Nebraska Attorney General Opinion 26-001 — Are Livestock Feeding Facilities Industrial or Commercial Installations for Purposes of the State Electrical Act

OCR transcription for search; preserved printed pages are authoritative

NEBRASKA DEPARTMENT OF JUSTICE
Opinion No. 26-001 — February 6, 2026
OPINION FOR SENATOR PAUL STROMMEN

Are Livestock Feeding Facilities Industrial or
Commercial Installations For Purposes of the
State Electrical Act

Summary: The regulatory provisions of the State Electrical Act
apply to industrial and commercial installations, but do not apply to
non-industrial, non-commercial farm property. Poultry feeder
buildings and other similar livestock feeding facilities are engaged
in quintessentially agricultural activity. That makes them farm
property exempted from the Electrical Act, not industrial or
commercial installations subject to it.

You have asked whether “poultry feeder buildings”
and other “similarly situated livestock feeding facilities”
qualify as commercial or industrial installations for
purposes of the State Electrical Act, Neb. Rev. Code § 81-
2121 et seq., and, if they are so classified, what legislative
changes Gf any) would be necessary to cause them to
instead qualify as “farm property.”! This classification

1 |t.is the longstanding policy of this office that members of
the Legislature can request an opinion for “valid legislative purposes
only.” Op. Att’y Gen. No. 85-157 (December 20, 1985). As such, it
“has been and continues to be the policy of the Attorney General that
we issue legal opinions to state legislators which pertain only to
pending or proposed legislation.” Id.; see also Op. Att'y Gen. No. 21-
006 (April 16, 2021) (reiterating this policy and identifying two
narrow exceptions thereto). While your opinion request was not
accompanied by proposed legislative language or draft legislation, it
nevertheless falls within the bounds of “valid legislative purposes”
insofar as it sought guidance as to what drafting choices would be
needed to effectuate a particular, clearly identified legislative goal.

DEPT. OF JUSTICE
STATE OF NEBRASKA

OFFICIAL

FEB 06 2026

hate Hi ley —

MICHAEL T. HILGERS

Neb. Att'y Gen. Op. No. 26-001 (Feb. 6, 2026)

matters because if facilities fall into either of the former
two categories, they are subject to the licensing and
inspection requirements of the Electrical Act. See, e.g.,
Neb. Rev. Code § 81-2124(1) (Reissue 2024). But if they are
non-industrial, non-commercial “farm property’—that is, if
such structures have a primarily agricultural character—
a statutory exemption dictates that the Act does not apply.
Neb. Rev. Code. § 81-2121 (Reissue 2024).

On a prior occasion, this office opined that “poultry
feeder buildings” capable of housing “approximately 40,000
young chickens” fell within the Electrical Act’s definition of
an “industrial installation.” Op. Att'y Gen. No. 99-024 (May
17, 1999) (“Opinion 99-024”). You have also asked us to
evaluate if that prior determination remains the opinion of
the Attorney General’s Office.

It does not. Upon further review, having
undertaken a more searching examination of the statutory
text, and considering precedent from the Supreme Court
not available at the time Opinion 99-024 was issued, we
reach a different conclusion. We believe poultry feeder
buildings and similarly situated livestock feeding facilities
are best understood to be non-industrial, non-commercial
farm property; thus, no legislative change is necessary to
cause such facilities Gn most instances) to be so classified.
Aceordingly, the exception set forth in Section 81-2121
controls, and the Electrical Act does not apply to such
structures.

I.

We start, as always, with the text. Section 81-2124
broadly provides that “[a]ll new electrical installations for
commercial or industrial applications ... shall be subject to
the inspection and enforcement provisions of the State
Electrical Act.” Neb. Rev. Stat. § 2124. The statute’s sweep,
however, is constrained by Section 81-2121, which

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Applicability of the State Electrical Act to
Poultry Feeder Buildings and Similar Structures

provides, in pertinent part, that “[nJothing in the State
Electrical Act shall be construed to ... [p]rohibit an owner
of property from performing work on his or her principal
residence ... or farm property, excluding commercial or
industrial installations ... or require such owner to be
licensed under the act.” Neb. Rev. Stat. § 81-2121(5).

