Crop Issues

Ohio farm and rural road
By: Peggy Kirk Hall, Tuesday, September 20th, 2022

Did you know yellow grove bamboo is on Ohio’s “noxious weeds” list?  We’ve seen an increase in legal questions about bamboo, a plant that can cross property boundaries pretty quickly and create a neighbor dispute.  Weeds often cause neighbor issues, which is why Ohio has a set of noxious weed laws.  The laws aim to resolve problems around yellow grove bamboo and other species designated as “noxious weeds.”

The noxious weeds list

The Ohio legislature designated shatter cane and Russian thistle as noxious weeds years ago, then granted the Ohio Department of Agriculture (ODA) the authority to determine other noxious weeds that could be prohibited in Ohio.  Since that time, the noxious weed list has grown to include 31 weed species.   Two of the species, yellow grove bamboo and grapevines, are noxious weeds only if not managed in a certain way.  The list includes the following:

  • Shatter Cane
  • Kudzu
  • Russian Thistle
  • Japanese knotweed
  • Johnsongrass
  • Field bindweed
  • Wild parsnip
  • Heart-podded hoary cress
  • Canada thistle
  • Hairy whitetop or ballcress
  • Poison hemlock
  • Perennial sowthistle
  • Cressleaf groundsel
  • Russian knapweed
  • Musk thistle
  • Leafy spurge
  • Purple loosestrife
  • Hedge bindweed
  • Mile-A-Minute Weed
  • Serrated tussock
  • Giant Hogweed
  • Columbus grass
  • Apple of Peru
  • Musk thistle
  • Marestail
  • Forage Kochia
  • Kochia
  • Water Hemp
  • Palmer amaranth
  • Yellow Grove Bamboo, when spread from its original premise of planting and not being maintained
  • Grapevines: when growing in groups of 100 or more and not pruned, sprayed, cultivated, or otherwise maintained for 2 consecutive years

Talking about noxious weeds

Since noxious weeds can be harmful to all, the hope is that all landowners will manage noxious weeds effectively and reduce the possibility that the weeds will invade a neighbor’s property.  But for many reasons, that isn’t always the case.  When it appears that noxious weeds on a neighbor’s property are getting out of hand, first try to address the issue through neighbor communications.  A “friendly” discussion about the weeds might reveal helpful information that can reduce the neighbor conflict.  Maybe the neighbor has recently sprayed the weeds or isn’t aware of the weeds. Maybe the neighbor’s tenant is responsible for managing the land. Or, as is sometimes the case, maybe the suspected plants aren’t actually noxious weeds.  Good communication between the neighbors could bring a quick resolution to the situation.

Agronomic help with noxious weeds

Knowledge and management might be the solution to a noxious weeds problem between neighbors. For assistance identifying and managing noxious weeds, check out OSU’s guide on Identifying Noxious Weeds of Ohio at https://ohiostate.pressbooks.pub/ohionoxiousweeds/ and refer to helpful articles posted on OSU’s Agronomic Crops Network at https://agcrops.osu.edu.

Help with noxious weeds

Knowledge and management might be the solution to a noxious weeds problem between neighbors. For assistance identifying and managing noxious weeds, check out OSU’s guide on Identifying Noxious Weeds of Ohio at https://ohiostate.pressbooks.pub/ohionoxiousweeds/ and refer to helpful articles posted on OSU’s Agronomic Crops Network at https://agcrops.osu.edu.

Legal procedures might be necessary

If communication isn’t helpful or possible, the laws establish procedures for dealing with noxious weeds. Different procedures in the law apply for different weed locations.

