Property

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

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

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

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

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

A second judge finds that Trump’s WOTUS repeal was not procedurally sound.  Surprise, surprise, the WOTUS, or “waters of the United States” rule is in the news again.  In many previous blog posts, we have chronicled decisions on the ever-present WOTUS rule (search “WOTUS” in our search bar for our other posts).  Readers will recall that last February, the Trump administration published a new rule which was meant to repeal Obama’s WOTUS rule and replace it with the pre-2015 definition of WOTUS until a new definition could be developed.  Trump’s  rule was published on February 6, 2018, giving the administration until 2020 to come up with a new definition.  On August 16, 2018, a district court judge in South Carolina found that the Trump administration did not comply with the requirements of the Administrative Procedure Act (APA) when it enacted the February 6 rule.  Similarly, on November 26, 2018, Judge John Coughenour in the Western District of Washington found that “by restricting the content of the comments solicited and considered [about the February rule], the Agencies deprived the public of a meaningful opportunity to comment on relevant and significant issues in violation of the APA’s notice and comment requirements.”  Rulemaking that violates the APA is invalid.  Judge Coughenour’s full decision is available here.

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

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

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

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

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

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

What is aquaculture?

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

 What are right-to-farm laws?

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

Where aquaculture and right-to-farm laws overlap

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

Ohio’s right-to-farm legislation

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

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

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

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

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

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

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

Posted In: Animals, Property
Tags: livestock, aquaculture, right-to-farm
Comments: 0
By: Peggy Kirk Hall, Wednesday, November 14th, 2018

Written by Ellen Essman, Sr. Research Associate

Over the last several months, three nuisance cases have been decided against Smithfield Foods in federal court in North Carolina.  The juries in the cases have found Smithfield’s large farms, with thousands of hogs, and the odor, traffic, and flies that come along with them, to be a nuisance to neighboring landowners.  Smithfield has been ordered to pay hefty damages to the neighbors, and more cases against the company remain to be decided.  Given the outcomes of the cases that have been decided thus far, farmers and landowners in Ohio might be wondering how Ohio law compares to North Carolina law as pertains to agricultural nuisances.

Ohio’s Right-to-Farm law

Many states, including both Ohio and North Carolina, have “right-to-farm” legislation, which in part is meant to protect agriculture from nuisance lawsuits such as those filed against Smithfield.  While nearly every state has a right-to-farm statute, they do differ in language and how they go about protecting agriculture. 

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

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

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

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

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

North Carolina’s Right-to-Farm law

Much like Ohio, North Carolina farm land can be part of an “agricultural district.” North Carolina’s preservation of farmland law is available here.  This program is meant to protect agricultural land—land that is part of an agricultural district is must be used for agriculture for at least 10 years.  However, unlike Ohio’s law, North Carolina does not specifically spell out that land in agricultural districts will be protected from nuisance suits when the landowner follows the rules of the agricultural district.  North Carolina’s law does state that one of the purposes of agricultural districts is to “increase protection from nuisance suits and other negative impacts on properly managed farms,” but unlike Ohio, it does not explicitly state that being part of an agricultural district is a defense to a nuisance lawsuit. 

North Carolina also has a statute which specifically spells out the right-to-farm.  In response to the recent jury decisions, however, North Carolina has changed its right-to-farm law.  The original law read:

  1. No agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality outside of the operation after the operation has been in operation for more than one year, when such an operation was not a nuisance at the time the operation began.

(a1) The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change.  A fundamental change does not include any of the following:

  1. A change in ownership or size.
  2. An interruption of farming for a period of no more than three years.
  3. Participation in a government-sponsored agricultural program.
  4. Employment of new technology.
  5. A change in the type of agricultural or forestry product produced.

The original law did not protect agricultural operations if their actions were negligent or improper.  The original law is available here.

Following the first decision against Smithfield, the North Carolina legislature overrode the Governor’s veto to implement amendments to the state’s right-to-farm law.  In the amendments, available here (sections 106-701 and 106-702), the legislature substantially changed the language of the law, making what constitutes a nuisance much more explicit and dependent on certain factors.  What is more, the new version of the law places limits on when plaintiffs can recover punitive damages for a private nuisance action.  

