Property

By: Ellen Essman, Wednesday, October 16th, 2019

In August, the Secretary of the Interior announced that the Trump Administration would be making revisions to the way the Endangered Species Act (ESA) is carried out under federal regulations.  The move was made in part to further the Administration’s goal to “ease the regulatory burden” on citizens.  The revised regulations apply to sections 4 and 7 of the ESA, which means they make changes to how species are listed as endangered, how critical habitat for species is determined, how threatened species are treated, and how the different federal agencies cooperate to carry out the ESA.

Revision of endangered, threatened, and critical habitat protections

The changes to how the ESA is carried out were made in three rulemakings published on August 27, 2019. One of the rules, available here, is meant to increase cooperation between federal agencies when carrying out the ESA (this rule is set to become effective on October 28).  Changes made by the other two rules, available here, and here, are much more controversial because they have a great impact on how endangered and threatened species and their habitats are treated under federal regulations. The new rules went into effect on September 26, 2019. We discuss some of the biggest modifications below.

 First, the rules change the term “physical or biological features” to “physical or biological features essential to the conservation of the species.” This change will likely diminish the number of natural features and areas that will be protected, since only those deemed essential to an endangered species will be protected. Similarly, the new rules give the federal government more leeway to determine when habitat is not critical habitat for species, which may result in less habitat being protected under the new iteration of the rules.

 In yet another change, the new rules separate the discussion of “threatened” and “endangered” species within the regulatory text.  Due to this uncoupling, some read the new version of the rule as stripping threatened species of protections they enjoyed when they were more closely related to endangered species. The new edition of the rules instead includes factors for determining whether a species can be listed as threatened, such as whether it is likely the species will become endangered in the “foreseeable future,” which will be determined on a case by case basis.  Critics of the new rules believe that this language will give the government the discretion to overlook the effects of climate change on a species, which could play out over a period of time longer than the “foreseeable future.” Along the same lines, the rules also make it harder to ban certain activities in order to protect threatened species.

 The rules weaken the ESA by allowing the federal government to take into account the actions of states, other nations, and local jurisdictions when listing and delisting species. In other words, if the species is being protected on another level of government or by another country, the U.S. government may be less inclined to protect the species; either by choosing not to list the species, or by removing its threatened or endangered status. Importantly, the new rules also allow “commercial information,” not just scientific information, to be considered when making a decision. Under the old rules, agencies were not allowed to consider the economic impacts of listing or delisting a species. On the whole, the rules seem to give the federal government a lot more discretion to determine that species or habitats should not be protected.

Lawsuits

On September 25, 2019, the day before the new rules became effective, the attorneys general from 17 states, including Ohio’s neighbors Michigan and Pennsylvania, sued the Trump Administration in federal court over the changes to the rules.  You can find the complaint here.  The states assert that the rulemaking violates several federal statutes, including the Administrative Procedure Act, which governs federal administrative agencies.  The states further claim that the weakening of protections for endangered and threatened species and their habitats will cause harm to their natural resources, harm to their citizens through environmental degradation, take away the current and future economic benefits of protected species, and increase costs for state governments.

Congressional action

 Amidst all the rule changes and lawsuits, members of Congress have been working on their own potential changes to the ESA.  Recently, the Congressional Western Caucus, a group of congress members from all around the country who are concerned with land use and resource rights, among other causes, introduced nineteen bills meant to “modernize” the ESA.  If you’re interested in the specifics of each bill, they are listed on the Caucus’ website, here.  Overall, the bills focus on fixing the ESA by implementing “defined recovery goals” for species, relying on “standardized…publically available” science, and allowing more involvement from states and stakeholders on endangered species decisions. 

With action taking place on the administrative, legislative, and judicial levels of the federal government, the way the ESA is written and interpreted seems to be up in the air at present. We will be sure to update the Ag Law Blog with any developments. 

By: Peggy Kirk Hall, Monday, October 14th, 2019

By Peggy Kirk Hall and Ellen Essman

Ohio’s newly created hemp program is one step further toward getting off the ground.   On October 9, the Ohio Department of Agriculture (ODA) released its anxiously awaited proposal of the rules that will regulate hemp production in Ohio.   ODA seeks public comments on the proposed regulations until October 30, 2019.  

There are two parts to the rules package:  one rule for hemp cultivation and another for hemp processing.   Here’s an overview of the components of each rule:

1.  Hemp cultivation

The first rule addresses the "cultivation" of hemp, which means "to plant, water, grow, fertilize, till or havest a plant or crop."  Cultivating also includes "possessing or storing a plant or crop on a premises whre the plant was cultivated until transported to the first point of sale."  The proposal lays out the following regulatory process for those who wish to cultivate hemp in Ohio.

Cultivation licenses.  Anyone who wants to grow hemp must receive a hemp cultivation license from the ODA.  Licenses are valid for three years.  To obtain a license, the would-be hemp cultivator must submit an application during the application window, which will be between November 1 and March 31.  The application requires the applicant to provide personal information about the applicant, and if the applicant is a business, information about who is authorized to sign on behalf of the business, who will be primarily responsible for hemp operations and the identity of those having a financial interest greater than ten percent in the entity.    The cultivation license application will also seek information about each location where hemp will be grown, including the GPS coordinates, physical address, number of outdoor acres or indoor square footage, and maps of each field, greenhouse, building or storage facility where hemp will grow or be stored.  Cultivators must pay a license application fee of $100, and once licensed, an additional license fee of $500 for each growing location, which the rule defines as "a contiguous land area or single building in which hemp is grown or planned to be grown."  All applicants and anyone with a controlling interest in the hemp cultivation business must also submit to a criminal records check by the bureau of criminal identification and investigation. 

