Animals

By: Evin Bachelor, Thursday, August 22nd, 2019

August turned out to be a very busy month for food law.  We’re again reading headlines about the definition of meat and debates over cage-free egg laws.  We’ve also come across some interesting criminal actions involving organic labeling fraud and undocumented workers at poultry processing plants.  And yet again we have a Roundup update, but fortunately for Bayer, the target of the latest lawsuits are Home Depot and Lowe’s.  So without further ado, here’s our latest gathering of agricultural law news you may want to know:

Tofurkey cries foul against state definitions of meat.  The maker of edible vegetarian products designed to replicate the taste and texture of meats is fighting back against state labeling and advertising laws that require products labeled as “meat” to be made of meat.  Tofurky filed a lawsuit in federal court in Arkansas to stop the state from enforcing such laws, which is similar to a lawsuit it filed in Missouri and yet another company filed in Mississippi.  Livestock advocacy groups succeeded in having 12 states pass laws restricting the ability of food producers to refer to their products as meats if those products contain no meat.  Livestock advocacy groups argue that the labeling practices are confusing and misleading to consumers, while companies like Tofurky argue that they have a constitutional right to describe their products with meat terminology.  On its website, Tofurky lists beer brats, jumbo hot dogs, “slow roasted chick’n,” “ham style roast,” and more.  None of the products contain meat.

Organic food fraud puts farmers in jail.  A federal judge sentenced a 60-year-old Missouri farmer to serve 10 years and 2 months in prison after being convicted of wire fraud, which is the federal crime of committing financial fraud through the use of a telecommunications wire across state lines.  This includes placing a phone call, sending an email, or advertising online in the furtherance of the fraudulent scheme.  Another three farmers were also sentenced to prison for terms ranging from 3 months to 2 years for their participation.  The fraud involved a decade-long scheme to mix traditional corn and soybeans with a small amount of organic grains and then label everything as certified organic.  The grains were mostly sold as animal feed to producers and companies selling organic meat.  Organic products generally are sold at a high premium, and the volume of goods in this scheme resulted in the farmers receiving millions of dollars from consumers that was fraudulently obtained.  The lengthy prison sentences reflect the farmers’ intentional misrepresentation and mislabeling.  In other words, it was not an accident.

Oregon joins California and Washington to make the west coast cage-free.  States continue to battle over whether eggs should come from cage-free hens or caged hens.  When we last discussed the topic HERE in May, the governor of the state of Washington had just signed his state’s cage-free requirement into law.  Iowa, the nation’s leading egg producing state, has gone the other way in trying to limit cage-free egg production.  Now, Oregon is set to ban the purchase or sale of eggs and egg products from caged hens starting in 2024.  However, Oregon’s law exempts eggs and egg products from caged hens if the sale occurs at a federally inspected plant under the Egg Products Inspection Act or if the caged hens were at a commercial farm with a flock of fewer than 3,000 hens.  You can read the text of the bill HERE.

Immigration and Customs Enforcement raids poultry processing plants.  Federal immigration officials have alleged that managers at five Mississippi poultry processing plants knowingly hired undocumented aliens who are not authorized to work in the United States.  Fines for individuals or companies proven to have actual knowledge that they hired undocumented workers can reach up to $3,000 per undocumented worker.  Individuals may also face prison time.  According to news reports, ICE arrested 680 possibly undocumented workers during its August 7th raids in Mississippi.  In their applications for the search warrants, the investigators alleged that the companies hired undocumented workers who were wearing GPS ankle monitors as they await deportation hearings, reported Social Security numbers of deceased persons, and used different names at different times.

Latest Roundup lawsuit targets retailers Home Depot and Lowe’s.  You’ve heard us talk before about the thousands of lawsuits against Monsanto (now owned by Bayer) based on the allegation that the glyphosate in products like Roundup has caused cancer.  If you’d like a refresher, you can review our last post HERE.  Now, instead of going after the manufacturer, a new plaintiff is going after retailers.  Plaintiff James Weeks filed two class action complaints in federal court in California against Home Depot and Lowe’s, alleging that the home improvement giants failed to adequately warn customers about the safety risks posed by using the popular weed killer.  Mr. Weeks argues that the labeling leaves the average consumer with the impression that the greatest risk of harm is eye irritation, when in fact the retailers know of the product’s potential carcinogenic properties.  As these complaints are class action complaints, Mr. Weeks seeks to claim representative status over all consumers who purchased Roundup products from these retailers, and thereby lead the case against the retailers.  It will be interesting to see whether the court certifies these cases as class actions, or if this strategy falls short for the plaintiff.  You can read the complaint against Home Depot HERE.

Food giants seek silence from U.S. Commodity Futures Trading Commission.  In 2015, the U.S. Commodity Futures Tradition Commission initiated a lawsuit against Mondelez International Inc. and Kraft Heinz Co. for allegedly manipulating the wheat futures market.  All parties recently agreed to an undisclosed settlement, and entered into a consent order with the court to close the matter.  The agreement apparently included a provision that all parties would refrain from publically commenting about the settlement.  However, the federal agency ended up commenting on the settlement by the end of the week in which the agreement was finalized.  Mondelez and Kraft Heinz believe that such statements violated the terms of the consent order, although the federal agency contests the allegation.  Nonetheless, the confidentiality restrictions make it difficult to know the full details of the settlement.  All we know for certain is that there was one.

Federal courts report that Chapter 12 family farm bankruptcies are on the rise.  The federal court system releases data every quarter on the number of bankruptcies filed each month in that quarter.  The latest numbers for April to June 2019 showed a slight increase in the number of Chapter 12 bankruptcies filed when compared to the same time period in 2018.  Nationwide, there were 164 new filings, compared to 135 in the second quarter of 2018.  The numbers show a gradual increase in the use of Chapter 12 bankruptcy since 2013, but the numbers are starting to tick up to levels not seen since the Great Recession.  Chapter 12 bankruptcy is a special form of bankruptcy that can only be used by family farmers and family fishermen whose total debts do not exceed a certain dollar limit.  The current dollar limit is $4.4 million, but there is legislation awaiting President Trump’s signature to increase the limit to $10 million.  In large part because of these restrictions, Chapter 12 is one of the least commonly used forms of bankruptcy. 

By: Evin Bachelor, Tuesday, July 30th, 2019

It’s been a busy July in the ag law world, to say the least.  The Ohio General Assembly officially passed the hemp bill and a budget, RMA adjusted its prevent plant restrictions, and we have seen more activity on LEBOR.  With everything that is going on, it’s time for another ag law harvest.  Here’s our latest gathering of agricultural law news you may want to know:

Ohio Department of Agriculture announces website for future hemp program.  Just days after S.B. 57 took effect, the Ohio Department Agriculture (ODA) launched a new webpage declaring “Hemp Is Now Legal.”  However, the webpage goes on to explain that hemp cultivation, processing, and research licenses, which are required to legally do those activities, are not yet available as the rules and regulations have not been developed.  ODA says the goal is to have farmers licensed and able to start planting hemp by spring 2020.  As for CBD, the webpage says that it is now legal to sell properly inspected CBD products in Ohio.  Note the “properly inspected” caveat.  ODA wants to test CBD products for safety and accurate labeling before the product is sold to Ohio consumers.  If they have not already done so, those wanting to sell CBD products should contact ODA to have their product tested.  You can view the new webpage HERE.