  • If the weeds are in the fence row between two properties, a landowner has a right to ask the neighbor to clear the row of weeds within four feet of the line fence.  If the neighbor doesn’t do so within 10 days, the landowner may notify the board of township trustees.  Once notified, the trustees must visit the property and determine whether the fence row should be cleared.  If so, the trustees must hire someone to clean up the fence row.  The costs of the clearing are then assessed on the neighbor’s property taxes.
  • If the weeds are on private land beyond the fence row, a landowner can send written notice of the noxious weeds to the township trustees.  A letter describing the type and location of the weeds, for instance, would serve as written notice.  Once the trustees receive a written notice, they must notify the neighbor to cut or destroy the weeds or alternatively, to show why there is no need for such action.  If the neighbor doesn’t respond to the trustees and take action within 5 days of the notice being given, the trustees must order the weeds to be cut or destroyed.  The cost of destroying the weeds is then assessed on the neighbor’s property taxes.
  • If the neighbor is a railroad, the railroad must cut or destroy noxious weeds along the railway between June 1 and 20, August 1 and 20, and if necessary, September 1 and 20.  If a railroad fails to do so and the township trustees are aware of the problem, the trustees may remove the weeds and recover costs in a civil action against the railroad.  While the law doesn’t state it, a landowner may have to document whether the railroad follows the required cutting schedule and notify the trustees if it does not.
  • If the neighbor is the Ohio Department of Natural Resources or a park owned by the state or a political subdivision, the landowner must provide information about the noxious weeds to the township trustees.  The trustees then notify the county Extension educator, who must meet with a park authority and a representative of the soil and water conservation district within five days to consider ways to deal with the problem.  The Extension educator must report findings and recommendations back to the township trustees, but the law doesn’t require the trustees to take action on the report.  Apparently, the hope is that the problem would be resolved after considering ways to deal with it.

What if the neighbor leases the land?

We mentioned that sometimes a neighbor might not be tending to noxious weeds because it’s actually the responsibility of the neighbor’s tenant under a leasing arrangement, such as a farmland lease or a solar lease.  These types of leases should state which party is responsible for noxious weeds.  Note that the law recognizes the possibility of a leasing situation by requiring the trustee to notify the “owner, lessee, agent, or tenant having charge of the land” when the weeds are on private land and the “owner or tenant” when the weeds are in the fence row.  The “or” in these provisions can be problematic though, as that doesn’t require the township to notify both the neighbor and tenant.  A landowner might need to ask the trustees to communicate with both the neighbor and its tenant so that the parties are both aware and can resolve which is responsible for managing the noxious weeds according to the leasing arrangement. 

For more information about noxious weeds, refer to our law bulletins in the property law library on https://farmoffice.osu.edu.  For assistance identifying and managing noxious weeds, check out OSU’s guide on Identifying Noxious Weeds of Ohio at https://ohiostate.pressbooks.pub/ohionoxiousweeds/ and refer to helpful articles posted on OSU’s Agronomic Crops Network at https://agcrops.osu.edu.

Posted In: Crop Issues, Property
Tags: noxious weeds, Property, neighbor law
Comments: 0
Ohio farm and rural road
By: Peggy Kirk Hall, Wednesday, September 07th, 2022

Farm neighbor laws have been around nearly as long as there have been farm neighbors.  From trees to fences to drainage, farmers can impact and be impacted by their neighbors.  In the spirit of managing these impacts and helping everyone get along, our courts and legislatures have established a body of laws over the years that allocate rights and responsibilities among farm neighbors.  Explaining these laws is the goal of our new series on farm neighbor laws. 

Here’s a timely farm neighbor problem that we’ve heard before: Farmer’s soybeans are looking good and Farmer is anxious for harvest.  But some neighbors drive their ATV into the field and flatten a big section of Farmer’s beans.  What can Farmer do about the harm? 

Ohio’s “reckless destruction of vegetation law” might be the solution. The law, Ohio Revised Code Section 901.51, states that “no person, without privilege to do so, shall recklessly cut down, destroy, girdle, or otherwise injure a vine, bush, shrub, sapling, tree, or crop standing or growing on the land of another or upon public land.” This law could provide a remedy if its three components fit Farmer’s situation:

  1. Recklessness
  2. Destruction or injury to a vine, bush, shrub, sapling, tree, or crop on the land of another
  3. No privilege

A key requirement of the law is “recklessness.”  Under Ohio law, a person is “reckless” if the person acts with heedless indifference to the consequences or disregards the risk that the person's conduct is likely to cause a certain result.  For example, if the neighbors were out driving the ATV at night and simply didn’t care where they were and that their actions could be harming Farmer’s property, that behavior is likely to rise to the level of “recklessness.”  Alternatively, if another driver ran the neighbors off the road and the neighbors tried but could not avoid going into the bean field, their behavior isn’t likely to be deemed “reckless.”

A second requirement is destruction or injury to vegetation on another’s land.  In the unlikely event that Farmer’s soybeans aren’t actually injured or destroyed, the law wouldn’t apply.  Note that the law doesn’t just apply to a crop like soybeans, but also includes other vegetation such as vines, bushes, shrubs, and trees, recognizing that all of these types of vegetation have value for a landowner.

