Crop Issues

Farm Office Team on Zoom Webinar
By: Jeffrey K. Lewis, Wednesday, July 14th, 2021

"Farm Office Live" returns this summer as an opportunity for you to get the latest outlook and updates on ag law, farm management, ag economics, farm business analysis, and other related issues.  Targeted to farmers and agri-business stakeholders, our specialists digest the latest news and issues and present it in an easy-to-understand format.

The live broadcast is presented monthly.  In months where two shows are scheduled, one will be held in the morning and one in the evening.  Each session is recorded and posted on the OSU Extension Farm Office YouTube channel for later viewing.

Current Schedule:

July 23, 2021 10:00 - 11:30 am  December 17, 2021 10:00 - 11:30 am 
August 27, 2021 10:00 - 11:30 am  January 19, 2022 7:00 - 8:30 pm 
September 23, 2021 10:00 - 11:30 am  January 21, 2022 10:00 - 11:30 am 
October 13, 2021 7:00 - 8:30 pm  Februrary 16, 2022 7:00 - 8:30 pm 
October 15, 2021 10:00 - 11:30 am  February 18, 2022 10:00 - 11:30 am 
November 17, 2021 7:00 - 8:30 pm  March 16, 2022 7:00 - 8:30 pm 
November 19, 2021 10:00 - 11:30 am  March 18, 2022  10:00 - 11:30 am 
December 15, 2021 7:00 - 8:30 pm  April 20, 2022 7:00 - 8:30 pm 

Topics we will discuss in upcoming webinars include:

  • Coronavirus Food Assitance Program (CFAP) 
  • Legislative Proposals and Accompanying Tax Provisions
  • Outlook on Crop Input Costs and Profit Margins 
  • Outlook on Cropland Values and Cash Rents 
  • Tax Issues That May Impact Farm Businesses 
  • Legal Trends
  • Legislative Updates
  • Farm Business Management and Analysis
  • Farm Succession & Estate Planning
 

To register or to view a previous "Farm Office Live," please visit https://go.osu.edu/farmofficelive. You will receive a reminder with your personal link to join each month. 

The Farm Office is a one-stop shop for navigating the legal and economic challenges of agricultural production. For more information visit https://farmoffice.osu.edu or contact Julie Strawser at strawser.35@osu.edu or call 614.292.2433

Poison hemlock in field
By: Peggy Kirk Hall, Thursday, June 24th, 2021

Poison hemlock and Canada thistle are making unwelcome appearances across Ohio, and that raises the need to talk about Ohio’s noxious weeds law.  The law provides mechanisms for dealing with noxious weeds—those weeds that can cause harm to humans, animals, and ecosystems.  Location matters when we talk about noxious weeds.  That’s because Ohio law provides different procedures for dealing with noxious weeds depending upon where we find the weeds.  The law addresses the weeds on Ohio's noxious weeds list in these four locations:

  1. Along roadways and railroads
  2. Along partition fence rows
  3. On private land beyond the fence row
  4. On park lands

Along roadways and railroads.  The first window just closed for mandatory mowing of noxious weeds along county and township roads.  Ohio law requires counties, townships, and municipalities to destroy all noxious weeds, brush, briers, burrs, and vines growing along roads and streets.  There are two mandated time windows for doing so:  between June 1 and 20 and between August 1 and 20.  If necessary, a cutting must also occur between September 1 and 20, or at any other time when necessary to prevent or eliminate a safety hazard.  Railroad and toll road operators have the same legal duty, and if they fail to do so, a township may cause the removal and bring a civil action to recover for removal costs.

Along partition fence rows.  Landowners in unincorporated areas of the state have a duty to cut or destroy noxious weeds and brush within four feet of a partition fence, and the law allows a neighbor to request a clearing of the fence row if a landowner hasn’t done so.  If a landowner doesn’t clear the fence row within ten days of receiving a request to clear from the neighbor, the neighbor may present a complaint to the township trustees.  The trustees must visit the property and determine whether there is a need to remove noxious weeds and if so, may order the removal and charge removal costs against the landowner’s property tax bill.  

On private land beyond the fence row.  A written notice to the township trustees that noxious weeds are growing on private land beyond the fence row will trigger another township trustee process.  The trustees must notify the landowner to destroy the weeds or show why there is no reason to do so.  If the landowner doesn’t comply within five days of receiving the notice, the trustees may arrange for destruction of the weeds.  The township may assess the costs against the landowner’s property tax bill.

On park lands.  If the township receives notice that noxious weeds are growing on park land or land owned by the Ohio Department of Natural Resources, the trustees must notify the OSU Extension Educator in the county.  Within five days, the Educator must meet with a representative of the ODNR or park land, consider ways to deal with the noxious weed issue, and share findings and recommendations with the trustees.

Even with noxious laws in place, we recommend talking before taking legal action.   If you’re worried about a noxious weed problem in your area, have a talk with the responsible party first.  Maybe the party isn’t aware of the noxious weeds, will take steps to address the problem, or has already done so.  But if talking doesn’t work, Ohio law offers a way to ensure removal of the noxious weeds before they become a bigger problem.

