Recent Blog Posts
New changes to Ohio’s prohibited noxious weeds list took effect last Friday, September 14th. In a previous blog post, we explained that the Ohio Department of Agriculture (ODA) was considering an update to the list as part of a mandatory five year review of all administrative rules. ODA ultimately added 13 new species to the list, and removed 3 species.
Added to the list of prohibited noxious weeds are:
- Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
- Field bindweed (Convolvulus arvensis).
- Heart-podded hoary cress (Lepidium draba sub. draba).
- Hairy whitetop or ballcress (Lepidium appelianum).
- Perennial sowthistle (Sonchus arvensis).
- Russian knapweed (Acroptilon repens).
- Leafy spurge (Euphorbia esula).
- Hedge bindweed (Calystegia sepium).
- Serrated tussock (Nassella trichotoma).
- Columbus grass (Sorghum x almum).
- Musk thistle (Carduus nutans).
- Forage Kochia (Bassia prostrata).
- Water Hemp (Amaranthus tuberculatus).
Removed from the list are:
- Wild carrot (Queen Anne’s lace) (Daucus carota L.).
- Oxeye daisy (Chrysanthermum leucanthemum var. pinnatifidum).
- Wild mustard (Brassica kaber var. pinnatifida).
Still on the list are:
- Shatter cane (Sorghum bicolor).
- Russian thistle (Salsola Kali var. tenuifolia).
- Johnsongrass (Sorghum halepense).
- Wild parsnip (Pastinaca sativa).
- Grapevines: when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
- Canada thistle (Cirsium arvense).
- Poison hemlock (Conium maculatum).
- Cressleaf groundsel (Senecio glabellus).
- Musk thistle (Carduus nutans).
- Purple loosestrife (Lythrum salicaria).
- Mile-A-Minute Weed (Polygonum perfoliatum).
- Giant Hogweed (Heracleum mantegazzianum).
- Apple of Peru (Nicandra physalodes).
- Marestail (Conyza canadensis).
- Kochia (Bassia scoparia).
- Palmer amaranth (Amaranthus palmeri).
- Kudzu (Pueraria montana var. lobata).
- Japanese knotweed (Polygonum cuspidatum).
The revised list can be found online at Ohio Administrative Code § 901:5-37-01. Readers may recall that the Farm Office’s Ag Law Library has a law bulletin on Ohio’s Noxious Weed Laws. It has been updated to reflect the changes, and is available here.
A question we often hear from landowners is "will I be liable if a hunter is injured on my property?" Ohio's Recreational User's Statute is an excellent risk management tool for farmers who so often have hunters stopping by and asking for permission to hunt on the farm. The law provides immunity for landowners of non-residential land who allow people to engage in recreational activities on the land without charging a fee for the activity. The law states that by granting permission, the landowner is not extending any assurance to a recreational user that the premises are safe for entry or use.
To receive the law's liability protection, it's important for a landowner to meet the following requirements:
- Grant permission to a person to engage in a recreational activity such as hunting, fishing, hiking, snowmobiling, four-wheeling, or other recreational activities.
- Don't charge a fee or benefit for the use, except that the law does allow a lease payment fee.
Read more about the law in our new bulletin, The Who, What, When, and Where of Ohio’s Recreational User Statute: What Landowners Need to Know. The bulletin is available here.
Tags: Ohio Recreational User's Statute, recreational immunity, hunters, hunter liability
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It's Farm Science Review week! Be sure to visit us in the Firebaugh Building to get your questions answered and pick up copies of our Law Bulletins and a helping of candy corn. We'll be speaking on "Pond Liability" at the Gwynne Conservation Area on Wednesday and on "Estate Planning: Mistakes to Avoid" in the Ask the Experts session everyday.
Here's our gathering of ag law news you may want to know:
Movement on Ohio “Watersheds in Distress” rules. As we have reported on several times this summer, Governor John Kasich signed an executive order on July 11, 2018 directing ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” Since that time, ODA has submitted a proposed rule dealing with Watersheds in Distress. Amendments were made to the proposed rule after evaluating the first set of public comments, and ODA is now resubmitting the rules package. ODA reopened the proposed rule for public comments, but it closed the comment period on September 7, 2018. Information about the proposed rules, as well as how and where to comment, can be found here (click on the “Stakeholder Review” tab and then the “Soil and Water Conservation – Watersheds in Distress OAC 901:13-1” drop down option). A draft of the newly amended proposed rules is available here.
