Property

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

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

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

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

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

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

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

What are noxious weeds?

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

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

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

When am I responsible for noxious weeds?

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

 Noxious weeds on your property

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

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

Noxious weeds in the fence row

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

Being aware of noxious weeds is key. 

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

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

The year is still fairly new, and 2020 has brought with it some newly-introduced legislation in the Ohio General Assembly.  That being said, in 2020 the General Assembly also continues to consider legislation first introduced in 2019.  From tax exemptions to CAUV changes, to watershed programs and local referendums on wind turbines, here is some notable ag-related legislation making its way through the state house. 

New legislation

• House Bill 400 “To authorize a nonrefundable income tax credit for the retail sale of high-ethanol blend motor fuel”

HB 400 was introduced after our last legislative update in November, so while it was first introduced in 2019, it still technically qualifies as “new” to us.  Since its introduction, the bill has been discussed in two hearings in the House Ways & Means Committee.  The bill would give owners and operators of gas stations a tax rebate of five cents per gallon for sales of ethanol.  To apply, the fuel would have to be between 15% and 85% ethanol (E15).  If passed, the tax credit would be available for four years.  The bill is meant to encourage gas station owners in Ohio to sell E15, which is much more readily available in other states.  The bill is available here.

• House Bill 485 “To remove a requirement that owners of farmland enrolled in the CAUV program must file a renewal application each year in order to remain in the program”

Introduced on January 29, 2020, HB 485 would make it easier for farmers to stay enrolled in the Current Agricultural Use Valuation (CAUV) program.  CAUV allows agricultural land to be taxed at a much lower rate than other types of land.  If HB 485 were to pass, the initial application for CAUV on land more than 10 acres would automatically renew each year but the landowner must notify the auditor if the land ceases to be devoted exclusively for agricultural use. Owners of agricultural land less than 10 acres in size, who can qualify for CAUV if gross income from the land exceeds $2,500, would have to submit documentation on the annual gross income of the land to the county auditor each year rather than filing the renewal application. The CAUV bill can be found here.

Legislation from 2019 still being considered

• House Bill 24 “Revise Humane Society law”

In November, we reported that HB 24 passed the House unanimously and was subsequently referred to the Senate Committee on Agriculture & Natural Resources.  Since that time, the committee has held two hearings on the bill. The hearings included testimony from the bill’s House sponsors, who touted how the bill would improve humane societies’ public accountability. The bill would revise procedures for humane society operations, require humane society agents to successfully complete training in order to serve, and would establish procedures for seizing and impounding animals. It would also remove humane societies’ current jurisdiction over child abuse cases and make agents subject to bribery laws. Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense.  Currently, the ability to seize and impound only applies to companion animals such as dogs and cats.  You can read HB 24 here. 

• House Bill 109 “To authorize a property tax exemption for land used for commercial maple sap extraction”

HB 109 was first introduced in February of 2019, but has recently seen some action in the House Ways & Means Committee, where it was discussed in a hearing on January 28, 2020.  The bill would give owners of “maple forest land” a property tax exemption if they: (1) Drill an average of 30 taps during the tax year into at least 15 maple trees per acre; (2) use sap in commercially sold maple products; and (3) manage the land under a plan that complies with the standards of reasonable care in the protection and maintenance of forest land.  In addition, the land must be 10 contiguous acres. Maple forest land that does not meet that acreage threshold can still receive a tax exemption if the sap produces an average yearly gross income of $2,500 or more in the three preceding years, or if evidence shows that the gross income during the current tax year will be at least $2,500.  You can find the text of the proposed bill here.

• House Bill 160 “Revise alcoholic ice cream law”

Have you ever thought, “Gee, this ice cream is great, but what could make it even better?” Well this is the bill for you! At present, those wishing to sell ice cream containing alcohol in Ohio must obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol.  This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. HB 160 passed the House last year and is currently in Agriculture & Natural Resources Committee in the Senate.  Since our last legislative update, the committee has had three hearings on the bill. In the hearings, proponents testified in support of the bill, arguing that it would allow their businesses to grow and compete with out of state businesses. Senators asked questions about how the ice cream would be kept away from children, how the bill would help business, and about other states with similar laws. To read the bill, click here.

• Senate Bill 2 “Create watershed planning structure”

In 2019, SB 2 passed the Senate and moved on to the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director.  Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region.  The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices.  Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus.  Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption.

Since SB 2 moved on to the lower chamber, the House Energy and Natural Resources Committee has held multiple hearings on the bill, and has consented to two amendments.  The first amendment would keep information about individual nutrient management plans out of the public record. Similarly, the second amendment would keep information about farmers’ agricultural operations and conservation practices out of the public record. The text of SB 2 is available here.

• Senate Bill 234 “Regards regulation of wind farms and wind turbine setbacks”

SB 234 was introduced on November 6, 2019.  Since that time, the bill was assigned to the Senate Energy & Public Utilities Committee, and three hearings have been held. The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote.  The bill would also change how minimum setback distances for wind farms might be measured.  The committee hearings have included testimony from numerous proponents of the bill. SB 234 is available here.  A companion bill was also introduced in the House.  HB 401 can be found here. 

With archery season in full swing and deer gun season opening today, hunters will be out in full force across Ohio.  That means it’s also high season for questions about hunting laws, trespassers, property harm, and landowner liability.  Below, we provide answers to the top ten frequently asked questions we receive on these topics.

