Property

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

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

What can you do about snowmobilers on your land?

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

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

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

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

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

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

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

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

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

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

What solutions are we missing in Ohio?

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

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

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

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

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

USDA NAL and National Agricultural Law Center

By: Peggy Kirk Hall, Monday, February 15th, 2021

The Ohio General Assembly is off and running in its new session.  Many bills that affect agriculture in Ohio are already on the move.   Here’s a summary of those that are gaining the most momentum or attention.

Tax Conformity Bill S.B. 18 and H.B. 48.  The Senate has already passed its version of this bill, which conforms our state tax code with recent changes to the Internal Revenue Code made in the latest COVID-19 stimulus provisions of the Consolidated Appropriations Act.  Both the Senate and the House will also exempt forgiven Paycheck Protection Program second-draw loan proceeds from the Commercial Activity Tax.  The Senate version additionally exempts Bureau of Workers Compensation dividend rebates from the Commercial Activity Tax beginning in 2020, but the House bill does not.  Both bills include “emergency” language that would make the provisions effective in time for 2020 tax returns.

Beginning farmers tax credits H.B. 95.  A slightly different version of this bill is returning after not passing in the last legislative session.  The bi-partisan bill aims to assist beginning farmers through several temporary income tax credits:

  • Businesses that sell or rent agricultural assets such as land, animals, facilities or equipment to certified beginning farmers can receive a 5% income tax credit for sales, a 10% of gross rental income credit for cash rents, and 15% of gross rental income for share rents.
  • Certified beginning farmers can receive an income tax credit equal to the cost of participating in a certified financial management program.

Beginning farmers, among other requirements, are those in or seeking entry into farming in Ohio within the last ten years who are not a partner, member or shareholder with the owner of the agricultural assets and who have a net worth of less than $800,000 in 2021, which adjusts for inflation in subsequent years.  Beginning farmers must be certified by the Ohio Department of Agriculture or a land grant institution.  The House Agriculture and Conservation Committee will discuss the bill at its meeting on February 16.

Wind and solar facilities S.B. 52.  In addition to revising setback and safety specifications for wind turbines, this proposal would amend Ohio township zoning law to establish a referendum process for large wind and solar facility certificates.  The bill would require a person applying for a certificate for a large wind or solar facility to notify the township trustees and share details of the proposed facility.  That notification sets up opportunities for the township trustees or residents of the township to object to the application and submit the proposed application to a vote of township residents.  A certificate would not take effect unless approved by a majority of the voters.  A first hearing on S.B. 52 will be held on Tuesday, February 16 before the Senate Energy and Public Utilities Committee.

Grants for broadband services H.B. 2 and S.B. 8.  The Senate passed its version of this bill last week, which sets up a $20 million competitive grant program for broadband providers to extend broadband services throughout the state.  The proposal would also allow broadband providers to use electric cooperative easements and poles, subject to procedures and restrictions.  The bill had its second hearing before the House Finance Committee last week.

Eminent domain – H.B. 63.   Based on a similar bill that didn’t pass last session, this bill changes eminent domain law in regard to property taken for the use of recreational trails, which include public trails used for hiking, bicycling, horseback riding, ski touring, canoeing and other non-motorized recreational travel.  H.B. 63 would allow a landowner to submit a written request asking a municipality or township to veto the use of eminent domain for a recreational trail within its borders.   The bill would also allow a landowner to object to a use of eminent domain for any purpose at any time prior to a court order for the taking, rather than limiting that time period to ten days as in current law.   The bill had its first hearing before the House Civil Justice Committee last week.

Minimum wage increases.  S. B. 51 and H.B. 69.  Bills on each side of the General Assembly propose gradually increasing the state minimum wage to $15, but have different paths for reaching that amount.  S.B. 51 proposes increasing the wage to $12/hour in 2022, followed by $1/hour increases each year and reaching $15 by 2025, which is when a federal bill proposes to establish the $15 minimum wage.  H.B. 69 begins at $10/hour in 2022 with $1/hour increases annually, reaching $15 in 2027.  S.B. 51 was referred last week to the Workforce and Higher Education Committee and H.B. 69 was referred to the Commerce and Labor Committee.

USDA NAL and National Agricultural Law Center

White barn surrounded by green grass field on a clear day.
By: Jeffrey K. Lewis, Tuesday, January 26th, 2021

In our final part of our blog series analyzing the Ohio Supreme Court's recent decisions on mineral rights, we analyze the Court's decision in West v. Bode regarding the relationship between the Dormant Mineral Act and Ohio’s Marketable Title Act

West v. Bode

Timeline of Events: 

1902: George and Charlotte Parks sold 1/2 of the royalty interest in the oil and gas under their 66 acres of land located in Monroe County (the “severed royalty interest”) to C.J. Bode and George Nally; the transfer was recorded. 

