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A federal district court in Arizona has vacated the registrations for dicamba products XtendiMax, Engenia, and Tavium, finding that the U.S. EPA violated pesticide registration procedures when it approved the product registrations in 2020. As a result of the decision in Center for Biological Diversity v. EPA, the dicamba products are no longer legally authorized for use and application in the U.S. Although there will likely be appeal of the decision, the new ruling creates uncertainty over the use of dicamba products for the upcoming crop season.
History of the case
If the court’s ruling feels familiar, that’s because it is a repeat of a 2020 Ninth Circuit Court of Appeals decision in National Family Farm Coalition v. EPA (Monsanto). In that case, the court vacated the first “conditional” dicamba product registrations granted by the EPA in 2018. The court found that the EPA had “substantially understated” and failed to acknowledge the risks of dicamba’s volatility and its effects on non-users. The EPA then cancelled the product registrations in June of 2020, but allowed producers to use “existing stocks” of already purchased products to apply the products until July 31, 2020. The Ohio Department of Agriculture shortened that timeline in Ohio due to growing conditions within the state, prohibiting applications of dicamba after June 30, 2020.
Bayer, BASF, and Syngenta immediately revised the label application instructions and restrictions for their dicamba products and resubmitted their registration requests to the EPA. In October of 2020, the EPA granted the applications and issued “unconditional” five-year registrations for over-the-top applications (OTT) of the products on cotton and soybean crops. The EPA did not provide a notice and opportunity for the public to submit comments before it made the registration decision. The National Family Farm Coalition, Pesticide Action Network, Center for Food Safety, and Center for Biological Diversity filed the current lawsuit, claiming that the EPA violated federal law by granting the unconditional registrations without a notice and comment period.
The court’s reasoning in this case
EPA’s error. The primary basis for the court’s decision is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Section 136a(c)(4), which contains the notice and comment requirement for registration of a “new use” of a pesticide or herbicide. It states that the EPA:
“. . . shall publish in the Federal Register. . . a notice of each application for registration of any pesticide that contains any new active ingredient or if it would entail a changed use pattern. The notice shall provide for a period of 30 days in which any Federal agency or any other interested person may comment.”
FIFRA further states that a “new use” of a product means, in part, “any additional use pattern that would result in a significant increase in the level of exposure, or a change in the route of exposure, to the active ingredient of man or other organisms.”
The EPA took the position that it did not have to provide the FIFRA notice and a comment period because the 2020 registration requests were not applications for a “new use” since EPA had previously approved the products. The court strongly disagreed, however, emphasizing the previous court decision that had vacated those registrations because the EPA had failed to fully consider the risks of the products. The EPA’s conclusion that the 2020 registrations were not for a new use “is so implausible that the Court cannot ascribe it to be a mere difference in view,” the court stated. Stakeholders who would be affected by the dicamba registrations should have had an opportunity to “meaningfully weigh in during the decision-making process before EPA concluded whether OTT dicamba has unreasonable adverse effects on the environment,” said the court.
Remedy for the error. The court explained that upon finding an agency has violated federal law, the presumed remedy a court must grant is to vacate the agency’s action. The law requires that only in limited circumstances, when equity requires it, should a court remand without vacating an agency decision. There are two factors the law requires a court to review in determining the remedy: the seriousness of the agency’s error and the disruptive consequences of vacating the agency’s decision. The court’s next step was to review those two factors and determine whether it should remand the issue with or without vacating the dicamba registrations.
Examining the first factor, the court concluded that the EPA’s error was “very serious” because it was likely that, had the agency considered field studies, data, and other information that would have been submitted during the comment period, the EPA’s registration decision likely would have differed from the decision it made to grant the five-year unconditional registration. The history of the dicamba registrations were important to the court, and the judge noted that there had not been a notice and comment period for stakeholders who were opposed to approving dicamba products since 2016, when the EPA considered the original registration. The court reiterated a long list of field studies, incident reports, and data generated since 2016 that the agency could have considered had it provided a comment period. Noting that the EPA was “highly confident that control measures would eliminate dicamba offsite movement to only a minimal effect,” the court pointed to years of incident reports on dicamba offsite movement and concluded:
“This Court believes hearing from all stakeholders is likely to change the OTT dicamba registrations at least from unconditional to conditional, with data gathering requirements reinstated. Hearing from non-users of OTT dicamba may change the EPA’s circular approach to assessing costs for risks from OTT dicamba offsite movement. Instead of simply concluding there is no risk and, therefore, no costs to these stakeholders, EPA is likely to include the costs to these stakeholders when balancing the risks and benefits for OTT dicamba. Accordingly, the Court finds the EPA’s procedural error to unconditionally issue the “new use” 2020 dicamba registration, without notice and comment, was serious.”