We explain the noxious weed laws in more detail in our law bulletin, Ohio’s Noxious Weed Laws.  We’ve also recently illustrated the procedures in a new law bulletin, Legal Procedures for Dealing with Noxious Weeds in Ohio’s Rural Areas.  Also see the OSU Agronomy Team’s recent article about poison hemlock in the latest edition of C.O.R.N, available through this link.

Close up of beef cow.
By: Jeffrey K. Lewis, Friday, June 04th, 2021

As planting season draws to a close, new agricultural issues are sprouting up across the country.  This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry. 

Pork processing plants told to hold their horses.  The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds.  On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits.  The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers.  The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected.  Proponents of the new rule claim that the rule was well researched and was years in the making.  Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions.  The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling.  All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021. 

Beef under (cyber)attack.  Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market.  JBS plants in Australia and Canada were also affected.  The reason for the shut down?  Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware.  The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation.  The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next.  As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible.  The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks. 

Texas has a new tool to help combat feral hogs.  Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state.  HogStop, a new hog contraceptive bait enters the market this week.  HogStop is being released in hopes of curbing the growth of the feral hog population.  According to recent reports, the feral hog population in Texas has grown to over 2.6 million.  It is estimated that the feral hogs in Texas have been responsible for $52 million in damage.  HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce.  HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product.  Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers.  More information about HogStop can be found at their website at www.hogstop.com

USDA announces premium benefit for cover crops.  Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring.  The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit.  However, farmers cannot receive more than the amount of their insurance premium owed.  Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578).  All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit.  To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021.  To file the form, farmers must contact and make an appointment with their local USDA Service Center.  More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.

Federal court vacates prior administration’s small refinery exemptions.  The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA.  The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review.  The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.  

Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations.  A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA.  According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act.  The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping.  The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures.  The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.  

Crop sprayer on farm field
By: Peggy Kirk Hall, Wednesday, June 02nd, 2021

It’s been a busy spring for legal developments in pesticides and insecticides.  Our last article summarized recent activity surrounding dicamba products.  In today’s post we cover legal activity on glyphosate and chlorpyrifos.   

Roundup award.  The Ninth Circuit Court of Appeals dealt another loss to Monsanto (now Bayer) on May 14, 2021, when the court upheld a $25.3 million award against the company in Hardeman v. Monsanto.   The lower court’s decision awarded damages for personal injuries to plaintiff Edward Hardeman due to Monsanto’s knowledge and failure to warn him of the risk of non-Hodgkin lymphoma from Roundup exposure.  Monsanto argued unsuccessfully that the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) preempted the plaintiff’s claim that California’s Proposition 65 law required Monsanto to include a warning about Roundup’s carcinogenic risks on its label.  That requirement, according to Monsanto, conflicted with FIFRA because the EPA had determined via a letter that a cancer warning would be considered “false and misleading” under FIFRA. The Ninth Circuit disagreed that the EPA letter preempted the California requirements.

The Court of Appeals also held that the trial court did not abuse its discretion in allowing the plaintiff’s expert testimony.  Monsanto had challenged testimony from a pathologist whom it alleged was not qualified to speak as an expert.  But the court agreed that the witness testimony met the standard that expert opinions be “reliably based” on epidemiological evidence.

Monsanto also challenged the damages themselves.  The award in Hardeman included $20 million in punitive damages that the district court reduced from $75 million originally awarded by the jury.  While $75 million seemed “grossly excessive,” the appellate court reasoned, $20 million did not, especially considering Monsanto’s reprehensibility, because evidence of the carcinogenic risk of glyphosate was knowable by Monsanto. 

Roundup settlement.  In a second Roundup case, a California district court last week rejected a motion to approve a $2 billion settlement by Monsanto (now Bayer) to a proposed class of users exposed to Roundup or diagnosed with non-Hodgkin lymphoma who have not yet filed lawsuits.  The offer by Bayer in Ramirez, et al. v. Monsanto Co. included legal services, compensation, research and assistance with non-Hodgkin lymphoma diagnosis and treatment, and changes on the Roundup label advising users of a link to non-Hodgkin lymphoma, but would require class members to waive their right to sue for punitive damages if they contract non-Hodgkin lymphoma and stipulate to the opinion of a seven-member science panel about whether Roundup causes non-Hodgkin lymphoma. 

The judge determined that the settlement would accomplish a lot for Bayer by reducing its litigation and settlement exposure, but it would greatly diminish the future settlement value of claims and “would accomplish far less for the Roundup users who have not been diagnosed with NHL (non-Hodgkin lymphoma)—and not nearly as much as the attorneys pushing this deal contend.”   The court also determined that the benefits of the medical assistance and compensation components of the settlement, to last for four years, were greatly exaggerated and vastly overstated.  The proposed stipulation to a science panel also received the court’s criticism. “The reason Monsanto wants a science panel so badly is that the company has lost the “battle of the experts” in three trials,” the court stated.  Concluding that “mere tweaks cannot salvage the agreement,” the court denied the motion for preliminary approval and advised that a new motion would be required if the parties could reach a settlement that reasonably protects the interest of Roundup users not yet diagnosed with non-Hodgkin lymphoma.