1916: Bode and Nally transferred the severed royalty interest to E.J. Wichterman, Clara Thompson, and M.M. Mann; the transfer was recorded. 

1929: Parks transferred to Lettie West the 66 acres, but retained their 1/2 royalty interest in the oil and gas under the property and mentioned the severed royalty interest; the transfer was recorded. 

1959: The surface land was transferred to George West; the transfer was recorded but did not mention the severed royalty interest (the “root title”).   

1996: George West transferred property to Wayne West; the transfer was recorded but did not mention the severed royalty interest. 

2002: Wayne West transferred a portion of the 66 acres to Rusty West; the transfer was recorded but did not mention the severed royalty interest.  

Wayne and Rusty West (the “Wests”) filed an action in Monroe County Court of Common Pleas asking for a declaratory judgment that Ohio’s Marketable Title Act extinguished the severed royalty interest, and that the severed royalty interest had vested in the Wests. The remaining interested parties filed a counterclaim arguing they were owners of a portion of the severed royalty interest (the “interested parties”). 

The interested parties claimed that the Wests failed to state a valid claim under the Marketable Title Act because the more specific provisions of Ohio’s Dormant Mineral Act displace the general provisions of the Marketable Title Act. The Wests argued that since neither the transfer from Lettie West to George West nor any recorded document since mentioned the severed royalty interest, the severed mineral interest vested back to the Wests under Ohio’s Marketable Title Act. 

The Monroe County Court of Common Pleas agreed with the interested parties and declared them owners of the severed royalty interest. The Seventh District Court of Appeals reversed and asked the Common Pleas Court to adjudicate the case under the Marketable Title Act. The interested parties then appealed to the Ohio Supreme Court. 

Does the Dormant Mineral Act Supersede the Marketable Title Act? 

The Ohio Supreme Court was tasked with determining whether Ohio’s Marketable Title Act applies to severed interests in oil and gas because of the enactment of the newer Dormant Mineral Act. 

The Dormant Mineral Act (R.C. §5301.56) is part of a series of laws known as the Ohio Marketable Title Act (§R.C. 5301.47 et seq.) Under Ohio law, courts should interpret potentially conflicting statutes in a way that gives effect to both laws. However, if there is an irreconcilable conflict between two laws, a more specific law will prevail over a more general one. Therefore, the Ohio Supreme Court determined that the issue in this case was whether there existed an irreconcilable conflict between the Marketable Title Act and the Dormant Mineral Act. 

First, the Court looked at the intent of each act. The Court found that the Ohio General Assembly enacted the Marketable Title Act to extinguish interests and claims in land that existed prior to the root title so as to simplify and facilitate land transactions by allowing individuals to rely on a record chain of title. Similarly, the Ohio Supreme Court found that the Ohio Legislature enacted the Dormant Mineral Act to provide a method to terminate dormant mineral interests and reunify the abandoned mineral interest with the surface interests in order to promote the use of the minerals under the land. 

But how do the two operate together? The Ohio Supreme Court analyzed that under the 1961 Marketable Title Act, property interests are extinguished after 40 years from the effective date of the “root title” unless some saving event has occurred. Once an interest has been extinguished under the Marketable Title act, it cannot be revived. An event that would save an interest from being extinguished under the Marketable Title Act include: (1) the interest being identified in the documents that form the record chain of title; (2) the interest holder recording a notice claiming the interest; or (3) the interest arose out of a transaction that was recorded subsequent to the effective date of the root title. 

The Court also explained that the Dormant Mineral Act was enacted in 1989 (and amended in 2006) to supplement the Marketable Title Act. In order for mineral interests to be deemed abandoned the surface landowner must either send notice to holders of the mineral interest or publish the notice if the holders cannot be located. If a holder does not respond, a surface landowner can file with the county recorder an affidavit showing that notice was sent and published, and no saving event occurred within the 20 years prior to the notice. A saving event under the Dormant Minerals Act include: (1) existence of title transactions; (2) use of the minerals; (3) use of the interest for underground gas storage; (4) issuance of a permit to use the interest; (5) claims of preservation; and (6) issuance of separate tax parcel number for the interest. 

