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Little girl walking through strawberry patch with basket of berries
By: Peggy Kirk Hall, Wednesday, May 08th, 2024

Many of Ohio’s farm markets, u-picks, farm petting zoos, and other “agritourism” operations are preparing to open for their spring and summer activities.  While these types of agritourism activities are popular, they raise unique liability concerns. That’s because there is always the risk of an injury or harm when bringing people onto the farm, whether allowing them to be near animals, riding on equipment, in crop and orchard areas, or engaging in physical activities.  Along with readying the farm for the new season, agritourism operators should also plan for the possibility of a liability incident. 

Here are five actions agritourism providers can take to manage liability risk.

  1. Conduct a safety review.   Inspect your operation with visitor safety in mind.  Remember, many visitors have never been on a farm or don’t understand what might harm them on a farm. Examine all areas visitors will be in, including surrounding “off limits” areas visitors might try to access, and identify any possible safety hazards.  Pay extra attention to areas children will use. Consider these questions:
    • Are the facilities, fences, gates, steps, play areas, and other structures in good repair?
    • Are doors and gates working and latching properly?
    • Are pesticides, herbicides, or chemicals out of sight and inaccessible?   
    • Are animal enclosures sound, do any “dangerous” animals need to be fully off limits to visitors, and are there handwashing stations near animal contact areas?
    • Are there any accessible dangers that might attract children, such as ladders, equipment, lagoons, large tractor tires, and wells?
    • Are parking areas and walkways sufficiently sized and buffered from traffic?

Look for the potential dangers, then take actions such as making repairs; installing blockades, fences, locks, or other structures to keep visitors away; putting up signs and warnings; providing instructions or maps; expanding parking areas or walkways; and removing unnecessary dangers.

  1. Complete our Agritourism Ready course.  Be prepared for the possibility of an emergency situation—both natural and man-made disasters can raise the need for an emergency response. How an operation responds to an emergency can reduce harm to visitors and ultimately affect the operation’s risk of liability or harm.  OSU offers a curriculum that helps agritourism operations reduce risks by developing an emergency management plan.  Access this valuable and free resource at https://u.osu.edu/agritourismready/.
  2. Train employees.  A business is legally responsible for the negligence of its employees, so it’s important to reduce the risk that an employee’s actions will cause or contribute to a visitor’s harm.  Provide thorough safety training to agritourism employees.  Make sure employees know how to do the job, including activities like operating equipment, maintaining and cleaning visitor areas, handling animals, overseeing children, and responding to a safety incident.
  3. Obtain agritourism insurance coverage.  Insurance is an excellent liability management tool.  But be aware that a typical farm insurance policy does not cover agritourism activities, and a separate endorsement or policy may be necessary.  Even if a farm has a separate endorsement for agritourism, it’s still important to ensure that any new agritourism activities fall under the agritourism coverage. Now is the time to schedule a visit with the insurance provider and review the insurance policy.  Don’t be secretive about what you’re doing in your operation.  Share all activities with the provider and ensure that each activity is covered by the policy.  If an activity is not covered or will require costly additional coverage, weigh the risk, costs, and benefits of continuing to offer the activity.
  4. Install the Ohio agritourism immunity sign.  I’ve been surprised recently by how many operations I’ve visited that do not have an agritourism immunity sign on display. Posting the sign is a critical risk management tool.  That’s because Ohio law provides civil immunity for qualifying agritourism providers if a visitor suffers harm or injuries due to the “inherent risks” of being on a farm.  To receive the immunity, however, an agritourism provider must post the required agritourism immunity sign at the entrance to or near the agritourism activities.  The agritourism immunity sign warns visitors that the operation is not liable for harm from inherent risks and that they are assuming the risk of participating in agritourism activities. But while it’s an important tool, don’t let the sign replace all of the other recommendations provided in this article.  Read more about the immunity law and the agritourism immunity sign in our law bulletin, Ohio’s Agritourism Law, available on farmoffice.osu.edu.

Agritourism is a thriving industry in Ohio. Taking legal precautions to manage liability risk will help ensure that agritourism remains an important component of Ohio agriculture. To learn more about legal issues in agritourism, visit OSU’s Agritourism Law Library on the Farm Office website at farmoffice.osu.edu/law-library.

Ohio Statehouse with daffodils in foreground
By: Ellen Essman, Tuesday, April 16th, 2024

The Ohio General Assembly is back in Columbus after the March 19th primary election, and committee schedules are already filling up. Given the increased activity in recent weeks, we thought it was a good time to examine what has happened legislatively this year up until this point.

H.B. 64—Eminent Domain. This bill was first introduced by Representatives Kick (R-Loudonville) and Creech (R-West Alexandria) in February of 2023. The bill’s purpose is to make it more difficult for governmental agencies or private entities to take private property through eminent domain. On February 6, 2024, the bill was updated with a Substitute House Bill 64 in the House Civil Justice Committee.

The previous version of the bill excluded recreational trails from the definition of “public use,” meaning that property could not be taken by a government agency for recreational trails. The current version of the bill narrows this language, allowing for a taking for the purpose of creating recreational trails, but not in cases where the property is not adjacent to a public road and where the property’s primary use will be for a recreational trail.

Another substantial change between the versions involves compensation offers from the government entity to the landowner. In the original version of the bill, a government entity would not have been allowed to reduce an offer made to purchase property before proceedings commenced if the reduction was based on hard-to-discover issues with the property. The current version would exclude this provision, restoring an agency’s authority to reduce offers.