Bayer responded to the court’s rejection immediately with a “five-point plan to effectively address potential future Roundup claims.”  The plan includes a new website with scientific studies relevant to Roundup safety; engaging partners to discuss the future of glyphosate-based producers in the U.S. lawn and garden market; alternative solutions for addressing Roundup claims including the possible use of an independent scientific advisory panel; reassessment of ongoing efforts to settle existing claims; and continuing current cases on appeal.

Chlorpyrifos.  The insecticide chlorpyrifos also had its share of legal attention this spring. Chlorpyrifos was first registered back in 1965 by Dow Chemical but its use has dropped somewhat since then. Its largest producer now is Corteva, who announced in 2020 that it would end production of its Lorsban chlorpyrifos product in 2021.  That’s good timing according to the strongly worded decision from the Ninth Circuit Court of Appeals, which ruled in late April that the EPA must either revoke or modify all food residue tolerances for chlorpyrifos within sixty days. 

The plaintiffs in the case of League of United Latin American Citizens v. Regan originally requested a review of the tolerances in 2007 based on the Federal Food, Drug and Cosmetic Act (FFDCA), which addresses pesticide residues in or on a food.  FFDCA requires EPA to establish or continue a tolerance level for food pesticide residues only if the tolerance is safe and must modify or rescind a tolerance level that is not safe.  Plaintiffs claimed the tolerances for chlorpyrifos are not safe based upon evidence of neurotoxic effects of the pesticide on children.  They asked the EPA to modify or rescind the tolerances.  The EPA denied the request, although that decision came ten years later in 2017 after the agency repeatedly refused to make a decision on the safety of the product.  The Obama Administration had announced that it would ban chlorpyrifos, but the Trump Administration reversed that decision in 2017.

Plaintiffs objected to the EPA’s decision not to change or revoke chlorpyrifos tolerance, arguing that the agency should have first made a scientific finding on the safety of the product.  The EPA again rejected the argument, which led to the Ninth Circuit’s recent review.  The Ninth Circuit concluded that the EPA had wrongfully denied the petition, as it contained sufficient evidence indicating that a review of the chlorpyrifos tolerance levels was necessary.  The EPA’s denial of the petition for review was “arbitrary and capricious,” according to the court.  “The EPA has sought to evade, through one delaying tactic after another, its plain statutory duties,” the court stated. 

More to come.  While the spring held many legal developments in pesticide law, the rest of the year will see more decisions.  The Roundup litigation is far from over, and the same can be said for dicamba.  How will the EPA under the new administration handle pesticide review and registration, and the court's order to address chlorpyrifos tolerances?  Watch here for these and other legal issues with pesticides that will outlive the spring.

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Equipment spraying pesticides or herbicides on farm field
By: Peggy Kirk Hall, Tuesday, June 01st, 2021

Spring is a common time for farmers to deal with pesticides and insecticides, but this spring the legal system has also been busy with pesticides and insecticides.  Important legal developments with dicamba, glyphosate, and chlorpyrifos raise questions about the future of the products, with proponents on both sides pushing for and against their continued use.  In today’s post, we summarize legal activity concerning dicamba.  Part 2 to this series will cover recent developments with Roundup.

Dicamba registration lawsuits.  In April, the federal courts resumed two cases filed late last year that challenge the registration and label of dicamba products made by Bayer, BSF and Syngenta.   The cases had been on hold since February due to the change to the Biden Administration and its EPA leadership.   Center for Biological Diversity v. EPA, in federal district court in Arizona, claims that the 2020 registration of the products should not have been granted because the registration fails to meet the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) standard that a pesticide may not cause “unreasonable adverse effects” to the environment. Relief requested by the plaintiffs includes overturning the registration approvals and also ordering EPA to officially reverse via rulemaking its long-standing policy to allow states to impose local restrictions on pesticide registrations under FIFRA’s Section 24(C).   

In the D.C. district court, American Soybean Association v EPA takes the opposite approach and argues that the EPA exceeded its duties under FIFRA by imposing application cutoff dates of June 30 for soybeans and July 30 for cotton and establishing 310-foot and 240-foot buffer zones for certain endangered species.  The plaintiffs in that suit want the court to remove the cutoff dates and buffer restrictions from the approved dicamba labels.  Manufacturers Bayer, BASF, and Syngenta have intervened in the cases, which both now await responses from the EPA.

Two additional challenges to the dicamba 2020 label approval were consolidated for review to be heard together by the D.C. Circuit Court of Appeals and now await the court’s decision.  National Family Farm Coalition v. EPA originally filed in the Ninth Circuit Court of Appeals,  argues that EPA failed to support its conclusion of “no unreasonable adverse effects” and did not ensure that endangered species and critical habitat would not be jeopardized by approved dicamba use.  On the flip side, American Soybean Association v. EPA alleges that the 2020 label cutoff dates are too restrictive and buffer requirements are too large, which exceeds the authority granted EPA in FIFRA and the Endangered Species Act.  The EPA has filed a motion to dismiss the cases but the plaintiffs have asked to be returned to the Ninth Circuit. 