Judge says $2 billion damages award is too much in Roundup case.  A California state judge recently reduced the punitive damages award granted to Alva and Alberta Pilliod from $2 billion to $69 million, and reduced their compensatory damages from $55 million to $17 million.  All combined, the couple would still receive $86.7 million in damages.  As we previously discussed, the couple successfully convinced a jury that the glyphosate in Roundup significantly contributed to causing their non-Hodgkin’s Lymphoma.  In reducing the awards, the judge explained that the punitive damages were excessive and unconstitutional because they exceeded the U.S. Supreme Court’s restrictions.  However, the judge denied Bayer’s request to strike the punitive damages award outright.

U.S. EPA denies petition to ban use of cholrpyrifos pesticide.  Back in 2007, environmental groups petitioned to have the U.S. EPA revoke tolerances and registrations for the insecticide chlorpyrifos, citing harmful effects to people and nature.  Without getting into the merits of the allegations, the timeline and history of the U.S. EPA’s decision is fairly interesting.  The U.S. EPA had not completed its review of the chemical by 2015, so the groups took the agency to court, where they received a court order compelling the U.S. EPA to make a decision.  The agency issued a proposed rule at the end of 2015 that would have revoked the tolerances; however, the federal court said that the U.S. EPA had not completed a full review nor properly responded to the 2007 petition.  Even though it made a decision, the court wanted to see more evidence of a full administrative review.  By the time the agency had a chance to fully review the chemical’s effects, the Obama EPA had turned into the Trump EPA.  In March 2017, the U.S. EPA issued a denial order regarding the petition, which essentially threw out the petition.  The environmental groups submitted an objection shortly after the denial order.  By July 2019, the U.S. EPA had a chance to think some more and issued a final order denying the objections.  As it stands now, the agency has decided not to revoke tolerances or registrations for chlorpyrifos.  To read the agency’s final order denying the objections, click HERE.

Animal Disease Traceability program to require RFID tagging for cattle and bison by 2023.  The USDA’s Animal and Plant Health Inspection Service is looking to fully bring animal disease traceability into the digital world, at least for beef and dairy cattle and bison.  By requiring radio frequency identification (RFID) tags, the service says that animal health officials would be able to locate specific animals within hours of learning about a disease outbreak, significantly less than with paper records.  Starting at the end of 2019, the USDA will stop providing free metal tags, but would allow vendors to produce official metal tags until the end of 2020.  At that time, only RFID tags may be used as official tags.  Starting on January 1, 2023, RFID tags will be required for beef and dairy cattle and bison moving interstate.  Animals previously tagged with metal ear tags will have to be retagged, but feeder cattle and animals moving directly to slaughter will be exempt.  To learn more, view the USDA’s “Advancing Animal Disease Traceability” factsheet HERE.

Senators want to fund more ag and food inspectors at U.S. ports of entry.  Citing the national interest to protect the nation’s food supply, four U.S. Senators have introduced a bill that would provide the U.S. Customs and Border Protection with additional funding over the next three years.  In each of the three fiscal years, the funds would be used to hire, train, and assign 240 additional agriculture specialists, 200 new agriculture technicians who provide support to the agriculture specialists, and 20 new canine teams.  The personnel would work at U.S. ports of entry, including seaports, land ports, and airports across the country.  If passed, S.2107 would require the Comptroller General of the United States to brief congressional committees one year after the bill’s enactment on how well federal agencies are doing at coordinating their border inspection efforts and how the agriculture specialists are being trained.  The bill comes months after U.S. Customs and Border Protection seized nearly a million pounds of Chinese illegally smuggled pork from China, where African swine fever has ravaged the country’s pork industry.  For more information about the bill, click HERE.

Cannabis decriminalization bill introduced in Congress.  Congressman Jerrold Nadler (D-NY) has introduced H.R. 3884 with the aim to do four things: 1) decriminalize cannabis at the federal level, 2) remove cannabis from the federal controlled substances schedules, 3) provide resources and rehabilitation for certain people impacted by the war on drugs, and 4) expunge certain criminal convictions with a cannabis connection.  The bill currently has 30 co-sponsors, including 29 Democrats and 1 Republican.  None of Ohio’s members of Congress have signed on as a co-sponsor at this time.  The bill follows the recent change in status for hemp, which found favor in the 2014 and 2018 Farm Bills.  However, that change in status was largely predicated on the argument that hemp is not marijuana, so it remains to be seen whether the political climate is ready to loosen restrictions on marijuana as well.  For more information about the bill, click HERE.

By: Peggy Kirk Hall, Thursday, July 25th, 2019

The funny thing about a "budget bill" is that it’s not all about the budget.  Many laws that are not related to the budget are created or revised within a budget bill.  That’s the case with Ohio’s HB 166, the "budget bill" signed on August 18 by Governor Dewine.  In the midst of the bill’s 2,602 pages are revisions to an important law for agricultural landowners—the “Right to Farm” Law.

Ohio’s Right to Farm Law, also referred to as the "Agricultural District Program," provides immunity from a civil nuisance claim made by those who move near an existing farm.  To receive the immunity under the old law, the land must be enrolled as an “agricultural district” with the county auditor, agricultural activities have to be in place first, i.e., before the complaining party obtained its property interest, and the agricultural activities must not be in conflict with laws that apply to them or must be conducted according to generally accepted agricultural practices.  The immunity comes in the form of an affirmative defense that a farmer can raise if sued for nuisance due to agricultural activities such as noise, odors, dust, and other potential interferences with neighbors.  If the landowner can prove that the activities are covered by the Right to Farm law, the law requires dismissal of the nuisance lawsuit.  For years, we’ve been encouraging farmers to enroll land in this program to protect themselves from those who move out near a farm and then complain that the farming activities are a nuisance.

The new revisions to the law in the budget bill change the requirements for the land and agricultural activities that can receive Right to Farm immunity.  In addition to protecting agricultural activities on land that is enrolled with the county auditor as agricultural district land, the law will now also protect the following from nuisance claims:

  • Agricultural activities on land devoted exclusively to agricultural use in accordance with section 5713.30 of the Revised Code, which is Ohio’s Current Agricultural Use Valuation Program (CAUV), and
  • Agricultural activities conducted by a person pursuant to a lease agreement, written or otherwise.

These two provisions significantly expand the geographic scope of the Right to Farm law.   A landowner may not have to take the step to actively enroll and re-enroll land in the agricultural district program in order to obtain Right to Farm immunity.  Instead, the agricultural activities are automatically covered by the Right to Farm law if the land is enrolled in Ohio’s CAUV property tax reduction program or is under a lease agreement, presumably a farmland lease, whether that lease is in writing or is verbal.  This means that any land in Ohio that is actively being used for commercial agricultural production will likely qualify for the Right to Farm law’s nuisance protection.

The budget bill also added new language to the Right to Farm law that clarifies that “agricultural activities” means “common agricultural practices.”  The law specifically includes the following as “common agricultural practices:”

  • The cultivation of crops or changing crop rotation;
  • Raising of livestock or changing the species of livestock raised;
  • Entering into and operating under a livestock contract;
  • The storage and application of commercial fertilizer;
  • The storage and application of manure;
  • The storage and application of pesticides and other chemicals commonly used in agriculture;
  • A change in corporate structure or ownership;
  • An expansion, contraction, or change in operations;
  • Any agricultural practice that is acceptable by local custom.