Substitute House Bill 64 would also make changes to compensation and awards landowners could receive if the issue goes to court.

H.B. 197—Solar Development. Sponsored by Representatives Hoops (R-Napoleon) and Ray (R-Wadsworth), H.B. 197 would establish a the community solar pilot program and the solar development program. Under the language of the bill, a “community solar facility” is defined as a single facility with at least three subscribers and a nameplate capacity of 10 megawatts or less, or 20 megawatts or less if on a distressed site. Furthermore, the bill would require The Public Utilities Commission of Ohio (PUCO) to establish a Community Solar Pilot Program of 250 megawatts on sites in the Appalachian region of the state. The bill would also amend the state competitive retail electric service policy to encourage community solar facilities in the state and allow subscribers to community solar facilities to receive monthly electric bill offsets.

H.B. 324—Motor Fuel. Introduced by Representatives McClain (R-Upper Sandusky) and Klopfenstein (R-Haviland) in November of 2023, H.B. 324 passed the House on February 7, 2024 and was referred to the Senate Ways and Means Committee on February 27. 

If passed, the bill would authorize a temporary, nonrefundable income or CAT tax credit of 5 cents per gallon for retail dealers who sell high-ethanol blend motor fuel containing between 15-85% ethanol. The tax credit would be limited to five years or to a total of $10 million, whichever occurs first.

H.B. 327—Employee Verification. H.B. 327, introduced by Representatives Wiggam (R-Wayne County), and Swearingen (R-Huron), had its first committee hearing in House Commerce & Labor on February 13, 2024. The bill would require political subdivisions, private employers employing 75 individuals within the state of Ohio, and nonresidential construction contractors to verify each new employee’s work eligibility through the federal E-verify program. E-Verify is an online program that helps employers verify employees’ eligibility for employment. If the bill were to pass, the employer would be required to keep a record of the verification for the duration of the employee’s employment, or three years, whichever is longer. During testimony on the bill, Representatives Wiggam and Swearingen indicated an interest in possibly lowering the employee threshold, citing Florida’s 25 employee threshold.

H.B. 347—Farming Equipment Taxes. This bill was introduced by Representative Don Jones (R-Freeport) and referred to the House Ways and Means Committee in early December of 2023. Since then, the bill has been heard in committee twice, once in January, and once in February, both times without testimony. The bill would change the way farmers claim a tax exemption on certain purchases.

Currently, when an Ohioan engaged in farming, agriculture, horticulture, or floriculture is buying a product for “agricultural use,” they must provide the seller with an exemption certificate. This certificate comes from the Ohio Department of Taxation and relieves the seller of the obligation to collect the sales tax on behalf of the state. However, the Department of Taxation can later determine that the purchase does not qualify for exemption, and then the farmer would be expected to pay the tax.

H.B. 347 would slightly alter this current way of doing things when it comes to the purchase of certain vehicles and trailers. Under the bill, the purchaser could receive an agricultural use exemption for taxes on these vehicles if the purchaser shows the seller copies of the purchaser’s Schedule F—the federal income tax profit of loss from farming form—for three most recent preceding years. Alternatively, a farmer could obtain a certificate from the Department of Taxation verifying that they have filed a Schedule F for three years in lieu of providing the forms directly to the seller. Notably, the bill states that “no other documentation or explanation shall be required by the vendor or the tax commissioner” to prove that the purchase qualifies for the agricultural use exemption.

The following vehicles and trailers would be included under the bill:

  • Trailers, excluding watercraft trailers;
  • Utility vehicles, (vehicles with a bed, principally for the purpose of transporting material or cargo in connection with construction, agricultural, forestry, grounds maintenance, land and garden, materials handling, or similar activities);
  • All-purpose vehicles, (vehicles designed primarily for cross-country travel on land and water, or on multiple types of terrain, but excluding golf carts);
  • Compact tractors (garden tractors, small utility tractors, and riding mowers).

H.B. 364—Seed Labeling; Noxious Weeds. Sponsored by Representatives Dobos (R-Columbus), and Klopfenstein (R-Haviland), H.B. 364 had its first hearing in the House Agriculture Committee on February 6, 2024.  Specifically, the bill would allow the Ohio Prairie Association and other noncommercial entities sharing seeds to distribute milkweed seeds non-commercially to i members, with the intent of promoting habitats for pollinators like monarch butterflies.

The bill would legally define “non-commercial seed sharing” as the distribution or transfer of ownership of seeds with no compensation or remuneration. Also included in the definition are a list of situations that are not considered “non-commercial seed sharing,” including when:

  • The seeds are given as compensation of work or services rendered;
  • The seeds are collected outside of Ohio;
  • The seeds are patented, treated, or contain noxious weed species or invasive plants.

H.B. 364 also includes a definition of “seed library,” which it defines as a non-profit, governmental, or cooperative organization or association to which both of the following apply:

  • It is established for the purpose of facilitating the donation, exchange, preservation, and dissemination of seeds among the seed library’s members or the general public.
  • The use, exchange, transfer, or possession of seeds acquired by or from the non-profit governmental, or cooperative organization or association are obtained free of charge.

The bill would further exempt non-commercial seed sharers and seed libraries from labeling, advertising, handling, and sales restrictions under Ohio law.

To further the goal of promoting pollinators and habitats, H.B. 364 would make changes to the requirements for maintaining toll roads, railroads, or electric railways. Current law requires managers of such thoroughfares to destroy a number of noxious weeds along the roadway or in right of ways. The bill would no longer require the destruction of Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, or ironweed. 