The final requirement is “without privilege to do so.”  Privilege in the context of this law means “permission.”  As long as Farmer didn’t tell the neighbors they could drive their ATV through his field, Farmer could prove that the neighbors did not have privilege or permission to cause the destruction and injuries to Farmer’s beans.

So what?  The law clearly prohibits the neighbors from recklessly destroying Farmer’s beans, but what happens if they do?  The law also addresses this question by stating that a violator of the law is liable “in treble damages.” Attorneys always take notice of treble damages language because it requires the damages award to be tripled after a judge or jury determines the amount of the actual harm. This tripling of damages is intended to punish the person for their “recklessness.”  So, if a jury decided that the value of Farmer’s lost beans is $1,000, the treble damages would result in a $3,000 award against the neighbors due to their reckless destruction of Farmer’s crop.

There is also a criminal element to the law.  The law states that a violator is also guilty of a fourth-degree misdemeanor. That would require a criminal proceeding by the local law enforcement, and the result could be no more than 30 days in jail and up to $250 in fines.

If the reckless destruction law doesn’t apply, Farmer would need to look to other mechanisms for resolving the harm.  If the neighbors were trespassing, trespass laws could provide a remedy but wouldn’t award treble damages.  Or the Farmer’s property insurance might address the harm. But if the neighbors destroyed Farmer’s beans by behaving recklessly, the reckless destruction of vegetation law can help resolve this farm neighbor issue.

Find the “reckless destruction of vegetation” law at Ohio Revised Code Section 901.51.

September 1 calendar
By: Peggy Kirk Hall, Wednesday, August 24th, 2022

September 1 is fast approaching, and this year it’s an especially important date for landowners leasing cropland under an existing lease that doesn’t address when or how the lease terminates.  In those situations, September 1 is the new deadline established in Ohio law for a landowner to notify a tenant that the landowner wants to terminate the lease.  If the landowner does not provide notice by September 1, the lease continues for another lease term. 

This September 1 deadline only applies to verbal or written leases that don’t have a termination date or a deadline for giving notice of termination.  If a crop lease already includes a termination date or a deadline for giving notice of termination, those provisions are unchanged by the new law. The new September 1 termination date also only affects leases of land for agricultural crops.  It does not apply to leases for pasture, timber, farm buildings, horticultural buildings, or leases solely for equipment.

To meet the new legal requirements, a landowner must give the notice of termination in writing and deliver it to the tenant operator by hand, mail, fax, or email on or before September 1.  While the law does not specify what the termination must say, we recommend including the date of the notice, the identity of the lease property being terminated, and the date the lease terminates, which the law states will be the earlier of the end of harvest or December 31, unless the parties agree otherwise.

Tenant operators are not subject to the new September 1 termination deadline—the law applies only to the landowner.  Even so, it’s important for tenant operators to understand the new law because it protects a tenant if a landowner attempts to terminate a lease after September 1.  In those instances, the law allows the tenant to continue the lease for another term because the termination notice was late.

A lesson this new law teaches is the importance of having a written farm lease that includes termination provisions. The parties can agree in advance when the lease will terminate or can set a deadline for notifying the other party of the intent to terminate the lease.  Such terms provide certainty and reduce the risk of conflict and litigation over a “late” termination.

Read the new “termination of agricultural leases” law in Section 5301.71 of the Ohio Revised Code.

Person signing a contract
By: Peggy Kirk Hall, Tuesday, July 19th, 2022

Lawsuits over late terminations of farm crop leases might reduce after a new law in Ohio takes effect on July 21, 2022.  The law will affect situations where the parties in a farm crop leasing arrangement have not addressed a date or method for terminating the lease--typically verbal leases, although a written lease might also fail to address termination.  A landlord in those situations who wants to end the crop lease will have to do so by delivering a written notice of termination to the tenant operator by September 1.  A late attempt by the landlord to terminate the lease after September 1 would not be effective and the lease would continue for another crop year, although a tenant operator can choose to agree to accept a landlord's late termination.

Why the new law?

It's been common practice in Ohio for landlords and tenants to enter into a simple farm lease arrangement, usually verbal, that repeats from year-to-year with the only term up for discussion sometimes being the rental amount. Other important leasing details are overlooked, such as when the lease ends and what one party must do to terminate the lease.  The lack of these details is especially problematic when the land changes hands due to a sale or a landlord's death, or if another operator tries to "bid up" the leasing amount.  Without any termination notice provisions, the landlord might try to terminate the leasing arrangement in late Winter or early Spring, after the tenant operator made investments on the belief that the lease would continue for another crop year.   f the operator stands to lose investments and income, litigation is the likely outcome and a court will decide if the landlord attempted to terminate the lease "too late."  We'e seen many cases like this in Ohio.

