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Volume 11 - Opinions of Counsel SBRPS No. 93

Opinions of Counsel index

Agricultural exemption (agricultural production requirement) (uncultivated crops); qualified lands requirement) (woodland products - fiddlehead ferns) - Agriculture and Markets Law, § 301; Real Property Tax Law, § 481:

Plants that grow wild without cultivation or management by commercial farmers, such as fiddlehead ferns, are not crops that qualify the land on which they grow for an agricultural assessment.

The harvesting for sale of fiddlehead ferns may constitute the harvesting of a qualified farm woodland product. However, such farm woodland may constitute only a part of a parcel of not more than fifty acres that is otherwise entitled to an agricultural assessment. The gross sales value of a qualified farm operation’s farm woodland products, including any fiddlehead ferns, is limited to $2,000.

We have received an inquiry concerning the agricultural assessment program (Agriculture and Markets Law [AML], Article 25 AA; Real Property Tax Law, § 481). The property in question consists of approximately 13 acres, including a home, most of which acreage is wooded. A renter apparently is harvesting fiddlehead ferns within this property which are sold at remote farm stand/market locations and to area restaurants. {1}  The questions are whether fiddlehead ferns qualify as a “crop” for the purposes of the agricultural assessment program and whether, and to what extent, the parcel qualifies for an agricultural assessment. {2} 

Fiddlehead ferns as “crops”

To receive an agricultural assessment (per AML, § 305 or 306), land must be “used in agricultural production” (AML, § 301(4)). Generally, land that so qualifies must consist of “not less than seven acres . . . 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” (ibid.; emphasis added).

The phrase “crops, livestock and livestock products” is defined by AML, section 301(2). Neither ferns nor fiddlehead ferns are included in the list of “crops” enumerated in section 301(2). Since a crop may qualify despite the fact that it is not specifically listed in section 301(2), {3}  it is therefore necessary to consider the similarities and differences between fiddlehead ferns and the crops that are enumerated in section 301(2).

“Ferns are non-flowering plants with large leaves” (Allen, Rasheed A., “The New York Botanical Garden: Ferns,” “Fiddleheads are unopened fern fronds (leaves) that somewhat resemble the necks of violins or bass fiddles” (Breyfuss, Bob, “Going Wild with Ramps and Fiddleheads,” Watershed Agricultural Council: Farm to Market Update, March 2006, Issue 8, “Restaurant and gourmet food suppliers buy . . . fiddleheads on a wholesale basis” (ibid.). “[F]iddleheads make a good accompaniment to delicate fish and fowl” (“Harvest Sensations: What’s in Season?”,

The United States Department of Agriculture [USDA] has issued a report regarding “special forest products that represent opportunities for rural entrepreneurs to supplement their incomes” (Thomas, Margaret G., and Schumann, David R., “Income Opportunities in Special Forest Products”, p.4; Agriculture Information Bulletin 666, Washington, D.C., May 1993; emphasis added). The USDA has included fiddlehead ferns in the category of “familiar wild plants which may have agroforestry potential” (ibid., p.56; emphasis added). {4}  In the Catskill Region of New York State, fiddlehead ferns are harvested from hardwood forests in the early spring (“Going Wild with Ramps and Fiddleheads,” supra).

While fiddlehead ferns may be sold as food, these plants grow wild in the forest or woods without cultivation or management by commercial farmers. This factor distinguishes fiddlehead ferns from the types of “crops” enumerated in AML, section 301(2). {5}  Accordingly, it is our opinion that fiddlehead ferns are not crops within the meaning of section 301(2).

Fiddlehead ferns as part of “farm woodland”

“Farm woodland” is defined as: “land used for the production for sale of woodland products, including but not limited to logs, lumber, posts and firewood. Farm woodland shall not include land used to produce Christmas trees or land used for the processing or retail merchandising of woodland products” (AML, § 301(3); emphasis added). Section 301(4)(d) states “farm woodland” may qualify as “land used in agricultural production” when the “[f]arm woodland . . . is part of land which is qualified for an agricultural assessment, provided, however, that such farm woodland attributable to any separately described and assessed parcel shall not exceed fifty acres.”

