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Volume 11 - Opinions of Counsel SBRPS No. 60

Opinions of Counsel index

Agricultural exemption (qualified lands requirement) (wildlife hunting game) - Agriculture and Markets Law, § 301; Real Property Tax Law, § 481:

Land used for the raising of ducks to be sold as wildlife game for a hunting preserve is ineligible for an agricultural assessment.

Our opinion has been requested concerning the qualifications to receive an agricultural assessment (Agriculture and Markets Law [hereafter AML], § 301(4); Real Property Tax Law, § 481). A town has received an application for such exemption from a hunting preserve. Included with the information provided to us is one page of a “shooting preserve license” for three separate time periods issued for this property by the State Department of Environmental Conservation. {1}

The agricultural assessment program is part of Article 25 AA of the AML, the purpose of which is “to conserve, protect and encourage the development and improvement of [the State’s] agricultural land for the production of food and other agricultural products” (AML, § 300; emphasis added). Consistent with that legislative purpose, the agricultural assessment program applies only to “land used in agricultural production” (see, AML, § 301(4)). Therefore, the agricultural assessment program is limited to commercial farmland, which is generally defined as “not less than seven acres of land used as a single operation in the preceding two years for the production for sale of crops, livestock or livestock products of an average gross sales value of [$10,000] or more” (AML, § 301(4)).

Most of the commodities described in the materials submitted to us as being produced on this land appear to be “crops, livestock or livestock products” within the meaning of AML, section 301(2). However, we do not believe that to be the case with the preserve’s mallard ducks, which are purchased as ducklings, reared to adulthood, and then sold to members of the preserve during hunting season. After purchasing the ducks, the members hunt them from the banks of a small pond located near the rearing pond, apparently pursuant to the shooting preserve license issued by the State Department of Environmental Conservation.

In our opinion, the raising of ducks to be sold as wildlife game for a hunting preserve is a recreational activity, not an agricultural activity. Therefore, again in our opinion, land used for that purpose is not eligible for an agricultural assessment. Previously, we reached a similar conclusion as to the land where licensed hunting is actually conducted (see, 3 Op.Counsel SBEA No. 116). {2}

Certainly, there are situations where the breeding and/or rearing of ducks could qualify as an agricultural activity. For example, this could occur when the ducks are raised as a food commodity to be sold to supermarkets and/or restaurants because, as previously noted, Article 25-AA is intended to encourage “the production of food” (see, AML, § 300). {3}  Accordingly, in our opinion, the Town has a reasonable basis for denying an agricultural assessment to the portions of the applicant’s land that are primarily used for raising and/or hunting the mallard ducks.

June 21, 2004

{1}  The conditions that apparently are stated in the remainder of the license may be relevant to determining the limited portions of this land that may be used for hunting so as to prevent shooting accidents elsewhere on the property.

{2}  In 10 Op.Counsel SBRPS No. 111, we concluded that portions of a farm “used as a corn maze may qualify [for an agricultural assessment] provided the corn is eventually harvested and marketed in the same manner as other crops.” In that opinion, we discussed a situation where the primary use of the land, the growing of corn for sale as a crop, clearly was a commercial agricultural activity. We do not believe that is the case when ducks are raised solely for purposes of sport.

{3}  Our conclusion is similar to that reached by the Commissioner of the State Department of Agriculture and Markets that the breeding of ferrets is an agricultural activity when the ferrets are bred for one purpose, the commercial sale of their fur, but is not an agricultural activity when the ferrets are bred for another purpose, as pets that are sold to wholesale and retail pet markets (Letter from Nathan L. Rudgers to David S. Scudder (Feb. 26, 2004)).