donating this holiday season.

3. Screen Your Calls: Scammers are continuously upping their game, with total robocall attempts up 75% from 2021 to 2022. Detecting whether an incoming call is a potential scam isn’t always easy, but T-Mobile’s Scam Shield app makes it simple. Free to all T-Mobile customers, Scam Shield enhances your scam-blocking protections so you can say goodbye to scam calls. In 2022 alone, Scam Shield identified or blocked 41.5 billion scam calls in the T-Mobile network. That’s a whopping 1,317 calls identified or blocked every second. With Scam Shield, when the network detects a potential scam call, it is flagged and displayed as “Scam Likely” on your device. Customers who want even more protection can download the Scam Shield app or dial #662# from their T-Mobile smartphone to enable Scam Block, which automatically blocks any calls that match the database of scam calls. Take that, tricksters. To learn more, visit t-mobile.com/scamshield.

4. Shop Smarter Online: According to Statista, 57% of holiday shoppers plan to use their smartphone to make holiday purchases this year, and scammers are onto them, ramping up activity during the two weeks before Christmas. To minimize any cyber Grinches trying to steal your personal info, monitor your financial accounts regularly for suspicious charges and sign up for your bank or credit card company’s text or email notifications to stay on top of fraudulent activity.

5. Use Secure Tools: Safeguard your online accounts with Multi-Factor Authentication, which requires users to enter two different kinds of information to log in, like a password and one-time PIN code. It’s like having a digital bouncer to make sure only you get into your accounts. Another protection is a password manager, giving you the ability to securely store passwords across multiple platforms and websites. The tool also provides an autofill password function and a new password generator.

To learn more about the industry’s top fraud trends and how to stay protected from scammers year-round, check out T-Mobile’s Scam Shield Report found at t-mobile.com/news.

While cyber threats are on the rise, you can sleigh scams by staying vigilant and incorporating these best practices into your life this holiday season.

Navigating solar leases for farmers and ranchers, a guide to working with developers

Leasing valuable farmland to solar energy firms can generate a reliable revenue stream. Landowners should carefully consider the current and future impact of long-term land leases.

Photo: American Public Power Association/Unsplash

by Cari Rincker
Attorney at Law

Solar energy projects present an attractive opportunity for landowners to diversify their income streams. When a solar energy developer approaches a farmer or rancher with a seemingly lucrative lease agreement, the landowner must carefully consider whether the lease adequately protects his or her best interests before rushing into the deal. In this article, I discuss the essential aspects of solar lease agreements, as well as any potential landfalls that farmers and ranchers should avoid when navigating and negotiating a solar lease agreement.

1. Understanding the Structure of the Agreement
Agreements between solar developers and landowners come in many shapes and forms. In broad strokes, there are two main approaches. On the one hand, a developer may present a farmer or rancher with an option agreement, which will give the developer a period of time to assess the viability of a solar project on the land, and the unilateral right to exercise an option to enter into a solar lease agreement if and when the developer determines that the project will be profitable.

The lease agreement should be fully negotiated at the time that the option agreement is executed. Alternatively, the developer may skip the option agreement and instead present the farmer or rancher with a lease agreement to be executed at the onset. Such a lease agreement usually commences with a development phase wherein the developer assesses the viability of the project. The developer is then granted the right to unilaterally terminate the lease at the conclusion of the development phase.

Regardless of whether there is a separate option agreement or a development phase incorporated into the lease, solar leases generally are structured pursuant to the same format: There is a construction period which may last roughly one year, followed by an operation period which may last decades, a renewal period which may extend the lease even longer, and ultimately, a cleanup period. As discussed further below, each distinct phase comes with specific rights, obligations, and compensation structures.

2. The Length of the Lease
To understand the extent to which a lease will tie up their land, a farmer or rancher should be sure to calculate the total timeframe of the encumbrance, from the beginning of the option or development phase, to the end of the cleanup period.

It is not uncommon for the life of a solar lease agreement to span more than half a century. For this reason, multi-generational family farms and ranches should carefully consider potential uses or plans for their land over the course of the near- and not-so-near-future. Such considerations may include the needs of future generations. The farmer or rancher should further keep in mind that such lease agreements typically run with the land, which means that they will bind any subsequent sale or estate succession of the land.

Given the length of the agreement, agriculture producers should also carefully assess the impact of a solar lease on their property, including a thorough evaluation of the potential environmental impact, the effect on overall farming or ranching productivity and economies of scale, and their eligibility for government programs.

3. Due Diligence on the Developer
If a farmer or rancher plans to enter a long-term relationship with a solar developer, they should perform due diligence on the developer to ensure that the developer is legitimate and has a good record with other landowners in the area. Due diligence may include: (i) checking the developer’s online presence, including reviews and BBB complaints, (ii) confirming the developer is a registered entity with the secretary of state for the state that they claim to be organized under, and (iii) paneling neighbors and the community to see if anyone else has negative experiences with the developer.

