A new rule proposed by the USDA Agricultural Marketing Service (AMS) covers a topic that has been up in the air for more than a decade.  The 2008 Farm Bill called on the Secretary of Agriculture to create regulations meant to guide the USDA in determining whether or not a packer, swine contractor, or live poultry dealer gave a person or locality “any undue or unreasonable preference or advantage” when purchasing livestock and meat products. The Secretary of Agriculture entrusted the rulemaking to USDA’s Grain Inspection, Packers and Stockyards Administration (GIPSA).  GIPSA did propose versions of the rule in 2010 and 2016, but neither ever went into effect due to congressional prohibitions on such rulemaking and a presidential transition, respectively. (The anticipated regulations have long been referred to as the “Farmer Fair Practice Rules.”) Once Trump came into office, his administration did away with GIPSA and gave its responsibilities to AMS, further delaying the rulemaking. 

After all this time, what does AMS propose for the Farmer Fair Practice Rules?  On January 13, AMS published its proposed rule in the Federal Register.  AMS would add a section to the Packers & Stockyards regulations, which would allow the Secretary of Agriculture to “consider one or more criteria” when deciding whether a packer, swine contractor, or live poultry dealer unfairly favored any person or locality over another in their dealings.  AMS developed four criteria to be considered when determining whether a packer, contractor, or dealer’s actions were unfair.  Actions would be deemed unfair when they:

1. Cannot be justified on the basis of cost savings related to dealing with different producers, sellers, or growers;
2. Cannot be justified on the basis of meeting a competitor’s prices;
3. Cannot be justified on the basis of meeting other terms offered by a competitor; and
4. Cannot be justified as a reasonable business decision that would be customary in the industry. 

In the rulemaking, AMS provides several examples of fair and unfair practices. AMS also emphasizes several times that the Secretary of Agricultural would not be limited to considering just those four criteria when making a decision, as each situation is unique.  In essence, the proposed language is meant to guide the Secretary’s thinking when making a determination about whether or not an action is unfair.

 If you would like to read more about this proposed rule it is available in its entirety here.  Information about submitting comments on the rule is available at the same link.  Comments on the rule may be submitted up until March, 13, 2020.  Will this version of the elusive Farmer Fair Practice Rules finally stick?  We will have to wait and see. 

I often receive quizzical looks when someone asks me what kind of law I practice and I say “agricultural law.”  A common response is “what in the world is that”?   A look back at agricultural law in 2019 provides a pretty good answer to that question.  Our review of major developments in the last year illustrates the diversity of legal issues that make up the world of agricultural law. It’s never dull, that’s certain. 

Here are the highlights of what we saw in agricultural law in 2019:

• The Lake Erie Bill of Rights (LEBOR).  Toledo citizens gained national attention when they passed a charter amendment granting legal rights to Lake Erie and its ecosystem to “exist, flourish, and naturally evolve.”  The amendment also allowed Toledoans to sue corporations and governments that violate the lake’s legal rights.  Ohio’s legislature quickly enacted a law prohibiting any attempt to enforce LEBOR, and Drewes Farm challenged LEBOR as unconstitutional in a lawsuit that is still tied up in federal court.  While Toledoans won’t be able to use LEBOR to recognize legal rights for the lake, the measure raised awareness of the water quality frustrations felt by Toledoans and others with ties to Lake Erie, and brought attention to similar efforts around the country to protect natural resources by granting them legal rights.  Read our review of LEBOR here.
• Watersheds in Distress tug-of-war.  Controversial rules proposed by the Kasich administration would have expanded areas in Ohio designated as “watersheds in distress” and added regulations for farmers operating within those areas.   Governor DeWine’s new Director of Agriculture yanked the rules upon taking office in January, however, effectively ending the controversy over whether more regulations for farmers are the solution to Ohio’s water quality problems.  The governor's H2OH initiative offers an alternative to the Watersheds in distress approach.
• Hemp hemp, hooray.  After the 2018 Farm Bill legalized hemp by distinguishing it from marijuana under federal law, then authorized states to allow hemp production, Ohio passed legislation  also decriminalizing hemp.  Ohio’s proposed rules for cultivating and processing hemp are now out, and ODA held a hearing on the proposed rules on December 18, 2019.  ODA also submitted Ohio’s Hemp Production Plan to the USDA in December, and the USDA approved the plan.   Once the state rules become final, Ohio’s hemp program will open up and applicants can apply for cultivation licenses and begin growing hemp as a commodity crop in 2020.  ODA’s hemp program page is here.
• Waves of WOTUS.  We began 2019 with the Trump administration’s proposed WOTUS rewrite in February, which is still under review and not yet effective. We followed that with the administration’s announced repeal of the Obama-era 2015 WOTUS rule in September; the repeal became effective on December 23, 2019.  There’s more:  the administration published a reinstatement of the WOTUS definition from 1986/1988 until its proposed rule becomes final.  But that’s not all.  Sprinkled in and around those dates were a slew of lawsuits and injunctions challenging the Obama-era rule, the rulemaking process, and the pre-2015 definitions of WOTUS.  By the end of the year, we were left with a patchwork of different WOTUS rules across the country and uncertainty about which are actually in effect.  Read our latest WOTUS post here.
• Third Roundup cancer lawsuit is biggest yet.  A jury awarded a whopping $2 billion to a California couple who claimed that Monsanto failed to warn them about the health risks of using Roundup, which they believe caused their non-Hodgkins lymphoma. This was the largest of three verdicts against Monsanto to date, but the court later reduced the amount to $87 million.  Approximately 13,000 more Roundup cases are pending in state and federal courts across the country, and more Roundup lawsuits are also underway against Home Depot and Lowe’s.  Bayer announced in June that it would invest $5.6 billion on weed management research to find alternatives to the glyphosate used in Roundup.
• Ohio’s Right to Farm law expanded.  Buried deep in Ohio’s budget bill were significant changes to Ohio’s Right to Farm law, the law that gives agricultural activities immunity from civil nuisance lawsuits.  The changes were an obvious response to the Lake Erie Bill of Rights initiative.  The revisions allow agricultural activities on any CAUV land and agricultural activities conducted by a person pursuant to a lease agreement to qualify for the immunity, in addition to the pre-existing law’s coverage for land owners enrolled in the “Agricultural District Program” with the county auditor.  The new law also attempts to clarify the types of agricultural activities that receive protection under the law, including fertilizer and manure applications and any expansions or changes in farm operations.  Read more about the changes, which became effective October 17,  here. 
• Congress increases farm bankruptcy limit.  Sometimes Congress can agree on something.  The Family Farmer Relief Act of 2019 is one example.  The federal bill, effective August 23, 2019, raised the debt limit for family farmers and fishermen seeking to use Chapter 12 bankruptcy law to reorganize debts and stay in business.  Farmers may now have an aggregate debt of up to $10 million when using Chapter 12, rather than the previous limit of $4.4 million.
• Revisions to H-2A rules begin.     Long awaited revisions to the H-2A program are underway.  In October, changes were made to the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers.   Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.
• Meat and eggs are not so simple anymore.  While all is quiet in Ohio, the country continues to battle over what exactly is “meat” and when eggs must come from cage free hens.  The most recent egg law arose in Michigan, whose lawmakers passed a bill that will require all eggs sold in the state by 2024 to be from birds housed in cage-free facilities.  Oregon and Washington passed similar laws in 2019.  Meanwhile, litigation in Arkansas has put a hold on carrying out a state law that prohibits labeling a food product as “meat” if it doesn’t derive from an animal. A similar law and lawsuit developed in Missouri last year.  And in Washington DC, the USDA and FDA jockeyed for regulatory authority over “cell cultured meat” and finally agreed to divide labeling and inspection authority between the two agencies.  We expect these food battles to continue in 2020.
• Solar leasing on the rise.  Yes, solar leasing in Ohio.  Thousands of acres of farmland in Ohio will soon be home to utility-scale solar energy facilities under long-term solar energy leases.  The Ohio Power Siting Board has approved six solar facilities, with eight more in the works.  We’ve examined the legal issues raised by solar energy leasing on farmland and have summarized them in our Farmland Owner’s Guide to Solar Leasing, available here.