The Ohio Supreme Court held that the Dormant Mineral Act operates differently than the Marketable Title Act thus no irreconcilable conflict exists. The Marketable Title Act extinguishes interests by operation of law, whereas the Dormant Mineral Act deems interests abandoned and vested in the owner of the surface. Essentially, the Court found that the two acts work in conjunction with one another, not against each other. The Court reasoned that the Dormant Mineral Act is not self-executing like the Marketable Title Act, but rather provides evidence that a surface owner may use in a quiet-title action to eliminate the abandoned mineral interest.

The Court stated that a surface owner may use the Dormant Mineral Act to reunify the surface and mineral interests prior to the 40-year time limit prescribed in the Marketable Title Act, thus making the Dormant Mineral Act a more abrupt way to reunify the two interest. This, the Court rationalized is why the Dormant Mineral Act works in parallel to the Marketable Title Act rather than against it. The Court found that the Dormant Mineral Act provides an additional mechanism to surface owners to reunify surface and mineral interests. 

The Court ultimately held that a mineral interest holder’s interest may be extinguished by the Marketable Title Act or deemed abandoned by the Dormant Mineral Act, depending on the surrounding circumstances.  

Visit the Ohio Supreme Court’s Slip Opinion on West v. Bode

Takeaways from Part I and Part II

Make sure your interests are recorded! With any transaction, recording transfer of title (or mineral interests) can be crucial to protecting your assets. If you have any questions about whether your interests have been recorded, please contact a local attorney, it could be what saves your legacy. 

A pump jack during a sunset.
By: Jeffrey K. Lewis, Monday, January 25th, 2021

Do the terms “abandoned mineral rights” mean anything to you? Do you currently own land that you don’t have the mineral rights to? Do you own mineral rights, but haven’t really done anything to make sure your rights are still protected? 

Mineral rights are valuable asset in our personal portfolios that can allow us to build our legacy and provide for future generations. However, sometimes what we once thought as part of our legacy, is in fact now the legacy of another. The Ohio Supreme Court recently decided two cases dealing with abandoned mineral rights and the procedure in which a surface landowner can reunify the mineral rights with the surface rights. 

This two-part blog series will first analyze the Ohio Supreme Court’s opinion regarding the notice requirements under Ohio’s Dormant Mineral Act and the second part will analyze how the Dormant Mineral Act and Ohio's Marketable Title Act work together. 

Gerrity v. Chervenak

The Ohio Supreme Court addressed and clarified the notice requirements under the Ohio Dormant Mineral Act, Ohio Revised Code §5301.56

John Chervenak is a trustee of the Chervenak Family Trust (“Chervenak”) which owns approximately 108 acres in Guernsey County. The rights to the minerals under the Chervenak property were retained by T.D. Farwell, the individual who transferred the 108 acres to the Chervenak family. 

In 2012, a title search for the Chervenak property identified Jane Richards, daughter of T.D. Farwell, as the owner of the mineral rights under the property. The records listed a Cleveland address for Ms. Richards. Unfortunately, Ms. Richards passed away in 1997. At the time of her passing, Ms. Richards was a resident of Florida and had one son, Timothy Gerrity. 

In 2012, Chervenak sought to reunite the severed mineral interest with the surface estate interest pursuant to Ohio’s Dormant Mineral Act. Chervenak recorded with the Guernsey County Recorder an affidavit of abandonment of the severed mineral interest. The affidavit stated that Chervenak sent notice by certified mail to Ms. Richards at her last known address – the Cleveland address – but the notice had been returned and marked undeliverable. The affidavit also stated that Ms. Richards’ heirs, devisees, executors, administrators, next of kin, and assigns had been served notice of the abandonment by publication in a Guernsey County newspaper. 

In 2017, Gerrity filed an action in the Guernsey County Court of Common Pleas seeking to quiet title to the mineral rights under the Chervenak property and for a declaratory judgment that Gerrity was the exclusive owner of the mineral rights. Gerrity claimed that he was the rightful owner to the mineral rights under the Chervenak property as a result of the probate of his mother’s estate in Florida. The Guernsey county records, however, revealed no evidence of Ms. Richard’s death or of Gerrity’s inheritance of the mineral interest. 

Further, Gerrity claimed that Chervenak did not comply with Ohio’s Dormant Mineral Act in two ways: (1) Gerrity argued that under the Dormant Mineral Act Chervenak must identify all holders of the mineral interest and notify them by certified mail; and (2) Chervenak did not employ reasonable search methods to locate all holders of the mineral interest before serving notice by publication. 