The court then examined the second factor, the disruptive consequences of vacating the agency’s decision. The court recognized the benefits of dicamba products to the agricultural industry and that growers, through no fault of their own, would be in the difficult position of finding legal herbicides to protect their crops if the dicamba registrations were vacated. Nevertheless, the court agreed with the reasoning in the previous dicamba case, National Family Farm Coalition v. EPA (Monsanto), that the seriousness of the EPA’s failure to assess the risks and costs for non-users of dicamba warranted vacating the registration despite the disruptive consequences.
What happens next?
There are two issues to watch now in the wake of the court’s decision. First is whether the EPA will appeal the federal district court’s decision. The appeal would go the Ninth Circuit Court of Appeals, the same appellate court that reviewed the decision in the first dicamba appeal, National Family Farm Coalition v. EPA (Monsanto). If the EPA also requests a stay, the appeal would put the federal district court’s decision on hold.
If there is not an appeal, the second issue to watch for is how the EPA and state agencies will direct the use of existing stocks of dicamba products. The EPA could use its authority to allow continued use of existing stocks of dicamba products until a certain date, as it did in the previous case. If the EPA does issue an existing stocks order, states could also address the extent of existing stocks use within their borders, as Ohio did in the previous case.
Follow the Ohio Ag Law Blog for continued legal information about Center for Biological Diversity v. EPA and review the federal district court’s opinion through this link. Ohio growers should also refer to information from OSU’s Weed Science Extension Specialist, Dr. Allyssa Essman, available through OSU’s C.O.R.N. newsletter.
Tags: dicamba, EPA, center for biological diversity, bayer
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Recent collisions involving cattle on Ohio roadways raise the question of who is liable when a farm animal causes a roadway accident? Ohio’s “animals at large law” helps answer that question. It’s an old law that establishes a legal duty for owners and keepers of farm animals to contain their animals. The law states that an owner or keeper shall not permit their animals to run at large “in the public road, highway, street, lane, or alley, or upon unenclosed land.” But as with many laws, the answer to the question of “who’s liable” under the law is “it depends.” Here’s how the law works.
The law applies to both owners and “keepers.” The animals at large law places responsibility on both the owners and the “keepers” of the animals. The reference to “keepers” can expand the duty to someone other than the animal owner. Ohio courts have interpreted the “keeper” language to include a person “who has physical care or charge” of the animal or has “some degree of management, possession, care, custody or control” over the animal. Whether someone is a “keeper” is a fact specific determination made on a case-by-case basis.
Animals that must be contained. Several years ago, Ohio legislators added poultry to the list of animals an owner must prevent from running at large. The full list of animals an owner or keeper must contain now includes horses, mules, cattle, bison, sheep, goats, swine, llamas, alpacas, and poultry.
The law creates both civil and criminal liability. There are two potential outcomes to violating the animals at large law. The first is civil liability for “negligently permitting” animals to run at large. The owner or keeper who does so is responsible for all damages resulting from injury, death, or loss to a person or property caused by the animal. The second is criminal liability. An owner or keeper who “recklessly” permits the animals to run at large can be charged with a fourth degree misdemeanor.
An owner’s negligent conduct creates civil liability. An owner can be liable for “negligently permitting” animals to run at large, but what does “negligently permitting” mean? Courts have answered this question by stating that the law requires “negligent conduct” by the owner or keeper and that failing to exercise “ordinary care” to contain animals would be negligent conduct. As an example, a court determined that an owner who leaned a gate against a barn opening without fastening the gate to the barn or to any fence posts did not exercise ordinary care to contain his cattle. But the law allows an owner to rebut the presumption that the animals were out because of the owner's negligent conduct. An owner can offer proof of “ordinary care” taken to contain the animal, such as maintaining fences, locking gates, or checking animals regularly. If the owner had exercised reasonable care and the animals escaped for other reasons, such as being spooked by a storm or a gate left open by someone else, the owner might not be liable for the animals running at large. Whether the owner or keeper “negligently permitted” the escape would be a fact specific determination, made on a case-by-case basis.