What might the wide world of agricultural law see in 2020?  We’ll tackle that question next, so stay tuned for more.

Christmas is a good time to make wishes for the peace and well-being of others.  One of our top wishes this year does that:  we hope for all Ohio farmers to have written farmland leases.  It’s an odd wish, we know.  But putting leases in writing can help landowners and farm tenants live in peace, and we like that.

Farm leases have always been prone to being verbal agreements, sealed with a handshake.  Simplicity and trust are two plausible reasons we’ve done business that way.  But a written farm lease can be simple, and using one doesn’t have to mean that the parties don’t trust each another.  Instead, a lease can keep distrust from arising between the parties by anticipating needs and foreclosing uncertainties and disagreements.

One of the strongest disagreements we hear about verbal farm leases is whether one party can terminate the lease without giving the other much notice of that termination.  For example, if Riley has rented land from Dale every year for the past ten years, can Dale terminate the lease for the 2020 planting season in February of 2020?  What if Riley has already purchased inputs, added nutrients, or planted a cover crop?  Or perhaps Dale passes away at the end of the year.  Will Riley lose the lease if Dale’s children sell the land before planting season begins?  These are the uncertainties that can lead to fighting, distrust, and sometimes, costly and difficult litigation.

A written farmland lease can prevent these uncertainties that can arise with verbal leases.  A written lease can state how much notice is required in order for one party to terminate the lease.  It can address other potentially problematic issues, such as who repairs drainage tiles, fences and access points, how to address new subsurface drainage and soil fertility needs, and whether and how to adjust annual lease rental rates.  When an issue or question about the arrangement develops, the written farm lease can provide the already agreed-upon answer or solution. 

When it comes to the peace and well-being of farmers, written farmland leases are a good thing to wish for.  So let’s keep the Grinch of uncertainty from showing up in 2020, and put those farmland leases in writing.   For our resources on what to include in a written farm lease, how to create an enforceable lease, and other farm lease needs, please visit this page. 

With archery season in full swing and deer gun season opening today, hunters will be out in full force across Ohio.  That means it’s also high season for questions about hunting laws, trespassers, property harm, and landowner liability.  Below, we provide answers to the top ten frequently asked questions we receive on these topics.