Read together, these sections make clear that the
Electrical Act covers building or other structures
(including those on farm property) if they are “commercial”
or “industrial” installations. Non-commercial, non-
industrial buildings located on “farm property,” by
contrast, are exempt. Cf Opinion 99-024 at *2 (the
statutory text indicates that “the legislature envisioned
that there would be some electrical installations on farm
property apart from those on the farmer's personal
residence which would not be considered commercial or
industrial in nature”). For convenience, we will refer to the
class of exempt, non-residential buildings on farm property
as “agricultural” installations.

Thus, to determine if the Electrical Act applies to
poultry feeder buildings (and similar structures), we must
determine if they are commercial, industrial, or
agricultural installations. The Act contains statutory
definitions of both “commercial” and “industrial”
installations. A “commercial installation” is an
“installation intended for commerce, but does not include a
residential installation.” Neb. Rev. Stat. § 81-2102(6)
(Reissue 2024). An “industrial installation” is an
“installation intended for use in the manufacture or
processing of products involving systematic labor or
habitual employment and includes installations in which
agricultural or other products are habitually or
customarily processed or stored for others, either by buying
or reselling on a fee basis.” Id. at 81-2102(9). Both
definitions were initially added by the Legislature in 1993,

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Neb. Att'y Gen. Op. No. 26-001 (Feb. 6, 2026)

see 1993 Neb. Laws, L.B. 193, § 2, p. 981, in substantially
the same form as they exist today. “Farm property’—which

on its face encompasses agricultural installations—is not
defined.

Our previous opinion concluded that buildings
where “large numbers of poultry are being fed and stored
for others” fell within “the statutory definition of industrial
installation.” Opinion 99-024 at *2. Such emphasis on an
operation's “large” size was misplaced. Nowhere does the
statutory definition turn on (or even mention) an
installation’s size. See p. 3, supra. And when engaged in
statutory interpretation, it is not appropriate to add
“missing words or sentences to a statute to supply that
which is not there.” State v. Jedlicka, 305 Neb. 52, 62
(2020).

The conclusion that large poultry feeder buildings
had an industrial character was essentially presented as
self-evident, with no accompanying analysis or parsing of
the statutory text. To be sure, statutory language should
be given its “plain and ordinary meaning,” and there is no
need to “resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and
unambiguous.” Parks v. Hy-Vee, Inc., 307 Neb. 927, 944
(2020). But, when examining statutory language, it is
essential that the “meaning of the statutory language” be
“understood in context.” State v. Garcia, 301 Neb. 912, 921
(2018). “It is a fundamental canon of statutory construction
that the words of a statute must be read in their context
and with a view to their place in the overall statutory
scheme.” Davis v. Mich. Dep't of Treasury, 489 U.S. 803,
809 (1989). After all, it is what the words of a statute
“convey, in their context” that establishes “what the text
means.” Antonin Scalia & Bryan A. Garner, Reading Law
56 (2012) (emphasis added).

Applicability of the State Electrical Act to
Poultry Feeder Buildings and Similar Structures

Context counsels against a reflexive conclusion that
poultry feeding buildings fall within the ambit of the
Electrical Act’s definition of “industrial installation” (or
“commercial installation” for that matter). As discussed
below, those definitions have a broad sweep. But that
breadth must have some limitation, lest the categories
established by the Legislature become meaningless. See
State v. Albarenga, 313 Neb. 72, 86-87 (2022) (“[I]f it can
be avoided, no word, clause, or sentence [of a statute
should] be [rendered] superfluous or meaningless.”). It is
therefore necessary to closely examine the parameters of
the three pertinent categories of “installations” that the
Legislature has established—industrial, commercial, and
agricultural—to determine into which poultry feeder
buildings (and similar structures) are best classified.

A.

We begin with “industrial.” As a reminder, the
Electrical Act provides that a building or other installation
is industrial if it “intended for use in the manufacture or
processing of products.” Neb. Rev. Stat. § 81-2102(9). So we
must first determine if a poultry feeder building involves
either “manufacturing” or “processing.”