Reckless conduct can result in criminal charges. In the example above, the court determined that the owner who merely leaned a gate up against the barn opening behaved “recklessly.” Legally, recklessness is acting with complete disregard to the consequences. Reckless behavior can lead to a criminal charge against the animal owner, with a maximum jail sentence of 30 days and a fine of up to $250.
Reducing liability risk under the animals at large law
- Regular management practices. In the court cases that apply Ohio’s animals at large law, the owner or keeper’s management practices are critically important to a liability determination. Animal owners and keepers can reduce liability risk by following routine management practices and documenting those practices, which include:
- Regularly checking and maintaining fences.
- Locking gates.
- Inspecting and maintaining stalls and similar enclosures.
- Checking and counting animals regularly, and immediately after a storm or similar event.
- Installing cameras.
- Training employees to follow management practices.
- The fence matters. It's also important to build a sufficient fence. OSU Extension offers helpful resources on fencing in this video on fencing systems by Educator Ted Wiseman and this article on common fencing mistake posted by the OSU Sheep Team. Be aware that another Ohio law requires a new boundary line fence for livestock to be a certain type of fence. Ohio’s “partition fence law” requires a new boundary line fence for containing livestock to be:
“a woven wire fence, either standard or high tensile, with one or two strands of barbed wire located not less than forty-eight inches from the ground or a nonelectric high tensile fence of at least seven strands and that is constructed in accordance with the United States natural resources conservation service conservation practice standard for fences, code 382.” If adjacent owners agree in writing, a new line fence to contain livestock can also be a barbed wire, electric, or live fence.
- Insurance and business entities. Insurance is necessary risk management tool for farm animal owners and keepers. It’s important to review all animals and animal activities with an insurance provider and ensure adequate liability coverage. In some situations, using a separate business entity like a Limited Liability Company might be helpful for liability purposes. Animal owners and keepers should consult with insurance and legal advisors to determine individual insurance and legal needs.
Ohio’s animals at large law is in Ohio Revised Code Chapter 951. Ohio’s partition fence law is in Ohio Revised Code Chapter 971.
Tags: animals at large, line fence, partition fence, fence law
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Written by Ellen Essman, J.D., OSU CFAES Government Relations
Just like there won’t be snow flurries on Christmas this year, there was not a flurry of activity at the Statehouse over the last few months. That being said, we will be carefully following several ag-related bills that progressed in committees but have not yet been passed by the full body, as the calendar turns to 2024. Here’s a summary of the bills we’re watching.
H.B. 162—Agriculture Designations. H.B. 162 was introduced by Representatives Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville) on May 5, 2023, and was passed by the House in October, and had its first hearing in the Senate Agriculture and Natural Resources Committee on December 5. The bill would designate the following days and weeks to honor Ohio Agriculture:
- March 21 of each year as “Agriculture day;”
- The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as “FFA Week;”
- October 12 of each year as “Farmer’s Day;” and
- The week ending with the second Saturday of March as “4-H Week.”
H.B. 347—Farming Equipment Taxes. This bill was introduced by Representative Don Jones (R-Freeport) and referred to the House Ways and Means Committee in early December. The bill would change the way farmers claim a tax exemption on certain purchases.
Currently, when an Ohioan engaged in farming, agriculture, horticulture, or floriculture is buying a product for “agricultural use,” they must provide the seller with an exemption certificate. This certificate comes from the Ohio Department of Taxation and relieves the seller of the obligation to collect the sales tax on behalf of the state. However, the Department of Taxation can later determine that the purchase does not qualify for exemption, and then the farmer would be expected to pay the tax.
H.B. 347 would slightly alter this current way of doing things when it comes to the purchase of certain vehicles and trailers. Under the bill, the purchaser could receive an agricultural use exemption for taxes on these vehicles if the purchaser shows the seller copies of the purchaser’s Schedule F—the federal income tax profit of loss from farming form—for three most recent preceding years. Alternatively, a farmer could obtain a certificate from the Department of Taxation verifying that they have filed a Schedule F for three years in lieu of providing the forms directly to the seller. Notably, the bill states that “no other documentation or explanation shall be required by the vendor or the tax commissioner” to prove that the purchase qualifies for the agricultural use exemption.
The following vehicles and trailers would be included under the bill:
- Trailers, excluding watercraft trailers;
- Utility vehicles, (vehicles with a bed, principally for the purpose of transporting material or cargo in connection with construction, agricultural, forestry, grounds maintenance, land and garden, materials handling, or similar activities);
- All-purpose vehicles, (vehicles designed primarily for cross-country travel on land and water, or on multiple types of terrain, but excluding golf carts);
- Compact tractors (garden tractors, small utility tractors, and riding mowers).