Ohio's new law aims to reduce farm lease termination conflicts by requiring the landlord to give  advance notice of the intent to terminate the lease.  A termination by the landlord by September 1 should provide the operator with sufficient notice that the lease is not continuing, keeping the operator from making post-harvest and end-of-year investments for the next crop year.  This is a common law in other states, and Ohio is one of the last states in the Midwest to enact this type of "statutory termination date" for farm leases.

New law highlights the importance of a written farm lease

We always encourage parties to put their farm lease agreement in writing.  A written farm lease can detail important terms such as termination, preventing uncertainty in the future.  A written lease also complies with Ohio's Statute of Frauds. That law requires a farm lease to be in writing, meaning that verbal leases aren't automatically enforceable in a court of law.  Due to the Statute of Frauds requirement, parties to a verbal farm lease must convince the court that their lease deserves an "exception" from the law and if the exception is granted, would have to prove the terms of their verbal agreement.  Verbal leases are always at risk of non-enforcement and disagreement over the terms of the lease.

Using a written lease, the parties may agree to their own termination procedures and dates and the statutory termination law would not apply to their leasing arrangement.  The law is simply a default for those crop leasing situations that do not address termination.

Details of the new law

We've developed several questions and answers that help explain the new law, available here and in our newest Law Bulletin, Ohio’s New Statutory Termination Date for Farm Crop Leases, available on farmoffice.osu.edu.

What farm leases are subject to the new law?
The law applies to both written and verbal “agricultural lease agreements” that address the planting, growing, and harvesting of agricultural crops. The law does not apply to leases for pasture, timber, farm buildings, horticultural buildings, or equipment.

What if a lease already addresses termination?
The new law only applies when a leasing arrangement has not provided for a termination date or a method for giving notice of termination. If the landlord and tenant operator have addressed these provisions in their leasing situation, the provisions are unchanged by the law and continue to be effective.

When is the termination effective?
If a landlord gives notice of termination in writing by September 1, the law states that the lease is terminated either upon the date harvest is complete or December 31, whichever is earlier. However, the law allows the parties to establish a different termination date if agreed to in writing.

How must a landlord give notice of termination?
The landlord must give the notice in writing and deliver it to the tenant operator by hand, mail, facsimile, or email by September 1. The law does not require using specific language for the notice, but we recommend including the date of the notice, an identification of the lease property, and a statement that the lease will terminate at the end of harvest or December 31, 20____ unless the parties agree in writing to a different date.

What if a landlord terminates after September 1?
Unless the leasing arrangement provides otherwise, a termination delivered by the landlord after September is not effective and the lease would continue for another period. However, the tenant operator could agree to accept the late termination. If so, the parties should both sign a termination date agreement.

Can a tenant terminate a lease after September 1?
A tenant operator is not subject to the new law and can terminate a lease after September 1 unless the leasing arrangement provides otherwise.

Help with farm leases

Our farmland leasing library contains several resources about the legal aspects of farm leases.  We also address the economic side of farmland leasing with data on cash rents and farmland values, custom rates and machinery costs, and enterprise budgets.  If you need assistance finding an agricultural attorney who works with farm leases, we can help with that too; contact us by email at aglaw@osu.edu.  We'll do our best to help you reduce the uncertainty and risk of your farm leasing arrangement.

 

 

By: Barry Ward, Monday, July 18th, 2022

Barry Ward, F. John Barker, Eric Richer - Ohio State University Extension

Farming is a complex business and many Ohio farmers utilize outside assistance for specific farm-related work. This option is appealing for tasks requiring specialized equipment or technical expertise. Often, having someone else with specialized tools perform tasks is more cost effective and saves time. Farm work completed by others is often referred to as “custom farm work” or more simply, “custom work”. A “custom rate” is the amount agreed upon by both parties to be paid by the custom work customer to the custom work provider.

Ohio Farm Custom Rates

The “Ohio Farm Custom Rates 2022” publication reports custom rates based on a statewide survey of 223 farmers, custom operators, farm managers, and landowners conducted in 2022. These rates, except where noted, include the implement and tractor if required, all variable machinery costs such as fuel, oil, lube, twine, etc., and labor for the operation.