WOTUS woes continue. The Obama administration’s hotly contested “Waters of the United States” Rule is back in the news, and this time, where it applies is dependent on where you live. A background on the rule can be found in our previous blog post. The rule basically expanded which bodies of water qualify as “waters of the United States,” which in turn protected more waters under the Clean Water Act. The rule became effective in 2015. Since that time, U.S. District Courts in North Dakota and Georgia have issued preliminary injunctions against Obama’s WOTUS Rule, which means it cannot be carried out in twenty-four states. Additionally, last summer, the EPA and Army Corps of Engineers, under the direction of President Trump, announced their plan to repeal Obama’s WOTUS Rule and replace it with the definition of WOTUS “that existed prior to 2015” until a new definition could be developed. Trump’s rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition. However, in a ruling on August 16, 2018, in a U.S. District Court in South Carolina, Judge David Norton determined that the Trump administration “failed to comply with” requirements of the Administrative Procedure Act when it enacted its rule. This means that the Trump rule repealing and replacing the definition of WOTUS is invalidated. As a result of Judge Norton’s decision, in the remaining twenty-six states without an injunction, the Obama administration’s version of the rule has been reinstated. Ohio is one of the twenty-six states where the Obama rule currently applies. Will the Trump administration and the EPA respond to Norton’s decision by announcing yet another new WOTUS rule? Follow the Ag Law Blog for any updates. In the meantime, the country remains nearly split in half by which version of the WOTUS rule is carried out.
Regulators, meet “meat.” Under a new Missouri law, it is a criminal offense to misrepresent a product as “meat” if there is, in fact, no meat. Missouri’s revision of its meat advertising laws took effect on August 28th, and has been dubbed by many as the first attempt by a state to regulate what qualifies as meat. Defining meat as “any edible portion of livestock, poultry, or captive cervid carcass,” the law prohibits “misrepresenting a product as meat that is not derived from harvested production livestock or poultry.” Violations are treated as a misdemeanor, with a fine up to $1,000 and possible jail time. The Missouri Department of Agriculture has said that it intends to enforce the law, but that it plans to give affected companies until the start of next year to bring their labels into compliance. Supporters of the law, like the Missouri Cattlemen’s Association, argue that it will provide consumers with accurate information about their food, and also protect meat producers from unfair labeling of plant-based or lab-grown meat alternatives. Opponents have already filed a lawsuit to prevent enforcement, arguing that the law restricts free speech and improperly discriminates against out-of-state producers of meat alternatives. The named plaintiff on the lawsuit is Turtle Island Foods, an Oregon company that does business under the names Tofurky and The Good Foods Institute. The company makes plant-based food products, and is joined in its opposition by the American Civil Liberties Union of Missouri and the Animal Legal Defense Fund. Beyond Missouri, the National Cattlemen’s Beef Association has listed the issue as a top policy priority for this year, and the U.S. Cattlemen’s Association has petitioned the USDA to adopt stricter labeling requirements. As this issue develops, the Ag Law Blog will keep you updated.
USDA taps Commodity Credit Corporation to aid farmers. Readers are no doubt aware of global trade disputes in which other countries have increased tariffs on American agricultural exports. Given the extensive news coverage, the Harvest will not attempt to cover the dispute in depth; however, one point that has been less covered is the tool that the USDA has selected to provide relief to impacted farmers: the Commodity Credit Corporation. What is it? The Commodity Credit Corporation (CCC) is a federal government entity created during the Great Depression in 1933 to “stabilize, support, and protect farm income and prices.” Since 1939, it has been under the control of the Secretary of Agriculture, although it is managed by a seven member Board of Directors. CCC is technically authorized to borrow up to $30 billion from the U.S. Treasury at any one time, but due to trade agreements, that number is, in reality, much smaller. This gives USDA access to billions of dollars in funding without having to go to Congress first. The money can be used to provide loans or payments to agricultural producers, purchase agricultural products to sell or donate, develop domestic and foreign markets, promote conservation, and more. CCC has no staff, but is instead administered through other USDA agencies, largely the Farm Service Agency and Agricultural Marketing Service. On August 27th, Secretary of Agriculture Sonny Perdue announced that USDA plans to tap the Commodity Credit Corporation for up to $12 billion worth of aid to farmers affected by recent tariffs. The Market Facilitation Program will provide direct payments to eligible corn, cotton, dairy, hog, sorghum, soybean, and wheat producers, and the Food Purchase and Distribution Program will purchase up to $1.2 billion in select commodities. For more about the Commodity Credit Corporation, check out its website.