H.B. 364—Agriculture (seed sharing). House Bill 364 was introduced in the House by representatives Dave Dobos (R-Columbus) and Roy Klopfenstein (R-Haviland) on December 14. The bill would allow the Ohio Prairie Association to distribute milkweed seeds non-commercially to its members, with the intent of promoting habitats for pollinators like monarch butterflies.
The bill would legally define “non-commercial seed sharing” as the distribution or transfer of ownership of seeds with no compensation or remuneration. Also included in the definition are a list of situations that are not considered “non-commercial seed sharing,” including when:
- The seeds are given as compensation of work or services rendered;
- The seeds are collected outside of Ohio;
- The seeds are patented, treated, or contain noxious weed species or invasive plants.
H.B. 364 also includes a definition of “seed library,” which it defines as a non-profit, governmental, or cooperative organization or association to which both of the following apply:
- It is established for the purpose of facilitating the donation, exchange, preservation, and dissemination of seeds among the seed library’s members or the general public.
- The use, exchange, transfer, or possession of seeds acquired by or from the non-profit governmental, or cooperative organization or association are obtained free of charge.
The bill would further exempt non-commercial seed sharing for the purposes of pollinator conservation, creating and conserving native habitats, and operation of a seed library from labeling, advertising, handling, and sales restrictions under Ohio law.
To further the goal of promoting pollinators and habitats, H.B. 364 would make changes to the requirements for maintaining toll roads, railroads, or electric railways. Current law requires managers of such thoroughfares to destroy a number of noxious weeds along the roadway or in right of ways. The bill would no longer require the destruction of Russian thistle, Canadian thistle, common thistle, wild lettuce, wild mustard, wild parsnip, ragweed, milkweed, or ironweed.
Tags: Ohio legislation, sales tax, seed laws, equipment, trailers, pollinators
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The holiday season isn't distracting the Senate Agriculture and Natural Resources Committee from considering three legislative proposals concerning scenic rivers, small beer brewers, and state agriculture day designations. On December 12, the committee will hear testimony on all three bills. Here’s a summary of the proposals.
S.B. 156 - Designation of wild, scenic, and recreational rivers. Senators Bill Reineke (R-Tiffin) and Bob Hackett (R-London) introduced this legislation to revise portions of the Ohio Scenic Rivers Program that were raising concerns from private property owners. The committee will hold its fourth hearing on the bill on December 12. The proposal makes the following changes to the Ohio Scenic River Law:
- Clarifies that the designation of a Wild, Scenic or Recreational River does not grant authority to oversee private activities on private property or enter private land within the river area to the Ohio Department of Natural Resources (ODNR), which administers the program.
- States that the agency has management and oversight of lands along a designated river only for those lands the state owns.
- Requires ODNR to adopt rules to govern the use, visitation, and protection of scenic river lands and to establish facilities and improvements within the areas necessary for visitation, use, restoration, and protection of the lands.
- Clarifies that certain public entities must obtain approval from the ODNR Director to perform certain construction activities within 1,000 feet of a wild, scenic, or recreational river.
- Extends the public comment period following the announcement of intent to designate a new river from 30 days to 60 days.
S.B. 138 – Alcohol Franchise Law exemption for small brewers. This bill introduced by Senator Andrew Brenner (R-Delaware) aims to help small brewers who annually manufacture less than 250,000 barrels (7.75 million gallons) of beer. The bill exempts small brewers from Ohio’s Alcohol Franchise Law, which requires a beer or wine manufacturer to enter into a franchise agreement with a distributor and lays out requirements for the franchise agreement. The exemption would allow small brewers to establish agreements with distributors under their own negotiated terms rather than the state-required terms. S.B. 138 will see its second committee hearing on December 12.
H.B. 162 – Agriculture Appreciation Act. The House of Representatives passed H.B. 162 in October, and it will have its second hearing on December 12. Proposed by Reps. Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville), the bill designates the following federal agriculture days as state days in Ohio:
- March 21 of each year as “Agriculture day”;
- The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as "FFA Week";
- October 12 of each year as “Farmer’s Day”;
- The week ending with the second Saturday of March as “4-H Week.”
Keep up with the Senate Agriculture and Natural Resources Committee’s activity on the Ohio Senate’s website at https://ohiosenate.gov/committees/agriculture-and-natural-resources.