Land use restrictions.  The proposed rules state that a licensed hemp cultivator shall not:

  • Plant or grow cannabis that is not hemp.
  • Plant or grow hemp on any site not approved by the ODA.
  • Plant, grow, handle or store hemp in or within 100 feet of a residential structure or 500 feet of a school or public park, unless for approved research. 
  • Co-mingle hemp with other crops without prior approval from ODA.
  • Plant or grow hemp outdoors on less than one-quarter acre, indoors on less than 1,000 square feet, or in a quantity of less than 1,000 plants without prior approval from ODA.
  • Plant or grow hemp within half a mile of a parcel licensed for medical marijuana cultivation.
  • Plant or grow hemp on property that the license holder does not own or lease.

Hemp harvesting.  Licensed growers would be required to submit a report to ODA at least 15 days before their intended harvest date and pay a pre-harvest sample fee of $150.  ODA then has to sample the hemp for THC content, and only if approved can a cultivator harvest the crop, which in most cases must occur within 15 days after the sample is taken.  Failing to harvest within the 15-day window might require a secondary sampling and sampling fee.  A cultivator would be required to have a hemp release form from ODA before moving any harvested materials beyond the storage facility.

Random sampling.  The proposed rules also allow for random sampling of hemp by ODA and provide details on how ODA will conduct the sampling and charge sampling fees.  Any cultivator is subject to random sampling in each location where hemp has been cultivated.  ODA will report testing results that exceed 0.3 THC to the cultivator, who may request a second sample.  A cultivator must follow procedures for destroying any leaf, seed, or floral material from plants that exceed 0.3 THC and any material that was co-mingled with the 0.3 THC materials, but may harvest bare hemp stalks for fiber.

Destruction of hemp.   Under the proposed regulations, a license holder must submit a destruction report before destroying hemp and ODA must be present to witness the destruction.  The proposed rules also authorize ODA to destroy a crop that was ordered destroyed, abandoned, or otherwise not harvested and assess the costs against the licensee.

Reporting and recordkeeping are also important in the proposed rules.  Licensed cultivators must submit a planting report on an ODA form for each growing location by July 1 or within 15 days of planting or replanting, which shall include the crop’s location, number of acres or square footage, variety name, and primary intended use.  The rule would also require licensees to submit a completed production report by December 31 of each year.    A licensee that fails to submit the required reports would be subject to penalties and fines. Cultivators must maintain planting, harvest, destruction and production reports for three years.

Control of volunteer plants.  A licensee must scout and monitor unused fields for volunteer hemp plants and destroy the plants for a period of three years past the last date of reported planting.  Failing to do so can result in enforcement action or destruction of the plants by ODA with costs assessed to the licensee.

Pesticide and fertilizer use.  The laws and rules that apply to other crops will also apply to hemp, except that when using a pesticide on a site where hemp will be planted, the cultivator must comply with the longest of any planting restriction interval on the product label.   ODA may perform pesticide testing randomly, and any hemp seeds, plants and materials that exceed federal pesticide residue tolerances will be subject to forfeiture or destruction without compensation. 

Prohibited varieties.  The proposed rule states that licensed cultivators cannot use any part of a hemp plant that ODA has listed as a prohibited variety of hemp on its website. 

Clone and seed production.  Special rules apply to hemp cultivators who plan to produce clones, cuttings, propagules, and seed for propagation purposes.  The cultivator can only sell the seeds or plants to other licensed cultivators and must maintain records on the variety, strain and certificate of analysis for the “mother plants.”  The licensee need not submit a harvest report, but must keep sales records for three years of the purchaser, date of sale, and variety and number of plants or seeds purchased. 

Cultivation research.  Universities may research hemp cultivation without a license but private and non-profit entities that want to conduct research must have a cultivation license.  Cultivation research licensees would be exempt from many parts of the proposed rules, but must not sell or transfer any part of the plants and must destroy the plants when the research ends. 

Enforcement.  The proposed rule grants authority to the ODA to deny, suspend or revoke cultivation licenses for those who’ve provide false or misleading information, haven’t completed a background check, plead guilty to a felony relating to controlled substances within the past 10 years, or violated the hemp laws and rules three or more times in a five-year period.

2.  Hemp processing

The proposed rules package by ODA also addresses processing, which the rule defines as “converting hemp into a hemp product” but does not include on-farm drying or dehydrating of raw hemp materials by a licensed hemp cultivator for sale directly to a licensed hemp processor.    Because of this definition, many farmers who want only to grow and dry hemp would need only a cultivation license.  Growers who want to process their licensed hemp into CBD oil or other products, however, must also obtain a processing license.  The processing rules follow a similar pattern to their cultivation counterpart, as follows. 

Processing licensesIn addition to submitting the same personal, business and location information as a cultivation license requires, a hemp processing license application must list the types of hemp products that the processor plans to produce.   An “extraction operational plan” including safety measures and guidelines is required for processors who want to extract CBD from hemp to produce their product, and an applicant must indicate compliance with all building, fire, safety and zoning requirements.  The amount of the license fee depends on what part of the hemp plant the processor plans to process.  Processing raw hemp fiber, for example, requires a $500 license fee for each processing site, whereas processing the raw floral component of hemp requires a $3000 fee for each site.  Like the cultivation license, a processing license is valid for three years.  Applicants and those with a controlling interest in the business must submit to a background check. 