H.B. 447—Property Tax. Introduced on March 12, 2024 by Representative Loychik (R-Cortland), H.B. 447 was referred to the House Ways & Means Committee on April 2, 2024. The bill would modify and expand property tax homestead exemptions, gradually reduce school districts’ 20-mill floor for tax levies and modify the formula for determining farmland’s current agricultural use value (CAUV). The change to CAUV would involve the calculation of the overall capitalization rate for agricultural land.  Current law does not establish a minimum rate, but the bill would do so by stating that overall capitalization rate plus additur shall not be less than 10 percent.  Since a higher capitalization rate results in a lower CAUV value and because the current capitalization rate is around 8%, the change would likely lower CAUV values.

S.B. 156—Scenic Rivers. This bill, sponsored by Senators Reineke (R-Tiffin) and Hackett (R-London) passed the Ohio Senate on January 24, 2024, and was referred in the House to the Energy and Natural Resources Committee on February 6, 2024. The bill would transfer the Wild, Scenic, and Recreational Rivers Program from the Division of Parks and Watercraft to the Division of Natural Areas and Preserves (DNAP) in ODNR. The bill would narrow the scope DNAP’s authority to watercourses designated as wild, scenic, and recreational rivers. Currently, the law is written so that the regulatory agency has authority over areas. “Areas” encompass not just the water, but also the land surrounding rivers. On the other hand, “watercourses” are defined as “substantially natural channel[s] that [are] at least five miles in length with recognized banks and a bottom in which the flow or water occurs.” Thus, agency oversight would be diminished from the river and its surrounding area to just confines of the river itself.

The bill also clarifies that a watercourse designation does not affect private property rights adjacent to a designated river.

Finally, the bill would require DNAP to adopt rules for the use, visitation, and protection of scenic river lands and provide for the establishment of facilities and improvements that are necessary for their visitation, use, restoration, and protection, but do not impair their natural character.

S.B. 226—Agricultural Land. S.B. 226 was introduced by Senator Terry Johnson (R-McDermott) in late February and referred to the Veterans & Public Safety Committee on February 27, 2024. The bill would create the Ohio Property Protection Act, which would include protection of:

  • Agricultural land, defined as “land suitable for use in agriculture,” including the water on the land, airspace above the land, and natural products and products from the land;
  • Any land located within a twenty-five-mile radius of any installation under the jurisdiction of the United States Armed Forces;
  • Any land located within a twenty-five radius of a critical infrastructure facility.

To protect property in the above categories, the bill would make it illegal for the following people and entities to acquire or purchase such property:

  • Those persons and foreign adversaries listed on a registry compiled by the Ohio Secretary of State;
  • A government of a foreign adversary;
  • An individual who is a citizen of a foreign adversary;
  • A business that is headquartered in a foreign adversary;
  • A business that is directly or indirectly owned or controlled by one or more of the above persons and entities; and
  • An agent, fiduciary, or trustee of the above persons and entities.
By: Robert Moore, Wednesday, April 10th, 2024

At some point, we have all had to find a notary to get a document notarized.  Ohio law requires certain documents like deeds, long-term leases and vehicle titles to be notarized.  But, have you ever thought, why do we need to have documents notarized and what are notaries?  In this article, we will discuss notaries and the important role they plan in our society.

What Does an Ohio Notary Do?

An Ohio notary is an official empowered by the state to perform various acts that add an extra layer of security and credibility to legal proceedings. Their primary duties include:

  • Verifying Signatory Identity: A notary ensures that the person signing a document is who they claim to be. This involves either personally knowing the person or requesting valid government-issued photo identification and verifying its details.
  • Witnessing Signature: The notary observes the signing of the document and attests to their presence during this act. Their signature and official seal serve as evidence of this witnessing.
  • Administering Oaths and Affirmations: Notaries can administer oaths, which are formal declarations made under penalty of perjury, and affirmations, which are non-religious oaths. This ensures the seriousness and truthfulness of statements made during legal proceedings.
  • Taking Acknowledgments: An acknowledgment is a formal statement confirming that a signer understands the content of a document and willingly signed it. The notary verifies the signer's identity, witnesses their signature, and completes a separate acknowledgment certificate.

Why Do We Need Documents Notarized?

Notarization serves several critical purposes:

  • Combating Fraud: By verifying identity and witnessing signatures, notaries help deter fraud by ensuring documents haven't been forged or signed under duress. This adds a layer of security to important transactions, protecting individuals and organizations from potential scams and financial losses.
  • Promoting Trust: A notary's seal signifies an independent and impartial witness to the signing process. This official recognition instills confidence in the document's authenticity, especially when dealing with parties unfamiliar with each other.
  • Facilitating Legal Processes: Certain legal documents, such as deeds, powers of attorney, and sworn statements, require notarization to be considered valid in court proceedings. The notary's presence strengthens the document's legitimacy and streamlines the legal process.

Who Can Be an Ohio Notary?

To be a notary, a person must meet the following requirements:

  • Be at least 18 years old and a legal resident of Ohio, or
  • Be an attorney admitted to practice law in the state with a primary practice in Ohio.
  • Have no criminal convictions.

All new notaries are required to complete a 3-hour notary class and obtain a background check.  Non-attorneys must also pass an exam. 

Conclusion

Notaries play a vital role in safeguarding the integrity of legal documents and transactions within the state of Ohio. By verifying identities, witnessing signatures, and administering oaths, they contribute to a more secure and efficient legal system. If you're interested in a rewarding role that upholds trust and protects individuals, becoming an Ohio notary public might be a perfect fit for you.