Both the Guernsey County Court of Common Pleas and the Fifth District Court of Appeals declared Chervenak the owner of the mineral rights under the Dormant Mineral Act. Gerrity then sought the Ohio Supreme Court’s review. 

The Dormant Mineral Act

Under current Ohio law, unless a severed mineral interest is in coal or is coal related, held by a political body, or a savings event has occurred within the 20 preceding years, a mineral interest will be considered abandoned and vested in the owner of the surface lands, so long as the surface landowner complies with Ohio Revised Code §5301.56(E). 

R.C. §5301.56(E) states: 

Before a mineral interest becomes vested in the surface landowner, the landowner shall do both of the following: 

  1. Serve notice by certified mail to each holder or each holder’s successors or assignees, at the last known address of each, of the landowner’s intent to declare the mineral interest abandoned. If service of the notice cannot be completed, then the landowner shall publish notice of the landowner’s intent to declare the mineral interest abandoned in a newspaper of general circulation in each county in which the land is located. 
  2. 30 days after serving notice, the landowner must file an affidavit of abandonment in the County Recorder’s office in each county that the land is located in. 

Gerrity claimed that under the Dormant Mineral Act, his mineral interest cannot be deemed abandoned and vested in Chervenak because under R.C. §5301.56(E)(1) Chervenak is required to identify Gerrity and serve him Chervenak’s notice of intent to declare the mineral rights abandoned. The Ohio Supreme Court disagreed. While the Ohio Supreme Court agreed that Gerrity was considered a “holder” under the Dormant Mineral Act, Chervenak was not required to identify every possible holder and serve them notice, especially holders that do not appear on public record. 

The Ohio Supreme Court found that such a stringent requirement would undo the intent behind the Dormant Mineral Act. The Court analyzed the text of the Dormant Mineral Act and found that because the Ohio General Assembly allows for a surface landowner to publish its notice of intent to declare the mineral rights abandoned in §5301.56(E)(1), the surface landowner is not required to identify and serve notice to each and every potential mineral interest holder. 

The Court reasoned that no surface owner, no matter how much effort put forth, will ever really be certain that he or she has identified every successor or assignee of every mineral interest owner who appears on public record. This is why, the Court articulated, that the General Assembly allows for publication of a landowner’s intent to declare the mineral rights abandoned, because there will be instances when a holder may be unidentifiable or unlocatable. 

Second, Gerrity argued that Chervenak must employ reasonable search methods to identify and locate all mineral interest holders – which include not only searching public records but also internet searches and searches of genealogy databases before publishing the notice in a newspaper. The Court agreed that a surface landowner must use reasonable diligence to try and identify mineral interest holders but disagreed with Gerrity to the extent in which a surface owner must go in order to have exercised reasonable diligence. The Ohio Supreme Court found that determining whether or not a surface landowner has exercised reasonable diligence to identify mineral interest holders will have to be determined on a case-by-case basis. 

In this case, the Ohio Supreme Court found that Chervenak did exercise due diligence in trying to locate all holders. The Court determined that by searching through Guernsey County records and Cuyahoga County records (the county in which Cleveland is located), Chervenak fulfilled their due diligence requirement. The Court declined to impose a requirement that every surface landowner search the internet, especially due to the inconsistent reliability of such searches, or consult with any subscription-based service to identify a potential mineral interest holder. The Court held that a search of county property records and county court records will usually establish a baseline of due diligence by the surface landowner. 

Visit the Ohio Supreme Court’s Slip Opinion on Gerrity v. Chervenak

Posted In: Oil and Gas, Property
Tags: Oil, Gas, Ohio Supreme Court, mineral rights
Comments: 0
Excessive water drainage across field
By: Peggy Kirk Hall, Wednesday, January 20th, 2021

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

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

Here are a few highlights of the legislation:

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

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

Go here to read H.B. 340. 

National Agriculture Library and National Agricultural Law Center

By: Peggy Kirk Hall, Thursday, December 17th, 2020

Whether from trespassers, thieves, vandals, disgruntled employees, drug makers, activists, or extremists, farm security threats are a risk farmers face.  Unfortunately, current social and political conditions have added new dimensions to that risk.  Intruders can harm property in many ways:  releasing or injuring livestock, stealing anhydrous or chemicals, destroying crops, contaminating water, introducing disease, setting fires, or committing other acts of theft, vandalism or destruction.   