A comparison of the Ohio and North Carolina’s sections of legislation promoting the “right-to-farm” shows how different the two states are.  Ohio’s legislative language makes it obvious that the meaning of the law is to protect agriculture from nuisance suits—by specifically stating that being in an agricultural district is a complete defense to nuisance, and that otherwise, agriculture is generally exempt from nuisance suits.  North Carolina’s law concerning agricultural districts does not specifically state that being in such a district is a defense to nuisance, instead, it simply expresses the hope that districts will “increase protection from nuisance suits.”  Furthermore, while North Carolina’s original right-to-farm law stated that agricultural operations do not “become a nuisance” due to changed conditions in the community, that language is not very specific.  Ohio’s agricultural district language lays out exactly what must be done to have a complete defense against a nuisance lawsuit; North Carolina’s language in multiple parts of the General Statutes does not have the same degree of specificity.

Permit as a defense to nuisance

In addition to the right-to-farm law, under ORC 903.13, those owning, operating, or responsible for concentrated animal feeding facilities in Ohio have an affirmative defense to a private civil action for nuisance against them if the CAFO is “in compliance with best management practices” established in their installation of a disposal system or operation permits.   North Carolina does not appear to have similar language protecting permitted farms in its General Statutes. 

Other factors that may come into play

In the lawsuits against Smithfield farms, the lawyers for the plaintiffs (neighboring landowners) have continuously asserted that Smithfield has “means and ability” to “reduce the nuisance from existing facilities” by ending the use of “lagoon and sprayfield” systems at their farms.  Plaintiffs stress that not only is Smithfield Foods, Inc. a large, wealthy, multinational company, but that they have also changed their lagoon and sprayfield practices outside of North Carolina.  In lagoon and sprayfield systems, all waste is collected in an open-air lagoon and then sprayed on fields as fertilizer.  The practice was first banned for new construction in North Carolina in 1997, and in 2007, the state permanently banned the practice for newly constructed swine facilities.  Although many of the facilities in question were opened before any ban on the construction of lagoon and sprayfield facilities, the plaintiffs contend that changes made in other states mean Smithfield can afford to change in North Carolina.  The ban on new lagoon and sprayfield systems in North Carolina, and evidence that Smithfield has used different practices to reduce the smell from the farms in other states, likely helped the juries in the cases that have been tried to date find that the farms are a nuisance to their neighbors. The above argument is something operators of livestock facilities in Ohio should be aware of.  Although Ohio has not specifically banned lagoon and sprayfield systems like North Carolina has, the ability to change the system could still potentially be used to argue nuisance.  Ohio operators are supposed to follow best management practices and the Natural Resources Conservation Service’s Field Office Technical guide when applying and storing manure, which include ways to reduce odor from manure and other applications, as well as reducing other types of nutrient pollution.  Following such guidelines would likely help operators in any argument against nuisance. 

By: Evin Bachelor, Thursday, October 11th, 2018

Since significant changes were made to Ohio’s Line Fence Law in 2008, landowners have contacted us with a variety of questions about how it works.  We have compiled many of the frequently asked questions in our new law bulletin, appropriately titled Ohio’s Line Fence Law: Frequently Asked Questions.  The law bulletin answers questions like:

  • Who has to pay for a new line fence?
  • Can I stop my neighbor from installing a new line fence?
  • Who has to pay for maintenance and upkeep of a line fence?
  • What is the role of the township trustees?
  • What happens when my neighbor and I disagree?

The new law bulletin is available here.  If you still have some questions about Ohio’s line fence law, check out the Line Fence Law section of our Ag Law Library here, including our more in-depth fact sheet and our explanation about line fence affidavits.

Posted In: Property
Tags: line fence law
Comments: 0
By: Peggy Kirk Hall, Wednesday, September 19th, 2018

New changes to Ohio’s prohibited noxious weeds list took effect last Friday, September 14th.  In a previous blog post, we explained that the Ohio Department of Agriculture (ODA) was considering an update to the list as part of a mandatory five year review of all administrative rules.  ODA ultimately added 13 new species to the list, and removed 3 species.

Added to the list of prohibited noxious weeds are:

  • 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).

Removed from the list are:

  • Wild carrot (Queen Anne’s lace) (Daucus carota L.).
  • Oxeye daisy (Chrysanthermum leucanthemum var. pinnatifidum).
  • Wild mustard (Brassica kaber var. pinnatifida).

Still on the list are:

  • Shatter cane (Sorghum bicolor).
  • Russian thistle (Salsola Kali var. tenuifolia).
  • Johnsongrass (Sorghum halepense).
  • Wild parsnip (Pastinaca sativa).
  • Grapevines: 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).

The revised list can be found online at Ohio Administrative Code § 901:5-37-01.  Readers may recall that the Farm Office’s Ag Law Library has a law bulletin on Ohio’s Noxious Weed Laws.  It has been updated to reflect the changes, and is available here.