Map of the solar eclipse path across Ohio
By: Peggy Kirk Hall, Wednesday, March 20th, 2024

Co-authored with Wayne Dellinger, Extension Educator in Union County and member of the OSU Ag Safety Team.

The upcoming solar eclipse on April 8 is a rare event that could bring a half-million people into the 124-mile eclipse path across Ohio, according to the Ohio Emergency Management Agency.  For months, we’ve been hearing about eclipse issues ranging from eye safety to best viewing locations.  But for farmers and farmland owners within the eclipse viewing area, the solar eclipse raises unique issues and concerns. Should we take steps to secure the farm?   Will it delay our farming activities?  What if we have trespassers or want to invite people to the farm to view the eclipse? 

With the eclipse quickly approaching, now is the time to address the safety and legal questions it creates for the agricultural community.  To provide guidance on these questions, our Agricultural & Resource Law Program partnered with the OSU Ag Safety Team. We offer these five steps farmers and farmland owners can take now to prepare for the solar eclipse:

  1. Secure the farm property. 
  2. Understand trespass laws.
  3. Know responsibilities for invited guests.
  4. Plan ahead for farming activities.
  5. Be prepared to react to an incident.

For each step, we provide explanations of the concerns and issues that might arise, any laws that apply, and actions farmers and farmland owners can take to reduce their safety and legal concerns.  Read the entire article at https://farmoffice.osu.edu/solar-eclipse-2024.

Farm field covered in snow with pine trees and sunset in background
By: Peggy Kirk Hall, Monday, February 19th, 2024

Co-authored by Glen Arnold, OSU Extension Field Specialist in Manure and Nutrient Management

This week’s snow was a reminder that we’re still in the middle of winter in Ohio, with more cold weather yet to come.  Winter weather is a challenge for those who handle manure, and it’s equally challenging to know the laws for applying manure on frozen and snow covered ground.  Those laws vary according to several important factors:  whether ground is frozen or snow covered, whether a farm is operating under a permit, and the geographical location of the land application.  Here’s a summary of the different winter application rules and standards in effect this winter.

What is frozen ground?  Ohio’s rules don’t define the term frozen ground, but generally, ground is considered frozen if you cannot inject manure into it or cannot conduct tillage within 24 hours to incorporate the manure into the soil.

Farms with Permits.  Farms with permits from the Ohio Department of Agriculture (ODA) or Ohio EPA operate under different rules than other manure applications in Ohio, and they cannot apply manure in the winter unless it is an extreme emergency.  Movement to other suitable storage is usually the selected alternative.  Several commercial manure applicators have established manure storage ponds in recent years to help address this issue. 

Applications in the Grand Lake St. Marys (GLSM) watershed.  There is a winter manure application ban from December 15 to March 1 for the GLSM watershed,  8ODA has the authority to allow an application, but that is not likely during the winter period.  After March 1, applications on frozen ground or ground covered in more than one inch of snow may occur only if the manure is injected or incorporated within 24 hours of surface application. The rule is in OAC 901:13-1-11

Grand Lake St. Marys Watershed Map

Applications in the Western Lake Erie Basin (WLEB) watershed.  In those parts of western Ohio that are in the WLEB watershed, below, the House Bill 1 restrictions established in 2016 are still in effect.  The law prohibits any manure application on frozen ground.  Applications are permissible on snow-covered soil if the manure is injected into the ground or incorporated within twenty-four hours of surface application.  The law is in ORC 939.08.

Western Lake Erie Basin

Other parts of Ohio.  It’s important to note that the NRCS Nutrient Management Conservation Practice Standard Code 590 (NRCS 590) now applies statewide in Ohio (but does not replace the GLSM and WLEB restrictions).  NRCS 590 was revised in 2020 and states that the surface application of manure on frozen and snow-covered soil is not acceptable unless it is an emergency.  An emergency is a temporary situation created by unforeseen causes and only after all other options have been exhausted. In this emergency situation only, limited quantities of liquid manure may be applied to address manure storage limitations only until non-frozen soils are available for manure application. The Ohio Department of Agriculture will enforce NRCS 590 in counties outside of GLSM and WLEB only if there is a manure discharge from the field. If a citation is issued for a discharge, liability for the discharge will be based on the 590 standards.

All applications of liquid manure to frozen and snow-covered soils must be documented in the producers’ records and must be applied in accordance with ALL of the following criteria:

  • The rate of application shall not exceed the lesser of 5,000 gallons/acre or P removal for the next crop.
  • Applications are to be made on land with at least 90% surface residue cover (cover crop, good quality hay or pasture field, all corn grain residue remaining after harvest, all wheat residue cover remaining after harvest).
  • Manure shall not be applied on more than 20 contiguous acres. Contiguous areas for application are to be separated by a break of at least 200 feet.
  • Applications should be in areas of the field with the lowest risk of nutrient transport such as areas furthest from streams, ditches, waterways, and with the least amount of slope.
  • Application setback distances must be a minimum of 200 feet from grassed waterways, surface drainage ditches, streams, surface inlets, water bodies and 300 feet from all wells, springs and public surface drinking water intakes. This distance may need to be increased due to local conditions.
  • For fields exceeding 6% slope, manure shall be applied in alternating strips 60 to 200 feet wide generally on the contour, or in the case of contour strips on the alternating strips.