Recent suspicious activities on Ohio farms have reminded us of the need for constant awareness of farm security and the threat of intentional harm to farm property.  Our newest publication, Intentional Harm to Farm Property:  Legal Options and Strategies for Farm Owners aims to meet this need by addressing:

What to do when a farm security issue occurs.  Three immediate actions can be helpful to ensuring a clear-headed reaction to an incident:

  • Call local law enforcement.
  • Secure the property and preserve the evidence.
  • Contact insurance provider.

Options for legal action.  How can a farmer address a security incident through the legal system?  Local law enforcement might pursue a criminal action, a farm owner might choose to file a civil action, or both criminal and civil actions could take place.  Conferring with law enforcement and an attorney will help determine an appropriate course of action.  The bulletin explains common criminal actions that might apply to a farm security episode, such as:

  • Agricultural product or equipment terrorism
  • Animal or ecological terrorism based on corrupt activity
  • Arson
  • Aggravated arson
  • Breaking and entering
  • Criminal damaging or endangering
  • Criminal mischief
  • Criminal trespass
  • Injuring animals
  • Poisoning animals
  • Reckless destruction of crops or timber
  • Theft
  • Vandalism
  • Attempt, complicity and conspiracy regarding any of the above crimes

We also review laws that provide for civil actions against someone who intentionally harms farm property, such as:

  • Civil action for damages for criminal act
  • Civil theft and willful damage
  • Civil trespass to personal property, such as animals and equipment
  • Civil trespass to real property
  • Civil vandalism
  • Civil action for animal or ecological terrorism
  • Destruction of crops or timber

Preventing the risk of farm security occurrences.   Farmers can adopt practices that reduce the possibility of intruders and incidents of intentional harm to farm property.  We list a dozen strategies in the bulletin that may be helpful, such as marking, posting and security property boundaries, maintaining a record of suspicious activities, vetting employees, and conferring with a security professional.

Read more about Intentional Harm to Farm Property:  Legal Options and Strategies for Farm Owners, which is available in the agricultural law library, here. 

By: Ellen Essman, Tuesday, September 29th, 2020

In case you didn’t notice, we are deep into election season.  Discussion of Supreme Court vacancies, presidential debates, and local races abound.  Even with all the focus on the election, the rest of the world hasn’t stopped. The same is true for ag law.  This edition of the Harvest includes discussion of ag-related bills moving through the Ohio General Assembly, federal lawsuits involving herbicides and checkoff programs, and some wiggle room for organic producers who have had a hard time getting certified with all the pandemic-related backups and shutdowns. 

Changes to Ohio Drainage Law considered in Senate—The Ohio Senate’s Agriculture & Natural Resources Committee continues to hold hearings on HB 340, a bill that would revise drainage laws.  The bill was passed in the house on June 9, 2020.  The 157 page bill would amend the current drainage law by making changes to the process for proposing, approving, and implementing new drainage improvements, whether the petition is filed with the board of the Soil and Water Conservation District, the board of county commissioners, or with multiple counties to construct a joint county drainage improvement.  The bill would further apply the single county maintenance procedures and procedures for calculating assessments for maintenance to multi-county ditches and soil and water conservation districts.  You can find the current language of the bill, along with a helpful analysis of the bill, here

Purple paint to warn trespassers? Elsewhere in the state Senate, SB 290 seems to be moving again after a lengthy stall, as it was recently on the agenda for a meeting of the Local Government, Public Safety & Veterans Affairs Committee.  If passed, SB 290 would allow landowners to use purple paint marks to warn intruders that they are trespassing.  The purple paint marks can be placed on trees or posts on the around the property.  Each paint mark would have to measure at least three feet, and be located between three and five feet from the base of the tree or post.  Furthermore, each paint mark must be “readily visible,” and the space between two marks cannot be more than 25 yards.  You can see the text, along with other information about the bill here

Environmental groups look to “Enlist” more judges to reevaluate decision.  In July, the U.S. Court of Appeals for the Ninth Circuit decided it would not overturn the EPA registration for the herbicide Enlist Duo, which is meant to kill weeds in corn, soybean, and cotton fields, and is made up of 2,4-D choline salt and glyphosate.  Although the court upheld registration of the herbicide, it remanded the case so that EPA could consider how Enlist affects monarch butterflies.  The court found that EPA failed to do this even though it was required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  On September 15, 2020, the Natural Resources Defense Council (NRDC) and other groups involved in the lawsuit filed a petition to rehear the case “en banc,” meaning that the case would be heard by a group of nine judges instead of just three.  If accepted, the rehearing would involve claims that the EPA did not follow the Endangered Species Act when it made the decision to register Enlist Duo. 