Bayer reports increasing number of lawsuits against newly acquired Monsanto. Bayer, the German pharmaceutical and life sciences company that acquired Monsanto early this summer, has indicated that there are an increasing number of lawsuits in the United States alleging that its weed killers cause cancer. According to the Wall Street Journal, there were roughly 8,700 plaintiffs seeking monetary damages from Bayer as of late August, a sharp increase from the 5,200 plaintiffs just months earlier. Many of these lawsuits involve cancer patients who claim that Monsanto’s glyphosate-containing herbicides like Roundup caused their cancer. As we reported in a previous edition of the Harvest, one person’s successful lawsuit against Monsanto resulted in a San Francisco jury award of $289.2 million for failing to warn consumers of the risks posed by its weed killers. Monsanto is expected to file motions for a new trial and for the judge to set aside the verdict, and may ultimately appeal the decision. These cancer-related claims come at a time when another Monsanto product, Dicamba, is causing great controversy. Stay tuned to the Ag Law Blog as these lawsuits continue to develop.
Tags: WOTUS, food law, agricultural nutrients, watersheds in distress, Monsanto, glyphosate, trade, tariff
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All is quiet at the statehouse as the Ohio legislature continues on its summer recess, but here’s our gathering of other agricultural law news you may want to know:
Does Roundup cause cancer? A jury in California has determined that it’s possible. The jury awarded $289 million last Friday against Monsanto in the first of thousands of cases alleging that Monsanto should have warned users about Roundup’s cancer risk. The plaintiff argued that Monsanto has known for decades that the Roundup product could cause cancer but failed to warn consumers, while Monsanto claimed that more than 800 studies and reviews conclude that glyphosate itself does not cause cancer. Monsanto plans to appeal the award.
Pursuing a Bill of Rights for Lake Erie. The Toledoans for Safe Water submitted over 10,500 signatures last week on a petition proposing to amend the city’s charter to establish a bill of rights for Lake Erie. The proposed bill of rights would state that Lake Erie and its watershed possesses a right to exist, flourish and naturally evolve; that the people of Toledo have a right to a clean and healthy Lake Erie, a collective and individual right to self-government in their local community and a right to a system of government that protects their rights; and that any corporation or government that violates the rights of Lake Erie could be prosecuted by the city and held legally liable for fines and all harm caused. The effort is backed by the Community Environmental Legal Defense Fund. If successful, the initiative would appear on the November ballot for Toledo residents.
EPA ordered to ban the sale of chlorpyrifos. The U.S. Ninth Circuit Court of Appeals late last week ordered the U.S. EPA within 60 days to cancel all registrations for chlorpyrifos, a pesticide first introduced by Dow and commonly used on crops and animals. The court held that there was no justification for a decision by previous EPA Administrator Scott Pruitt refusing to grant a petition to ban chlorpyrifos in the face of scientific evidence that the pesticide can cause neurodevelopmental damage in children. The court also discarded the agency’s argument that it could refuse to ban chlorpyrifos so based on a possible contradiction of evidence in the future. Both actions, said the court, placed the agency in direct violation of the Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungicide and Rodenticide Act. The highest uses of chlorpyrifos are on cotton and corn crops and almond and fruit trees.
Highest award in Smithfield nuisance litigation raises responses. The third and largest jury award in a series of nuisance lawsuits in North Carolina yielded a $473.5 million award for plaintiffs claiming harm from hog farms owned by Smithfield. The verdict will reduce to $94 million due to a state law that caps punitive damages. Agricultural interests are claiming that the lawsuits circumvent state right to farm laws and are seeking state legislative responses. Opponents are also hoping to reverse a gag order issued by the court to impose communication restrictions on potential witnesses, parties and lawyers in the cases. The federal judge in the case, Hon. Earl Britt from the Eastern District of North Carolina, is stepping down due to health issues. Hon. David Faber of the Southern District of West Virginia will replace Judge Britt and will soon hear a fourth trial that targets a 7,100 head hog farm in Sampson County, North Carolina.
It’s official: no reporting of air emissions from animal waste. The U.S. EPA has posted a final rule clarifying that air emissions from animal waste at farms are exempt from federal regulations that require the reporting of air releases from hazardous wastes. The rule implements an order by the U.S. Court of Appeals for the District of Columbia and revisions in the Fair Agricultural Reporting Method Act enacted by Congress earlier this year. We reported on the court case and legislation earlier this year.