Ls

No manufacturing is involved. There is a
transformative quality to manufacturing, often (though not
always) involving machinery. See, e.g., Manufacture,
Webster's IT New College Dictionary 667 (Houghton Mifflin
Co. 1995) (“Webster’s II”) (“To make or process (a raw
material) into a finished product;” “To produce, create, or
turn out in a mechanical way”); see also Manufacture, The
American Heritage Dictionary 764 (2d. Coll. Ed., Houghton
Mifflin Co. 1985) (“American Heritage”). That’s how the
Legislature has defined “manufacturing” in other

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Neb. Att'y Gen. Op. No. 26-001 (Feb. 6, 2026)

instances, such as in the Revenue Act. Neb. Rev. Stat. § 77-
2701.46 (Reissue 2018) (defining manufacturing to mean
an “action or series of actions ... either by hand or machine,
which results in ... tangible personal property being
reduced or transformed into a different state, quality, form,
property, or thing”).2

Any Nebraska producer would tell you that feeding
poultry is simply not manufacturing. A fattened chicken
may be different when compared to the more svelte
incarnation that first arrived at a feeding facility, but it has
not been “transformed” into a “finished product” or made
into something appreciably new. Cf. Ash Grove Cement Co.

? Precedent reinforces this understanding. See Dolese Bros.
v. State ex rel. Okla. Tax Comm'n, 64 P.3d 1093, 1100 (Okla. 2003)
(holding that manufacturing occurs when an “activity[] [has a]
transformative effect upon raw or prepared materials in the course
of producing a new article for use”); Assessors of Bos. v. Comm’ of
Corps. & Tax’n, 84 N.E.2d 129, 186 (Mass 1949) (holding
manufacturing to be the “application of forces directed by the human
mind, which results in the transformation of some pre-existing
substance or element into something different, with a new name,
nature or use”); Sw. Bell Tel. Co. v. Dir. of Revenue, 78 S.W.3d 763,
767 (Mo. 2002) (describing manufacturing as both “a process that
takes something practically unsuitable for any common use and
changes it so as to adopt it to such common use” and the “production
of raw materials into products for sale which have an intrinsic and
merchantable value” (internal quotation marks and alterations
omitted)), abrogated on different grounds by IBM Corp. v. Dir. of
Revenue, 491 5.W.3d 535 (Mo. 2016). See also Conn. Water Co. v.
Barbato, 537 A2d 490, 493 (Conn. 1988) (The “commonly
understood meaning” of the phrase “process of manufacturing”
applies to an activity that “transform|[s]” “raw materials” from an
“intrinsically valueless state into a finished product which has an
enhanced value and use.”) (emphasis deleted); State v. Am. Sugar
Ref. Co., 32 So. 965, 970-71 (La. 1902) (concluding that a sugar
refiner is a manufacturer because the refiner “employ[ed] vast and
varied machinery, with skilled and unskilled labor, and that the
refining processes necessarily require many changes in the form and
quality of the raw material used in producing the refined article”).

Applicability of the State Electrical Act to
Poultry Feeder Buildings and Similar Structures

v. Neb. Dep't of Rev., 306 Neb. 947, 971 (2020) (“Taxpayers
dry and aerate grain to prepare the grain for market, but
such does not transform the grain into a different state or
thing.”). Therefore, “manufacturing” does not occur at a
poultry feeder building.

2.
i,

We next consider “processing.” As our Supreme
Court has recognized, the “meanings of ‘manufacturing’
and ‘processing’ are,” in many contexts, “closely related.”
Ash Grove, 306 Neb. at 956. But that does not always make
them “synonymous.” Jd. Indeed, when employed in
conjunction with or near “manufacturing,” context is likely
to (though does not always) suggest that “processing” is
intended to encompass some activity that is similar to, but
outside of or otherwise differentiated from, the definition
of manufacturing?