Some custom rates published in this study vary widely, possibly influenced by:

  • Type or size of equipment used (e.g. 20-shank chisel plow versus a 9-shank)
  • Size and shape of fields,
  • Condition of the crop (for harvesting operations)
  • Skill level of labor
  • Amount of labor needed in relation to the equipment capabilities
  • Cost margin differences for full-time custom operators compared to farmers supplementing current income

Some custom rates reflect discounted rates as the parties involved have family or community relationships, Discounted rates may also occur when the custom work provider is attempting to strengthen a relationship to help secure the custom farmed land in a future purchase, cash rental or other rental agreement. Some providers charge differently because they are simply attempting to spread their fixed costs over more acreage to decrease fixed costs per acre and are willing to forgo complete cost recovery.

New this year, the number of responses for each operation has been added to the data presented. In cases where there were too few responses to statistically analyze, summary statistics are not presented. 

Charges may be added if the custom provider considers a job abnormal such as distance from the operator’s base location, difficulty of terrain, amount of product or labor involved with the operation, or other special requirements of the custom work customer.

The data from this survey are intended to show a representative farming industry cost for specified machines and operations in Ohio. As a custom farm work provider, the average rates reported in this publication may not cover your total costs for performing the custom service. As a customer, you may not be able to hire a custom service for the average rate published in this factsheet.

It is recommended that you calculate your own costs carefully before determining the custom rate to charge or pay. It may be helpful to compare the custom rates reported in this fact sheet with machinery costs calculated by economic engineering models available online. The following resources are available to help you calculate and consider the total costs of performing a given machinery operation.

Farm Machinery Cost Estimates, available by searching University of Minnesota.

Illinois Farm Management Handbook, available by searching University of Illinois farmdoc.

Estimating Farm Machinery Costs, available by searching Iowa State University agriculture decision maker and machinery management.

Fuel price changes may cause some uncertainty in setting a custom rate. Significant volatility in diesel price over the last several months has caused some concern for custom rate providers that seek to cover all or most of the costs associated with custom farm operations. The approximate price of diesel fuel during the survey period ranged from $4.50 - $5.25 per gallon for off-road (farm) usage. As a custom farm work provider, if you feel that your rate doesn’t capture your full costs due to fuel price increases you might consider a custom rate increase or fuel surcharge based on the increase in fuel costs.

For example, let’s assume the rate you planned to charge for a chisel plow operation was based on $4.50 per gallon diesel costs and the current on-farm diesel price is $5.50 per gallon. This is a $1 per gallon increase. The chisel plow operation uses 1.15 gallons of fuel per acre so the added fuel surcharge could be set at $1.15 per acre (1.15 gallons x $1 gallon).

 The complete “Ohio Farm Custom Rates 2022” publication is available at: https://farmoffice.osu.edu/farm-management/custom-rates-and-machinery-costs

 

 

 

 

Posted In: Business and Financial, Crop Issues
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Vintage cowgirl on a horse with a lasso
By: Peggy Kirk Hall, Monday, June 06th, 2022

It's time for another roundup of legal questions we've been receiving in the Agricultural & Resource Law Program.  Our sampling this month includes registering a business, starting a butchery, noxious weed liability in a farm lease situation, promoting local craft beer at a farmers market, herd share agreements, and agritourism's exemption from zoning.  Read on to hear the answers to these questions from across the state.

I want to name my farm business but am not an LLC or corporation.  Do I have to register the name I want to use for the business?

Yes, if your business name won’t be your personal name and even if the business is not a formally organized entity such as an LLC.  You must register the business with the Ohio Secretary of State.  First, make sure the name you want to use is not already registered by another business.  Check the name availability using the Secretary of State’s business name search tool at https://businesssearch.ohiosos.gov/.  If the name is available, register the name with the Secretary of State using the form at https://www.sos.state.oh.us/businesses/filing-forms--fee-schedule/#name.  If there is already a business registered with the name you want to use, you might be able to register a similar name if your proposed name is “distinguishable” from the registered name. The Secretary of State reviews names to make sure they are not already registered and are distinguishable from similar names.  See the Guide to Name Availability page for examples of when names are or are not distinguishable from one another.

I am interested in starting a small butchery.  What resources and information are helpful for beginning this endeavor?