Stockpiling.  For farmers with solid manure, stockpiling could be an option. There are two different types of stockpiles: short-term and long-term.

The short-term stockpile standards are in NRCS Field Office Technical Guide 318,  Short Term Storage of Animal Waste and Byproducts Standard (“NRCS 318”). Essentially, short- term stockpile is a pile of solid manure being kept temporarily in one or more locations. It is considered a temporary stockpile as long as the pile is kept at the location for no more than 180 days and stockpiled in the field where the manure will be applied. Setback distances listed in NRCS 318 should be followed to prevent discharge to waters of the state. There are multiple recommendations listed in NRCS 318 that speak to location, timing, and preventative measures to use while stockpiling the manure short term.

The long-term stockpile standards are in NRCS Field Office Technical Guide 313 Waste Storage Facility Standard (“NRCS 313”). A long-term stockpile is directly related to solid manure being piled and kept at a facility for longer than 180 days at a permanent location. It is recommended that all permanent long term storage stockpiles follow the guidelines in NRCS 313 with the utilization of a stacking facility and the structural designs of fabricated structures. A stacking facility can be open, covered or roofed, but specific parameters should be in place to prevent manure runoff from the site—these recommendations are in NRCS 313.

Check with your SWCD office.  Regardless of where you are in Ohio, it’s probably best to check with your county Soil and Water Conservation District office before considering winter manure application in Ohio. The rules have changed, and you should become aware of those that affect your operation in your area.

 

 

First page of U.S. EPA existing stocks order for dicamba products.
By: Peggy Kirk Hall, Thursday, February 15th, 2024

A federal court decision last week vacated the registrations of dicamba products XtendiMax, Engenia, and Tavium for over-the-top applications on soybean and cotton crops, making the use of the products unlawful (see our February 12, 2024 blog post).  The decision raised immediate questions about whether the U.S. EPA would exercise its authority to allow producers and retailers to use "existing stocks" of dicamba products they had already purchased.  Yesterday, the U.S. EPA answered those questions by issuing an Existing Stocks Order that allows the sale and use of existing stocks of the products that were packaged, labeled, and released for shipment prior to the federal court decision on February 6, 2024 For Ohio, the EPA's order allows the sale and distribution of existing stocks until May 31, 2024 and the use of existing stocks until June 30, 2024.

Here is the EPA's order:

  1. Pursuant to FIFRA Section 6(a)(1), EPA hereby issues an existing stocks order for XtendiMax® with VaporGrip® Technology (EPA Reg. No. 264-1210), Engenia® Herbicide (EPA Reg. No. 7969-472), and A21472 Plus VaporGrip® Technology (Tavium® Plus VaporGrip® Technology) (EPA Reg. No. 100-1623). This order will remain in effect unless or until subsequent action is taken. The issuance of this order did not follow a public hearing. This is a final agency action, judicially reviewable under FIFRA § 16(a) (7 U.S.C. §136n). Any sale, distribution, or use of existing stocks of these products inconsistent with this order is prohibited.
  2. Existing Stocks. For purposes of this order, “existing stocks” means those stocks of previously registered pesticide products that are currently in the United States and were packaged, labeled, and released for shipment prior to February 6, 2024 (the effective date of the District of Arizona’s vacatur of the dicamba registrations). Pursuant to FIFRA section 6(a)(1), this order includes the following existing stocks provisions:

a.  Sale or Distribution by the Registrants. As of February 6, 2024, sale or distribution by the registrants of these products is prohibited, except for the
purposes of proper disposal or to facilitate lawful export.
b.  Sale or Distribution by Persons other than the Registrants. Persons other than the registrants, including but not limited to co-ops and commercial distributors, who are already in possession of these products as of February 6, 2024, may sell or distribute these products until the end date for sale and distribution of existing stocks identified in Table 1; except that such persons may distribute these products after the date identified in Table 1 solely for purposes of proper disposal, lawful export, or to facilitate return to the manufacturer.
c.  Distribution or Sale by Commercial Applicators. Notwithstanding paragraph 2.b, for the purpose of facilitating use no later than the relevant end date for use of existing stocks identified in Table 1, distribution or sale of existing stocks of these dicamba products that are in the possession of commercial applicators is permitted
until the relevant end date for use in Table 1.
d.  Use of Existing Stocks. As of the date of this order, use of XtendiMax, Engenia, and Tavium is permitted until the relevant date identified in Table 1, provided that such use of existing stocks is consistent in all respects with the previously approved labeling accompanying the product.

What happens next? 

The Existing Stocks Order addresses dicamba over-the-top applications for the current growing season, but it's not the end of the dicamba controversy.  One potential next step could come from the petitioners in the federal case that vacated the dicamba product registrations, Center for Biological Diversity v. EPA.  The petitioners could file a motion asking the Court to review the Existing Stocks Order--an action that took place in the previous dicamba cancellation case, National Family Farm Coaltion v. EPA (Monsanto).  The petitioners in that case unsuccessfully sought an Emergency Motion to enforce the vacatur and hold the EPA Administrator in contempt for issuing an Existing Stocks Order.  A second next step that may yet play out is an appeal of the recent federal decision by the EPA, which has 30 days from the February 6 decision date to file an appeal.  At least one thing is clear at this point:  the long-term future of dicamba over-the-top products will continue to exist in a state of uncertainty.

Read the full text of the EPA's Existing Stocks Order.