This new language answers a question that we’ve long heard from farmers:  if I expand my farming operation or change it from the farming activities that I, my parents or grandparents have always done, will I still have Right to Farm protection?  We couldn’t answer this question with assurance because the law is unclear about whether it would also protect such changes.  Under the new law, the answer is clear:  transitions to new or expanded agricultural activities will also receive Right to Farm immunity.  The law also states that certain practices, such as storing and applying fertilizers, pesticides, chemicals and manure, are “common agricultural practices.”

The final change to the Right to Farm law concerns a provision that addresses farmers suing other farmers for nuisance.  Under the old law, Right to Farm immunity does not apply if the plaintiff who brings the nuisance law suit is also involved in agricultural production.  That is, farmers don’t receive Right to Farm protection from nuisance claims by other farmers.  The new law removes this provision.  Under the revised law, farmers will be able to raise the Right to Farm law as an affirmative defense if sued for nuisance by another agricultural producer.

Many lawmakers who were focused on understanding and negotiating the financial provisions in Ohio’s recent budget bill may have missed the inclusion of changes to our Right to Farm law in the bill.  Even so, with the passage of the budget bill, the legislature significantly expanded the reach of the Right to Farm Law and agricultural activities in Ohio now have broad protections from nuisance lawsuits.

Find the changes to Ohio’s Right to Farm Law--Ohio Revised Code 929.04, on pages 308 and 309 of HB 177, which is available on this page.

 

By: Evin Bachelor, Monday, June 10th, 2019

The biennial budget remains the center of attention for members of the Ohio General Assembly, but some other bills have made progress since our last legislative update.  We will post a separate blog post about the biennial budget soon, but for now here is a review of other legislative activity at the statehouse. 

New legislation since our last legislative update

  • Senate Bill 159, titled “Grant tax credits to assist beginning farmers.”  This bill is essentially the same as House Bill 183, which seeks to provide tax incentives to beginning farmers along with those willing to help them build a farm operation.  Introducing the bill in the Senate while the House considers another bill allows the process to potentially go more quickly.  Instead of waiting on the House to complete all of its committee hearings and approve the bill, the Senate can start its own process.
  • House Bill 223, titled “Alter setback-wind farms of 5 or more megawatts.”  In 2014, the Ohio General Assembly modified the distance that wind turbines must be setback from an adjacent property line.  House Bill 223 would modify the setback law to base the setback on the distance from the nearest habitable residential structure on a neighboring property instead of the property line.  The setback requirement would affect future project certificates, as well as any amendments made to an existing certificate.  Click HERE for more information about the bill from the Ohio General Assembly’s website.

Legislation that we continue to follow

Here’s a status update on bills we covered HERE in March and HERE in April.  Access each bill’s webpage on the Ohio General Assembly website by clicking on the bill number in the following tables. 

 

Legislation passed by the Senate and currently under consideration in the House

Category

Bill No.

Bill Title

Status

Hemp

SB 57

Decriminalize hemp and license hemp cultivator

- Passed Senate

- Passed House Ag & Natural Resources committee

- Awaits vote of the full House of Representatives

Regulations

SB 1

Reduce number of regulatory restrictions

- Passed Senate

- Referred to House State & Local Government Committee

Business Law

SB 21

Allow corporation to become benefit corporation

- Passed Senate

- Referred to House Civil Justice Committee

 

Legislation going through the committee process, but not yet passed in either chamber

Category

Bill No.

Bill Title

Status

Watershed Planning

SB 2

Create state watershed planning structure

- Completed third hearing in Senate Ag & Natural Resources Committee

Tax

HB 183

Allow tax credits to assist beginning farmers

- Completed second hearing in House Ag & Rural Development Committee

Estate Planning

HB 209

Abolish estate by dower

- Completed third hearing in House Civil Justice Committee

Animals

HB 24

Revise humane society law

- Passed House Ag & Rural Development Committee

- Awaits vote of the full House of Representatives

Oil and Gas

HB 55

Require oil and gas royalty statements

- Completed first hearing in House Energy & Natural Resources Committee

Mineral Rights

HB 100

Revise requirements governing abandoned mineral rights

- Completed first hearing in House Energy & Natural Resources Committee

Energy

SB 119

Exempt Ohio from daylight savings time

- Completed first hearing in Senate General Government and Agency Review Committee

Local Gov’t

SB 114

Expand township authority-regulate noise in unincorporated areas

- Completed second hearing in Senate Local Government, Public Safety, & Veterans Affairs Committee

Property

HB 103

Change law relating to land installment contracts

- Completed second hearing in House Civil Justice Committee

Regulation of Alcohol

HB 160

Revise alcoholic ice cream law

- Completed third hearing in House State & Local Government Committee

Regulation of Alcohol

HB 179

Exempt small wineries from retail food establishment licensing

- Completed first hearing in House Health Committee

 

Legislation not on the move

These bills have not made much progress.  The biggest action taken on each so far has been referring the bill to a committee, but no committee has yet to hold a hearing on any of the bills.  Remember that we are in the middle of budget season, and only in the first six months of this legislative cycle, so the bills could still see activity later.

Category

Bill No.

Bill Title

Status

Animals

HB 124

Allow small livestock on residential property

- Referred to House Ag & Rural Development Committee

Animals

HB 33

Establish animal abuse reporting requirements

- Referred to House Criminal Justice Committee

Energy

HB 20

Prohibit homeowner associations placing limits on solar panels

- Referred to House State & Local Government Committee

Local Gov’t

HB 48

Create local government road improvement fund

- Referred to House Finance Committee

Local Gov’t

HB 54

Increase tax revenue allocated to the local government fund

- Referred to House Ways & Means Committee

Oil and Gas

HB 94

Ban taking oil or natural gas from bed of Lake Erie

- Referred to House Energy & Natural Resources Committee

Oil and Gas

HB 95

Revise oil and gas law about brine and well conversions

- Referred to House Energy & Natural Resources Committee

Regulation of Alcohol

HB 181

Promote use of Ohio agricultural goods in alcoholic beverages

- Referred to House Ag & Rural Development Committee

Tax

HB 109

Grant tax exemption for land used for commercial maple syruping

- Referred to House Ways & Means Committee

 

By: Ellen Essman, Thursday, May 16th, 2019

In January, we wrote about state “ag-gag” laws and the trend of federal courts overturning such laws nationwide.  “Ag-gag” is the term for fraud and trespass laws that aim to prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at agricultural production facilities. We specifically discussed a case in Iowa, where the state’s “agricultural production facility fraud law” was found to be unconstitutional on First Amendment grounds in the federal District Court for the Southern District of Iowa.  In response to that ruling, the legislature modified the law, but a group made up of animal rights, community, and food safety organizations has again sued the state.  The plaintiffs contend that the new law still violates the First and Fourteenth Amendments to the Constitution. 

Iowa law: current and former

Shortly following the aforementioned district court decision, Iowa passed a new ag-gag law with slightly different language.  The new Iowa law changes the crime from “agricultural production facility fraud” to “agricultural production facility trespass.” The legislature also changed the language from outlawing false statements or pretenses to outlawing deception.  Another important change is the focus in the new statutory language on the “intent to cause physical or economic harm or other injury” to the farm.    

The new law reads:

717A.3B Agricultural production facility trespass.