Tags: ag law harvest, roundup, glyphosate, Lake Erie, chlorpyrifos, nuisance, CERCLA, air emissions, animal waste
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New law bulletin explains Ohio surface water drainage law
The drainage of surface water is undoubtedly important to agricultural landowners. A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property. The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property. Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.
Here is a quick summary of the bulletin:
- A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
- However, a landowner has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
- To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors: the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
- A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference. Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
- Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project. Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.
For a detailed explanation of drainage rights, read the full bulletin here.
Tags: surface water drainage, ohio drainage law, reasonable use doctrine
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When you think of “agritourism,” corn mazes and hay rides may first come to mind. While those activities can fall under Ohio's definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio. This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities. The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.
It's important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:
Conditions for immunity from liability
1. Qualify as an “agritourism provider.” The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee. An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.” This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals. Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:
- At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,” which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”
- Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land.
2. Post required signs. Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection. The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm. The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau. Each sign must:
- Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
- Contain the following statement, in black letters measuring at least one inch high:
WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity. Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.
Immunity from what?
The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.” An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize. According to the law, “inherent risks” include:
- The surface and subsurface conditions of the land;
- The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
- The behavior or actions of domestic animals other than vicious or dangerous dogs;
- The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
- The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
- The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant.
If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries. In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property.
Exceptions to immunity
Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute. The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:
- Fails to post and maintain signs (discussed above)
- Acts with a willful or wanton disregard for the safety of the participant,
- Purposefully causes harm to the participant,
- Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
- Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant.
Use the agritourism law to your advantage
Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture. But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure. Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection. Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries.
The agritourism immunity law is in Ohio Revised Code section 901.80. For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.
Tags: agritourism, agritourism liability, agritourism immunity
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Written by Ellen Essman, Sr. Research Associate
Here’s our gathering of recent agricultural law news you may want to know:
Kasich’s Executive Order delayed. As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.” The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time. Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.” More information on this delay is available in Ohio’s Country Journal.
ODA to submit “Watersheds in Distress” rule package. In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package. While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.” Stay tuned to the Ag Law Blog for any updates on this rule package!
ODA upgrades website. The Ohio Department of Agriculture updated its website last month. The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here. Head to www.agri.ohio.gov to check it out the new ODA website.
Additional comments sought on WOTUS. On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register. The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule. As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified. The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice. The comment period is open through August 13, 2018. Comments can be left here.
Ohio legislation on the move
- Dogs on patios. H.B. 263, which we have been following, was sent to the Governor on 7/24/2018. Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated. Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas. See our previous coverage of this legislation here and here.
Tags: ag law harvest, Lake Erie, agricultural nutrients, WOTUS, waters of the United States, dogs, food regulations
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The next topic in the Agricultural & Food Law Consortium’s webinar series on July 25, 2018 is “Compliance with DOL and Immigration Laws and Regulations for Agricultural Businesses” featuring attorney Misty Wilson Borkowski of Cross, Gunter, Witherspoon & Galchus, P.C., in Little Rock, Arkansas. Ms. Borkowski, who dedicates her practice to immigration law, will discuss the latest developments in the laws and regulations that agricultural businesses must comply with when hiring foreign agricultural workers. The webinar is intended to benefit all involved with the hiring of foreign agricultural workers, including producers, farm labor contractors, and attorneys.
The financial stability of farming operations throughout the United States is heavily dependent on the proper employment of foreign agricultural workers. Understanding the law and regulations applicable to the hiring of those workers can be a daunting task, even for those operations that regularly use foreign agricultural workers. For example, U.S. farmers who have H-2A workers or are considering utilizing the H-2A Visas for foreign agriculture workers must comply with U.S. Department of Labor and Immigration laws and regulations with regard to recruitment, hiring, paying, withholding taxes, housing, transportation, and related matters.
The free webinar will take place on Wednesday, July 25, 2018 at Noon EST. Go to this link for log on information.
OSU’s Agricultural & Resource Law Program is one of four partners in the Agricultural & Food Law Consortium, a national, multi-institutional collaboration designed to enhance and expand the development and delivery of authoritative, timely, and objective agricultural and food law research and information. The Consortium hosts a series of webinars on timely and important agricultural and food law topics which are freely available to the general public and designed to be appropriate for non-attorneys as well as attorneys. For a listing of upcoming webinars and access to past webinars that have been archived, please click here.