By: Peggy Kirk Hall, Wednesday, February 14th, 2024

As we enter the 2024 crop season, it's time for an update on economic and legal information that affects Ohio farmland leasing. Join our Farm Office team members on March 1, 2024 from 10 a.m. until noon for a special edition of our Farm Office Live webinars.  In the Ohio Farmland Leasing Update, we'll share the latest information on these leasing topics:

  • Cash Rent Outlook – Key Issues and Survey Data
  • Negotiating Capital Improvements on Leased Farmland
  • Dealing with Conservation Practices in a Farmland Lease
  • Executing and Recording Farm Leases
  • Legal updates and new Farmland Leasing Resources

Our speakers for the webinar include:

  • Barry Ward, Leader, OSU Production Business Management
  • Peggy Hall, Attorney, OSU Agricultural & Resource Law Program
  • Robert Moore, Attorney, OSU Agricultural & Resource Law Program

There is no cost to attend the Ohio Farmland Leasing Update, but registration is necessary unless you're already registered for our Farm Office Live webinars.  To register, visit go.osu.edu/register4fol.

 

Field of soybeans
By: Peggy Kirk Hall, Monday, February 12th, 2024

A federal district court in Arizona has vacated the registrations for dicamba products XtendiMax, Engenia, and Tavium, finding that the U.S. EPA violated pesticide registration procedures when it approved the product registrations in 2020.  As a result of the decision in Center for Biological Diversity v. EPA, the dicamba products are no longer legally authorized for use and application in the U.S.  Although there will likely be appeal of the decision, the new ruling creates uncertainty over the use of dicamba products for the upcoming crop season.

History of the case

If the court’s ruling feels familiar, that’s because it is a repeat of a 2020 Ninth Circuit Court of Appeals decision in National Family Farm Coalition v. EPA (Monsanto).  In that case, the court vacated the first “conditional” dicamba product registrations granted by the EPA in 2018.  The court found that the EPA had “substantially understated” and failed to acknowledge the risks of dicamba’s volatility and its effects on non-users.  The EPA then cancelled the product registrations in June of 2020, but allowed producers to use “existing stocks” of already purchased products to apply the products until July 31, 2020.  The Ohio Department of Agriculture shortened that timeline in Ohio due to growing conditions within the state, prohibiting applications of dicamba after June 30, 2020.

Bayer, BASF, and Syngenta immediately revised the label application instructions and restrictions for their dicamba products and resubmitted their registration requests to the EPA. In October of 2020, the EPA granted the applications and issued “unconditional” five-year registrations for over-the-top applications (OTT) of the products on cotton and soybean crops.  The EPA did not provide a notice and opportunity for the public to submit comments before it made the registration decision. The National Family Farm Coalition, Pesticide Action Network, Center for Food Safety, and Center for Biological Diversity filed the current lawsuit, claiming that the EPA violated federal law by granting the unconditional registrations without a notice and comment period.

The court’s reasoning in this case

EPA’s error.  The primary basis for the court’s decision is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Section 136a(c)(4), which contains the notice and comment requirement for registration of a “new use” of a pesticide or herbicide.  It states that the EPA:

“. . . shall publish in the Federal Register. . . a notice of each application for registration of any pesticide that contains any new active ingredient or if it would entail a changed use pattern. The notice shall provide for a period of 30 days in which any Federal agency or any other interested person may comment.”

FIFRA further states that a “new use” of a product means, in part, “any additional use pattern that would result in a significant increase in the level of exposure, or a change in the route of exposure, to the active ingredient of man or other organisms.”

The EPA took the position that it did not have to provide the FIFRA notice and a comment period because the 2020 registration requests were not applications for a “new use” since EPA had previously approved the products.  The court strongly disagreed, however, emphasizing the previous court decision that had vacated those registrations because the EPA had failed to fully consider the risks of the products.  The EPA’s conclusion that the 2020 registrations were not for a new use “is so implausible that the Court cannot ascribe it to be a mere difference in view,” the court stated.  Stakeholders who would be affected by the dicamba registrations should have had an opportunity to “meaningfully weigh in during the decision-making process before EPA concluded whether OTT dicamba has unreasonable adverse effects on the environment,” said the court.

Remedy for the error.  The court explained that upon finding an agency has violated federal law, the presumed remedy a court must grant is to vacate the agency’s action.  The law requires that only in limited circumstances, when equity requires it, should a court remand without vacating an agency decision.  There are two factors the law requires a court to review in determining the remedy:  the seriousness of the agency’s error and the disruptive consequences of vacating the agency’s decision.  The court’s next step was to review those two factors and determine whether it should remand the issue with or without vacating the dicamba registrations.

Examining the first factor, the court concluded that the EPA’s error was “very serious” because it was likely that, had the agency considered field studies, data, and other information that would have been submitted during the comment period, the EPA’s registration decision likely would have differed from the decision it made to grant the five-year unconditional registration.  The history of the dicamba registrations were important to the court, and the judge noted that there had not been a notice and comment period for stakeholders who were opposed to approving dicamba products since 2016, when the EPA considered the original registration.  The court reiterated a long list of field studies, incident reports, and data generated since 2016 that the agency could have considered had it provided a comment period.  Noting that the EPA was “highly confident that control measures would eliminate dicamba offsite movement to only a minimal effect,” the court pointed to years of incident reports on dicamba offsite movement and concluded:

“This Court believes hearing from all stakeholders is likely to change the OTT dicamba registrations at least from unconditional to conditional, with data gathering requirements reinstated. Hearing from non-users of OTT dicamba may change the EPA’s circular approach to assessing costs for risks from OTT dicamba offsite movement. Instead of simply concluding there is no risk and, therefore, no costs to these stakeholders, EPA is likely to include the costs to these stakeholders when balancing the risks and benefits for OTT dicamba. Accordingly, the Court finds the EPA’s procedural error to unconditionally issue the “new use” 2020 dicamba registration, without notice and comment, was serious.”