Bader Farms Appeal.  The$265 jury verdict awarded last year to Bader Farms, which successfully argued that Monsanto was responsible for harm to its peach farms resulting from dicamba drift, is on appeal before the Eighth Circuit Court of Appeals.  Monsanto filed its brief on appeal in March, arguing that the verdict should be reversed for several reasons:  because the court had not required Bader Farms to prove that Monsanto had manufactured or sold the herbicides responsible for the damages, which could have resulted from third party illegal uses of herbicides; because the damages were based on “speculative lost profits”; and because the $250 million award of punitive damages violated state law in Missouri.

Office of Inspector General Report.  The EPA’s Office of the Inspector General (OIG), also played a role in recent dicamba developments.  The OIG is an independent office within the EPA that audits, investigates and evaluates the EPA.  Just last week, the OIG issued a report on EPA’s decision in 2018 to conditionally register dicamba products, allowing them to be used during the 2019 and 2020 growing seasons.  That decision by EPA ultimately led to a legal challenge by environmental groups, a holding by the Ninth Circuit Court of Appeals that the EPA violated FIFRA in approving the registrations, and a controversial order ceasing use of the dicamba products.  The OIG evaluated the EPA’s registration decision making process for the dicamba registration.  The title to its report, “EPA Deviated from Typical Procedures in Its 2018 Dicamba Pesticide Registration Decision” is telling of the OIG’s conclusions.

OIG determined that EPA had “varied from typical operating procedures” in several ways.  The EPA did not conduct the required internal peer reviews of scientific documents created to support the dicamba decision.  Senior leaders in the EPA’s Office of Chemical Safety and Pollution Prevention were “more involved” in the dicamba decision than in other pesticide registration decisions, resulting in senior-level changes to or omissions from scientific analyses to support policy decisions.  EPA staff were “constrained or muted in sharing their scientific integrity concerns” on the dicamba registrations. The result of these atypical operating procedures by the EPA, according to the OIG, was substantial understatement or lack of acknowledgement of dicamba risks and the eventual decision by the Ninth Circuit to vacate the registrations.

The OIG recommended three actions the EPA should take in response to the report:  requiring senior managers or policy makers to document changes or alterations to scientific opinions, analyses, and conclusions in interim and final pesticide registration decisions along with their basis for changes or alterations; requiring an assistant administrator-level verification statement that Scientific Integrity Policy requirements were reviewed and adhered to during pesticide registration decisions; and conducting annual training for staff and senior managers and policy makers to promote a culture of scientific integrity and affirm commitment to the Scientific Integrity Policy.   The EPA had already taken action on the OIG’s first and third recommendations but has not resolved the second. 

Will the OIG Report affect ongoing litigation on dicamba, or lead to additional lawsuits?  That’s a critical question without an immediate answer, and one to keep an eye on beyond this spring.

To read more about legal issues with dicamba, visit our partner, The National Agricultural Law Center and its excellent series on "The Deal with Dicamba."

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Posted In: Crop Issues, Environmental, Food
Tags: dicamba, EPA, FIFRA, Bader Farms
Comments: 0
Spraying applying pesticides to farm field
By: Peggy Kirk Hall, Wednesday, May 12th, 2021

Pesticide drift is a risk many farmers face.  Pesticides in the wrong place can injure unintended targets such as crops, trees and other vegetation, animals, and people, and can raise questions of liability for the misapplication. What should you do if you suspect pesticide drift?  Whether you’re on the sending or the receiving side of it, here’s a summary of what could happen after an incident of pesticide drift.

Documentation.  Many pieces of information are necessary to analyzing whether and why pesticide drift occurred and can be helpful to determining liability.  Documentation of an incident should include: 

  • Date, time, and location of the potential drift occurrence.
  • Weather conditions at the time of the occurrence, including temperature, wind speed, and wind direction.
  • Photographs of the site at the time of the possible drift.
  • Date, time, and description of any damages that become noticeable after the pesticide application.  Note that damage symptoms may not be visible for at least 7 days. 
  • Photographs of damages.  A series of photographs taken over several weeks can help document damages as they develop, and a phone or time stamp will ascertain the date and time of each photograph.
  • Identify of the applicator.
  • Notes of conversations between neighbors, investigators, the applicator, and others.

Ohio Department of Agriculture (ODA) investigation.   A person who believes drift occurred can file a pesticide complaint with the Pesticide Regulation Section of ODA, which has the authority to investigate an alleged pesticide drift situation and assess potential risks to human health, damages to crops and vegetation, and whether the applicator violated Ohio pesticide laws. 

If someone files a pesticide complaint, ODA’s investigation could include reviewing maps of the properties, visiting the site, talking with the person who filed the complaint, taking photographs, and collecting samples.  The agency might also seek a written statement from the complaining party and others aware of the occurrence.  The inspector next meets with the pesticide applicator to gather information about the application, such as pesticide applied, pesticide labels, mixing and spraying practices, and weather conditions. 

After reviewing a case, ODA submits an investigation report to the complaining party.  If a violation occurred, the agency takes enforcement action against the applicator in the form of a warning, civil penalty, license restriction, or criminal prosecution.  It could take months for ODA to complete the investigation and make an enforcement decision.  Note that an ODA investigation and decision does not address compensation to any harmed parties—that must come through other mechanisms.