Consider processing’s plain and ordinary meaning.
Generically, it simply refers to something that is “put
through the steps of a proscribed procedure.” Processing,
American Heritage at 987; see also Processing, Webster’s II
at 882 (same). Here, however, it is unlikely that the
Legislature intended to capture everything that involves “a
proscribed procedure.” That would mean “processing”
encompasses virtually all organized, productive endeavors,
which would render the statute’s other defined categories
(such as manufacturing) superfluous. See Ash Grove, 306
Neb. at 972 (“[W]e must interpret ‘processing’ so that its
meaning does not interfere with the meaning of the other

3 E.g., Dep't of Tax'n v. Orange-Madison Co-op. Farm Serv.,
261 §.E.2d 532, 533 (Va. 1980) (“While all manufacturing is a type
of processing, not all processing constitutes manufacturing.”).

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Neb. Att’y Gen. Op. No. 26-001 (Feb. 6, 2026)

activities listed” in the same statute.): see also id. at 974
(rejecting, as “contrary to the rules of statutory
construction,” understanding of “manufacturing” that
would “swallow ‘processing” and thus ‘ ‘leav[e] ‘processing’
meaningless”).

More pertinent to the present context, processing
means “to Prepace, treat, or convert by subjecting to some
special process.” American Heritage at 987: Webster's II at
882. In this sense, processing can—as the inclusion of the
word “convert” illustrates—connote a transformation, one
of the hallmarks of manufacturing. But it extends further,
bringing within its ambit change that, while still
meaningful, cannot be classified as a wholesale
transformation. See, e.g., Treat, American Heritage at 1290
(“To subject to a process, action, or change”; “To subject to
a chemical or physical process or application”); Webster’s
II at 1174 (same); see also Prepare, American Heritage at
978 (To put together or make by combining various
elements and ingredients’; “To get ready”): Prepare,
Webster’s II at 873 (similar). This explains why, in Ash
Grove, the Supreme Court concluded that “the most
natural reading of ‘processing’ is” something which
“subjects property to a particular method or treatment in
order to prepare such property for market.” 306 Neb. at
956; see also id. at 975 (processing includes some
“method[s], system[s], or technique[s] of preparation,
handling or other treatment ... which do[] not result in the
transformation of property into a substantially different
character”). As illustrated below, we believe that poultry
feeding is not processing for purposes of this statute.

ii.
Poultry feeding buildings also do not “process”
chickens. Sending chickens to a feeding facility is an

intermediate step with an obviously agricultural character,
rather than a later-stage preparatory effort (such as

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Applicability of the State Electrical Act to
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slaughtering and dressing) that has an industrial
character.

Such an understanding comports with plain
language. Agriculture, Webster’s II at 23. As any Nebraska
farmer knows, “processing” usually refers to slaughtering
and the related activities that follow in its wake—not
feeding. See, e.g., Poultry Processing: Questions & Answers,
U.S. Dep’t of Agric. Food Safety and Inspection Serv.
(“Poultry processing is the term used by the poultry
industry to describe the conversion of live poultry into raw
poultry products fit for human consumption.”);+ Processing:
How are chickens slaughtered and processed for meat?,
Nat. Chicken Council (describing in detail how chickens
are “slaughtered and processed for meat”);> Meat
Processing Explained: From Harvest to Packaging, Friesla
(April 25, 2024) (“[T]he first step in the harvest-to-package
process is stunning and bleeding. This is commonly known
as knocking and bleeding or, simply, slaughter.”).6 See also
pp. 11-13, infra.7 Thus “[t]he meat processing industry,
also known as the meatpacking or slaughter industry, is all
about taking raw animal products, mainly meat, and
turning them into different types of processed and
packaged foods that people can buy.” What is the Meat

4 Available at https://perma.cc/42PT-QL3R.

5 Available at https://perma.ce/K9WJ-ATJF.
§ Available at https://perma.cc/UB8B-2WWS.

7 And cf. Paul Hammel, Ceremonial Groundbreaking Held
at North Platte Beef-Processing Facility, Nebraska Examiner (Oct.
5, 2022), available https://perma.cc/BG9R-ZQGV (explaining that a
new “beef processing facility” will help alleviate “delays in getting
cattle slaughtered”); Scott Calvert et al., A New Meatpacking Plant’s
Novel Pitch to Attract American Workers, Wall Street Journal (June
22, 2025), available at https://perma.cc/M4C9-Z43K (describing a
Nebraska “slaughterhouse” that “aims to process 1,500 head of cattle
daily”) (emphasis added).