The court then examined the second factor, the disruptive consequences of vacating the agency’s decision. The court recognized the benefits of dicamba products to the agricultural industry and that growers, through no fault of their own, would be in the difficult position of finding legal herbicides to protect their crops if the dicamba registrations were vacated.  Nevertheless, the court agreed with the reasoning in the previous dicamba case, National Family Farm Coalition v. EPA (Monsanto), that the seriousness of the EPA’s failure to assess the risks and costs for non-users of dicamba warranted vacating the registration despite the disruptive consequences.

What happens next?

There are two issues to watch now in the wake of the court’s decision. First is whether the EPA will appeal the federal district court’s decision.  The appeal would go the Ninth Circuit Court of Appeals, the same appellate court that reviewed the decision in the first dicamba appeal, National Family Farm Coalition v. EPA (Monsanto).  If the EPA also requests a stay, the appeal would put the federal district court’s decision on hold.

If there is not an appeal, the second issue to watch for is how the EPA and state agencies will direct the use of existing stocks of dicamba products.  The EPA could use its authority to allow continued use of existing stocks of dicamba products until a certain date, as it did in the previous case.  If the EPA does issue an existing stocks order, states could also address the extent of existing stocks use within their borders, as Ohio did in the previous case.

Follow the Ohio Ag Law Blog for continued legal information about Center for Biological Diversity v. EPA and review the federal district court’s opinion through this link.  Ohio growers should also refer to information from OSU’s Weed Science Extension Specialist, Dr. Allyssa Essman, available through OSU’s C.O.R.N. newsletter.

 

Cattle standing at a board fence with farm field behind them.
By: Peggy Kirk Hall, Tuesday, January 23rd, 2024

Recent collisions involving cattle on Ohio roadways raise the question of who is liable when a farm animal causes a roadway accident?  Ohio’s “animals at large law” helps answer that question. It’s an old law that establishes a legal duty for owners and keepers of farm animals to contain their animals.  The law states that an owner or keeper shall not permit their animals to run at large “in the public road, highway, street, lane, or alley, or upon unenclosed land.”  But as with many laws, the answer to the question of “who’s liable” under the law is “it depends.”  Here’s how the law works.

The law applies to both owners and “keepers.”  The animals at large law places responsibility on both the owners and the “keepers” of the animals.  The reference to “keepers” can expand the duty to someone other than the animal owner.  Ohio courts have interpreted the “keeper” language to include a person “who has physical care or charge” of the animal or has “some degree of management, possession, care, custody or control” over the animal.  Whether someone is a “keeper” is a fact specific determination made on a case-by-case basis.

Animals that must be contained.  Several years ago, Ohio legislators added poultry to the list of animals an owner must prevent from running at large.  The full list of animals an owner or keeper must contain now includes horses, mules, cattle, bison, sheep, goats, swine, llamas, alpacas, and poultry. 

The law creates both civil and criminal liability.  There are two potential outcomes to violating the animals at large law.   The first is civil liability for “negligently permitting”  animals to run at large.  The owner or keeper who does so is responsible for all damages resulting from injury, death, or loss to a person or property caused by the animal.  The second is criminal liability.  An owner or keeper who “recklessly” permits the animals to run at large can be charged with a fourth degree misdemeanor.

An owner’s negligent conduct creates civil liability.  An owner can be liable for “negligently permitting” animals to run at large, but what does “negligently permitting” mean?  Courts have answered this question by stating that the law requires “negligent conduct” by the owner or keeper and that failing to exercise “ordinary care” to contain animals would be negligent conduct.  As an example, a court determined that an owner who leaned a gate against a barn opening without fastening the gate to the barn or to any fence posts did not exercise ordinary care to contain his cattle.  But the law allows an owner to rebut the presumption that the animals were out because of the owner's negligent conduct.  An owner can offer proof of “ordinary care” taken to contain the animal, such as maintaining fences, locking gates, or checking animals regularly.  If the owner had exercised reasonable care and the animals escaped for other reasons, such as being spooked by a storm or a gate left open by someone else, the owner might not be liable for the animals running at large. Whether the owner or keeper “negligently permitted” the escape would be a fact specific determination, made on a case-by-case basis.

Reckless conduct can result in criminal charges.  In the example above, the court determined that the owner who merely leaned a gate up against the barn opening behaved “recklessly.”  Legally, recklessness is acting with complete disregard to the consequences.  Reckless behavior can lead to a criminal charge against the animal owner, with a maximum jail sentence of 30 days and a fine of up to $250.

Reducing liability risk under the animals at large law

  1.  Regular management practices.  In the court cases that apply Ohio’s animals at large law, the owner or keeper’s management practices are critically important to a liability determination.  Animal owners and keepers can reduce liability risk by following routine management practices and documenting those practices, which include:
  • Regularly checking and maintaining fences.
  • Locking gates.
  • Inspecting and maintaining stalls and similar enclosures.
  • Checking and counting animals regularly, and immediately after a storm or similar event.
  • Installing cameras.
  • Training employees to follow management practices.
  1. The fence matters.  It's also important to build a sufficient fence.  OSU Extension offers helpful resources on fencing in this video on fencing systems by Educator Ted Wiseman and this article on common fencing mistake posted by the OSU Sheep Team.  Be aware that another Ohio law requires a new boundary line fence for livestock to be a certain type of fence.  Ohio’s “partition fence law” requires a new boundary line fence for containing livestock to be:

“a woven wire fence, either standard or high tensile, with one or two strands of barbed wire located not less than forty-eight inches from the ground or a nonelectric high tensile fence of at least seven strands and that is constructed in accordance with the United States natural resources conservation service conservation practice standard for fences, code 382.” If adjacent owners agree in writing, a new line fence to contain livestock can also be a barbed wire, electric, or live fence. 