Settlement.  It’s not uncommon for parties to agree between themselves on how to handle harm from a pesticide misapplication, especially if the damages are minor.  Settlement might include a direct payment for estimated losses of crops or other goods, replacement of vegetation, or remediation of the damaged area.  A well written settlement agreement can clarify the terms and prevent future liability issues from arising.

Insurance coverage.  An insurance policy can provide compensation for pesticide drift damages, but it’s important to ascertain whose insurance applies to the situation and whether there is coverage for the particular incident.  Many policies provide coverage for losses resulting from negligence or unintentional behaviors, such as drift resulting from an unexpected gust or an equipment malfunction.  Liability insurance held by the landowner, a tenant operator, or a custom applicator could cover the damages resulting from negligence.  

Some insurance policies will not cover certain intentional actions that could cause pesticide drift.  Failing to follow the label or applicable laws and regulations could lead to a loss of coverage, for example.  Additionally, a policy might contain a “pollution exclusion” that would deem pesticides and herbicides as “pollution” that is not covered by the policy.  Note that federal crop insurance policies typically are not applicable, as they do not cover crop losses resulting from pesticide drift.

Civil litigation.  Sometimes a pesticide drift situation can end in civil litigation between the applicator and those who claim harm from the application.  The most common legal claims for pesticide drift in Ohio are a negligence cause of action claiming that the applicator failed to use the required standard of care when applying the pesticides and a “negligence per se” action claiming that the applicator’s violation of pesticide laws caused the harm.  The harmed party might sue everyone involved with the land where the application took place, including a landowner, tenant operator, and custom applicator, leaving the parties to fight among themselves about who is liable.  Claimed damages might include compensation for lost crops, costs of restoration, differences in property value before and after the harm, and expenses for medical treatment.  If insurance hasn’t already been considered, it could arise in the litigation setting.

Pesticide drift is a risk that we hope won’t become a reality.  Many management strategies can reduce that risk--education, following label instructions, selecting the right nozzle for the job, calibrating spray equipment, spraying in appropriate weather conditions, adapting buffers for sensitive crops and animals on nearby properties, and more.  If the risk does become reality, both the applicator and the harmed party should be aware and prepared for what might happen next.

By: Peggy Kirk Hall, Thursday, February 18th, 2021

Ohio landowners have seen it before:  when the snow flies, so do the snowmobilers.   Landowners are forced to watch snowmobilers crossing their fields and driveways and cutting through woods and homesteads, without permission and apparently without concern for property damage.   Two common questions from landowners arise at this time:  what can I do about them, and will I be liable if there’s an accident?   While the answers aren’t always satisfactory to landowners, several Ohio laws try to address these two questions.

What can you do about snowmobilers on your land?

One possibility for dealing with unwanted snowmobilers is to call local law enforcement.  That might not get the results you’d like, given the difficulty of identifying and catching snowmobilers and limited law enforcement resources in rural areas.  Trail cameras, pictures, or other ways of verifying the sleds and riders might be helpful.  Look for the registration decal on the front of the sled, which allows tracking it to its owner.   Despite these challenges, there are two sections of Ohio law that provide for criminal actions against trespassing snowmobilers if you can apprehend them:

  • Ohio criminal trespass laws make it a fourth degree misdemeanor to knowingly or recklessly be on another’s land without permission or to fail to leave after seeing “no trespass” or similar signs of restricted access or being notified by an owner.  Committing this type of trespass while on a snowmobile doubles the fine to up to $500, and up to 30 days in jail is also possible.  The court could also award damages for harm to the landowner victim of the criminal trespass.   A second offense can result in impoundment of the title to the snowmobile. 
  • Ohio motor vehicle laws also address snowmobilers specifically.  The law prohibits a snowmobiler from operating on any private property or in a nursery or planting area without the permission of the landowner or tenant of the property.  The penalty for doing so is a fine of $50 to $500 and potential jail time of three to 30 days. Note that snowmobilers are also not allowed to operate on state highways, railroad tracks and railroad rights of way, and anywhere after sunset without required lighting.  The law does allow snowmobilers to drive on berms and shoulders of roads, across highways if done safely, and on county and township roads if permitted to do so by the county or township.

Another potential legal strategy is to bring a civil action against trespassing snowmobilers.  Again, that requires knowing who they are and proving that they were on your property.  A few laws that could apply are:

  • Ohio’s law on civil trespass is a court made law, and it requires showing that a person intentionally entered another’s land without permission and caused harm to the land.  If a snowmobiler harmed the property while trespassing, this type of claim allows a landowner to seek compensation for that harm.  Examples of harm that might arise include damaged fences, culverts, drives, and crops. 
  • If the snowmobiler behaved recklessly and caused damage, another law comes into play.  Ohio law prohibits a person from recklessly destroying or injuring vegetation on another’s land, which includes crops, trees, saplings, vines, and bushes.  “Recklessly” means with heedless indifference to the consequences of an act.    To punish the reckless behavior, the law awards compensation to the landowner for three times the value of the destroyed vegetation.  This law can be particularly helpful when the ground is not frozen and snowmobiling damages the crop beneath the snow.