Neb. Att’y Gen. Op. No. 26-001 (Feb. 6, 2026)

Processing Industry? A Comprehensive Overview, CM
Machine Servs. (Nov. 6, 2023). The Legislature
understood and appreciated the distinction between
raising and feeding livestock, which is an agricultural
pursuit, and “processing” livestock—the slaughtering of
animals and subsequent preparation of what results for
end consumer use—which has an industrial character.

If the Legislature intended “processing” to broadly
encompass any productive activity that caused any change
in traditional agricultural inputs and outputs, it would not
have exempted “farm property” from the auspices of the
Electrical Act. Neb. Rev. Stat. § 81-2121(5). Nor would it
have specified that “industrial installations” include
“installations in which agricultural or other products are
habitually or customarily processed or stored for others.”
Id. at 81-2102(9) (emphasis added).

iii.

The commonsense notion that raising livestock is
an agricultural, rather than industrial, activity also finds
support in precedent. As the Supreme Court of Kansas has
said, the “term ‘agriculture” in its “commonly accepted
sense” includes “the breeding, rearing and feeding of
livestock in preparation for market.” Brookover Feed Yards,
Inc. v. Carlton, 518 P.2d 470, 476 (Kan. 1974) (quoting
Fields v. Anderson Cattle Co., 396 P.2d 276, 280 (Kan.

§ Available at https://perma.ce/S4B9-YYHT.

® As the Ash Grove court explained, “there is no market for
raw slurry.” 306 Neb. at 968. But the washed, size-sorted, and
blended aggregate material produced by the company in that case
was “marketable.” Id.; see also id. at 949 (explaining that the
company “produces aggregate” that “consists of sand and gravel”
which it “sells” for a variety of purposes, including “manufacturing
concrete, manufacturing asphalt, masonry and mortar, road gravel,
and golf course top dressing”).

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Applicability of the State Electrical Act to
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1964)) (emphasis added); accord Neb. Rev. Stat. § 48-
106(9)(a)(@i) (the “feeding of animals for the production of
livestock” makes an enterprise an “agricultural
operation”). To be sure, when a livestock animal is fed, the
food consumed is “changed, by nature, and converted into
flesh ... improving the quality of all the flesh of the
animal.” Colbert Mill & Feed Co. v. Okla. Tax Comm'n, 109
P.2d 504, 506 (Okla. 1941). But improvement of this sort
does not bring feeding livestock within the ambit of
industrial processing. Livestock are “processed” when they
are “slaughtered, dressed and cured, and thereby made
ready for human consumption.” Jd. Feeding them is merely
a “preliminary step’—part of the normal course of
agriculture—that is necessary to “get|]” livestock “ready for
“processing.” Id.

In other words, agricultural outputs can be—
indeed, routinely are—processed. “[T]he curing of meats,
canning of vegetables and ... the glazing of an eggshell to
better preserve the egg” are all examples of “processing.”
Kennedy v. State Bd. of Assessment & Rev., 276 N.W. 205,
206 (lowa 1937). But the growing or raising of those
outputs is not processing; it is agriculture. Jd.: see also
Stoner Creek Stud, Inc. v. Rev. Cabinet of Ky., 746 S.W.2d
73, 75 (Ky. Ct. App. 1987) (“[H]orses are bred and raised:
they are not ‘manufactured’ or ‘processed’ as those words
are commonly understood.”); Teague v. Scurlock, 265
S.W.2d 528, 529 (Ark. 1954) (rejecting poultry producer’s
argument that because he purchased “commercial feed and

0 Cf. State Tax Comm’r v. Flow Rsch. Animals, Inc., 273
§.E.2d 811, 819-20 (Va. 1981) (concluding that company engaged in
the business of “breeding and raising laboratory animals” was not
“processing” the animals it bred). As Virginia’s Supreme Court
explained, there was no “treatment of the breeding animals. They
[were] merely provided a protected hygienic environment within
which nature takes its course.” Jd. at 820. Accordingly, the company
was not engaged in “processing of an industrial nature.” Id.