Braeson Holland/PEXELS

4. Authority to Enter into the Lease
Before executing an option or lease agreement, a farmer or rancher must confirm that he or she has the legal authority to enter into such an agreement. In the first instance, the landowner will likely have to warrant in the agreement that he or she is the fee simple owner of the farm or ranch. If there are multiple parties with an interest in the land, all co-owners must approve and be a party to the lease.

If the land is owned by a business entity or trust, then the governing documents of such entity or trust must be reviewed to confirm that they permit the execution of such a lease. Finally, if the property is subject to mortgages, pre-existing leases, easements, or other encumbrances on the property, those may need to be addressed before proceeding with a solar lease.

5. Compensation under the Lease
A farmer or rancher should carefully review the compensation he or she will receive under the option and/or lease agreement(s). At both the option/development phase and the construction phase, the landowner may receive either lump-sum payments or periodic per-acre payments. It is advisable to avoid lump-sum arrangements if the timeframe of either phase is highly variable. Construction phase payments should be higher than option or development phase payments.

The compensation received during the operation phase should be significantly higher than the earlier phases. It is most often structured as an annual or semi-annual payment tied to the number of acres subject to the lease. If receiving per acre payments, the farmer or rancher must clarify whether all acres will receive the same compensation level, or whether certain unused acres will be compensated at a lower rate (or not at all). Given the length of the operation phase, any lease should also include an escalation factor (typically between 1.5 and 3%) by which payments should rise on an annual basis to compensate for inflationary risk.

The farmer or rancher is also encouraged to negotiate other forms of compensation or reimbursement in the lease. For example, a landowner may ask for the reimbursement of professional expenses, such as attorneys’ fees, incurred in reviewing the lease. The farmer or rancher should confirm that the developer will be responsible for any tax increase caused by transforming farmland into a solar energy facility. They may also wish to explore whether the developer will compensate the landowner for any loss of eligibility for government farming programs. Finally, the farmer or rancher should ensure that the lease clearly delineates a compensation structure for damages incurred to crops and the underlying drainage system on or adjacent to the property.

6. The Rights and Obligations of Each Party
The option and lease agreements should clearly lay out the rights granted to the solar developer on the landowner’s land. The farmer or rancher must pay careful attention to how the lease will affect their rights on the land subject to the lease and ensure that any rights or easements granted are carefully tailored for reasonableness. They should also understand whether the lease will interfere with rights on adjacent land owned by them.

Photo: Tornike Jibladze/Pixabay

For example, a solar lease will grant the developer an easement for solar access, which may permit the developer to remove trees or other improvements on adjacent land if they obstruct access to sunlight. Because leases cannot possibly address all uses of the land, I always advise that a farmer or rancher ask for the inclusion of a catch-all reservation of rights clause, wherein the lease specifies that any rights not explicitly granted to the developer are reserved by the landowner.

7. Termination and Cleanup Obligations
It is common for leases to have asymmetrical termination provisions, meaning that a developer can often terminate the lease at any time and for any reason, while a landowner can only do so in the event of a breach of a monetary obligation. A farmer or rancher may nevertheless seek to ensure that they may still request damages or specific performance of certain provisions of the lease where they are not permitted to terminate the lease.

A lease should contain robust cleanup obligations for the developer, including cleanup of any debris post-construction, as well as restoring the property to its original condition at the end of the lease agreement. Local or state regulations may be of use in this regard. For example, in Illinois, the Department of Agriculture requires that any developer with a solar lease agreement with a landowner must also enter into an Agricultural Impact Mitigation Agreement with the Bureau of Land and Water Resources, which contains standardized construction and cleanup obligations for the project.

8. Disputes
On a final note, farmers and ranchers should always plan for the worst-case scenario. This involves ensuring that any dispute arrangements or requirements contained in the lease favor the landowner. In particular, a farmer or rancher should request that any waiver of a right to a jury trial be removed from a lease. Moreover, if a lease contains provisions waiving any right to appeal an arbitration or other dispute award, that language should also be struck from the agreement.

In closing, solar lease agreements are binding contracts of long duration, with potentially significant consequences for the landowner and his or her heirs or assigns. Given the variable and complexities addressed in this article, it is advisable that the landowner hire an attorney to help ensure that the solar lease agreement is carefully tailored to the unique concerns and needs of a farmer or rancher.

Whether an attorney is employed, or whether the landowner takes it upon him- or herself to review the agreement, the reviewing party should ensure that they have adequately considered each of the issues discussed herein.

About the author

Cari Rincker is the owner of Rincker Law, PLLC, a national general practice law firm concentrating in food and agriculture law with offices in New York and Illinois. She has her boots planted firmly in agriculture – she presently own a small farm in Shelbyville, Illinois, and enjoys judging livestock shows around the country.