Other than legal action, a few management practices might be helpful in deterring snowmobilers.  We’ve removed many of the old fences that used to fence in our farms, but fencing is an obvious although costly solution.   If you put up a fence, it should be noticeable and not just a thin wire or two.  Consider flagging the fence with neon markers.  Beyond fences, other actions can help mark property boundaries clearly.  No trespassing signs serve this purpose, but make sure they are easy to see when there’s snow, are visible from a distance, and are placed where snowmobilers might enter the property.  You may have other ways to restrict access to the area where snowmobilers enter, but be aware that you could be liable if you set up a “trap” or dangerous situation that harms a snowmobiler, discussed in the next section.

Will you be liable if there’s a snowmobile accident on your land?

Attorneys often prefer to answer a question with “it depends” but in this case, we could add “but probably not.”  Generally, Ohio law doesn’t favor making a landowner liable for harm that a trespasser suffers while trespassing.  But there are a few exceptions to the general rule:

  • One exception is if the landowner commits a willful, wanton, or reckless act that harms a trespasser.   Shooting at a snowmobiler is a good example, as is placing a single strand of barbed wire or thin wire across a drive or opening to “stop” snowmobilers.   Landowners could be liable for harm resulting from these and similar intentional acts that could harm a snowmobiler.
  • Another exception to non-liability is if a landowner knows or should know that a trespasser is in a “position of peril” and fails to take ordinary care to prevent harm from the perilous situation.  For example, if you know there’s a big hole in the middle of the field where snowmobilers always cross and you don’t mark it off so the snowmobilers can see it, you might be failing to protect them from a “position of peril.”  Remember, the landowner must be aware of the perilous situation and must fail to take any protective measures for this exception to apply.  Landowners don’t like knowing they can be liable to trespassers in such a situation, but the law expects us to protect people from harms we know of even if those people are trespassing.

The good news is that Ohio has a law that can make landowners completely immune from any liability for snowmobilers.  The Recreational User Statute applies to non-residential premises like farms and parks, and states that the owner or occupant of the premises has no duty to keep a “recreational user” safe and no liability for injuries caused to or by recreational users.   The catch, though, is that a recreational user is someone who has “permission” to be engaging in a recreational use on the property and is not paying for that use, unless the payment is through a leasing situation.   

The practical outcome of the Recreational User Statute is that it protects landowners only if the snowmobilers have permission to be snowmobiling on the property.  What if the snowmobilers never came to you for permission, or you don’t even know who they are in order to go and give them permission?  One court in Ohio dealt with this situation, and concluded that a landowner who “acquiesces” to recreational users and does not tell them to leave is in effect granting permission.  In that case, a snowmobiler who had snowmobiled across a farm for years without ever asking permission sued the landowners after wrecking in an area where the landowners had installed new drain tiles.  Because the landowners had never told the snowmobiler to leave the property, the court held that the landowners had indeed granted permission.   If other courts follow this reasoning, landowners have liability protection under the Recreational User Statute if they allow snowmobilers to use the property by way of not telling them to leave.

What solutions are we missing in Ohio?

There currently isn’t a perfect legal solution to the snowmobile problems many landowners are facing this winter.  Owners can secure and mark their properties, call the sheriff, file a legal action, and hope the Recreational User Statute protects them from liability.  But understandably, landowners may still get agitated and feel hopeless when they hear the snowmobiles coming. 

Are there solutions that could better address landowner concerns about snowmobilers?  After reviewing how other states have tackled snowmobile problems, it appears that our trespass laws are quite similar to other states.  Some states have a "purple paint" law that allows landowners to mark their boundaries with purple paint marks on trees and posts, making it easier to identify the boundaries.  Ohio has tried but failed to pass a purple paint law

A more noticeable difference between Ohio and other states is that Ohio has only 100 miles of groomed snowmobile trails, according to the American Council of Snowmobile Associations.  Compare that to 20,000 miles in Minnesota; 6,500 miles in Michigan; 6,000 miles in Pennsylvania and 2,500 in Illinois.  Could the lack of available snowmobile trails be a contributor to our problem in Ohio?

Some of the trails in other states are on public lands while others are a mix of public and private lands.  Several states work directly with private landowners to enhance their trail systems.  In Indiana, local snowmobile clubs maintain and monitor 200 miles of groomed trails that the state leases from private landowners.  Minnesota’s United Snowmobilers Association works with landowners who allow snowmobile trails on their property through a “Landowner Trail Permit” system.  Local snowmobile clubs maintain the trails and provide signage, and only registered snowmobilers may use the trails.  State law protects the landowners from liability for trail use.

Before the snow flies next year, maybe we can develop these and other new ideas to address the old problem of snowmobile trespassing in Ohio.   

USDA NAL and National Agricultural Law Center

Excessive water drainage across field
By: Peggy Kirk Hall, Wednesday, January 20th, 2021

Ohio’s “petition ditch laws” are at last receiving a major revision.  The Ohio General Assembly has passed H.B. 340, updating the laws that address the installation and maintenance of drainage works of improvement through the petition process.  Some of Ohio’s oldest laws, the drainage laws play a critical role in maintaining surface water drainage on Ohio lands but were in serious need of updating.