Tags: legislation, scenic rivers, breweries, 4-H, FFA, agriculture appreciation
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Responding to concerns about potential increases in Ohio property taxes, the Senate passed House Bill 187 (HB 187) this week to provide some relief from property tax hikes. That relief, however, affects only the Ohio homestead exemption. The Senate removed provisions the House had passed in HB 187 offering relief on other property taxes, including Current Agricultural Use Valuation (CAUV) taxes. The House and Senate differences mean the CAUV adjustments originally in HB 187 are currently at a standstill.
House Bill 187. The House passed its version of HB 187 in October. The House version included provisions that would temporarily adjust CAUV calculations until 2026. When updating the CAUV value, a county auditor would be required to use an average of the CAUV formula value for the current year along with CAUV values that would have been assigned in each of the preceding two years, since the last update. This three year averaging would lower the expected increase in the new CAUV value. But the Senate drafted and passed a substitute of HB 187, and the substitute bill does not contain the CAUV language. The House and Senate must now confer on its differing versions of HB 187 to work out the differences.
Senate Bill 153. The Senate isn’t completely ignoring the CAUV adjustments—they exist in another bill. Senate Bill 153 (SB 153), introduced in the Senate back in September, contains the same CAUV language as HB 187. The Senate Ways and Means Committee held four hearings on SB 153 in September and October. But the committee has not taken any action on the bill since the last hearing on October 11.
What’s next for CAUV relief? There are two avenues to enacting the CAUV three year averaging provisions that could bring some relief from CAUV increases. First is for the Senate to reinsert the provisions in HB 187. The second is for the Senate to pass SB 153 and send it over to the House for consideration. From our view, it’s difficult to gauge if the House and Senate are on the same page for completing either route.
Follow HB 187on the legislature’s website at https://www.legislature.ohio.gov/legislation/135/hb187 and track SB 153 at https://www.legislature.ohio.gov/legislation/135/sb153.
With the warm, dry, and windy months of October and November behind us, Ohio farmers will soon have legal clearance to conduct open burning during the daylight hours. Ohio law prohibits all open burning from 6 a.m. to 6 p.m. during October and November, and then again in March, April, and May. That’s because ground cover and weather conditions create high fire risk and volunteer firefighters with daytime jobs aren’t readily available to fight the fires.
December 1 marks the end of the daytime burn restriction, but other open burning laws remain in effect. Farmers can burn “agricultural waste,” but must follow conditions in the open burning laws. Burning wastes that aren't agricultural waste might require prior permission or notification, and it is illegal to burn some wastes due to the environmental harms they cause. Don't get burned by failing to know and follow the open burning laws. Here’s a summary of important provisions that affect farmers and farmland owners.
What you can burn. Ohio law allows the burning of “agricultural wastes” under certain conditions. Ohio law defines what is and is not “agricultural waste” as follows:
- Agricultural waste is any waste material generated by crop, horticultural, or livestock production practices, and includes such items as woody debris and plant matter from stream flooding, bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities.
- Agricultural waste does not include buildings; dismantled or fallen barns; garbage; dead animals; animal waste; motor vehicles and parts thereof; or "economic poisons and containers," unless the manufacturer has identified open burning as a safe disposal procedure.
- Agricultural waste does not include"land clearing waste," which is debris resulting from the clearing of land for new development for agricultural, residential, commercial or industrial purposes. Burning of “land clearing waste” requires prior written notification to Ohio EPA.
- If an agricultural waste pile is greater than 20 ft. wide x 10 ft. high (4,000 cubic feet), permission from Ohio EPA is necessary.
Where you can burn. Laws that affect the burning location relate to where the waste is generated and whether the burn is in or near a village, city, or buildings:
- It is legal to burn agricultural waste only if it is generated on the property where the burn occurs. It is illegal to take agricultural waste to a different property for burning and to receive and burn agricultural waste from another property.
- Burning inside a “restricted area” requires providing a ten day written notice to Ohio EPA. A restricted area is any area inside city or village limits, within 1,000-feet of a city or village with a population of 1,000 to 10,000, or within one-mile of a city or village with a population of more than 10,000.
- A burn must be located more than 1,000 feet from any neighboring inhabited building.
How to manage the burn. Ohio laws impose practices a person must follow when conducting open burning, which includes:
- Remove all leaves, grass, wood, and inflammable materials around the burn to a safe distance.
- Stack waste to provide the best practicable condition for efficient burning.
- Don’t burn in weather conditions that prevent dispersion of smoke and emissions.