Land use restrictions.  The proposed regulations would prevent a licensed processor from:

  • Processing or storing any cannabis that is not hemp.
  • Processing or storing hemp or hemp products on any site not approved by ODA.
  • Processing, handling, or storing hemp or hemp products in or adjacent to a personal residence or in any structure used for residential use or on land zoned for residential use.
  • Processing hemp within 500 feet of a school or public park, except for approved research.

Financial responsibility.    A licensed processor must meet standards of financial responsibility, which require having current assets at least $10,000 or five percent of the total purchase of raw hemp materials in the previous calendar year, whichever is greater, and possessing a surety bond.

Inspection and sampling.  As with cultivation licensees, hemp processing licensees would be subject to inspection and sampling by ODA under the proposed rule. 

Food safety regulations.  The proposed rule requires hemp processes to comply with federal and state food safety regulations.

Sources and extraction of cannabinoids (CBD). A processor who wants to extract or sell CBD products must obtain the materials from a licensed or approved cultivator or processor in Ohio or another state with hemp cultivation licenses.  The regulation outlines components of the extraction operational plan that a processor must submit with the processing application, as well as acceptable extraction methods and required training.

Product testing.  A hemp processor must test hemp products at an accredited testing laboratory before selling the products.   The proposed rule describes the testing procedures, which address microbial contaminants, cannabinoid potency, mycotoxins, heavy metals, pesticide and fertilizer residue and residual solvents.  There are testing exemptions, however, for hemp used exclusively for fiber, derived exclusively from hemp seed and hemp extracts.  The testing laboratory must create a certificate of analysis for each batch or lot of the tested hemp product.

Processor waste disposal.  Under the proposed rule, a licensed processor must follow procedures for proper disposal of hemp byproducts and waste and must maintain disposal records.

Product labeling requirements are also proposed in the rule.  A processor must label all hemp products except for those made exclusively from hemp fiber as outlined in the rule and in compliance with federal law and other existing Ohio regulations for standards of identify and food coloring.

Recordkeeping.  As we’d expect, the proposal states that hemp processors must maintain records for five years that relate to the purchase of raw, unprocessed plant materials, the purchase or use of extracted cannabinoids, and the extraction process. 

Prohibited products.  Finally, the proposed rules include a list of hemp products that cannot be offered for sale, which includes hemp products with over 0.3 percent THC by dry weight basis, hemp products which laboratory testing determines do not meet standards of identity or that exceed the amount of mytoxins, heavy metals, or pesticides allowed, and any hemp products produced illegally.

What’s next for the hemp rules?

Keep in mind that these rules are not yet set in stone; they are a simply a proposal for hemp licensing rules in Ohio.  Those interested in cultivating or processing hemp in the future should read the draft rules carefully.  The proposed rule for hemp cultivation is here and the proposal for hemp processing is here.  Anyone can submit comments on the proposed rules here.  Your comments could affect what the final hemp rules require for hemp cultivators and processors.  After ODA reviews all comments, it will issue its final hemp licensing regulations. 

Federal law requires that after Ohio finalizes its rules, ODA must submit them to the USDA for approval.  That approval won’t occur, however, until USDA completes its own hemp regulations, which are due out in proposal form any day now.  Ohio’s rules will become effective once USDA approves them, hopefully in time for the 2020 planting season.  Stay tuned to the Ag Law Blog to see what happens next with hemp production in Ohio.

By: Peggy Kirk Hall, Wednesday, August 14th, 2019

Large "utility-scale" solar energy development is on the rise in Ohio.  In the past two years, the Ohio Power Siting Board has approved six large scale solar projects with generating capacities of 50MW or more, and three more projects are pending approval.   These “solar farms” require a large land base, and in Ohio that land base is predominantly farmland.   The nine solar energy facilities noted on this map will cover about 16,500 acres in Brown, Clermont, Hardin, Highland and Vinton counties.  About 12,300 of those acres were previously used for agriculture. 

With solar energy development, then, comes a new demand for farmland:  solar leasing.  Many Ohio farmland owners have received post cards and letters about the potential of leasing land to a solar energy developer.  This prospect might sound appealing at first, particularly in a difficult farming year like this one.  But leasing land for a solar energy development raises many implications for the land, family, farm operation, and community.  It's a long-term legal commitment--usually 25 years or more--that requires careful assessment and a bit of homework. 

To help landowners who are considering solar leasing, we've joined forces with Eric Romich, OSU Extension's Field Specialist in Energy Education, to publish the Farmland Owner's Guide to Solar Leasing.  The online guide explains the state of solar energy development in Ohio, reviews initial considerations for leasing farmland to solar, and describes legal documents and common terms used for solar leasing.  The guide's solar leasing checklist organizes the information into a list of issues to consider, things to do, people to consult, and questions to ask before deciding whether to enter into a solar lease.

The Farmland Owner's Guide to Solar Leasing is available at no cost on our Farm Office website, here.  A separate Law Bulletin of The Farmland Owner's Solar Leasing Checklist is also available on Farm Office, here.  We produced the guide in partnership with the National Agricultural Law Center at the University of Arkansas, with funding from the National Agricultural Library, Agricultual Research Service, at the United States Department of Agriculture.