1. A person commits agricultural production facility trespass if the person does any of the following:

a. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of access to an agricultural production facility that is not open to the public, and, through such deception, gains access to the agricultural production facility, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.

b. Uses deception as described in section 702.9, subsection 1 or 2, on a matter that would reasonably result in a denial of an opportunity to be employed at an agricultural production facility that is not open to the public, and, through such deception, is so employed, with the intent to cause physical or economic harm or other injury to the agricultural production facility's operations, agricultural animals, crop, owner, personnel, equipment, building, premises, business interest, or customer.

Iowa law defines “deception,” in part, as “knowingly…[c]reating or confirming another’s belief or impression as to the existence or nonexistence of a fact or condition which is false and which the actor does not believe to be true,” or “[f]ailing to correct a false belief or impression as to the existence or nonexistence of a fact or condition which the actor previously has created or confirmed.”

The previous Iowa law, which was struck down in a district court decision, is currently still available on the Iowa Legislature’s website.  The old law made it illegal to gain access to a facility through false pretenses and to make a “false statement or representation” in order to be employed by an agricultural production facility.  Note that the former law did not use the word “deception,” or touch on injury to the farm. 

In the district court decision overturning the previous law, Judge Gritzner agreed with the plaintiffs that the language of the law violated the First Amendment right to free speech because it was content-based, viewpoint based, and overbroad. He decided that even though the law banned false statements, such false statements are still protected under the First Amendment.  In other words, just because Iowa livestock operators do not like the speech of the activists and whistleblowers trying to gain access to their farms, it does not mean that the speech should be infringed upon. 

Animal rights groups and others challenge the new law

On April 22, 2019, shortly after the passage of Iowa’s new law, plaintiffs filed suit against the state once again in the U.S. District Court for the Southern District of Iowa.  Plaintiffs include Animal Legal Defense Fund, Iowa Citizens for Community Improvement, Bailing out Benji, People for the Ethical Treatment of Animals, Inc., and the Center for Food Safety.  In their complaint against the state of Iowa, plaintiffs contend that the new law still violates the Constitution, saying that “the only difference” between the two laws is that the new law “targets a slightly different form of speech.”  In other words, Iowa has changed its law from outlawing false statements or pretenses to outlawing deception, but the plaintiffs believe the new law basically ends up doing the same thing as the old, overturned ag-gag law; it prevents their speech based on content and viewpoint. Plaintiffs rely on the following arguments to illustrate their reasoning:

  • Iowa’s new law bans any negative speech about the agricultural industry, which creates a preference for speech favorable to the industry. 
  • Whistleblowing is not criminalized in other Iowa industries.
  • Iowa statutes already outlaw fraud, trespass, and adulteration of food products, as well as the theft of trade secrets, so agriculture already has adequate protection from economic harm. 
  • Outlawing deception “with the intent to cause…other injury” is too vague; it is not easily discernable what other kinds of speech or actions might be illegal under the statute.

As such, the plaintiffs allege that the Iowa law violates freedom of speech under the First Amendment because it is overbroad, viewpoint-based discrimination, and because it is vaguely written under the First and Fourteenth Amendments. Finally, plaintiffs contend that the law violates the Fourteenth Amendment’s Due Process clause because it “substantially burdens” their exercise of free speech.  The court must determine whether or not they agree with this assessment. 

Many “ag-gag” statutes struck down as unconstitutional, but many more decisions to go

As was mentioned in our January blog post, there is ongoing ag-gag litigation outside of Iowa, as well.  Kansas and North Carolina have both been sued for their ag-gag statutes, and both cases are still pending.  Will the federal courts find laws in Iowa, Kansas and North Carolina unconstitutional like they have previously in Iowa, as well as in Idaho, Utah and Wyoming, or will they find that they do not violate freedom of speech and due process?  Will lawsuits challenge the remaining ag-gag laws in Alabama, Arkansas, Missouri, Montana, and North Dakota? The answers may take a while to sort out.  

By: Evin Bachelor, Friday, March 15th, 2019

State lawmakers have been busy crafting new legislation since the 133rd General Assembly took shape in January.  As promised, here are some highlights and summaries of the pending bills that relate to agriculture in Ohio:

  • Senate Bill 57, titled “Decriminalize hemp and license hemp cultivation.”  The Ohio Senate Agriculture and Natural Resources Committee held a second hearing about the bill on March 13th, and numerous farm organizations spoke in support of the bill.  As of now the language of the bill has not changed since we last discussed Ohio’s hemp bill in a blog post, but some changes could be made when the bill is sent out of the committee.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 2, titled “Create state watershed planning structure.”  The one sentence bill expresses the General Assembly’s intent “to create and fund a comprehensive statewide watershed planning structure to be implemented at the local soil and water conservation district level.”  It further expresses the intent “to provide authorization and conditions for the operation of watershed programs implemented by local soil and water conservation districts.”  Click HERE for more information about the bill.
  • House Bill 24, titled “Revise humane society law.”  The bill would make various changes to Ohio’s Humane Society Law, including changes to enforcement powers, appointment and removal procedures, training, and criminal law applicability.  One of the significant changes would expand to all animals the seizure and impoundment provisions that currently apply only to companion animals.  This change would allow an officer to seize and impound any animal that the officer has probable cause to believe is the subject of a violation of Ohio’s domestic animal law.  At the same time, the bill would remove certain provisions from current law that pertain to harm to people, thereby focusing the new law solely on the protection of animals.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 124, titled “Allow small livestock on residential property.”  Under this bill, counties and townships would no longer be allowed to restrict via zoning certain noncommercial agricultural activities on residential property conducted for an individual’s personal use and enjoyment.  Instead, owners of residential property that is not generally agricultural would be allowed to keep, harbor, breed, and maintain small livestock on their property.  Small livestock includes goats, chickens and similar fowl, rabbits, and similar small animals.  Roosters are explicitly excluded from this definition.  However, the owner would lose his or her rights to keep small livestock if the small livestock create a nuisance, are kept in a manner that causes noxious odors or unsanitary conditions, are kept in a building that is unsafe as defined under the statute, or if the number of animals exceeds a certain ratio of animals to acres as defined under the statute.  The ratio may be modified by the local jurisdiction to allow for more animals per acre.  Click HERE for more information about the bill.
  • House Bill 55, titled “Require oil and gas royalty statements.”  Owners of oil and gas wells would have to provide mandatory reports to holders of royalty interests under this bill.  Current law only requires disclosure of the information upon request, but this bill would make the disclosure mandatory.  The bill would expand the types of information that the reports must include, and allows the holder of royalty interests to sue to enforce the new rights.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 94, titled “Ban taking oil or natural gas from bed of Lake Erie.”  The Ohio Department of Natural Resources handles oil and gas permitting in Ohio, and this bill would bar the agency from issuing permits or making leases “to take or remove oil or natural gas from and under the bed of Lake Erie.”  Click HERE for more information about the bill.
  • House Bill 95, titled “Revise Oil and Gas Law about brine and well conversions.”  The bill would ban the use of brine in secondary oil and gas recovery operations.  It would also ban putting brine, crude oil, natural gas, and other fluids associated with oil and gas exploration in ground or surface waters, on the ground, or in the land.  This restriction would apply even if the fluid received treatment in a public water system or other treatment process.  Further, brine disposal permits would not be allowed to utilize underground injection or disposal on the land or in surface or ground water.  Click HERE for more information about the bill.
  • House Bill 100, titled “Revise requirements governing abandoned mineral rights.”  Ohio has a statute that governs when a surface owner can take the mineral rights held or claimed by another by operation of law, essentially because of the passage of time.  The bill would require a surface owner to attempt to give notice to a holder of mineral rights by personal service, certified mail, or if those are unsuccessful then by publication.  Currently, if a holder of mineral rights believes that his or her interest remains valid, he or she may file an affidavit that complies with Ohio Revised Code (ORC) § 5301.56(H)(1) in the county property records.  If the holder of mineral rights fails to file an affidavit, the surface owner may then file an affidavit under ORC § 5301.56(H)(2) that effectively vests the mineral rights in the surface owner.  The new law would allow the surface owner to challenge a holder of mineral rights’ ORC § 5301.56(H)(1) affidavit.  This process would require the surface owner to obtain a court determination that the affidavit is invalid.  Then the surface owner would be able to file the new ORC § 5301.56(H)(3) affidavit to obtain the mineral rights.  Click HERE for more information about the bill.