There are legal issues associated with beginning a meat processing operation, and there are also feasibility issues to first consider.  A good resource for initial considerations to make for starting a meat processing business is this toolkit from OSU at https://meatsci.osu.edu/programs/meat-processing-business-toolkit.   A similar resource that targets niche meat marketers is at https://www.nichemeatprocessing.org/get-started/.  On the legal side, requirements vary depending on whether you will only process meat as a custom operator or fully inspected operator, and if you also want to sell the meat through your own meat market.  The Ohio Department of Agriculture’s Division of Meat Inspection has licensing information for different types of processors here:  https://agri.ohio.gov/divisions/meat-inspection/home.  If you also want to have a retail meat market, you’ll need a retail food establishment (RFE) license from your local health department.  To help you with that process, it’s likely that your health department will have a food facility plan review resource like this one from the Putnam County Health Department.

Is Ohio’s noxious weeds law enforceable against the tenant operator of my farm, or just against me as the landowner?

Ohio’s noxious weed law states that the township trustees, upon receiving written information that noxious weeds are on land in their township, must notify the “owner, lessee, agent, or tenant having charge of the land.”  This language means that the trustees are to notify a tenant operator if the operator is the one who is in charge of the land where the noxious weeds exist.  The law then requires the notified party –which should be the tenant operator—to cut or destroy the noxious weeds within five days or show why there is no need to do so.  The concern with a rental situation like yours is that if the tenant does not destroy the weeds in five days, the law requires the township to hire someone to do so and assess the costs of removal as a lien on the land.  This puts you as the landowner at risk of financial responsibility for the lien and would require you to seek recourse against the tenant operator if you want to recover those costs.  Another option is to take care of removing the noxious weeds yourself, but that could possibly expose you to a claim of crop damages from the tenant operator.  A written farm lease can address this situation by clearing shifting the responsibility for noxious weeds in the crop to the tenant operator and stating how to deal with crop damages if the landowner must step in and destroy the noxious weeds.

Can we promote local craft beers at our farmers market?

Ohio established a new “F-11” permit in H.B. 674 last year.  The F-11 is a temporary permit that allows a qualifying non-profit organization to organize and conduct an event that introduces, showcases, or promotes Ohio craft beers that are sold at the event. There are restrictions on how long the event can last, how much beer can be sold, who can participate in the event, and requirements that food must also be sold at the event. The permit is $60 per day for up to 3 days.  Learn more about the permit on the Department of Commerce website at  https://com.ohio.gov/divisions-and-programs/liquor-control/new-permit-info/guides-and-resources/permit-class-types.

Can a goat herdsman legally provide goat milk through a herd share agreement program? 

Herd share agreements raise the raw milk controversy and whether it’s legal or safe to sell or consume raw milk.  Ohio statutory law does clearly prohibit the sales of raw milk to an “ultimate consumer” in ORC 971.04, on the basis that raw milk poses a food safety risk to consumers.  But the law does not prohibit animal owners from consuming raw milk from their own animals.  A herd share agreement sells ownership in an animal, rather than selling the raw milk from the animal.  Under the agreement, a person who pays the producer for a share of ownership in the animal may take their share of milk from the animal.  The Ohio Department of Agriculture challenged the use of herd share agreements as illegal in the 2006 case of Schitmeyer v. ODA, but the court did not uphold the ODA’s attempt to revoke the license of the dairy that was using herd share agreements.  As a result, it appears that the herd share agreement approach for raw milk sales is currently legally acceptable.  But many still claim that raw milk consumption is risky because the lack of pasteurization can allow harmful bacteria to exist in the milk. 

Can the township prohibit me from having a farm animal petting zoo on my hay farm?

It depends whether you qualify for the “agritourism exemption” granted in Ohio law.  The agritourism exemption states that a county or township can’t use its zoning authority to prohibit “agritourism,” although it may have same zoning regulations that affect agritourism buildings, parking lots, and access to and from the property.  “Agritourism” is an agriculturally related entertainment, recreational, cultural, educational or historical activity that takes place on a working farm where a certain amount of commercial agricultural production is also taking place. If you have more than ten acres in commercial production, like growing and selling your alfalfa, or you have less than ten acres but averaged more than $2,500 in gross sales from your alfalfa, you qualify under the agritourism exemption and the township zoning authorities cannot prohibit you from having your petting zoo.  However, any zoning regulations the township has for ingress and egress on your property, buildings used primarily for your petting zoo, or necessary parking areas would apply to your petting zoo activity. If you don't qualify as "agritourism," the township zoning regulations could apply to the petting zoo activity, and you must determine whether a petting zoo is a permitted use according to your zoning district, which could depend upon whether or not you want to operate the petting zoo as a commercial business.