R-CALF USA has a “beef” with federal checkoff program.  Earlier this month, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) sued the United States Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia.  R-CALF USA has filed a number of lawsuits involving the Beef Checkoff program over the years, including several that are on-going.  Their argument, at its most basic, is that the Beef Checkoff violates the Constitution because ranchers and farmers have to “subsidize the private speech of private state beef councils through the national beef checkoff program.” In this new complaint, R-CALF USA alleges that when USDA entered into MOUs (memorandums of understanding) with private state checkoff programs in order to run the federal program, its actions did not follow the Administrative Procedure Act (APA).  R-CALF USA argues that entering into the MOUs was rulemaking under the APA.  Rulemaking requires agencies to give notice to the public and allow the public to comment on the rule or amendment to the rule.  Since USDA did not follow the notice and commenting procedures when entering into the MOUs, R-CALF USA contends that the MOUs violate the APA.  R-CALF USA further argues that did not consider all the facts before it decided to enter into the MOUs, and therefore, the agency’s decision was arbitrary and capricious under the APA.  You can read R-CALF USA’s press release here, and the complaint here

Flexibility for organics during COVID-19. Back in May, due to COVID uncertainty and state shutdowns, the Risk Management Service (RMS) stated that approved insurance providers “may allow organic producers to report acreage as certified organic, or transitioning to organic, for the 2020 crop year if they can show they have requested a written certification from a certifying agent by their policy’s acreage reporting date.” RMS’s original news release can be found here. In August, RMS extended that language. The extension will provide certification flexibility for insurance providers, producers, and the government in the 2021 and 2022 crop years.  Other program flexibilities may apply to both organic and conventional producers.  Information on those can be found here.

Ohio farmland
By: Peggy Kirk Hall, Friday, September 11th, 2020

Written by Barry Ward, Leader, Production Business Management, OSU Extension

Ohio cropland varies significantly in its production capabilities and, consequently, cropland values and cash rents vary widely throughout the state. Generally speaking, western Ohio cropland values and cash rents differ from much of eastern Ohio and parts of southern Ohio cropland values and cash rents. The primary factors affecting these values and rates are land productivity and potential crop return, and the variability of those crop returns. Soils and drainage capabilities are the two factors that heavily influence land productivity, crop return and variability of those crop returns.

Other factors impacting land values and cash rents may include buildings and grain storage, field size and shape, field accessibility, market access, local market prices, field perimeter characteristics and potential for wildlife damage, previous tillage system and crops, tolerant/resistant weed populations, population density, USDA Program Yields, and competition for the cropland in a region. Ultimately, supply and demand of cropland will determine the value or rental rate for each parcel.

The Western Ohio Cropland Values and Cash Rents study was conducted from February through April in 2020. The opinion-based study surveyed professionals with a knowledge of Ohio’s cropland values and rental rates. Professionals surveyed were rural appraisers, agricultural lenders, professional farm managers, ag business professionals, OSU Extension educators, farmers, landowners, and Farm Service Agency personnel.

The study results are based on 167 surveys. Respondents were asked to group their estimates based on three land quality classes: average, top, and poor. Within each land-quality class, respondents were asked to estimate average corn and soybean yields for a five-year period based on typical farming practices. Survey respondents were also asked to estimate current bare cropland values and cash rents negotiated in the current or recent year for each land-quality class.

According to the Western Ohio Cropland Values and Cash Rents Survey, cropland values in western Ohio are expected to decline slightly in 2020 by 1.5 to 2.6 percent depending on the region and land class. Cash rents are expected to be flat to slightly lower decreasing from 0.7 to 2.0 percent depending on the region and land class.

For the complete survey research summary go to the OSU Extension Farm Office website at:

https://farmoffice.osu.edu/farm-management-tools/farm-management-publications/cash-rents

By: Ellen Essman, Wednesday, September 09th, 2020

Despite the fact that “pumpkin spice” everything is back in stores, it is still summer, and if you’re anything like me, you’re still dealing with weeds. In fact, we have been receiving many questions about noxious weeds lately.  This blog post is meant to be a refresher about what you should do if noxious weeds sprout up on your property.

What are noxious weeds?