Here's our gathering of recent agricultural law news you may want to know:
Case highlights value of Ohio’s Grain Indemnity Fund. The recent prosecution and guilty plea of a grain handler who withheld $3.22 million in proceeds from grain he sold on behalf of 35 farmers in northern Ohio illustrates the value of Ohio’s Grain Indemnity Fund. The farmers had received approximately $2.5 million in reimbursement from the fund, which protects farmers from grain handlers who become insolvent. Though the fund, a farmer is reimbursed 100% for open storage grain in the elevator and 100% of the first $10,000 of a loss for future contracts, delayed price and basis transactions, with 80% reimbursement beyond the first $10,000 of loss. The grain handler, Richard Schwan, must now reimburse the fund and pay additional amounts to the farmers and the state. For more about the Grain Indemnity Fund, read our previous post.
More on North Carolina nuisance lawsuits against hog farms. A jury decision on June 29, 2018 awarded $25.13 million to a couple living next door to a 4,700 head hog farm in North Carolina owned by a subsidiary of Smithfield Foods. The award included $25 million in punitive damages. The apparent reason for the jury’s significant punitive damage award is Smithfield’s failure to finance and utilize new technologies that could reduce the impacts of current anaerobic lagoon and spraying application technologies. This is the second successful verdict in the second of many nuisance lawsuits filed by over 500 neighbors of hog farms owned by Smithfield.
North Carolina legislature reacts to nuisance wins. In response to the first two jury awards against Smithfield, the North Carolina legislature adopted new restrictions on nuisance lawsuits against farm and forestry operations. The legislation requires that a nuisance suit be filed within a year of the establishment of an agricultural or forestry operation or within a year of a “fundamental change” to the operation, which does not include changes in ownership, technology, product or size of the operation. The bill also limits the awarding of punitive damages to operators with criminal convictions or those who’ve received regulatory notices of violation. North Carolina Governor Roy Cooper vetoed the bill, but the legislature successfully overrode the veto.
Meanwhile, Court upholds Iowa Right-to-Farm law. The Iowa Supreme Court declined a request to declare the Iowa Right-to-Farm law facially unconstitutional for exceeding the state's police power. The court concluded that the Right-to-Farm law, which protects animal feeding operations that are in compliance with applicable laws and utilizing generally acceptable agricultural practices from nuisance lawsuits, falls within the legislature’s police power but could be unconstitutional as applied to a particular situation. However, such a determination requires application of a three part test and extensive fact finding by the court. Read more on Honomichl v. Valley View Swine, LLC here from Iowa State’s Center for Agricultural Law and Taxation.
IRS reveals the new Form 1040. It's not quite post card size, but the IRS claims that its draft of the revised Form 1040 is about half the size of the current form. The agency unveiled the draft form, which it intends to be shorter, simpler and supplemented with applicable schedules, and is seeking comments from the tax community. The new form, when complete, will replace the 1040, 1040A and 1040EZ.
Ohio legislation on the move. A flurry of activity at the Statehouse followed the lengthy re-election of a new House speaker that had stalled legislation this spring. Several bills have now been signed by Governor Kasich and a few bills have passed through one or both houses, as follows:
- Plugging idle and orphan oil and gas wells. A bill we reported on back in January, H.B. 225, was signed into law on June 29, 2018. The new law provides an increase, from 14% to 30%, in funding for plugging unused oil and gas wells. Landowners can report an idle or orphaned well to the Chief of the Division of Oil and Gas Resources, who must then inspect the well within 30 days and prioritize how soon the well should be plugged and the land surface be restored. The Chief’s duty to find prior owners and legal interests in the well is limited to records less than 40 years old. The law also includes procedural changes for entering into contracts for restoration or plugging of wells.
- Tax appeals. One provision in H.B. 292 allows a party to appeal a decision of the Board of Tax Appeals directly to the Supreme Court if it concerns a final determination of the Tax Commissioner or a municipal corporation's income tax review board. This reverses a recent change that removed the Supreme Court option for such appeals. The act also removes a provision that allowed a party to file a petition requesting that the Supreme Court take jurisdiction over an appeal from the Court of Appeals, which the Supreme Court was authorized to do if the appeal involved a substantial constitutional question or a question of great general or public interest. Governor Kasich signed the legislation on June 14, 2018.
- Hunting and fishing licenses. S.B. 257 creates multi-year and lifetime hunting and fishing licenses for residents of Ohio and allows the Division of Wildlife to offer licensure “packages” for any combination of licenses, permits, or stamps. The law also establishes the “Lake Erie sport fishing district,” consisting of the Ohio waters of Lake Erie and its tributaries. Nonresidents must obtain a $10 special permit to fish in the Lake Erie sport fishing district from January 1 to April 30, with the fees earmarked specifically to benefit Lake Erie. The legislation received the Governor’s signature on June 29, 2018.