There are also some bills that could have some indirect implications in the agricultural and natural resources sectors.  These indirect effects make this next set of bills noteworthy, or at least interesting.

  • Senate Bill 1, titled “Reduce number of regulatory restrictions.”  The bill would require each state agency to count its total number of regulatory restrictions, and then reduce the number of restrictions based on that baseline by 30% by 2022.  Once an agency meets its reduction target, it would not be able to increase the number of regulatory restrictions without making additional cuts elsewhere.  The bill would target agency rules that require or prohibit specific acts.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 21, titled “Allow corporation to become benefit corporation.”  Much like the LLC merged the principles of a corporation and a partnership, the benefit corporation merges the principles of a corporation and a non-profit.  A benefit corporation must follow the formalities of a corporation, but the articles of incorporation can designate a social purpose for the business to pursue, such as promoting the environment through sustainable practices.  One of the unique traits of benefit corporations is that benefit corporations cannot be held liable for damages for failing to seek, achieve, or comply with their beneficial purpose, or even obtain a profit; however, certain individuals may seek a court ordered injunction to force the company to pursue those interests.  In a sense, the benefit corporation reduces the traditional fiduciary duties expected in general corporations.  The bill purports to maintain the traditional fiduciary duties, but by allowing a social purpose other than profit to guide decisions, the traditional fiduciary duties are in effect modified.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 33, titled “Establish animal abuse reporting requirements.”  Under the bill, veterinarians and social service professionals would have to report their knowledge of abuse, cruelty, or abandonment toward a companion animal.  Social service professionals would include licensed counselors, social workers, and marriage or family therapists acting in their professional capacity.  Companion animals include non-wild animals kept in a residential dwelling, along with any cats and dogs kept anywhere.  These individuals would be required to report the neglect to law enforcement, agents of the county humane society, dog wardens, or other animal control officers.  Further, dog wardens, deputy dog wardens, and animal control officers would become mandatory reporters of child abuse.  Lastly, the bill explains the information that must be reported, the timing, and the penalties for failure to comply.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 48, titled “Create local government road improvement fund.”  The bill proposes to deposit into a new local government road improvement fund some of the surplus funds generated when the state spends less than it appropriates in the general revenue fund.  Under current law, this surplus is split between the budget stabilization fund, also known as the “rainy day fund,” and the income tax reduction fund, which would redistribute remaining surplus to taxpayers.  Click HERE for more information about the bill.
  • House Bill 54, titled “Increase tax revenue allocated to the local government fund.”  The bill would increase the proportion of state tax revenue allocated to the Local Government Fund from 1.66% to 3.53%.  Click HERE for more information about the bill.
  • House Bill 74, titled “Prohibit leaving junk watercraft or motor uncovered on property.”  The bill would allow a sheriff, chief of police, highway patrol officer, or township trustee to send notice to a landowner to remove a junk vessel or outboard motor within 10 days.  The prohibition applies to junk vessels, including watercraft, and outboard motors that are three years or older, apparently inoperable, and with a fair market value of $1,500 or less.  Failure to cover, house, or remove the item in ten days could result in conviction of a misdemeanor.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

As more bills are introduced, and as these bills move along, stay tuned to the Ag Law Blog for updates.

By: Ellen Essman, Tuesday, January 29th, 2019

Nationwide, it seems as though “ag-gag” laws are being challenged and overturned left and right. “Ag-gag” is the term for laws that prevent undercover journalists, investigators, animal rights advocates, and other whistleblowers from secretly filming or recording at livestock facilities.  “Ag-gag” also describes laws which make it illegal for undercover persons to use deception to obtain employment at livestock facilities.  Many times, the laws were actually passed in response to under-cover investigations which illuminated conditions for animals raised at large industrial farms. Some of the videos and reports produced were questionable in nature—they either set-up the employees and the farms, or they were released without a broader context of farm operations. The laws were meant to protect the livestock industry from reporting that might be critical of their operations—obtained through deception and without context, or otherwise.    

Here in Ohio, we do not have an ag-gag law; instead we have the Ohio Livestock Care Standards, which are rules for the care of livestock in the state.  The rules are made by the Ohio Livestock Care Standards Board, which is made up of farmers, food safety experts, farmers’ organizations, veterinarians, the dean of the agriculture department from an Ohio college or university, consumers, and county humane society representatives. There are standards for the care of different species of livestock, as well as standards for euthanizing livestock, feeding and watering livestock, transporting livestock, etc. Violating the standards could lead to civil penalties.  Part of the thinking behind the Livestock Care Standards was that by bringing together farmers, veterinarians, and animal welfare representatives, among others, all sides would be represented, and therefore ag-gag laws and deceptive reporting could be avoided. The laws regarding the Ohio Livestock Care Standards can be found here, and the regulations here.

Kansas law challenged

 On December 4, 2018, the Animal Legal Defense Fund (ALDF), along with other animal and food safety organizations, filed a complaint against the state of Kansas, arguing that the state’s ag-gag law is unconstitutional on freedom of speech grounds. 

Kansas’ ag-gag law can be found in the Kansas Statutes, sections 47-1826, 47-1827, 47-1828 and 21-6604.    The law, among other things, makes it illegal, “without the effective consent of the owner,” to “enter an animal facility to take pictures by photograph, video camera or by any other means” with the “intent to damage the animal facility.”  The law also makes it illegal for someone to conceal themselves in order to record conditions or to damage the facility.  “Effective consent” cannot be obtained by “force, fraud, deception, duress, or threat,” meaning it is not permissible for an undercover whistleblower to apply for a job at an animal facility and work at the facility if they really intend to record and disseminate the conditions. 

 ALDF and their fellow plaintiffs argue that the Kansas ag-gag law violates the First Amendment guarantee of freedom of speech.  The plaintiffs argue that purpose of the Kansas law is to suppress certain kinds of political speech, namely the speech of animal rights activists and food safety organizations “because of their viewpoint and the content of their messages.”  The plaintiffs assert that “[t]he law ensures only [the livestock] industry’s side of the debate” is heard.  Furthermore, the plaintiffs argue that the Kansas law is overbroad in its attempt to limit freedom of speech, “prohibiti[ng] substantially more speech than the First Amendment permits.” The Kansas lawsuit is very similar to one in Iowa, where the judge recently overturned the state’s ag-gag statute.