The Ohio Department of Agriculture (ODA) is in charge of designating “prohibited noxious weeds.”  The list may change from time to time, but currently, noxious weeds include:

  • Shatter cane (Sorghum bicolor)
  •  Russian thistle (Salsola Kali var. tenuifolia).
  • Johnsongrass (Sorghum halepense ).
  •  Wild parsnip (Pastinaca sativa).
  • Grapevines (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
  • Canada thistle (Cirsium arvense ).
  • Poison hemlock (Conium maculatum).
  •  Cressleaf groundsel (Senecio glabellus).
  • Musk thistle (Carduus nutans).
  • Purple loosestrife (Lythrum salicaria).
  • Mile-A-Minute Weed (Polygonum perfoliatum).
  • Giant Hogweed (Heracleum mantegazzianum).
  • Apple of Peru (Nicandra physalodes).
  • Marestail (Conyza canadensis)
  • Kochia (Bassia scoparia).
  • Palmer amaranth (Amaranthus palmeri).
  • Kudzu (Pueraria montana var. lobata).
  • Japanese knotweed (Polygonum cuspidatum).
  • Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
  • Field bindweed (Convolvulus arvensis).
  • Heart-podded hoary cress (Lepidium draba sub. draba).
  • Hairy whitetop or ballcress Lepidium appelianum).
  • Perennial sowthistle (Sonchus arvensis).
  • Russian knapweed (Acroptilon repens).
  • Leafy spurge (Euphorbia esula).
  • Hedge bindweed (Calystegia sepium).
  • Serrated tussock (Nassella trichotoma).
  • Columbus grass (Sorghum x almum).
  • Musk thistle (Carduus nutans).
  • Forage Kochia (Bassia prostrata).
  • Water Hemp (Amaranthus tuberculatus).

The list of noxious weeds can be found in the Ohio Administrative Code section 901:5-37-01. In addition to this list, Ohio State has a guidebook that will help you identify noxious weeds in Ohio, which is available here.  It may be helpful to familiarize yourself with the weeds in the book, so you can be on the lookout for noxious weeds on your property.

When am I responsible for noxious weeds?

The Ohio Revised Code addresses noxious weeds in different parts of the code. When it comes to noxious weeds on the property of private individuals, there are two scenarios that may apply: noxious weeds on private property, and noxious weeds in line fence rows.  

 Noxious weeds on your property

If your property is located outside of a municipality, a neighbor or another member of the public can inform the township trustees in writing that there are noxious weeds on your property. If this happens, the township trustees must then turn around and notify you about the existence of noxious weeds. After receiving a letter from the trustees, you must either destroy the weeds or show the township trustees why there is no need for doing so. If you do not take one of these actions within five days of the trustees’ notice, the township trustees must cause the weeds to be cut or destroyed, and the county auditor will assess the costs for destroying the weeds against your real property taxes.  If your land is in a municipality, similar laws apply, but you would be dealing with the legislative authority, like the city council, instead of township trustees.

What if you rent out your land out to be farmed or otherwise?  Are you responsible for noxious weeds on your property in that situation?  The answer is probably.  The law states that the board of township trustees “shall notify the owner, lessee, agent, or tenant having charge of the land” that they have received information about noxious weeds on the property (emphasis added).  Furthermore, the law says that the “person notified” shall cut or destroy the weeds (or have them cut or destroyed).  In all likelihood, if you own the land, you are going to be the person who is notified by the trustees about the presence of weeds.  If you rent out your property to be farmed or otherwise, you may want to include who is responsible for noxious weeds in the language of the lease.    

Noxious weeds in the fence row

The “line fence law” or “partition fence law” in Ohio requires landowners in unincorporated areas to cut all noxious weeds, brush, briers and thistles within four feet and in the corners of a line fence. A line fence (or partition fence) is a fence that is on the boundary line between two properties. If you fail to keep your side of the fence row clear of noxious weeds and other vegetation, Ohio law provides a route for adjacent landowners concerned about the weeds. First, an adjacent landowner must request that you clear the fence row of weeds and must allow you ten days to do so. If the weeds still remain after ten days, the complaining landowner may notify the township trustees of the situation. Then, the township trustees must view the property and determine whether there is sufficient reason to remove weeds and vegetation from the fence row. If they determine that the weeds should be removed, the township trustees may hire someone to clear the fence row.  Once again, if this occurs, the county auditor will assess the costs of destruction on your property taxes. 

Being aware of noxious weeds is key. 

As a landowner, it is really important for you to keep an eye out for noxious weeds on your property.  If you keep on top of the weeds, cutting them or otherwise destroying them as they grow, it will certainly make your life a lot easier. You will avoid awkward conversations with neighbors, letters from your township trustees, and extra charges on your property taxes. Additionally, you will help to prevent the harm that noxious weeds may cause to crops, livestock, and ecosystems in general.