- High volume dog breeders. New standards addressing sustenance, housing, veterinarian care, exercise and human interaction for dogs bred for sale in high volumes are in H.B. 506, signed by the Governor on June 29, 2018.
- Dogs on patios. H.B. 263, which we wrote about previously, has passed both the House and Senate. The bill allows retail food establishments and food service operations to permit customers to bring a dog into an outdoor dining area if the dog is vaccinated. The establishment must adopt a policy requiring customers to control their dogs and keep their dogs out of indoor areas. The bill just needs a signature from Governor Kasich to become effective.
- Alfalfa products. H.R. 298 was adopted by the House on June 7, 2018. The resolution recognizes the existence of two alfalfa products, direct dehydrated alfalfa and sun-cured alfalfa, as defined by the Association of American Feed Control Officials. The resolution further calls on alfalfa processors and suppliers use the defined terms in their labeling. A companion resolution in the Senate remains in committee.
- Township laws. A number of changes affecting township authority are in H.B. 500, which unanimously passed the House on June 27 and was introduced in the Senate on July 5. Of most consequence to agriculture are proposals to broaden township zoning authority over agricultural activities in platted subdivisions and authority for townships to impose fees for zoning appeals.
Tags: ag law harvest, nuisance, right to farm, grain indemnity fund, legislation, tax
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Recent actions by the Ohio legislature and Governor Kasich will affect the management of agricultural nutrients in Ohio. The Ohio General Assembly has passed “Clean Lake 2020” legislation that will provide funding for reducing phosphorous in Lake Erie. Governor Kasich signed the Clean Lake 2020 bill on July 10, in tandem with issuing Executive Order 2018—09K, “Taking Steps to Protect Lake Erie.” The two actions aim to address the impact of agricultural nutrients on water quality in Lake Erie.
The Clean Lake 2020 legislation provides funding for the following:
- $20 million in FY 2019 for a Soil and Water Phosphorus Program in the Ohio Department of Agriculture (ODA). In utilizing the funds, ODA must:
- Consult with the Lake Erie Commission and the Ohio Soil and Water Conservation Commission to establish programs that help reduce total phosphorus and dissolved reactive phosphorus in the Western Lake Erie Basin and must give priority to sub-watersheds that are highest in total phosphorus and dissolved reactive phosphorus nutrient loading.
- Create specific programs that include the purchase of equipment for (1) subsurface placement of nutrients into soil; (2) nutrient placement based on geographic information system data; and (3) manure transformation and manure conversion technologies; soil testing; tributary monitoring; water management and edge-of-field drainage management; and an agricultural phosphorus reduction revolving loan program.
- Not use more than 40% of the funds on a single program or activity.
- $3.5 million for county soil and water conservation districts in the Western Lake Erie Basin for staffing costs and for soil testing and nutrient management plan assistance to farmers, including manure transformation and manure conversion technologies, enhanced filter strips, water management, and other conservation support.
- $2.65 million for OSU’s Sea Grant—Stone Laboratory on Lake Erie to construct new research lab space and purchase in-lake monitoring equipment including real-time buoys and water treatment plant monitoring sondes.
- A $2 million obligation increase for the Ohio Public Facilities Commission allocated to the costs of capital facilities for state-supported and state-assisted institutions of higher education.
Governor Kasich’s Executive Order contains two parts:
- Directs the ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission to designate the following Hydrologic Unit Code (HUC) watersheds or portions of watersheds in the Maumee River Basin as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment: Platter Creek Watershed, Little Flat Rock Creek Watershed, Little Auglaize River Watershed, Eagle Creek Watershed, Auglaize River, Blanchard River, St. Mary’s, Ottawa River.”
- If the Soil and Water Commission consents to a designation of a watershed in distress, ODA, the Ohio Department of Natural Resources and the Ohio EPA “should recommend a rule package that establishes the following . . . nutrient management requirements for all nutrient sources; development of associated management plans for agricultural land and operations within the designated watershed boundaries; requirements for the storage, handling, land application, and control of residual farm products, manure, and erosion of sediment and substances attached thereto within the designated watershed boundaries.”
The legislation containing Clean Lake 2020 provisions, S.B. 299, is available here. Governor Kasich’s Executive Order is here, and a fact sheet issued with the Executive Order is here.
Tags: Lake Erie, agricultural nutrient management, agricultural nutrients, western Lake Erie basin
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