 

Posted In: Contracts, Property, Renewable Energy
Tags: solar leasing
Comments: 0
By: Evin Bachelor, Friday, August 09th, 2019

This weekend, as you enjoy your morning cup of coffee and find yourself wondering what’s the news in our court system, look no further than this blog post.  Every now and then there’s a new court opinion related to agricultural law that peaks our interest and makes us want to share a summary of what happened.  This week we read cases about the federal Takings Clause, wind energy, and oil and gas rights.  Here are the stories:

  • A property owner may bring a claim in federal court under the Fifth Amendment when the government has violated the Takings Clause by taking property without just compensation.  This case involved a township ordinance requiring all cemeteries to be held open and accessible to the general public during daylight hours.  A property owner with a small family graveyard was notified that she was violating the ordinance.  The property owner filed suit in state court arguing that the ordinance constituted a taking of her property, but did not seek compensation.  The township responded by saying it would withdraw the notice of violation and not enforce the ordinance against her.  The state court said that the matter was therefore resolved, but the property owner was not satisfied with that decision.  She decided to bring a takings claim in federal court.

Before this decision, there was a roadblock to bringing such claim.  Lower courts had read a previous Supreme Court decision to say that if a state or local government commits a taking, the property owner would first have to seek a remedy through the state’s adverse condemnation procedure before going to federal court.  But in doing so, the property owner would actually not have a chance to bring the claim in federal court because the federal court would have to give full faith and credit to the state court decision.  At first, that seemed like what would happen to the property owner because the state court had decided that the issue was moot since the township had agreed not to enforce the ordinance against her.  But the U.S. Supreme Court cleared the way for the property owner by taking the rare action of overruling its prior precedent.  Knick v. Township of Scott, Pennsylvania, was not an Ohio court case, but rather one that made its way all the way up to the U.S. Supreme Court.  To read the case, click HERE.

The final opinion handed down by the justices is certainly important, but it is also notable for Ohio because the Ohio Farm Bureau Federation (OFBF) submitted an amicus brief in support of the property owner through its legal counsel, Vorys Sater Seymour and Pease, LLP of Columbus.  The brief cited examples in Ohio showing that the Supreme Court’s prior precedent was causing problems for Ohio property owners by limiting their access to federal courts in Fifth Amendment takings claims.  OFBF has noted that this was the first time it had submitted an amicus brief to the U.S. Supreme Court.

  • Ohio Power Siting Board’s approval of new wind-turbine models in facility’s certificate does not constitute an amendment to the certificate for the purposes of triggering current turbine-setback requirements.  In 2014, the Ohio Power Siting Board approved an application by Greenwich Windpark to construct a wind farm in Huron County with up to 25 wind turbines.  In the initial application, all of the wind turbines would have used the same model of turbine.  Just over a year after the application was approved, the wind farm developer applied for an amendment to add three additional models to the approved wind turbine model list, noting that the technology had advanced since its initial application.  Two of the three newer models would be larger than the originally planned model, but would occupy the same locations and would comply with the minimum setback requirements at the time the application was approved. 

The issue involved whether the new setback requirements, which were put in place by the state between the initial approval and the requested change, should apply.  An amendment to a certificate would trigger the current wind turbine setback requirements.  Greenwich Windpark wanted the less restrictive setback requirements in their initial application to still apply to the newer models, but a local group wanted the more restrictive setback requirements to apply.  The Ohio Power Siting Board said that adding the new wind turbine models would not be an amendment, and would not trigger the more restrictive setbacks.  The Ohio Supreme Court sided with the Ohio Power Siting Board, explaining that the Ohio General Assembly wanted the Ohio Power Siting Board to have broad authority to regulate wind turbines.  This case is cited as In re Application of 6011 Greenwich Winkpark, L.L.C., 2019-Ohio-2406, and is available to read on the Ohio Supreme Court’s website HERE.

  • Children claiming to be heirs of reserved oil and gas rights are in privity with previous owners of the interest when connected by an auditor’s deed specifically mentioning those interests.  The issue was whether children claiming their father’s oil and gas interests were blocked by the legal doctrine of issue preclusion from obtaining clear title to their interest when a previous Ohio Dormant Mineral Act (ODMA) lawsuit quieted title to mineral interests underlying their claim.  This preclusion would be possible because the previous owners’ interests formed the basis of the father’s interest.  Even though they were not named in the previous ODMA lawsuit, by virtue of being in privity, or legally connected, to the previous owners, the children would be bound by the previous lawsuit because the ODMA lawsuit cleared the previous owners’ interests along with any interests in their successors and assigns.  Ultimately the court found that because the children stood in their father’s shoes, and his claim would be linked to the previous owners’ claims in the land, the previous ODMA lawsuit binds the children.  This had the effect of eliminating the children’s claims in the oil and gas rights.  This case is cited as Winland v. Christman, 2019-Ohio-2408 (7th Dist.), and is available to read on the Ohio Supreme Court’s website HERE.
By: Peggy Kirk Hall, Thursday, July 25th, 2019

The funny thing about a "budget bill" is that it’s not all about the budget.  Many laws that are not related to the budget are created or revised within a budget bill.  That’s the case with Ohio’s HB 166, the "budget bill" signed on August 18 by Governor Dewine.  In the midst of the bill’s 2,602 pages are revisions to an important law for agricultural landowners—the “Right to Farm” Law.

Ohio’s Right to Farm Law, also referred to as the "Agricultural District Program," provides immunity from a civil nuisance claim made by those who move near an existing farm.  To receive the immunity under the old law, the land must be enrolled as an “agricultural district” with the county auditor, agricultural activities have to be in place first, i.e., before the complaining party obtained its property interest, and the agricultural activities must not be in conflict with laws that apply to them or must be conducted according to generally accepted agricultural practices.  The immunity comes in the form of an affirmative defense that a farmer can raise if sued for nuisance due to agricultural activities such as noise, odors, dust, and other potential interferences with neighbors.  If the landowner can prove that the activities are covered by the Right to Farm law, the law requires dismissal of the nuisance lawsuit.  For years, we’ve been encouraging farmers to enroll land in this program to protect themselves from those who move out near a farm and then complain that the farming activities are a nuisance.