An updating process began over seven years ago with the Ohio Drainage Law Task Force convened by the County Commissioners Association of Ohio (CCAO).   CCAO charged the Task Force with the goals of clarifying ambiguous provisions in the law and embracing new technology and processes that would result in greater efficiencies, fewer misunderstandings and reduced legal costs for taxpayers.  Task Force members included county commissioners, county engineers and staff, county auditors, Soil and Water Conservation District professionals, Ohio Farm Bureau staff, and Ohio State University's Agricultural & Resource Law Program and other OSU faculty.  Rep. Bob Cupp sponsored the resulting H.B. 340, which received unanimous approval from both the House of Representatives and Senate.

Here are a few highlights of the legislation:

  • Mirroring the timeframes, deadlines, notices, and hearings and appeals procedures for petitions filed with the county engineer and with the county soil and water conservation district.
  • The use of technology may substitute for a physical view of a proposed drainage improvement site.
  • The minimum width of sod or seeded strips will be ten feet rather than four feet; maximum width remains at fifteen feet.
  • The entire amount of sod or seeded strips will be removed from the taxable valuation of property, rather than the current provision removing only land in excess of four feet.
  • Factors to consider for petition approval are the same for SWCD board of supervisors and county engineers, and include costs versus benefits of the improvement, whether improvement is necessary, conducive to public welfare, will improve water management and development and will aid lands in the area by promoting economic, industrial, environmental or social development.
  • Clarification that the lead county in a multi-county petition is the county in which a majority of the initial length of the proposed improvement would exist, and assignment of responsibilities to officials in the lead county.
  • The bond amount for county engineer petitions increases to $1,500 plus $5 for each parcel of land in excess of 200 parcels.
  • Additional guidance for factors to be considered when determining estimated assessments.
  • Current law allows county commissioners to repair an existing drainage improvement upon complaint of an assessed owner if the cost doesn’t exceed $4,000.  The new law increases that amount to $24,000 and allows payment of repair assessments in 10 semiannual installments rather than four.

We’re working with other Task Force members to prepare detailed explanations of the bill’s provisions and a guideline of the new procedures.  County engineers and SWCD offices will begin following the revised law on the bill’s effective date of March 18, 2021, just in time for Spring rains and drainage needs.

Go here to read H.B. 340. 

National Agriculture Library and National Agricultural Law Center

By: Peggy Kirk Hall, Tuesday, December 22nd, 2020

Just in time for Christmas, Congress delivered quite a package this morning by passing new COVID-19 relief legislation.  President Trump is expected to sign the bill soon.  Buried in the 5,593 pages of the legislation is an allocation of nearly $11.2 billion dollars to the USDA.   A large portion of the USDA funds will provide additional payments for agricultural producers under the Coronavirus Food Assistance Program (CFAP).   Benefits for food processors, energy producers and timber harvesters are also in the bill, as well as funding for several other USDA programs and studies.  We’ve categorized, compiled and summarized where the USDA funds are to go below.

Crops

  • Supplemental CFAP payments of $20 per eligible acre for the 2020 crop year, for eligible “price trigger crops,” which includes barley, corn, sorghum, soybeans, sunflowers, upland cotton and wheat, and eligible “flat rate crops,” which includes alfalfa, amaranth grain, buckwheat, canola, cotton, crambe, einkorn, emmer, flax, guar, hemp, indigo, industrial rice, kenaf, khorasan, millet, mustard, oats, peanuts, quinoa, rapeseed, rice, rice, sweet, rice, wild, rye, safflower, sesame, speltz, sugar beets, sugarcane, teff, and triticale but excludes hay, except alfalfa, and crops intended for grazing, green manure, or left standing.
  • $100 million in additional funding for the Specialty Crop Block Grant Program.

Livestock, poultry and dairy

  • Supplemental CFAP payments to livestock or poultry producers (excluding packers and live poultry dealers) for losses from depopulation that occurred due to insufficient processing access, based on 80% of the fair market value of depopulated livestock and poultry and including depopulation costs not already compensated under EQIP or state programs.
  • Supplemental CFAP payments to cattle producers for cattle in inventory from April 16 to May 14, 2020 according to different payment formulas for slaughter cattle, feeder cattle and all other cattle.
  • Supplemental Dairy Margin Coverage payments for eligible operations with a production history of less than 5 million pounds whenever the average actual dairy production margin for a month is less than the selected coverage level threshold, according to a specified formula.
  • $1 billion for payments to contract growers of livestock and poultry to cover not more than 80% of revenue losses from January 1 to December 22, 2020.
  • $20 million for the USDA to improve animal disease prevention and response capacity.
  • Establishment of a statutory trust via the Packers and Stockyards Act that requires a dealer with average annual purchases above $100,000 to hold cash purchases of livestock by the dealer in trust until full payment has been received by the cash seller of the livestock.

General payment provisions

  • In determining the amount of eligible sales for CFAP, USDA must include a producer’s crop insurance indemnities, non-insured crop disaster assistance payment and WHIP payments, and may allow a producer to substitute 2018 sales for 2019 sales.
  • USDA shall make additional payments under CFAP 1 and CFAP 2 to ensure that payments closely align with the calculated gross payment or revenue loses, but not to exceed the calculated gross payment or 80% of the loss.  For income determination, USDA shall consider income from agricultural sales, including gains, agricultural services, the sale of agricultural real estate, and prior year net operating loss carryforward.
  • USDA may take into account when making direct support payments price differentiation factors based on specialized varieties, local markets and farm practices such as certified organic production.