1. I gave them permission to hunt on my land, but do I have to sign something?  Yes.  Permission to hunt should be in writing.  Ohio law requires a person to obtain written permission from a landowner or the landowner’s agent before hunting on private lands or waters and to carry the written permission while hunting.  A hunter who doesn’t obtain written permission can be subject to criminal misdemeanor charges.  ORC 1533.17.  The ODNR provides a permission form at their District Wildlife offices and on page 37 of this online publication. If a hunter uses another form, read it carefully before signing and ensure that it only addresses hunting and doesn’t grant other rights that you don’t want to allow on the land.
2. Do family members need a license to hunt on my land?  Some of them will, depending on their relationship to you.  Resident landowners, their children of any age and their grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowners’ private lands and waters.  The same rule applies if a limited liability company (LLC), limited liability partnership (LLP) or a trust holds the land and the LLC, LLP or trust has three or fewer members, partners, trustees and beneficiaries, as long as the LLC member, LLP partner or trustee is a resident of Ohio.   When the landowner is not a resident, only the landowner, spouse and children of any age may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state.  ORC 1533.10.  Family members who don’t fall under the license exemption must obtain a hunting license and follow the written permission requirement.   
3. Does a hunter need my permission to retrieve an animal injured on another property?  Yes.  The written permission requirement applies to all of these activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild bird, wild waterfowl or wild animal.  ORC 1533.17.
4. Will I be liable if a hunter is injured on my land?  Probably not.  Two laws apply to this situation, depending upon whether you gave the hunter permission.   A landowner is not liable for injuries to or harm caused by a hunter who does not have written permission to be on the land.  ORC 1533.17.  Ohio’s Recreational User Statute applies when a hunter does have permission to be on the land; it states that a landowner has no legal duty to keep the premises safe for a hunter and assumes no responsibility for or incurs liability for any injury to person or property caused by any act of a hunter.  ORC 1533.181.  Note that this immunity doesn’t apply if the landowner charges a fee for hunting, unless the fee is a payment made under a hunting lease with a hunter or hunting group.  ORC 1533.18.  Read more about the law in our law bulletin, here.  These laws provide significant protection from liability for hunter injuries, but won’t protect a landowner who willfully or recklessly causes harm to hunters.  One situation that might rise to the level of willful or reckless conduct by a landowner is granting permission to too many hunters and failing to inform or manage the hunters, explained below.
5. What if several people want to hunt on my land—how many should I allow?  Ohio law does not state how many hunters can have permission to hunt on a parcel, but be careful about setting up a dangerous situation by allowing multiple hunters on the land at once.  If you do give permission to several hunters, let them know that others could also be hunting on the land and designate a particular parking area so that they know when other hunters are present.  You could even consider scheduling hunters on certain days.  If the hunters are part of a hunting club, consider leasing your land to the hunting club and letting the club decide how to manage multiple hunters (see our Hunting Lease checklist, here).  Taking such steps to manage multiple hunters will ensure that you aren’t behaving recklessly and have immunity from liability under the Recreational User Statute.
6. Should I allow a hunter to bring along someone who’s not hunting? In regards to liability for that person, the Recreational User Statute described above applies to any person engaging in any kind of recreational activity, in addition to hunting. Hiking or walking on the land is a recreational activity covered under the law.  As long as you give permission and don’t charge the recreational user a fee, the law provides immunity from liability for their injuries. 
7. What if a hunter leaves a tree stand or a blind on my land—can I get rid of it?  It depends.  It’s okay to carefully remove a stand or blind from the area, but be careful about damaging or getting rid of it too soon if it’s the property of a hunter who had permission to be on the land.  According to Ohio common law, you might be liable for the property under a claim of “conversion” if the property is not “abandoned” or “lost.”  Abandoned property is that to which the owner has relinquished all rights with the intention of not reclaiming it, while lost property is that which the owner has involuntarily parted with through neglect, carelessness, or inadvertence.  A finder who possesses abandoned property takes absolute title to the property, while a finder of lost property takes title against everyone except the owner.  In either case, destroying or disposing of property that is not abandoned or lost could lead to a claim of conversion, and you could be liable for the damages. 
8. What if a hunter who had my permission to hunt ends up harming my property?  There are two ways with deal with property harm from hunters.  First, the hunting laws prohibit a hunter from acting in a negligent, careless or reckless manner so as to injure persons or property.  Violating this law can lead to first degree misdemeanor charges and compensation to the landowner, as well as revocation of the hunting licenses and permits.  ORC 1533.171 and 1533.99.  Second, Ohio law allows a landowner to seek compensation for the “reckless “destruction of vegetation, trees and crops under ORC 901.51.  Reckless means acting intentionally and without regard for consequences.  If successful, a landowner can receive triple the amount of the harm caused to the property.   
9. What can I do to a trespasser who’s hunting on my land?   Dealing with trespassers is tricky.  First, don’t willfully harm the trespasser, as you could be liable for causing intentional harm.  Second, call your local ODNR wildlife officer or the Turn in a Poacher program, below, to report the incident.  Third, read our law bulletin on “Do’s and Don’ts of Dealing with Trespassers on the Farm,” available on farmoffice.osu.edu, here. 
10. What if I see someone violating hunting laws?  ODNR’s “Turn in a Poacher” program encourages the public to report wildlife violations such as hunting out of season or without a license or permission.  The program provides several ways to report:  complete an online form available at https://ohiodnr.gov/rules-and-regulations/rules-for-landowners/turn-in-a-poacher/turn-in-a-poacher and submit it through the internet or via mail,  call the TIP hotline at 1-800-POACHER, or use the same number to text photos of suspects, vehicles or signs of violations.  All reports are confidential.   

The nursery rhyme “A Hunting We Will Go” paints a happy-go-lucky picture of hunting.  But hunting raises many questions and concerns for agricultural landowners.  Ohio law offers rules and remedies that can ease those concerns.  Landowners who know and use the laws just might be able to hum along with the nursery rhyme through hunting season.