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Neb. Att'y Gen. Op. No. 26-001 (Feb. 6, 2026)

fe[d] it to [his broiler] chickens” he was a “processor” of the
chicken feed, because the “broiler [chickens] [were] the
commercial feed in another form”); Zeigler v. People, 124
P.2d 593, 595 (Colo. 1942) (rejecting the argument that
“the buying of cattle off of grass and putting them on feed
and fattening them for the market comes under the
definition of processing”); Salt Lake Union Stock Yards v.
State Tax Comm’n of Utah, 71 P.2d 538, 540 (Utah 1937)
(rejecting argument that “dairymen, poultrymen, and
livestockmen” manufacture animal feed into “eggs, milk, or
meat’).

In short, feeding chickens is an agricultural
endeavor. It is only activities that happen later, e.g.,
harvesting, plucking, and dressing those fattened
chickens, that have a sufficiently industrial character that
they can qualify as processing. See Ash Grove, 306 Neb. at
972 (citing HE. Tex. Motor Freight Lines, Inc. v. Frozen Food
Exp., 351 U.S. 49, 53-54 (1956)). No one can deny that a
farmer or rancher will likely obtain a higher price for
fattened livestock. So, in a very general sense, feeding
facilities make livestock more marketable. But that
contribution to marketability is inherently agricultural. As
such, it is not “processing” as that term is employed in the
State Electrical Act.

Furthermore, although fattened livestock are
certainly an agricultural output, they are still in many
ways akin to a raw material. Just as the end users in Ash
Grove desired (and ultimately put to productive use)
aggregate sand and gravel rather than raw lake slurry, see
Ash Grove, 304 Neb. at 949-51, end users of livestock eat
meat (beef, chicken, pork, etc.), not the entire animal from
which that meat is taken. That is why the United States
Supreme Court has said that “the removal of its feathers
and entrails’ made a chicken “ready for market” and
described doing so as “processing.” E. Tex. Motor Freight,
351 U.S. at 54. Ultimately then, processing happens fo

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Applicability of the State Electrical Act to
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agricultural outputs (in the parlance of the Electric Act,
“agricultural ... products”). It does not encompass the
cultivation of those outputs (that is, agriculture) in the first
instance.

B.

Having concluded that poultry feeding facilities are
not “industrial” installations, we must determine if they
are “commercial” (as that term is defined by the State
Electrical Act) instead. We conclude they are not.

The Electrical Act defines a “commercial
installation” as “an installation intended for commerce, but
dos not include a residential installation.” Neb. Rev. Stat.
§ 81-2102(6). Although “commerce” is sometimes
understood in a grandiose fashion—essentially as a generic
term for “business activity” generally, see, e. g., Wickard v.
Filburn, 317 U.S. 111 (1942)"—its plain and ordinary

1 See Grant 8. Nelson & Robert J. Pushaw, Jrv., Rethinking
ihe Commerce Clause: Applying First Principles to Uphold Federal
Commercial Regulations but Preserve State Control over Social
Issues, 85 Iowa L. Rev. 1, 14-19 (1999) (collecting authority
suggesting that “commerce” includes “all gainful activities” and thus
covers “subjects as diverse as trade, navigation, agriculture,
manufacturing, industry, mining, fisheries, building, employment,
wages, prices, banking, insurance, accounting, bankruptcy, business
associations, securities, and bills of exchange”): see also Robert J.
Pushaw, Jr., The Original “Market” Understanding of the Commerce
Clause: Insights from Early Federal Government Practice and
Precedent, 48 B.Y.U. L. Rev. 535 (2022); William Winslow Crosskey,
Politics and the Constitution in the History of the United States
(1953). The Nelson and Pushaw position (which is not unique to
them) has been the subject of scholarly critique. See, e.g., Randy E.
Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi.
L. Rev. 101, 104 (2001) (“While I agree with much in Nelson and
Pushaw’s nuanced article, I will present evidence here that strongly
indicates that they, [and scholars espousing a similar belief] are

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Neb. Att'y Gen. Op. No. 26-001 (Feb. 6, 2026)

meaning is more modest. Commerce refers to “the buying
and selling of goods, esp. on a large scale.” Commerce,
American Heritage at 297; Webster’s II at 225 (same).