  1. Insurance and business entities.  Insurance is necessary risk management tool for farm animal owners and keepers.  It’s important to review all animals and animal activities with an insurance provider and ensure adequate liability coverage.  In some situations, using a separate business entity like a Limited Liability Company might be helpful for liability purposes.  Animal owners and keepers should consult with insurance and legal advisors to determine individual insurance and legal needs.

Ohio’s animals at large law is in Ohio Revised Code Chapter 951.  Ohio’s partition fence law is in Ohio Revised Code Chapter 971.

 

Ohio capitol lit with red and green lights and a lampost wrapped in garland
By: Peggy Kirk Hall, Thursday, December 21st, 2023

Written by Ellen Essman, J.D., OSU CFAES Government Relations

Just like there won’t be snow flurries on Christmas this year, there was not a flurry of activity at the Statehouse over the last few months. That being said, we will be carefully following several ag-related bills that progressed in committees but have not yet been passed by the full body, as the calendar turns to 2024. Here’s a summary of the bills we’re watching. 

H.B. 162—Agriculture Designations. H.B. 162 was introduced by Representatives Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville) on May 5, 2023, and was passed by the House in October, and had its first hearing in the Senate Agriculture and Natural Resources Committee on December 5. The bill would designate the following days and weeks to honor Ohio Agriculture:

  • March 21 of each year as “Agriculture day;”
  • The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as “FFA Week;”
  • October 12 of each year as “Farmer’s Day;” and
  • The week ending with the second Saturday of March as “4-H Week.”

H.B. 347—Farming Equipment Taxes. This bill was introduced by Representative Don Jones (R-Freeport) and referred to the House Ways and Means Committee in early December.  The bill would change the way farmers claim a tax exemption on certain purchases. 

Currently, when an Ohioan engaged in farming, agriculture, horticulture, or floriculture is buying a product for “agricultural use,” they must provide the seller with an exemption certificate. This certificate comes from the Ohio Department of Taxation and relieves the seller of the obligation to collect the sales tax on behalf of the state.  However, the Department of Taxation can later determine that the purchase does not qualify for exemption, and then the farmer would be expected to pay the tax. 

H.B. 347 would slightly alter this current way of doing things when it comes to the purchase of certain vehicles and trailers.  Under the bill, the purchaser could receive an agricultural use exemption for taxes on these vehicles if the purchaser shows the seller copies of the purchaser’s Schedule F—the federal income tax profit of loss from farming form—for three most recent preceding years. Alternatively, a farmer could obtain a certificate from the Department of Taxation verifying that they have filed a Schedule F for three years in lieu of providing the forms directly to the seller.  Notably, the bill states that “no other documentation or explanation shall be required by the vendor or the tax commissioner” to prove that the purchase qualifies for the agricultural use exemption.

The following vehicles and trailers would be included under the bill:

  • Trailers, excluding watercraft trailers;
  • Utility vehicles, (vehicles with a bed, principally for the purpose of transporting material or cargo in connection with construction, agricultural, forestry, grounds maintenance, land and garden, materials handling, or similar activities);
  • All-purpose vehicles, (vehicles designed primarily for cross-country travel on land and water, or on multiple types of terrain, but excluding golf carts);
  • Compact tractors (garden tractors, small utility tractors, and riding mowers).

H.B. 364—Agriculture (seed sharing). House Bill 364 was introduced in the House by representatives Dave Dobos (R-Columbus) and Roy Klopfenstein (R-Haviland) on December 14.  The bill would allow the Ohio Prairie Association to distribute milkweed seeds non-commercially to its members, with the intent of promoting habitats for pollinators like monarch butterflies.

The bill would legally define “non-commercial seed sharing” as the distribution or transfer of ownership of seeds with no compensation or remuneration.  Also included in the definition are a list of situations that are not considered “non-commercial seed sharing,” including when:

  • The seeds are given as compensation of work or services rendered;
  • The seeds are collected outside of Ohio;
  • The seeds are patented, treated, or contain noxious weed species or invasive plants.

H.B. 364 also includes a definition of “seed library,” which it defines as a non-profit, governmental, or cooperative organization or association to which both of the following apply:

  • It is established for the purpose of facilitating the donation, exchange, preservation, and dissemination of seeds among the seed library’s members or the general public.
  • The use, exchange, transfer, or possession of seeds acquired by or from the non-profit governmental, or cooperative organization or association are obtained free of charge.

The bill would further exempt non-commercial seed sharing for the purposes of pollinator conservation, creating and conserving native habitats, and operation of a seed library from labeling, advertising, handling, and sales restrictions under Ohio law.

To further the goal of promoting pollinators and habitats, H.B. 364 would make changes to the requirements for maintaining toll roads, railroads, or electric railways. Current law requires managers of such thoroughfares to destroy a number of noxious weeds along the roadway or in right of ways. The bill would no longer require the destruction of Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, or ironweed. 

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