As previously discussed, the USDA has described commercially harvested, wild fiddlehead ferns as a “special forest product” with “agroforestry potential” (USDA Information Bulletin 666, supra). Accordingly, it appears that there may be circumstances when the harvesting for sale of fiddlehead ferns may constitute the harvesting of a qualified farm woodland product. However, such would only be the case when the purported farm woodland is part of a parcel of no more than fifty acres that is otherwise entitled to an agricultural assessment (AML, § 301(3)). In such a situation, the gross sales value of the farm operation’s farm woodland products, including its fiddlehead ferns, would be limited to $2,000 (AML, § 301(9)(b)).

Eligibility for an agricultural assessment

As noted above, a renter is harvesting the fiddlehead ferns on this property. Rented land may qualify for an agricultural assessment in two situations. The first is when the “[r]ented land . . . otherwise satisfies the requirements for eligibility for an agricultural assessment” (AML, § 301(4)(a)). The second is when the rented land “does not independently satisfy the gross sales value requirement,” but nevertheless is entitled to an agricultural assessment when used for an eligible agricultural purpose “in conjunction with land [owned by the renter] which is eligible for an agricultural assessment” (AML, § 301(4)(b)).

In our opinion, the landowner’s woods here are not entitled to an agricultural assessment pursuant to AML, § 301(4)(a), for two reasons. First, the landowner’s woods are not part of a parcel the remainder of which is otherwise “qualified for an agricultural assessment” (AML, § 301(4)(d)). {6}  Second, the eligible annual gross sales value of the parcel’s farm woodland products, including harvested, wild fiddlehead ferns, may not exceed $2,000 (AML, § 301(9)(b)), an amount that is $8,000 lower than the average gross sales value an eligible farm generally must generate from the sale of its crops, livestock and livestock products in order to qualify its land for an agricultural assessment (AML, § 301(4)). It is also our opinion that the landowner’s woods are not entitled to an agricultural assessment pursuant to AML, § 301(4)(b), as land used in “conjunction with” the renter’s own farm land, because section 301(4)(b) does not apply to rented land that is used to harvest “woodland products” (Ibid.).

May 22, 2006

{1}  The renter apparently is reporting “farm income” to the Internal Revenue Service (Schedule F, IRS Form 1040) that we assume is based on harvesting fiddlehead ferns from wooded areas, including the parcel in question. A taxpayer who reports farm income on Schedule F may identify his “principal agricultural activity” as “crop production” or “forestry and logging;” the latter category includes “forest nurseries” (see, the “principal agricultural activity codes” (Part IV of Schedule F), one of which the taxpayer is directed to enter on Line B (Schedule F, p. 1). Therefore, the assessor may wish to request that the landowner provide a copy of the renter’s Schedule F and/or records of sales of the fiddlehead ferns.

{2}  Apparently, in previous years this “mostly wooded” 13+ acre parcel received an agricultural assessment for 12+ acres. The current assessor questions whether previous assessors should have excluded the acreage “devoted to lawn.” This concern may be well founded because it appears that the wild fiddlehead ferns only grow in the parcel’s woods, notwithstanding the fact that the landowner’s attorney has contended that each fern needs an approximate 10 foot radius in order to flourish and reproduce properly.

{3}  That section 301(2) is illustrative only is evinced by its phrase: “shall include but not be limited to the following.”

{4}  The USDA also considers harvested wild plants that have medicinal and pharmaceutical uses, such as ginseng root, to be special forest products (ibid., p.56).

{5}  For example, evergreen trees do not constitute eligible crops when such trees grow wild in a forest or wood. Such trees only qualify as crops when they are “Christmas trees derived from a managed Christmas tree operation” (AML, § 301(2)(g); see also, AML, § 301(3), which excludes “Christmas trees” from “farm woodland”). The sponsor’s memorandum for L.1989, c.448, which added this provision to section 301, states “Christmas trees are agricultural products; they are planted, nurtured, trimmed, and harvested just like other agricultural crops.”

{6}  We note that the landowner’s land is not used for any purported agricultural activity other than the harvesting of wild fiddlehead ferns.