This understanding is not new. “At the time the
[federal] Constitution was ratified, ‘commerce’ consisted of
selling, buying, and bartering, as well as transporting for
these purposes.” United States v. Lopez, 514 U.S. 549, 585
(1995) (Thomas, J., concurring). It was most frequently
used to characterize a portion of the nation’s productive
economic activity rather than being a catch-all term for all
of tt. See Randy E. Barnett, The Original Meaning of the
Commerce Clause, 68 U. Chi. L. Rev. 101, 104—05, 112-125
(2001).12 And, as the contemporary dictionaries cited above
indicate, the same meaning prevailed in 1993, the year the
Legislature added a definition of “commercial installation”
to the Electrical Act.13

wrong with respect to the original meaning of the term ‘commerce”);
see also Robert G. Natelson, The Legal Meaning of “Commerce” in
the Commerce Clause, 80 St. John’s L. Rev. 789, 793-94, 805-830
(2006); Randy E. Barnett, New Evidence of the Original Meaning of
the Commerce Clause, 55 Ark. L. Rev. 847, 851, 856-862 (2003).

12 See also, e.g., Richard A. Epstein, The Proper Scope of the
Commerce Power, 73 Va. L. Rev. 1387, 1389 (1987) (“More generally,
the idea of commerce seems closer to the idea of ‘trade’ than to other
economic activities. It is in just this sense that the term was used in
ordinary discourse at the time of the founding.”); Natelson, 80 St.
John’s L. Rev. at 805-06 (“In legal discourse the term [commerce]
was almost always a synonym for exchange, traffic, or intercourse.
When used economically, it referred to mercantile activities: buying,
selling, and certain closely-related conduct, such as navigation and
commercial finance. It very rarely encompassed other gainful
economic activities, and I found no clear ease of it encompassing all
gainful economic activities.”).

8 “Tt is a fundamental canon of statutory construction that
words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.” State v.
Godek, 312 Neb, 1004, 1012 (2022).

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Applicability of the State Electrical Act to
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Thus, properly understood, commerce is not
synonymous with “business generally.” Lopez, 514 U.S at
587 (Thomas, J., concurring). There is a reason Alexander
Hamilton, writing in the Federalist Papers, “repeatedly
treated commerce, agriculture, and manufacturing as
three separate endeavors.” Id. at 586-87 (citing Federalist
Nos. 12, 21, and 36). “Agriculture and manufacturing
involve the production of goods; commerce encompasses
traffic in such articles.” Id. at 587. The term “commerce,”
therefore, does not—at least not frequently or ordinarily—
encompass agriculture and manufacturing." It is instead
used in “contradistinction” to those categories. Id. at 586.

Nor does selling into a marketplace make
something “commercial” in nature. To conclude otherwise
would collapse these categories into one, rather than allow
them to retain the distinctions that plain language,
history, and common sense dictate. After all, many (if not
most) farms raise chickens or other livestock to sell into the
marketplace. Yet our language—and law—has treated
“agriculture” separately from “commerce.”

Armed with this understanding, it is not hard to
conclude that poultry feeding facilities are not “commercial
installations.” As discussed above, raising livestock is a
quintessentially agricultural activity. See pp. 8-12, supra.
Thus, most livestock feeding facilities—and certainly those
for which feeding animals to fatten them is their primary

4 The fact that “commerce” can be understood to sweep
broadly, see, e.g., n.11, supra, does not mean it must be understood
that way. “[A] statute’s meaning does not always turn... on the
broadest imaginable definitions of its component words.” Epic Sys.
Corp. v. Lewis, 584 U.S. 497, 523 (2018) (quotation omitted). That is
especially true in circumstances, like here, where affording a term a
broad sweep would threaten to render related statutory provisions
superfluous or otherwise meaningless.