- Take reasonable precautions to keep the fire under control.
- Extinguish or safely cover an open fire before leaving the area.
Local laws matter too. A local government can also have laws that regulate burning activities, so it’s important to check with the local fire department to know whether any additional regulations apply to a burn.
A bad burn can burn you. Violation of state and local open burning laws creates several risks for farmers and farmland owners. First is the risk of enforcement by the Ohio EPA, which has the authority to issue fines of up to $1,000 per day per offense for an illegal burn. According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes,” such as tires and plastics, failing to meet the 1,000 foot setback requirement, and burning waste from another property. EPA enforcement officers regularly patrol their districts, investigate fires they see, and investigate complaints from neighbors or others who report burning activities, so “getting caught” is quite possible.
An illegal burn might also bring in the Ohio Division of Forestry or local law enforcement. Beyond the environmental provisions, other violations of the open burning laws can result in third degree misdemeanor charges. Penalties of up to $500 and 60 days of jail time per violation could result.
A final risk to consider is liability for harm to yourself, other people, or other property if a burn goes wrong. It’s possible for a fire to escape and burn unintended property, to reduce roadway visibility and cause an accident, or to interfere with people, animals, crops, or buildings. These situations can cause personal injuries, property harm, and could result in insurance claims or a negligence or nuisance lawsuit. Using common sense and taking reasonable safety precautions when conducting a burn can go a long way toward reducing the risk of harm and resulting liability for harm.
To learn more about Ohio’s open burning laws, visit the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/air-pollution-control/permitting/open-burning.
Tags: open burning law, fire law, agricultural waste
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The fall hunting season is upon us, and landowners across Ohio are being asked to give permission to allow hunting on their land. That means now is a good time for a refresher on the laws that affect Ohio landowners and hunting. Here are ten legal tips for landowners considering hunting activities on their land.
- Ohio law requires permission in writing--but landowners should review the permission form and know who they’ve permitted. Ohio law requires a hunter to obtain a hunting license and written permission from a landowner or the landowner’s agent before hunting on private lands or waters. Landowners should expect to be asked to sign the permission form provided by ODNR, which is available on ODNR’s website. The permission form allows a landowner to designate a permission period—either the entire hunting season or specific dates. If a hunter uses a different permission form, it might contain additional provisions beyond the permission to hunt, such as the right to install a tree stand or a blind on the property. Landowners should have an attorney review a form if unsure of its meaning and should document names and contact information for hunters granted permission to hunt on the property. Contact information will be helpful if there is a hunting incident or a need to contact the hunter.
- Know the laws for family members and tenants. A landowner who is a resident of Ohio, the landowner’s spouse, all children of any age, and all grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowner’s land. All other family members must obtain a hunting license and follow the written permission requirement. When a landowner is not an Ohio resident, only the landowner, spouse, and children living with the landowner 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. In a rental situation where a tenant resides on the land, the tenant and the tenant’s children who live on the land may hunt on the property without a hunting license and written permission.
- The hunting license exemption also applies to certain entities. If the owner of land is a limited liability company or a limited liability partnership with three or fewer individual members or partners, a member or partner who is a resident of Ohio may hunt on the land without a hunting license, as can the member or partner's children of any age and grandchildren under the age of 18. If a trust owns the land and has a total of three or fewer trustees and beneficiaries, a trustee or beneficiary who is an Ohio resident and their children of any age and grandchildren under the age of 18 may hunt on the land without a hunting license.
- A hunter must also have written permission to pursue or retrieve an injured animal. Hunters often mistakenly believe they have the right to pursue an injured animal onto another property, but Ohio law says otherwise. Written permission of a landowner is required for each of these hunting activities: shooting, shooting at, catching, killing, injuring, or pursuing a wild animal or bird. Contrary to popular belief, the law does not require a landowner to give a hunter permission to pursue an injured animal—it’s a choice a landowner can make.
- Two Ohio laws can protect landowners from liability for hunting injuries. The first is Ohio’s Recreational User Statute, which states that a landowner has no legal duty to keep the premises safe for a hunter and other recreational users who have permission to be on the land. This means the law will protect a landowner from liability if a hunter is harmed while on the property, but it won’t protect a landowner who caused the harm through intentional or reckless conduct. Note that the liability protection does not apply if a landowner charges a hunter a fee for hunting, unless the fee is a payment made under a hunting lease. Read more about the Recreational User’s Statute in our law bulletin on farmoffice.osu.edu. A second Ohio law addresses liability for someone who is hunting on land without permission. In that case, Ohio law states a landowner is not liable for “injury, death, or loss to person or property” that arises from a violation of the requirement to have a landowner’s permission to hunt on the land.