Iowa law overturned

On January 9, 2019, James E. Gritzner, a U.S. District Court judge in the Southern District of Iowa found Iowa’s ag-gag law to be unconstitutional on First Amendment grounds.  Like the complaint in Kansas, this lawsuit was initiated by ALDF and other groups against the state of Iowa.  Gritzner’s decision is available here

Iowa’s law, which, as of this writing is still available here, makes it a crime to “[o]btain[] access to an agricultural production facility by false pretenses,” and/or “[m]ake[] a false statement or representation as part of an application or agreement to be employed at an agricultural production facility, if the person knows the statement to be false, and makes the statement with an intent to commit an act not authorized by the owner of the agricultural production facility, knowing that the act is not authorized.”

Much like the Kansas lawsuit discussed above, the plaintiffs in this case argued that Iowa’s law was content-based, viewpoint-based, and overbroad, and thus violated the First Amendment right to free speech.  Judge Gritzner agreed. 

Judge Gritzner used precedent to explain that “a free speech challenge proceeds in three stages. First, the Court resolves whether the challenged statute implicates protected speech.  If it does, the Court determines which level of scrutiny applies. Then, the Court applies the appropriate scrutiny and confirms whether the statute satisfies the applicable standard.”

 In this case, Gritzner found that the speech being implicated, “false statements and misrepresentations,” was protected speech, citing the Supreme Court to make his point: “one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”  In other words, even though the protected speech in this case consists of false statements, such speech is still protected under certain circumstances. 

Secondly, Judge Gritzner weighed in on the issue of scrutiny.  Here, it was a question of whether to apply strict scrutiny, which the plaintiffs argued should apply, or intermediate scrutiny, which the defendants favored. Strict scrutiny requires that the challenged law deals with a compelling state interest, and that the law is narrowly tailored to accomplish that interest. Intermediate scrutiny is a step down from strict scrutiny; it requires the law to serve an important government objective, and to be substantially related to realizing that objective.  Gritzner reasoned that it didn’t matter which level of scrutiny applied, because the Iowa law did not pass either one of the scrutiny tests.  

Finally, Gritzner explained why the Iowa statute did not satisfy either scrutiny standard.  Here, the state of Iowa argued that the law was meant to protect the “state’s interests of private property and biosecurity.” Judge Gritzner noted that private property and biosecurity were not the only reasons for the statute—at least one state senator had been quoted as saying that the bill was meant to stop groups from giving “the agriculture industry a bad name.” In addition, Gritzner reasoned that these interests were not “compelling,” pointing to case law that found similar interests—protection to animals, people, and property—did not fall under the “compelling” category.  Furthermore, Gritzner found that the statute was not “narrowly tailored,” because the language was not “actually necessary to protect perceived harms to property and biosecurity.” In other words, Gritzner thought it was a stretch to believe that someone giving a false statement or misrepresentation in order to access or become employed by an agricultural production facility is really related to property damage or biological harm.  Gritzner also pointed out that Iowa has protected against such harms elsewhere in its statutes in “content neutral” language that does not affect freedom of speech. The judge did not spend much time discussing intermediate scrutiny, instead he explained that the Iowa law is simply too broad, harm is unlikely, and the need to prohibit the lies is small, which can be interpreted to mean that the law does not serve an important government objective. 

Future not looking good for ag-gag laws

Several other states— including Idaho, Missouri, Montana, North Carolina, North Dakota, and Utah, have passed ag-gag laws similar to the laws in Kansas and Iowa.  However, the laws have also been overturned in several states. In January 2018, the Ninth Circuit Court of Appeals determined most of Idaho’s ag-gag law violated the First Amendment.  A federal district court in Utah also struck down Utah’s ag-gag law for violating freedom of speech.  A similar lawsuit against a North Carolina law is also in progress. The North Carolina lawsuit will be an interesting one to watch since the statute applies to other property owners, not just those involved in agriculture.  Time will tell whether the remaining state ag-gag laws meet constitutional muster.  Stay tuned to the Ag Law Blog for any future developments. 

Posted In: Animals
Tags: ag-gag, Ohio livestock care standards
Comments: 0
By: Evin Bachelor, Friday, January 18th, 2019

We are full steam ahead in 2019, and so far we have held to our new year’s resolutions.  However, we want to take a quick look in the rearview mirror.  Ohio legislators passed a number of bills in 2018 that affect Ohio agriculture.  They range from multi-parcel auction laws to broadband grants, and oil & gas tax exemptions to hunting licenses.  Here are some highlights of bills that the Ohio General Assembly passed and former Governor Kasich signed in 2018.