 

 

 

 

American Burying Beetle
By: Peggy Kirk Hall, Thursday, March 31st, 2022

When the U.S. EPA approved the seven-year renewal registration for Corteva’s Enlist One and Enlist Duo on January 12, 2022, it also prohibited use of the herbicide in 217 counties across the country.  Twelve Ohio counties were on that list, preventing farmers in Athens, Butler, Fairfield, Guernsey, Hamilton, Hocking, Morgan, Muskingum, Noble, Perry, Vinton, and Washington counties from using the herbicides.  Welcome news for those farmers came on Tuesday, when the EPA announced that it is removing the restricted use for all Ohio counties.

The prohibition against using Enlist Duo’s use was because Corteva did not submit its use in all U.S. counties in the reregistration, many of which had endangered species and critical habitat that could be impacted by the herbicides.  The twelve Ohio counties that were not submitted for use by Corteva are home to the American Burying Beetle, which is on the Endangered Species list.  But in February, Corteva submitted a label amendment that proposed use of Enlist One and Enlist Duo in 128 of the previously restricted counties, including Ohio’s twelve counties. 

Upon receiving Corteva’s amendment, federal law requires EPA to complete an “effects determination” to assess potential effects on the endangered species in the previously restricted counties.  The assessment included reviewing updated range maps for the endangered species and their habitats that were provided by the U.S. Fish and Wildlife Service.  Range maps help identify the overlap between the American Burying Beetle’s location and growing areas for corn, soybeans, and cotton where Enlist might be applied.  Based on the maps, the agency determined that the beetle was not present in 10 of the previously restricted counties and had less than a 1% overlap with crop areas in another 118 counties.

EPA also examined whether there would be direct or indirect effects on other listed endangered species or habitat in those counties.  The black-footed ferret was the only specifies identified in field areas in the 128 counties, and fifteen other listed specifies and three critical habitats were determined to exist off of the field areas.  But the EPA found that the Enlist label restrictions would address any concerns with these additional species and habitats.

After completing its effects determination and review of the amendment, the EPA concluded that “the use of these products—with the existing label requirements in place to mitigate spray drift and pesticide runoff—will not likely jeopardize the American Burying Beetle or other listed species and their critical habitats in these counties.”  Similarly, EPA determined that six Minnesota counties that are home to the endangered Eastern Massasauga rattlesnake were also removed from the prohibited list and approved for Enlist use.

EPA noted the importance of following the label restrictions for the herbicides, particularly in areas where endangered species reside.  The new label approved by the EPA in January contains changes to the previous label.  According to OSU weed scientist Mark Loux, those changes include a revised application cutoff for soybeans, “through R1” that replaces “up to R2” on previous labels, and the addition of a slew of spray nozzles to the approved nozzle list.  Enlist users should take care to review these new provisions.  As required by EPA, Corteva provides educational tools on using Enlist, available at https://www.enlist.com/en/enlist-360-training.html.

If you’re interested in reading more about the EPA’s registration review on Enlist One and Enlist Duo, the agency’s docket on the registration is available at  https://www.regulations.gov/docket/EPA-HQ-OPP-2021-0957/document.  The amendment letter for the recent removal of prohibitions on certain counties is at https://www.regulations.gov/document/EPA-HQ-OPP-2021-0957-0020.

Ohio Farmland Leasing Update photo with farm field
By: Peggy Kirk Hall, Tuesday, February 01st, 2022

Winter is a good time to review farm leases, for both economic and legal reasons.  We'll provide you current information to help with the farmland leasing process in our Ohio Farmland Leasing Update webinar on February 9, 2022 from 7 to 9 p.m.   Barry Ward, Leader of Production Business Management for OSU Extension, will address the economic issues and our legal team of Peggy Hall and Robert Moore will provide the legal information.  

Our agenda will include:

  • Current economic outlook for Ohio row crops
  • Research on cash rent markets for the Eastern Corn Belt
  • Rental market outlook fundamentals
  • Negotiating conservation practices
  • Using leases in farmland succession planning
  • Ohio's proposed law on providing notice of termination
  • Ensuring legal enforceability of a lease

There is no fee for the webinar, but registration is necessary.  Register at https://go.osu.edu/farmlandleasingupdate.