The new revisions to the law in the budget bill change the requirements for the land and agricultural activities that can receive Right to Farm immunity.  In addition to protecting agricultural activities on land that is enrolled with the county auditor as agricultural district land, the law will now also protect the following from nuisance claims:

  • Agricultural activities on land devoted exclusively to agricultural use in accordance with section 5713.30 of the Revised Code, which is Ohio’s Current Agricultural Use Valuation Program (CAUV), and
  • Agricultural activities conducted by a person pursuant to a lease agreement, written or otherwise.

These two provisions significantly expand the geographic scope of the Right to Farm law.   A landowner may not have to take the step to actively enroll and re-enroll land in the agricultural district program in order to obtain Right to Farm immunity.  Instead, the agricultural activities are automatically covered by the Right to Farm law if the land is enrolled in Ohio’s CAUV property tax reduction program or is under a lease agreement, presumably a farmland lease, whether that lease is in writing or is verbal.  This means that any land in Ohio that is actively being used for commercial agricultural production will likely qualify for the Right to Farm law’s nuisance protection.

The budget bill also added new language to the Right to Farm law that clarifies that “agricultural activities” means “common agricultural practices.”  The law specifically includes the following as “common agricultural practices:”

  • The cultivation of crops or changing crop rotation;
  • Raising of livestock or changing the species of livestock raised;
  • Entering into and operating under a livestock contract;
  • The storage and application of commercial fertilizer;
  • The storage and application of manure;
  • The storage and application of pesticides and other chemicals commonly used in agriculture;
  • A change in corporate structure or ownership;
  • An expansion, contraction, or change in operations;
  • Any agricultural practice that is acceptable by local custom.

This new language answers a question that we’ve long heard from farmers:  if I expand my farming operation or change it from the farming activities that I, my parents or grandparents have always done, will I still have Right to Farm protection?  We couldn’t answer this question with assurance because the law is unclear about whether it would also protect such changes.  Under the new law, the answer is clear:  transitions to new or expanded agricultural activities will also receive Right to Farm immunity.  The law also states that certain practices, such as storing and applying fertilizers, pesticides, chemicals and manure, are “common agricultural practices.”

The final change to the Right to Farm law concerns a provision that addresses farmers suing other farmers for nuisance.  Under the old law, Right to Farm immunity does not apply if the plaintiff who brings the nuisance law suit is also involved in agricultural production.  That is, farmers don’t receive Right to Farm protection from nuisance claims by other farmers.  The new law removes this provision.  Under the revised law, farmers will be able to raise the Right to Farm law as an affirmative defense if sued for nuisance by another agricultural producer.

Many lawmakers who were focused on understanding and negotiating the financial provisions in Ohio’s recent budget bill may have missed the inclusion of changes to our Right to Farm law in the bill.  Even so, with the passage of the budget bill, the legislature significantly expanded the reach of the Right to Farm Law and agricultural activities in Ohio now have broad protections from nuisance lawsuits.

Find the changes to Ohio’s Right to Farm Law--Ohio Revised Code 929.04, on pages 308 and 309 of HB 177, which is available on this page.

 

By: Peggy Kirk Hall, Tuesday, July 02nd, 2019

With summer in full swing, Ohio’s poor planting season won’t dampen the desires of those who want to use farmland for recreational activities like fishing or riding ATVs.  And while we worry over the washouts in so many farm fields, an archaeological buff recently explained that those wash outs provide a good opportunity to find arrowheads and other relics.  The fact that a field wasn’t planted didn’t stop a hot air balloon operator from asking a farmer if he could land in the unplanted field recently.   Even when the land is not highly productive, Ohio farmland is always appealing to recreational enthusiasts for these and other types of recreational activities.

But what if a farmer doesn’t want recreational enthusiasts on the property or doesn’t want the risk of potential liability for a recreational user?  A few of our resources provide guidance for these situations, which we can address in two important questions:

  1. Do you not want people engaging in recreational activities on your farm?  If so, then take a look at our law bulletin on The Do’s and Don’ts of Dealing with Trespassers on the Farm.  If you don’t give a person permission to come onto the farm for recreational purposes, the person is trespassing if he or she chooses to enter the property without your permission.  But be aware that a landowner can’t intentionally put a trespasser in harm’s way and in certain situations, can be liable for a trespasser who suffers harm on the property.  Know the legal rules for dealing with trespassers so that you can protect your property without risking liability.  We explain these rules and situations in the law bulletin.
  2. Are you okay with letting a person use your farm for recreational activities?  If so, you’ll want to read our law bulletin on Okay to Play:  Ohio Recreational User Statute Limits Liability for Hunters, Snowmobilers, and More.  Ohio’s Recreational User Statute offers immunity to landowners who allow recreational uses, but only if the landowner meets the four conditions of the law.  A landowner of nonresidential premises who gives permission to a person to engage in recreational activities without charging a fee doesn’t have the traditional legal duty to keep the recreational user safe from harm.  Our law bulletin explains each of the statute’s important conditions in detail so that a landowner can qualify for its liability protection.

Like the weather, managing the risk of recreational users and trespassers on the farm is a constant challenge for farmers.  But unlike the weather, a landowner can effectively control this type of risk.  When someone shows up to fish, ride ATVs, hunt arrowheads or land a balloon on the farm, be ready by having a good understanding of the laws that apply to recreational activities on the farm.