  • House Bill 500, titled “Change township law.”  As mentioned in a previous blog post, the Ohio General Assembly made a number of generally minor changes to Ohio’s township laws with House Bill 500.  The changes included, among other things, requiring a board of township trustees to select a chairperson annually, modifying how vacating township roads and name changes are carried out, allowing fees for appealing a zoning board decision, clarifying how a board can suspend a member of a zoning commission or board of appeals, and removing the requirement for limited home rule townships to submit a zoning amendment or resolution to a planning commission.  To learn about more of the changes that were made, visit the Ohio General Assembly’s H.B. 500 webpage here.
  • House Bill 480, titled “Establish requirements for multi-parcel auctions.”  The Ohio Department of Agriculture regulates auctions, and H.B. 480 gave ODA authority to regulate a new classification of auctions: the multi-parcel auction.  Revised Code § 4707.01(Q) will define these as “any auction of real or personal property in which multiple parcels or lots are offered for sale in various amalgamations, including as individual parcels or lots, combinations of parcels or lots, and all parcels or lots as a whole.”  For more information, visit the Ohio General Assembly’s H.B. 480 webpage here.
  • House Bill 522, titled “Allow outdoor refreshment area to include F permit holders.”  A municipality or township may create a “designated outdoor refreshment area” where people may walk around the area with their opened beer or liquor.  Previously, only holders of certain D-class permits (bars, restaurants, and clubs) and A-class permits (alcohol manufacturers) could allow their patrons to partake in a designated open area.  H.B. 522 will allow holders of an F-class liquor permit to also allow their patrons to roam in the designated area with an open container.  F-class liquor permits are for festival-type events of a short duration.  However, holders of either permits D-6 (allowing Sunday sales) or D-8 (allowing sales of growlers of beer or of tasting samples) will no longer be eligible for the open container exception.  For more information, visit the Ohio General Assembly’s H.B. 522 webpage, here.
  • Senate Bill 51, titled “Facilitate Lake Erie shoreline improvement.”  As mentioned in a previous blog post, the primary purpose of Senate Bill 51 was to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district.  S.B. 51 also instructed the Ohio Department of Agriculture (“ODA”) to establish programs to assist in phosphorous reduction in the Western Lake Erie Basin.  This adds to the previous instructions given to ODA in S.B. 299 regarding the Soil and Water Phosphorous Program.  S.B. 51 further provided funding for a number of projects, ranging from flood mitigation to MLS stadium construction.  For more information, visit the Ohio General Assembly’s S.B. 51 webpage here.
  • Senate Bill 299, titled “Finance projects for protection of Lake Erie and its basin.”  Largely an appropriations bill to fund projects, S.B. 299 primarily targeted water quality projects and research.  ODA received an additional $3.5 million to support county soil and water conservation districts in the Western Lake Erie Basin, plus $20 million to establish water quality programs under a Soil and Water Phosphorous Program.  Further, the Ohio Department of Natural Resources (“ODNR”) received an additional $10 million to support projects that divert dredging materials from Lake Erie.  Stone Laboratory, a sea grant research program, received an additional $2.65 million.  The bill also created a mentorship program called OhioCorps, and set aside money for grants to promote broadband internet access.  For more information, visit the Ohio General Assembly’s S.B. 299 webpage here.
  • Senate Bill 257, titled “Changes to hunting and fishing laws.”  ODNR may now offer multi-year and lifetime hunting and fishing licenses to Ohio residents under S.B. 257.  Further, the bill creates a resident apprentice senior hunting license and an apprentice senior fur taker permit, and removes the statutory limits on the number of these permits a person may purchase.  The bill also creates a permit for a Lake Erie Sport Fishing District, which may be issued to nonresidents to fish in the portions of Lake Erie and connected waters under Ohio’s control.  For more information, visit the Ohio General Assembly’s S.B. 257 webpage here.
  • House Bill 225, titled “Regards plugging idle or orphaned wells.”  H.B. 225 creates a reporting system where a landowner may notify ODNR’s Division of Oil and Gas Resources about idle and orphaned oil or gas wells.  Upon notification, the Division must inspect the well within 30 days.  After the inspection, the Division must determine the priority for plugging the well, and may contract with a third party to plug the well.  To fund this, the bill increases appropriations to the Oil and Gas Well Fund, and increases the portion of the fund that must go to plugging oil and gas wells.  For more information, visit the Ohio General Assembly’s H.B. 225 webpage here.
  • House Bill 430, titled “Expand sales tax exemption for oil and gas production property.”  Certain goods and services directly used for oil and gas production have been exempted from sales and use taxes, and H.B. 430 clarifies what does and does not qualify for the exemption.  Additionally, property used to control water pollution may qualify for the property, sales, and use tax exemptions if approved by ODNR as a qualifying property.  H.B. 430 also extends the moratorium on licenses and transfers of licenses for fireworks manufacturers and wholesalers.  For more information, visit the Ohio General Assembly’s H.B. 430 webpage here.
  • Senate Bill 229, titled “Modify Board of Pharmacy and controlled substances laws.”  The Farm Bill’s opening the door for industrial hemp at the federal level has led to a lot of conversations about controlled substances, which we addressed in a previous blog post.  Once its changes take effect, Ohio’s S.B. 229 will remove the controlled substances schedules from the Ohio Revised Code, which involve the well-known numbering system of schedules I, II, III, IV, and V.  Instead, the Ohio Board of Pharmacy will have rulemaking authority to create schedules and classify drugs and compounds.  Prior to the removal of the schedules from the Revised Code, the Board of Pharmacy must create the new schedules by rule.  S.B. 229 also mentions cannabidiols, and lists them as schedule V under the current system if the specific cannabidiol drug has approval from the Food and Drug Administration.  For more information, visit the Ohio General Assembly’s S.B. 229 webpage here.

The end of 2018 effectively marked the end of the 132nd Ohio General Assembly, and 2019 marks the start of the 133rd Ohio General Assembly.  Any pending bills from the 132nd General Assembly that were not passed will have to be reintroduced if legislators wish to proceed with those bills.  Stay tuned to the Ag Law Blog for legal updates affecting agriculture from the Ohio General Assembly.

By: Peggy Kirk Hall, Tuesday, December 04th, 2018

Written by: Ellen Essman, Sr. Research Associate, and Evin Bachelor, Law Fellow

Here’s our latest gathering of agricultural law news that you may want to know:

GIPSA as we know it is no more.  A rule was released November 29, 2018 by the USDA as part of the Trump administration’s ongoing efforts to reorganize the agency.  Of particular note, the rule, which was published in the Federal Register, eliminates the Grain Inspection, Packers and Stockyards Administration (GIPSA) as a “stand-alone agency.”  According to the GIPSA website (which is currently still available here), the agency “facilitate[d] the marketing of livestock, poultry, meat, cereals, oilseeds, and related agricultural products, and promote[d] fair and competitive trading practices for the overall benefit of consumers and American agriculture.”  The new administrative rule relocates GIPSA responsibilities to the Agricultural Marketing Service (AMS) Administrator.  The change is not without controversy, as some farmers and agricultural groups argue that the protection of farmers through fair trading practices is antithetical to AMS, an agency responsible for marketing and promoting commodities.  The rule is available here.

Supreme Court considers when habitat is “critical habitat” under the Endangered Species Act.  The Supreme Court of the United States ruled in favor of private landowners when it recently determined that protected "critical habitat" for an endangered species must be habitat in which the species could actually survive.  The Court's decision in Weyerhaeuser Co. v. United States Fish and Wildlife Service et al  involved the dusky gopher frog, an endangered species that once lived throughout the coastal regions of Alabama, Louisiana, and Mississippi.  Some of the habitat deemed by the U.S. Fish & Wildlife Service to be protected "critical habitat" for the frog was not actually occupied by the frog, and was instead being used for commercial timber production.  Weyerhaeuser and other affected landowners brought suit, claiming that the land couldn't be critical habitat because the frog could not survive there without significant human intervention, such as intensive tree planting.  The Court agreed that critical habitat "cannot include areas where the species could not currently survive."  Weyerhouser and other landowners had also challenged the agency's cost-benefit analysis for the critical habitat designation, but the Fifth Circuit Court of Appeals disagreed and stated that it had no power to review the FWS  analysis.   The Supreme Court disagreed, stating that federal courts can review an agency's economic impact analysis to determine whether the agency abused its discretion or was arbitrary and capricious.  With that guidance, the Supreme Court remanded the case back to the Fifth Circuit for further proceedings.  The Supreme Court’s decision is here.

A second judge finds that Trump’s WOTUS repeal was not procedurally sound.  Surprise, surprise, the WOTUS, or “waters of the United States” rule is in the news again.  In many previous blog posts, we have chronicled decisions on the ever-present WOTUS rule (search “WOTUS” in our search bar for our other posts).  Readers will recall that last February, the Trump administration published a new rule which was meant to repeal Obama’s WOTUS rule and replace it with the pre-2015 definition of WOTUS 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.  On August 16, 2018, a district court judge in South Carolina found that the Trump administration did not comply with the requirements of the Administrative Procedure Act (APA) when it enacted the February 6 rule.  Similarly, on November 26, 2018, Judge John Coughenour in the Western District of Washington found that “by restricting the content of the comments solicited and considered [about the February rule], the Agencies deprived the public of a meaningful opportunity to comment on relevant and significant issues in violation of the APA’s notice and comment requirements.”  Rulemaking that violates the APA is invalid.  Judge Coughenour’s full decision is available here.

Both the South Carolina and the Washington state district court decisions are applicable to the entire country.  As a result, one might think that the Obama WOTUS rule should be in effect nationwide.  However, it is important to remember that in some states, there are injunctions against carrying out Obama’s WOTUS rule.  This means that it cannot be carried out in those states, and that the pre-2015 rule is actually effective in those states.  EPA has a map depicting which version of the rule applies where.  Uncertainty and WOTUS seem to be synonymous these days.  The only thing we know for certain is that the WOTUS saga is not over, meaning things are likely to change again in the future.