1. I gave them permission to hunt on my land, but do I have to sign something?  Yes.  Permission to hunt should be in writing.  Ohio law requires a person to obtain written permission from a landowner or the landowner’s agent before hunting on private lands or waters and to carry the written permission while hunting.  A hunter who doesn’t obtain written permission can be subject to criminal misdemeanor charges.  ORC 1533.17.  The ODNR provides a permission form at http://wildlife.ohiodnr.gov/Portals/wildlife/pdfs/publications/hunting/Pub8924_PermissiontoHunt.pdf.   If a hunter uses another form, read it carefully before signing and ensure that it only addresses hunting and doesn’t grant other rights that you don’t want to allow on the land.
2. Do family members need a license to hunt on my land?  Some of them will, depending on their relationship to you.  Resident landowners, their children of any age and their grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowners’ private lands and waters.  The same rule applies if a limited liability company (LLC), limited liability partnership (LLP) or a trust holds the land and the LLC, LLP or trust has three or fewer members, partners, trustees and beneficiaries, as long as the LLC member, LLP partner or trustee is a resident of Ohio.   When the landowner is not a resident, only the landowner, spouse and children of any age may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state.  ORC 1533.10.  Family members who don’t fall under the license exemption must obtain a hunting license and follow the written permission requirement.   
3. Does a hunter need my permission to retrieve an animal injured on another property?  Yes.  The written permission requirement applies to all of these activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild bird, wild waterfowl or wild animal.  ORC 1533.17.
4. Will I be liable if a hunter is injured on my land?  Probably not.  Two laws apply to this situation, depending upon whether you gave the hunter permission.   A landowner is not liable for injuries to or harm caused by a hunter who does not have written permission to be on the land.  ORC 1533.17.  Ohio’s Recreational User Statute applies when a hunter does have permission to be on the land; it states that a landowner has no legal duty to keep the premises safe for a hunter and assumes no responsibility for or incurs liability for any injury to person or property caused by any act of a hunter.  ORC 1533.181.  Note that this immunity doesn’t apply if the landowner charges a fee for hunting, unless the fee is a payment made under a hunting lease with a hunter or hunting group.  ORC 1533.18.  Read more about the law in our law bulletin, here.  These laws provide significant protection from liability for hunter injuries, but won’t protect a landowner who willfully or recklessly causes harm to hunters.  One situation that might rise to the level of willful or reckless conduct by a landowner is granting permission to too many hunters and failing to inform or manage the hunters, explained below.
5. What if several people want to hunt on my land—how many should I allow?  Ohio law does not state how many hunters can have permission to hunt on a parcel, but be careful about setting up a dangerous situation by allowing multiple hunters on the land at once.  If you do give permission to several hunters, let them know that others could also be hunting on the land and designate a particular parking area so that they know when other hunters are present.  You could even consider scheduling hunters on certain days.  If the hunters are part of a hunting club, consider leasing your land to the hunting club and letting the club decide how to manage multiple hunters (see our Hunting Lease checklist, here).  Taking such steps to manage multiple hunters will ensure that you aren’t behaving recklessly and have immunity from liability under the Recreational User Statute.
6. Should I allow a hunter to bring along someone who’s not hunting? In regards to liability for that person, the Recreational User Statute described above applies to any person engaging in any kind of recreational activity, in addition to hunting. Hiking or walking on the land is a recreational activity covered under the law.  As long as you give permission and don’t charge the recreational user a fee, the law provides immunity from liability for their injuries. 
7. What if a hunter leaves a tree stand or a blind on my land—can I get rid of it?  It depends.  It’s okay to carefully remove a stand or blind from the area, but be careful about damaging or getting rid of it too soon if it’s the property of a hunter who had permission to be on the land.  According to Ohio common law, you might be liable for the property under a claim of “conversion” if the property is not “abandoned” or “lost.”  Abandoned property is that to which the owner has relinquished all rights with the intention of not reclaiming it, while lost property is that which the owner has involuntarily parted with through neglect, carelessness, or inadvertence.  A finder who possesses abandoned property takes absolute title to the property, while a finder of lost property takes title against everyone except the owner.  In either case, destroying or disposing of property that is not abandoned or lost could lead to a claim of conversion, and you could be liable for the damages. 
8. What if a hunter who had my permission to hunt ends up harming my property?  There are two ways with deal with property harm from hunters.  First, the hunting laws prohibit a hunter from acting in a negligent, careless or reckless manner so as to injure persons or property.  Violating this law can lead to first degree misdemeanor charges and compensation to the landowner, as well as revocation of the hunting licenses and permits.  ORC 1533.171 and 1533.99.  Second, Ohio law allows a landowner to seek compensation for the “reckless “destruction of vegetation, trees and crops under ORC 901.51.  Reckless means acting intentionally and without regard for consequences.  If successful, a landowner can receive triple the amount of the harm caused to the property.   
9. What can I do to a trespasser who’s hunting on my land?   Dealing with trespassers is tricky.  First, don’t willfully harm the trespasser, as you could be liable for causing intentional harm.  Second, call your local ODNR wildlife officer or the Turn in a Poacher program, below, to report the incident.  Third, read our law bulletin on “Do’s and Don’ts of Dealing with Trespassers on the Farm,” available on farmoffice.osu.edu, here. 
10. What if I see someone violating hunting laws?  ODNR’s “Turn in a Poacher” program encourages the public to report wildlife violations such as hunting out of season or without a license or permission.  The program provides several ways to report:  complete an online form available at http://wildlife.ohiodnr.gov/stay-informed/turn-in-a-poacher-tip and submit it through the internet or via mail,  call the TIP hotline at 1-800-POACHER, or use the same number to text photos of suspects, vehicles or signs of violations.  All reports are confidential.   

The nursery rhyme “A Hunting We Will Go” paints a happy-go-lucky picture of hunting.  But hunting raises many questions and concerns for agricultural landowners.  Ohio law offers rules and remedies that can ease those concerns.  Landowners who know and use the laws just might be able to hum along with the nursery rhyme through hunting season.