By: Peggy Kirk Hall, Tuesday, June 18th, 2019

The decision on whether to take prevented planting is a tough one, but don’t let concerns about increased property taxes on idle land enter into the equation.  Ohio’s Current Agricultural Use Valuation program allows landowners to retain the benefit of CAUV tax assessment on agricultural land even if the land lies idle or fallow for a period of time.

Ohio’s CAUV program provides differential property tax assessment to parcels of land “devoted exclusively to agricultural use” that are ten acres or more or, if less than ten acres, generated an average gross income for the previous three years of $2,500 or more from commercial agricultural production.  Timber lands adjacent to CAUV land, land enrolled in federal conservation programs, and land devoted to agritourism or bio-mass and similar types of energy production on a farm also qualify for CAUV.   

There must have been some farmers in the legislature when the CAUV law was enacted, because the legislature anticipated the possibility that qualifying CAUV lands would not always be actively engaged in agricultural production.   The law allows CAUV land to sit "idle or fallow" for up to one year and remain eligible for CAUV, but only if there's not an activity or use taking place on the land that's inconsistent with returning the land to agricultural production or that converts the land from agricultural production.  After one year of lying idle or fallow, a landowner may retain the CAUV status for up to three years by showing good cause to the board of revision for why the land is not actively engaged in agricultural production.   

The law would play out as follows.  When the auditor sends the next CAUV reenrollment form for a parcel that qualifies for CAUV but was not planted this year due to the weather, a landowner must certify that the land is still devoted to agricultural production and return the CAUV form to the auditor.  The auditor must allow the land to retain its CAUV status the first year of lying idle or fallow, as long as the land is not being used or converted to a non-agricultural use.  If the land continues to be idle or fallow for the following year or two years, the auditor could ask the landowner to show cause as to why the land is not being used for agricultural production.  The landowner would then have an opportunity to prove that the weather has prevented plans to plant field crops, as intended by the landowner.  After three years, the landowner would have to change the land to a different type of commercial agricultural production to retain its CAUV status if the weather still prevents the ability to plant field crops on the parcel.  Other agricultural uses could include commercial animal or poultry husbandry, aquaculture, algaculture, apiculture, the production for a commercial purpose of timber, tobacco, fruits, vegetables, nursery stock, ornamental trees, sod, or flowers, or 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.  

Being forced out of the fields due to rain is a frustrating reality for many Ohio farmers today.   One positive assurance we can offer in the face of prevented planting is that farmers won't lose agricultural property tax status on those fields this year.  Read Ohio’s CAUV law in the Ohio Revised Code at sections 5713.30 and 5713.31.

By: Evin Bachelor, Monday, June 10th, 2019

The biennial budget remains the center of attention for members of the Ohio General Assembly, but some other bills have made progress since our last legislative update.  We will post a separate blog post about the biennial budget soon, but for now here is a review of other legislative activity at the statehouse. 

New legislation since our last legislative update

  • Senate Bill 159, titled “Grant tax credits to assist beginning farmers.”  This bill is essentially the same as House Bill 183, which seeks to provide tax incentives to beginning farmers along with those willing to help them build a farm operation.  Introducing the bill in the Senate while the House considers another bill allows the process to potentially go more quickly.  Instead of waiting on the House to complete all of its committee hearings and approve the bill, the Senate can start its own process.
  • House Bill 223, titled “Alter setback-wind farms of 5 or more megawatts.”  In 2014, the Ohio General Assembly modified the distance that wind turbines must be setback from an adjacent property line.  House Bill 223 would modify the setback law to base the setback on the distance from the nearest habitable residential structure on a neighboring property instead of the property line.  The setback requirement would affect future project certificates, as well as any amendments made to an existing certificate.  Click HERE for more information about the bill from the Ohio General Assembly’s website.

Legislation that we continue to follow

Here’s a status update on bills we covered HERE in March and HERE in April.  Access each bill’s webpage on the Ohio General Assembly website by clicking on the bill number in the following tables. 

 

Legislation passed by the Senate and currently under consideration in the House

Category

Bill No.

Bill Title

Status

Hemp

SB 57

Decriminalize hemp and license hemp cultivator

- Passed Senate

- Passed House Ag & Natural Resources committee

- Awaits vote of the full House of Representatives

Regulations

SB 1

Reduce number of regulatory restrictions

- Passed Senate

- Referred to House State & Local Government Committee

Business Law

SB 21

Allow corporation to become benefit corporation

- Passed Senate

- Referred to House Civil Justice Committee

 

Legislation going through the committee process, but not yet passed in either chamber

Category

Bill No.

Bill Title

Status

Watershed Planning

SB 2

Create state watershed planning structure

- Completed third hearing in Senate Ag & Natural Resources Committee

Tax

HB 183

Allow tax credits to assist beginning farmers

- Completed second hearing in House Ag & Rural Development Committee

Estate Planning

HB 209

Abolish estate by dower

- Completed third hearing in House Civil Justice Committee

Animals

HB 24

Revise humane society law

- Passed House Ag & Rural Development Committee

- Awaits vote of the full House of Representatives

Oil and Gas

HB 55

Require oil and gas royalty statements

- Completed first hearing in House Energy & Natural Resources Committee

Mineral Rights

HB 100

Revise requirements governing abandoned mineral rights

- Completed first hearing in House Energy & Natural Resources Committee

Energy

SB 119

Exempt Ohio from daylight savings time

- Completed first hearing in Senate General Government and Agency Review Committee

Local Gov’t

SB 114

Expand township authority-regulate noise in unincorporated areas

- Completed second hearing in Senate Local Government, Public Safety, & Veterans Affairs Committee

Property

HB 103

Change law relating to land installment contracts

- Completed second hearing in House Civil Justice Committee

Regulation of Alcohol

HB 160

Revise alcoholic ice cream law

- Completed third hearing in House State & Local Government Committee

Regulation of Alcohol

HB 179

Exempt small wineries from retail food establishment licensing

- Completed first hearing in House Health Committee

 

Legislation not on the move

These bills have not made much progress.  The biggest action taken on each so far has been referring the bill to a committee, but no committee has yet to hold a hearing on any of the bills.  Remember that we are in the middle of budget season, and only in the first six months of this legislative cycle, so the bills could still see activity later.