- Be mindful of the number of hunters who could be on the land. For safety purposes, a landowner should be careful about allowing multiple hunters onto the land at the same time. Strategies for managing multiple hunters include designating a specific parking area so hunters know if another hunter is present and setting specific hunting periods for different hunters. Taking reasonable steps to manage multiple hunters will help ensure that someone isn’t harmed, and it can also protect a landowner from a potential claim that the Recreational User’s Statute shouldn’t apply because the landowner behaved recklessly by not managing multiple hunters allowed on the land. While such a claim might not be legally successful, it would require landowners and their insurance providers to prove that the Recreational User’s Statute protects the landowner from liability.
- Consider a hunting lease. Many hunters and hunting groups prefer to secure hunting rights through a hunting lease. A lease can provide a landowner with additional income and is one situation where the liability protection of Ohio’s Recreational User Statute applies even if a payment is made to the landowner. A lease can also address other rights and responsibilities, such as number and gender of animals to be taken, placement of tree stands and blinds, use of feeders and bait, where animals may be cleaned, and property maintenance activities by hunters. See our law bulletin on hunting lease considerations in the property law library on farmoffice.osu.edu at https://farmoffice.osu.edu/our-library/property-law.
- Ohio laws address harm to property caused by hunters. What if a landowner gives permission to a hunter, but then that hunter causes property damage? Ohio’s hunting law is one law that can help. It prohibits a hunter from acting in a “negligent, careless or reckless manner so as to injure persons or property.” A hunter who violates this law can face first degree misdemeanor charges and revocation of the hunting license and must also pay compensation to the harmed landowner. Ohio’s reckless destruction of vegetation law is a second helpful law. It allows a landowner to seek compensation for “reckless” destruction of vegetation, trees, and crops and would address a situation where a hunter acted intentionally and without regard for the consequences. Intentionally cutting down a tree without permission or running an ATV through a planted crop are behaviors that could be deemed reckless. Under this law, a landowner could receive triple the amount of the harm caused to the property by a hunter’s reckless behavior.
- It’s a good time to mark property boundaries. Many of the old fences that marked a farm’s property boundaries in Ohio are long gone, and it’s not as easy today for hunters to know where one farm begins and another ends. Especially for landowners who don’t want hunting on their land, be sure boundary lines are clear to hunters. Use corner posts, fences, and “no trespassing signs.” In woodlots, marking the trees on the boundary with paint is also helpful. For an overview of woodlot boundary marking, refer to this video from OSU Extension at https://www.youtube.com/watch?v=zSYYn_onE80.
- Ohio has a process for dealing with poachers and trespassers. Ohio’s “Turn in a Poacher” program (TIP) establishes mechanisms for reporting a violation of wildlife laws, such as hunting without permission or a license and taking animals out of season. A person can report a violation using an online reporting form on ODNR’s website or by calling the TIP hotline at 1-800-POACHER (762-2437). Incident reporters are encouraged to share details such as what happened, the location, vehicle description and license plate, and descriptions of suspects. All information submitted to TIP is confidential, and reporters may choose whether or not they are willing to speak with a wildlife officer about the incident.
The State of Arkansas made history last month when it took steps to enforce its new law restricting foreign ownership of land in the state. Arkansas ordered Northrup King Seed Co., a subsidiary of Syngenta held by China-owned company ChemChina, to give up 160 acres of Arkansas farmland it owned. The State also assessed a $280,000 fine against Syngenta for failing to disclose the land ownership. The actions are the result of a new foreign ownership law enacted by the Arkansas legislature earlier this year.
Joining Arkansas and ten other states, Ohio also passed a law restricting foreign ownership of land earlier in 2023. Ohio’s new “Save our Farmland and Protect our National Security Act” quietly became effective last month. The law limits who can own agricultural land in the state and requires persons or entities who cannot own Ohio farmland to forfeit title to the property, which the State will then sell. The purpose of the law, according to the legislature, is “to recognize that Ohio has substantial and compelling interests in protecting its agricultural production.”
Who the law restricts from owning agricultural land in Ohio
The law is not an absolute restriction on foreign ownership of land. Instead, the law prohibits agricultural land ownership by any “person” listed on a registry compiled by Ohio’s Secretary of State. A “person” can include an individual, firm, company, trust, business or commercial entity, organization, joint venture, non-profit, or non-U.S. government. The prohibition applies not just to the person listed on the registry, but also to any agent, trustee, or fiduciary of the person.