15

Neb. Att’y Gen. Op. No. 26-001 (Feb. 6, 2026)

purpose!’—are agricultural, rather than commercial in
nature. We stress that does not mean ail structures
situated on farm property (livestock-related or otherwise)
are exempt from the Electrical Act. Warehouses and
waystations, for instance, as well as sorting or
transportation nodes or depots, likely fall within the
definition of “commercial installation,” properly
understood. A structure is not exempt from the Act simply
by virtue of being located on or proximate to a farm. But
when a structure has an indelible and undeniably
agricultural nature, as many (and likely most)'® feeding
livestock facilities will, it is the sort of “farm property” that
is expressly exempted from the Act’s sweep.

II.

For the reasons outlined above, we believe our prior
opinion, Opinion 99-024, does not reflect the best

6 We recognize that there may be some facilities where
livestock are kept (and incidentally fed) where feeding is not the
primary purpose. See, e.g., Internal Revenue Service, Revenue
Ruling 60-115, 1960-1 C.B. 396, 1960 WL 12755 at *2 Wan. 1, 1960)
(“[T]he mere caring for, feeding and watering of livestock incidental
to holding it for immediate sale, such as at an auction sales ring, is
not sufficient by itself to justify the classification of the area as a
‘farm.”). Such facilities may lack the inherently agricultural
character needed to qualify as “farm property” under the terms of
the State Electrical Act. That said, there can be little doubt that in
circumstances where “livestock is held, fed and cared for over a
period of time necessary to make a substantial weight increase, the
area where the livestock is held should be regraded as being a
‘farm.” Id.; see also Internal Revenue Service, Revenue Ruling 54-
310, 1954-2 C.B. 264, 1954 WL 8476 at *2 (Jan. 1, 1954) (“Any plot
of ground or other area used primarily for the raising of poultry (that
is, an establishment where poultry is held, fed, and cared for over a
sufficiently extended period of time to make an appreciable weight
increase or to meet standard market specifications) is considered a
poultry ‘farm.”).

16 But see n.15, supra.

16

Applicability of the State Electrical Act to
Poultry Feeder Buildings and Similar Structures

understanding of current Nebraska law. Of course, an
opinion of this office is “not to be regarded as legal
precedent” nor does it have the “character” of “a judicial
decision,” State ex rel. Peterson v. Shively, 310 Neb. 1, 10
(2021), so we are neither bound by our prior opinion nor do
we need to consider application of stare decisis.17 That said,
having carefully considered the prior opinion and the
authorities discussed above, we believe it appropriate to

substitute the analysis set forth above in place of Opinion
99-024.

Raising livestock is an inherently agricultural
activity. Accordingly, most poultry feeder buildings and
similarly situated livestock feeding facilities are
agricultural, rather than commercial or industrial in their
nature. For purposes of the State Electrical Act, buildings
with an inherently agricultural nature are non-industrial,
non-commercial “farm property.” And farm property that is
neither industrial nor commercial is exempt from the Act.
As discussed above, most poultry feeder buildings and
livestock feeding facilities will not qualify as industrial or
commercial installations. We therefore conclude that
“[nJothing in the State Electrical Act” applies to such
buildings. Neb. Rey. Stat. § 81-2121. That said, we note
that this opinion takes no stance on whether poultry feeder
buildings or similar livestock feeding facilities should be
covered by the Electrical Act. That is a policy question
reserved to the Legislature. The Act could easily be re-
written to cover such structures if that was the will of the
Legislature.

“ Although we are not bound to the prior opinions of this
office, we nevertheless believe our previous determinations are
“entitled to substantial weight” and should be “respectfully
considered,” see Peterson, 310 Neb. at 10, rather than idly discarded.
Here, the brevity of the prior opinion, as well as the impact of the
guidance provided by subsequent Supreme Court decisions, most
notably Ash Grove, explain our willingness to reverse course.

17

Neb. Att’y Gen. Op. No. 26-001 (Feb. 6, 2026)

You asked if legislative changes were needed to
cause poultry feeder buildings to be treated as farm
property. Under the current incarnation of the Electrical
Act, the answer is “no.” As the Act is currently drafted,
poultry feeder buildings and similar livestock feeding
facilities are best understood to be farm property and
therefore fall outside its parameters.

MICHAEL T. HILGERS
Attorney General of Nebraska

18