Grain bins with colorful sunset clouds
By: Peggy Kirk Hall, Friday, January 28th, 2022

We’ve quickly reached the end of January, and several of the legal issues I’ve talked about in OSU’s “Agricultural Outlook” meetings have surfaced this month.  If the current pace keeps up, 2022 promises to be a busy year for agricultural law.  Here’s a review of three legal issues I predict we’ll see that have already begun to emerge in 2022.

Water, water.  From defining WOTUS to addressing Lake Erie water quality, water law will continue to be everywhere this year.  The U.S. Supreme Court just announced on January 24 that it will hear the well-known case of Sackett v EPA to review whether the Ninth Circuit Court of Appeals used the proper test to determine whether wetlands are “waters of the United States” (WOTUS).  The case is one example of the ongoing push-pull in the WOTUS definition, which establishes waters that are subject to the federal Clean Water Act. The Biden administration proposed a new WOTUS rule last December that would replace the Trump-era rule, and comments remain open on that definition until February 7.  Ohio has wrangled with its own water issues, particularly with agricultural nutrient impacts on water quality.  We’ll see this year if the state will continue to rely on H2Ohio and similar incentive-based programs and whether the Ohio EPA will face additional litigation over its development of a Total Maximum Daily Load for Lake Erie.

Pesticide challenges.  The EPA announced a new policy on January 11 to more closely evaluate potential effects of pesticide active ingredients on endangered species and critical habitats.  That was the same day the agency re-registered Enlist One and Enlist Duo pesticides, but with new label restrictions and prohibited use in hundreds of counties across the U.S., including a dozen Ohio counties.  An EPA report documenting dicamba damage in 2021 could form the basis for yet another lawsuit this year demanding that EPA vacate dicamba’s registration.   Meanwhile, we await a decision by the U.S. Supreme Court on whether it will review Hardeman v. Monsanto, one of dozens of cases awarding damages against Monsanto (now Bayer) for personal injury harms caused by glyphosate.

Opposition to livestock production practices.  Ohio pork producers watching California’s Proposition 12 will be happy with a recent California court decision prohibiting enforcement of one part of the law that went into effect on January 1.  The provision requires any pork and eggs sold in the state to be from breeding pigs and laying hens that are not raised in a “cruel manner,” meaning that the animals have a certain amount of usable pen space.  The California court agreed with grocers and other retailers that the law could not be enforced on sales of pork meat because the state hasn’t yet finalized its regulations. The law could be subject to further scrutiny from a higher court.  Several agricultural organizations have unsuccessfully challenged the law as a violation of the Constitution’s Commerce Clause, but one of those cases currently awaits a decision from the U.S. Supreme Court on whether it will review the case.  Other livestock production issues we’ll see this year include continued battles over Right to Farm laws that limit nuisance lawsuits against farms, and challenges to “ag gag” laws that aim to prevent or punish undercover investigations on farms.

There’s more to come.  Watch for more of our predictions on what 2022 may bring to the agricultural law arena in upcoming posts. Or drop into one of our Agricultural Outlook and Policy  meetings to hear my Ag Law Outlook.  As quickly as the year is moving, we’ll soon know how many of those predictions are correct.

Ohio Farmland Leasing Update photo with farm field
By: Peggy Kirk Hall, Friday, January 07th, 2022

Winter is a good time to review farm leases, and current information is critical to that process.  That's why our Farm Office team is offering its Ohio Farmland Leasing Update, a webinar on February 9, 2022 from 7 to 9 p.m.   I'll be joined for the webinar by co-speakers Barry Ward, Leader of Production Business Management for OSU Extension, and attorney Robert Moore.  

On the legal side, we'll share legal information to help parties deal with addressing conservation practices in a leasing situation, using leases in farmland succession planning, Ohio's proposed new law about providing notice of termination, and ensuring legal enforceability of a lease.  On the economic side, Barry Ward will provide a current economic outlook for Ohio row crops, research on cash rent markets for the Eastern Corn Belt, and rental market outlook fundamentals.  We'll also overview farmland leasing resources.

There is no fee for the webinar, but registration is necessary.  Register at https://go.osu.edu/farmlandleasingupdate.

Posted In: Contracts, Crop Issues
Tags: farmland lease
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