Posted In: Property
Tags: noxious weed law, Ohio noxious weeds
Comments: 0
By: Peggy Kirk Hall, Monday, September 17th, 2018

 A question we often hear from landowners is "will I be liable if a hunter is injured on my property?"  Ohio's Recreational User's Statute is an excellent risk management tool for farmers who so often have hunters stopping by and asking for permission to hunt on the farm.  The law provides immunity for landowners of non-residential land who allow people to engage in recreational activities on the land without charging a fee for the activity.  The law states that by granting permission, the landowner is not extending any assurance to a recreational user that the premises are safe for entry or use. 

To receive the law's liability protection, it's important for a landowner to meet the following requirements:

  1.   Grant permission to a person to engage in a recreational activity such as hunting, fishing, hiking, snowmobiling, four-wheeling, or other recreational activities.
  2.   Don't charge a fee or benefit for the use, except that the law does allow a lease payment fee.

Read more about the law in our new bulletin,  The Who, What, When, and Where of Ohio’s Recreational User Statute: What Landowners Need to Know.   The bulletin is available here.

By: Peggy Kirk Hall, Wednesday, August 08th, 2018

New law bulletin explains Ohio surface water drainage law

The drainage of surface water is undoubtedly important to agricultural landowners.  A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property.  The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property.  Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.

Here is a quick summary of the bulletin:

  • A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
  • However, a landowner  has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
  • To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors:   the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
  • A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference.  Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
  • Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project.  Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.

For a detailed explanation of drainage rights, read the full bulletin here.

By: Peggy Kirk Hall, Tuesday, July 31st, 2018

When you think of “agritourism,” corn mazes and hay rides may first come to mind.  While those activities can fall under Ohio's definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio.  This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities.  The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.

It's important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:

Conditions for immunity from liability

1.  Qualify as an “agritourism provider.”    The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee.   An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.”  This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals.  Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:

  • At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,”  which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”  
  • Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land. 

2.  Post required signs.  Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection.  The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm.  The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau.  Each sign must:

  • Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
  • Contain the following statement, in black letters measuring at least one inch high:

WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity.  Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death.  You are assuming the risk of participating in this agritourism activity.

Immunity from what?

The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.”  An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize.  According to the law, “inherent risks” include:

  • The surface and subsurface conditions of the land;
  • The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
  • The behavior or actions of domestic animals other than vicious or dangerous dogs;
  • The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
  • The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
  • The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant. 

If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries.  In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property. 

Exceptions to immunity

Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute.  The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:

  • Fails to post and maintain signs (discussed above)
  • Acts with a willful or wanton disregard for the safety of the participant,
  • Purposefully causes harm to the participant,
  • Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
  • Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant. 

Use the agritourism law to your advantage

Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture.  But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure.  Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection.  Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries. 

The agritourism immunity law is in Ohio Revised Code section 901.80.  For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.

By: Peggy Kirk Hall, Wednesday, April 11th, 2018

Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:

  • 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 director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property.  The current noxious weeds list also contains the following plants, which will remain on the list:

  • 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 L. (Scop.))
  • 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)

ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018.  E-mail comments to ecomments@agri.ohio.gov or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068.  Learn more about noxious weed laws in our bulletin, here.

By: Peggy Kirk Hall, Thursday, December 07th, 2017

Decisions announced today by the Ohio Supreme Court will allow landowners to challenge Current Agricultural Use Valuation (CAUV) land values established by Ohio’s tax commissioner by appealing the values to the Board of Tax Appeals.

Twin rulings in cases filed by a group of owners of woodland enrolled in CAUV, Adams v. Testa, clarify that when the tax commissioner develops tables that propose CAUV values for different types of farmland, holds a public hearing on the values and adopts the final values by journal entry, the tax commissioner’s actions constitute a “final determination” that a landowner may immediately appeal to the Board of Tax Appeals. The Board of Tax Appeals had argued that the adoption of values is not a final determination and therefore is not one that a landowner may appeal to the Board.

The tax commissioner forwards the CAUV tables to the county auditors, who must use the values for a three year period. An inability to appeal the values when established by the tax commissioner would mean that a landowner must wait until individual CAUV tax values are calculated by the county auditor, who relies upon the tax commissioner’s values to calculate the county values. As a result of today’s decision, landowners may appeal the values as soon as the tax commissioner releases them.

The landowners also claimed that the process and rules for establishing the CAUV values are unreasonable and not legal. However, the Court rejected those claims.

For an excellent summary of the Adams v. Testa cases by Court News Ohio, follow this link.

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