Ohio Treasurer pioneers paying taxes with Bitcoin.  Any business operating in Ohio may now pay certain taxes to the state of Ohio using Bitcoin, as recently announced by outgoing Ohio Treasurer Josh Mandel.  The move makes Ohio the first state to accept Bitcoin as a form of tax payment.  The official press release expressed hopes that other cryptocurrencies could be used, but at this time only Bitcoin will be accepted.  Cryptocurrencies are said to be secure because they use blockchain, which is a digital register of transactions and information that is difficult to modify because changes to the register cannot be done by any single user.  The Treasurer’s Office has specified 23 different taxes that can be paid with cryptocurrencies, including: Commercial Activity Taxes (CAT), consumer’s use taxes, Interest on Lawyers Trust Accounts (IOLTA) taxes, Pass-Thru Entity (PTE) taxes, sales taxes, and more.  Paying with cryptocurrency is being accepted as an additional form of payment, as businesses can still pay with ACH credit, ACH debit, check, and money order.  However, the state will not keep the cryptocurrency, but instead will use a third party to cash out the Bitcoin and convert it into U.S. dollars before depositing them into the state’s account.  For more information, visit www.OhioCrypto.com or view the Treasurer’s Frequently Asked Questions page here.

Bayer prepares to bear with multiple jury trials over Monsanto’s glyphosate.  Bayer AG continues to battle more and more plaintiffs claiming that their health problems were caused as a direct result of Monsanto’s Roundup and glyphosate.  Another 600 plaintiffs have reportedly sued Bayer/Monsanto in the past two months since we last reported the number of lawsuits initiated with this argument.  Following the multi-billion dollar verdict in California state court late this summer, more jury trials are set to begin.  Over 620 cases have been filed in federal court, and the first case to reach a federal jury is now set for trial in San Francisco in February 2019.  Another California state court case has been fast-tracked to be heard in March 2019 because of the condition and age of the plaintiffs.  Yet another case is expected to be scheduled in Missouri state court for sometime later in 2019.  The cases largely depend upon a plaintiff’s ability to convince a jury that his or her cancer was more likely than not directly caused by glyphosate.  This question because controversial in 2015 when the United Nation’s World Health Organization released a report stating that the widely used herbicide is “probably carcinogenic to humans.”  However, the U.S. Environmental Protection Agency issued a release in 2017 saying that its own findings demonstrate that glyphosate is unlikely to be carcinogenic in humans.

Is this pumpkin pie made of pumpkin?  Thanksgiving dinner conversations often involve at least one debate for many families.  Prompted by recent coverage in news outlets like the Wall Street Journal, one of the topics this year was whether grandma’s pumpkin pie is made of pumpkin, and whether it should be.  At one end of the debate are those who say that pumpkin pie must be made from pumpkins, while others say that closely related squashes have a better flavor and consistency that make a pie taste the way a “pumpkin pie” should taste.  Central to this debate is the status of firm-shelled, golden-fleshed sweet squash, which currently makes up a large portion of the market for “canned pumpkin.”  The U.S. Food and Drug Administration (FDA) has a long-standing policy saying that labeling the golden-fleshed, sweet squash as “pumpkin” complies with the Food, Drug, and Cosmetic Act and the Fair Packaging and Labeling Act.  Since 1938, the FDA has “consistently advised canners that we would not initiate regulatory action solely because of their using the designation “pumpkin” or “canned pumpkin” on labels for articles prepared from golden-fleshed, sweet squash, or mixtures of such squash with field pumpkins.”  The FDA explains that allowing current labeling practice does not seem to mislead or deceive consumers.  While the FDA declines to take a stand on the issue, families are free to continue to debate which ingredients make for the best pumpkin pie.

By: Ellen Essman, Friday, November 16th, 2018

A few weeks ago we attended the American Agricultural Law Association’s (AALA) annual conference, which was held in Portland, Oregon this year. While we were there, we had the opportunity to learn about numerous topics related to agricultural law.  One such topic was presented by our colleague from the National Sea Grant Law Center, Amanda Nichols.  Nichols presented her research on state “right-to-farm” statutes and their applicability to aquaculture. 

What is aquaculture?

For those who don’t know, aquaculture is defined by the National Oceanic and Atmospheric Administration (NOAA) as “the breeding, rearing, and harvesting of fish, shellfish, plants, algae, and other organisms in all types of water environments.”  Thus, aquaculture is essentially the farming of aquatic species in freshwater and saltwater, in manmade and natural bodies of water.

 What are right-to-farm laws?

Right-to-farm laws are meant to protect agricultural operations against nuisance lawsuits brought by neighboring landowners complaining about smell, dust, noise, or other annoyances.  In terms of “traditional,” terrestrial farming, for example, right-to-farm laws could potentially protect against lawsuits claiming the spreading or accumulation of livestock manure is a nuisance to neighbors.  Every state in the U.S. has their own right-to-farm statute, and some of the statutes protect farming operations more completely than others do.  For example, Ohio’s right-to-farm language provides farmers with a complete defense to civil nuisance lawsuits when certain conditions are met.  On the other hand, neighboring Michigan and Pennsylvania’s statutes provide no such defenses. 

Where aquaculture and right-to-farm laws overlap

In her research on the topic of which states include protection of aquaculture operations in their right-to-farm laws, Nichols found that twenty-six states, including Ohio, “expressly include fish or aquaculture within the scope of their right-to-farm protections.” As a result, any right-to-farm protections to traditional agriculture, as well as any conditions agricultural operations must meet in order for the right-to-farm language to apply, would also extend to aquaculture in those twenty-six states.  Nichols found that one state, New Jersey, did “not mention aquaculture or fish expressly” but has adopted a manual for best management practices (BMPs) for aquaculture within the state, which shows the state’s “intent” to protect aquaculture from nuisance lawsuits.  

Ohio’s right-to-farm legislation

As mentioned above, Ohio’s right-to-farm legislation “expressly include[s]” aquaculture.  It does so by defining “agricultural production” not only as “animal husbandry” or production of plants for “a commercial purpose,” but also as “commercial aquaculture” and “algaculture meaning the farming of algae.”

Ohio farmers, including those involved in aquaculture, have right-to-farm protection in two parts of the Ohio Revised Code (ORC).  ORC Chapter 929 establishes “agricultural districts.”  Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor.  Certain requirements must be met in order for an application to be accepted.  Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality.  If the application is accepted, the land is placed in an agricultural district for five years.  The owner may submit a renewal application after that time is up.

Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits.  ORC 929.04 reads: 

In a civil action for nuisances involving agricultural activities, it is a complete defense if:

  1. The agricultural activities were conducted within an agricultural district;
  2. Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
  3. The plaintiff was not involved in agricultural production; and
  4. The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices. 

The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.”  Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.

Not only is Ohio’s right-to-farm legislation more forceful in its protection of agriculture than many other states, but it also explicitly includes aquaculture under that protection.  AALA gave us the chance to learn about this very interesting study of right-to-farm legislation as applies to aquaculture, which is an area of agriculture that many Ohioans might not necessarily think about.  If you are interested in learning more about state right-to-farm laws and aquaculture, the National Sea Grant Law Center’s report is available here

Posted In: Animals, Property
Tags: livestock, aquaculture, right-to-farm
Comments: 0

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