Category

Bill No.

Bill Title

Status

Animals

HB 124

Allow small livestock on residential property

- Referred to House Ag & Rural Development Committee

Animals

HB 33

Establish animal abuse reporting requirements

- Referred to House Criminal Justice Committee

Energy

HB 20

Prohibit homeowner associations placing limits on solar panels

- Referred to House State & Local Government Committee

Local Gov’t

HB 48

Create local government road improvement fund

- Referred to House Finance Committee

Local Gov’t

HB 54

Increase tax revenue allocated to the local government fund

- Referred to House Ways & Means Committee

Oil and Gas

HB 94

Ban taking oil or natural gas from bed of Lake Erie

- Referred to House Energy & Natural Resources Committee

Oil and Gas

HB 95

Revise oil and gas law about brine and well conversions

- Referred to House Energy & Natural Resources Committee

Regulation of Alcohol

HB 181

Promote use of Ohio agricultural goods in alcoholic beverages

- Referred to House Ag & Rural Development Committee

Tax

HB 109

Grant tax exemption for land used for commercial maple syruping

- Referred to House Ways & Means Committee

 

By: Evin Bachelor, Thursday, May 30th, 2019

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

Congress considers bankruptcy code changes with Family Farmer Relief Act of 2019.  Senator Grassley and Representative Delgado introduced companion bills in their respective chambers of Congress that would modify the definition of “family farmer” in the federal bankruptcy code.  The change would raise the operating debt limit for a family farmer from $3.2 million as listed in the U.S. Code to $10 million.  Sometimes a small change can make a big difference.  In chapter 12 of the bankruptcy code, a “family farmer” has special options that other chapters do not offer, such as the power to determine a long-term payment schedule and pay the present market value of the asset instead of the amount due on the loan.  Many farmers had not been able to take advantage of the special bankruptcy provisions because of the low debt limit, but that may change.  For more information on the bills, click HERE for S.897 and HERE for H.R. 2336.

Congress also considers changing the number of daily hours a driver may transport livestock.  The Transporting Livestock Across America Safely Act would instruct the Secretary of Transportation to amend the rules governing drivers who transport certain animals.  The changes would loosen restrictions on the number of hours that drivers may drive, and increase the types of activities that are exempt from counting toward the maximum time.  Travel under 300 miles would be exempt from the hours of service (HOS) and electronic logging (ELD) requirements.  Both chambers of Congress are considering this bill, and both companion bills are currently in committee.  For more information on the bills and to learn about the changes proposed, click HERE for S.1255 and HERE for H.R. 487.

It’s not too late to submit comments to the FDA about its potential cannabidiol rulemaking.  Electronic or written comments can be sent to the FDA until July 2nd, although the deadline to request to make an oral presentation or comment at tomorrow’s hearing has passed.  Click HERE for more information from the Federal Register about the May 31st hearing and submitting comments.

Meatpackers face second class-action lawsuit, and R-CALF refiles.  In our last edition of The Harvest, we talked about a new class-action lawsuit filed in Illinois federal court by a number of cattle ranchers, including R-CALF, against the nation’s largest meatpacking companies.  Now, another lawsuit has been filed in Minnesota federal court also alleging a price fixing conspiracy by the meatpackers.  The second lawsuit is being brought by a cattle futures trader, rather than a rancher.  After the second suit was filed, R-CALF voluntarily dismissed its case in Illinois to refile it in Minnesota.  This refiling allows the lawsuits to be heard by the same court.

Tyson sues the USDA’s Food Safety and Inspection Service.  Tyson, which is named as a defendant in the class action suits we just mentioned, is a plaintiff in a case against the USDA’s Food Safety and Inspection Service.  The company alleges that a FSIS inspector falsified an inspection of 4,622 hogs, which were intermingled with another 8,000 carcasses, at one of its Iowa facilities in 2018.  The company claims that the false inspection required it to destroy all of the carcasses, and cost nearly $2.5 million in total losses and expenses.  The complaint, which is available HERE, alleges four counts: negligence, negligent inspection, negligent retention, and negligent supervision.  The lawsuit is based on the legal principle that an employer is liable for the actions of its employee.


Ohio Case Law Update

Plaintiff must prove that a defendant wedding barn operator’s breach of a duty caused her harm.  Conrad Botzum Farmstead is a privately operated wedding and event barn located in the Cuyahoga Valley National Recreation Area and on lease from the National Park Service.  The plaintiff in the case was attending a wedding at the barn, where she broke her ankle while dancing on a wooden deck.  The jury trial found that the barn operator was 51% at fault for her injuries, and awarded the plaintiff compensation.  However, the barn operator appealed the decision and won.  The Ohio Ninth District Court of Appeals found that the plaintiff did not introduce sufficient evidence to prove that any act or breach of duty by the barn operator actually or proximately caused the plaintiff to fall and break her ankle.  The case raises standard questions of negligence, but it is worth noting in the Ag Law Blog because the court did not base its decision on Ohio’s agritourism immunity statute.  The case is cited as Tyrrell v. Conrad Botzum Farmstead, 2019-Ohio-1874 (9th Dist.), and the decision is available HERE.