Marketing and processing

  • $100 million for grants under the Local Agriculture Market Program for COVID-19 impacts on local agriculture markets.  USDA may reduce and allow in-kind contributions for grant matching requirements.USDA may provide support to processors for losses of crops due to insufficient processing access.
  • $60 million for a grant program for meat and poultry slaughter and processing facilities seeking federal inspection status or eligibility for the Cooperative Interstate Shipment program to modernize facilities or equipment, comply with packaging, labeling, and safety requirements and develop food safety processes.
  • USDA must deliver a report on possible improvements to the Cooperative Interstate Shipment program that allows interstate shipments of meat and poultry products and on the availability and effectiveness of federal loan and grant programs for meat and poultry processing facilities and support for increasing processing capacity.
  • USDA may make recourse loans available to dairy product processors, packagers or merchandisers impacted by COVID-19.
  • Until September 30, 2021, USDA may extend the term of marketing assistance loans to 12 months.

Food purchases

  • $1.5 billion to purchase and distribute food and agricultural products to individuals in need, and for grants and loans to small and midsized food processors or distributors, seafood processing facilities, farmers’ markets, producers or other organizations for the purpose of responding to COVID, including for worker protections.  USDA must conduct a preliminary review to improve COVID-19 food purchasing, including the fairness of purchases and distribution.
  • $400 million for a Dairy Donation Program to reimburse dairy processors for purchasing and processing milk and partnering with non-profit organizations to develop donation and distribution plans for the processed dairy products. 

Timber and energy

  • $200 million for relief to timber harvesting and hauling businesses that experienced a loss of 10 percent or more in gross revenue from January 1 to December 1, 2020, as compared to the same period in 2019.
  • USDA may make payments for producers of advanced biofuel, biomass-based diesel, cellulosic biofuel, conventional biofuel or renewable fuel produced in the U.S. for unexpected market losses resulting from COVID-19.

Training and outreach

  • $75 million for the Farming Opportunities Training and Outreach Program for grants for beginning, socially disadvantaged and veteran farmers and ranchers impacted by COVID-19.  USDA may reduce and allow in-kind contributions for grant matching requirements and waive maximum grant amounts.

Farm stress

  • $28 million for grants to State departments of agriculture to expand or support stress assistance programs for agriculture-related occupations, not to exceed $500,000 per state.

Nutrition

  • $75 million for the Gus Schumacher Nutrition Incentive Program, and USDA may reduce matching grant requirements.

We’ll keep digging through the legislation to report on other agricultural provisions. Or readers may take a look at H.R. 133 here.  The USDA allocations we summarized are in Subtitle B, beginning on page 2,352. 

USDA NAL 

Barry Ward

Production costs for Ohio field crops are forecast to be slightly lower than last year with lower expenses for fertilizer, fuel and interest. Variable costs for corn in Ohio for 2021 are projected to range from $359 to $433 per acre depending on land productivity. Variable costs for 2021 Ohio soybeans are projected to range from $199 to $220 per acre. Wheat variable expenses for 2021 are projected to range from $162 to $191 per acre.

Grain prices currently used as assumptions in the 2021 crop enterprise budgets are $3.70/bushel for corn, $9.40/bushel for soybeans and $5.70/bushel for wheat. Projected returns above variable costs (contribution margin) range from $172 to $357 per acre for corn and $222 to $404 per acre for soybeans. Projected returns above variable costs for wheat range from $179 to $314 per acre.

Return to Land is a measure calculated to sometime assist in land rental and purchase decision making. The measure is calculated by starting with total receipts or revenue from the crop and subtracting all expenses except the land expense. Returns to Land for Ohio corn (Total receipts minus total costs except land cost) are projected to range from $11 to $184 per acre in 2021 depending on land production capabilities. Returns to land for Ohio soybeans are expected to range from $109 to $282 per acre depending on land production capabilities. Returns to land for wheat (not including straw or double-crop returns) are projected to range from $95 per acre to $222 per acre.

Total costs projected for trend line corn production in Ohio are estimated to be $761 per acre. This includes all variable costs as well as fixed costs (or overhead if you prefer) including machinery, labor, management and land costs. Fixed machinery costs of $75 per acre include depreciation, interest, insurance and housing. A land charge of $195 per acre is based on data from the Western Ohio Cropland Values and Cash Rents Survey Summary. Labor and management costs combined are calculated at $71 per acre. Details of budget assumptions and numbers can be found in footnotes included in each budget.

Total costs projected for trend line soybean production in Ohio are estimated to be $522 per acre. (Fixed machinery costs: $59 per acre, land charge: $195 per acre, labor and management costs combined: $45 per acre.)

Total costs projected for trend line wheat production in Ohio are estimated to be $459 per acre. (Fixed machinery costs: $34 per acre, land charge: $195 per acre, labor and management costs combined: $43 per acre.)

Budget projections for commodity crops for 2021 have been completed and posted to the Farm Office website: https://farmoffice.osu.edu/farm-mgt-tools/farm-budgets

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