 To learn more about Ohio’s noxious weed laws, you can access our law bulletin on the subject here.  While the bulletin addresses the responsibilities of landowners, it also goes beyond the scope of this blog post, addressing weeds on roadways, railroads, and public lands, as well as how to respond if your neighbor has noxious weeds on their property.  Additionally, the bulletin has a helpful section of “frequently asked questions” regarding noxious weeds. 

By: Ellen Essman, Tuesday, March 10th, 2020

In Ohio and around the country, farmers are gearing up for a new planting season.  Spring is (almost) here! Before we leave winter totally behind, we wanted to keep you up to date on some notable ag law news from the past few months.

Here’s a look at what’s going on in ag law across the country…

New law signed to ramp up ag protections at U.S. ports of entry. Last summer, a bill was introduced in the United States Senate by a bipartisan group of senators.  The purpose of the bill was to give more resources to Customs and Border Control (CBP) to inspect food and other agricultural goods coming across the U.S. border.  On March 3, 2020, the President signed the bill into law.  The new law authorizes CBP to hire and train more agricultural specialists, technicians, and canine teams for inspections at ports of entry.  The additional hires are meant to help efforts to prevent foreign animal diseases like African swine fever from entering the United States.  You can read the law here.

The Renewable Fuel Standard gets a win.  We reported on Renewable Fuel Standard (RFS) issues last fall, and it seems as though the battles between biofuel producers and oil refineries have spilled over into 2020.  For a refresher, the RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels.  Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane.  In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners.  As a result, biofuels groups filed a lawsuit, asserting that EPA did not have the power to grant some of the waivers it gave to small oil refiners.  On January 24, 2020, the U.S. Court of Appeals for the Tenth Circuit agreed with the biofuels groups.  You can find the 99-page opinion here. If you’re not up for that bit of light reading, here’s the SparkNotes version: the court determined that EPA did not have the authority to grant three waivers to two small refineries in 2017.  The court found that EPA “exceeded its statutory authority” because it extended exemptions that had never been given in the first place. To put it another way, the court asked how EPA could “extend” a waiver when the waiver had not been given in previous years. The Trump Administration is currently contemplating whether or not to appeal the decision. 

Virginia General Assembly defines “milk.” To paraphrase Shakespeare, does “milk by another name taste as sweet?” Joining the company of a number of other states that have defined “milk” and “meat,” the Virginia General Assembly passed a bill on March 4, 2020 that defines milk as “the lacteal secretion, practically free of colostrum, obtained by the complete milking of a healthy hooved mammal.” The bill would make it illegal to label products as “milk” in Virginia unless they met the definition above.  Essentially, products like almond milk, oat milk, soy milk, coconut milk, etc. would be misbranded if the labels represent the products as milk.  Governor Ralph Northam has not yet signed or vetoed the bill. If he signs the bill, it would not become effective until six months after 11 of 14 southern states enact similar laws. The 11 states would also have to enact their laws before or on October 1, 2029 for Virginia’s law to take effect.  The states are: Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and West Virginia.  North Carolina has already passed a similar law. 

And now, for ag law in our neck of the woods.

Purple paint bill reintroduced in Ohio.  You may recall that the Ohio General Assembly has been toying with the idea of a purple paint law for the past several years.  On March 4, 2020, Senator Bill Coley (R-Liberty Township) once again introduced a purple paint bill.  What exactly does “purple paint” mean? If passed, the bill would allow landowners to put purple paint on trees and/or fence posts. The marks would have to be vertical lines at least eight inches long, between three and five feet from the base of the tree or post, readily visible, and placed at intervals of at most 25 yards. If the bill passed, such marks would be sufficient to inform those recklessly trespassing on private property that they are not authorized to be there.  People who recklessly trespass on land with purple paint marks would be guilty of a fourth degree criminal misdemeanor.  You can read the bill here.

Bill giving tax credits to beginning farmers considered. Senate Bill 159, titled “Grant tax credits to assist beginning farmers” had a hearing in the Senate Ways & Means Committee on March 3, 2020.  The bill, introduced last year, seeks to provide tax incentives to beginning farmers who participate in an approved financial management program, as well as to businesses that sell or rent agricultural land, livestock, facilities, or equipment to beginning farmers. A nearly identical bill is being considered in the House, HB 183. Back in February, Governor Mike DeWine indicated he would sign such a bill if it passed the General Assembly.  SB 159 is available here, and HB 183 is available here.

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