Ohio History Connection can use eminent domain to cancel Moundbuilders Country Club’s lease.  A Licking County judge ruled in early May that the Ohio History Connection, formerly the Ohio Historical Society, can reclaim full ownership of land that it had leased to a country club.  The Moundbuilders County Club has operated a golf course around prehistoric Native American earthworks for decades under a long-term lease with the state.  The Ohio History Connection sought to have the lease terminated in order to give the public full access to the earthworks as part of a World Heritage List nomination.  The judge viewed the request as sufficiently in the public interest to apply Ohio’s eminent domain laws.

By: Evin Bachelor, Wednesday, May 15th, 2019

Lawsuits can be a long and drawn out process, and the Lake Erie Bill of Rights (LEBOR) lawsuit has demonstrated that.  Two and a half months after the complaint in Drewes Farm Partnership v. City of Toledo was filed by the farm, which parties will be allowed to participate in the lawsuit is becoming somewhat clearer, but it might not be over yet.  However, a conference call between the court and the current parties scheduled for the end of this week may signal that some substantive action is on the horizon.

The State of Ohio is now a party.  Judge Zouhary granted Ohio Attorney General Yost’s motion to intervene, making the State of Ohio a party to the lawsuit.  The procedural rules for federal courts permit non-parties to ask a court to allow them into a lawsuit either as of right or at the judge’s discretion.  As of right means that a statute, rule, or case gives a non-party a right to enter into a lawsuit as a party.  In contrast, a discretionary intervention allows a judge to grant a motion to intervene at his or her discretion so long as the person or entity seeking to intervene has a “common question of law or fact” with a current party to the lawsuit.  Non-parties often argue both in order to cover all of their bases, which is what the Ohio Attorney General did in this case.  Judge Zouhary focused his analysis on discretionary intervention, and found that the state has asserted the same question as the plaintiff, Drewes Farms, in that Ohio’s constitution, statutes, and administrative regulations preempt the LEBOR amendment to Toledo’s city charter.  The court also noted that the City of Toledo did not oppose the state’s intervention.  Based on these points, the court granted the motion to intervene.  The State of Ohio may now make arguments and participate in the lawsuit as a full party.

Lake Erie Ecosystem and Toledoans for Safe Water are denied party status.  Days after allowing the Ohio Attorney General’s intervention, Judge Zouhary decided that neither Lake Erie nor Toledoans for Safe Water will be allowed to intervene as parties.  Much like the Ohio Attorney General, these non-parties made arguments to support both forms of intervention.  Judge Zouhary believed that neither Lake Erie nor Toledoans for Safe Water met the requirements for either form of intervention.  As for Toledoans for Safe Water, the court found that it had no right to intervene since it does not have a substantial interest in defending the charter amendment.  Just being the group that put LEBOR on the ballot is not enough.  Further, since the group recognized that its arguments about the rights of nature are novel and not currently recognized in U.S. law, allowing the party to intervene and make these arguments would cause undue delay.  As for Lake Erie, Judge Zouhary noted that the only basis for intervention cited in the motion was LEBOR itself, and that LEBOR only gave Lake Erie the right to enforce its rights in the Lucas County Court of Common Pleas.  Therefore, neither Lake Erie nor Toledoans for Safe Water will be able to participate in the lawsuit at this time.

But Lake Erie Ecosystem and Toledoans for Safe Water still want in.  Shortly after their motions to intervene were denied, Lake Erie and Toledoans for Safe Water filed two documents with the court: a motion to stay pending appeal and a notice of appeal.  First, the motion to stay pending appeal asks the court to pause the proceedings while the non-parties ask an appellate court to review Judge Zouhary’s decision.  Their hope is that no decisions would be made in their absence should the appellate court decide that their intervention should be granted.  Drewes Farm has already filed a brief in opposition to the motion to stay, which asks the court to continue the case as quickly as possible.  Second, the notice of appeal is a required notice to the court and the parties that an appeal of a judge’s decision has been made to the U.S. Sixth Circuit.  An appeal of this sort, especially one involving a discretionary act, imposes a high burden on the appellant in order to succeed.

Conference call set for Friday, May 17th regarding a Motion for Judgment on the Pleadings.  On May 7th, Judge Zouhary issued an order stating that the parties must submit letters in a joint filing regarding a Motion for Judgment on the Pleadings.  Our case law updates often talk about motions for summary judgment, but motions for judgment on the pleadings are less frequently discussed.  Motions for judgment on the pleadings are requests for the court to make a decision after a complaint and answer (and, when allowed, a reply) have been filed.  The court can make a decision at this stage only if it finds that there is no real dispute about the facts.  The parties essentially agree about what happened, and all the court has to decide is how the law applies to the facts in the pleadings.  A motion for summary judgment generally involves the presentation of additional facts that were not included in the pleadings, but makes a similar request.  The court can grant a motion for judgment on the pleadings in part, which means that some of the case will be resolved and some will continue, but these motions can also be used to end the entire case.

It would be quite interesting to be a fly on the wall during the conference call scheduled for this Friday.  It seems likely that we will hear about it soon after.  However, this conference call does not necessarily mean that this case, or even LEBOR, will be over soon.  Stay tuned to the Ohio Ag Law Blog for more case updates.

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