The Ohio Secretary of State must compile the “registry” by identifying and including any person that constitutes a threat to the agricultural production of the state. To develop the registry, the Secretary of State must consult several federal sources, including the list of foreign adversaries, terrorist exclusion list, list of countries that have provided support for acts of international terrorism, and persons designated by two presidential Executive Orders. In accordance with the law, Ohio’s Secretary of State has compiled the registry and published it online at https://www.ohiosos.gov/publicintegrity/save-our-farmland/.
Exceptions to the ownership restrictions
The ownership restriction does not apply to any agricultural land a person acquired before the act’s effective date of October 3, 2023. There is also a limited exception that applies when a person on the registry recieves the land through inheritance, a gift, collection of a debt, a foreclosure, or enforcement of a lien on or after the law's effective date. In those cases, the person can recieve the land but must divest itself of the title and any interest in the land within two years of receiving it. And while holding the land until divestiture, the person cannot use it for any purpose other than agriculture or lease it to any person on the registry.
Enforcement of the law
Enforcement involves both the Secretary of State and the Ohio Attorney General. If the Secretary of State finds that a person listed on the registry has acquired title or an interest in land in violation of the law, the Secretary of State must report the violation to the Attorney General. Others can report land ownership by a person on the registry via the Secretary of State’s web page for the registry, https://www.ohiosos.gov/publicintegrity/save-our-farmland/.
Upon learning of the violation, the Attorney General must initiate a legal action in the county where the land is located. If the court agrees that the ownership violates the law, it shall file an order allowing the state to take ownership of the land and ordering the land to be sold at public auction, following required legal procedures. Proceeds from the sale are to be applied first to any court costs and expenses, then to the registered person. That amount is limited, however, to the actual cost paid by the registered person for the land. If any sale proceeds remain, the funds are to be paid to the general fund of each county where the land is located, proportionate to the acreage in the county.
Learn more on our next Farm Office Live!
Join us on our next Farm Office Live webinar as we discuss Ohio’s new foreign ownership law and talk with Micah Brown, staff attorney with the National Agricultural Law Center, about foreign ownership restrictions in the U.S. and what they mean for agriculture. The Farm Office team will also cover Using Charitable Remainder Trusts, Ohio’s Role in Organic Grain Production, Farm Business Analysis Update, and Farmer Mental Health Concerns and Resources. Farm Office Live takes place on November 17 at 10 a.m.-- registration is necessary at https://farmoffice.osu.edu/farmofficelive.
Read the primary provisions of Ohio’s Save Our Farmland and Protect Our National Security Act in Ohio Revised Code Section 5301.256. The Ohio Legislature enacted the law in House Bill 33, the biennial budget bill.
Tags: foreign land ownership, save our farmland and protect our national security act, foreign land restriction
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An agricultural easement is a legal instrument that can protect farmland from non-farm development and preserve the legacy of family land for the future. An earlier blog post explains how an agricultural easement works and answers common questions about agricultural easements. As we explained, an agricultural easement not only preserves farmland but can also be a valuable financial and tax tool that can enable a transition of the farm to the next generation. But are there drawbacks to agricultural easements? Here's a summary of potential negative implications of easements that landowners should also consider.
It's difficult to forecast the future of a farm. The very nature of the easement requires a best estimate of how the farmland might be used for agriculture into the future--a challenging task. The Deed of Agricultural Easement the parties agree to must predict agricultural activities that are consistent with the easement and those that would violate the easement. There could be future problems if the predictions and forecasting aren’t flexible enough to accommodate agriculture in the future.
The “perpetuity” requirement. While it’s possible to draft an easement that lasts only for a certain term of years, most agricultural easements remain on the land “in perpetuity,” or permanently. The programs that pay a landowner to grant an agricultural easement and the federal income and estate tax benefits for donating all or part of an easement require that the easement is perpetual. This differs from the conservation programs we’re accustomed to in agriculture that require shorter term commitments, and it can be a deterrent to a landowner who wants future generations to have a say in what happens to the land. These concerns might be addressed in the deed of agricultural easement, however, which may provide sufficient flexibility to address those future concerns.
Termination can be difficult and costly. Hand in hand with the perpetuity issue is the difficulty of terminating an agricultural easement once it’s in place. Typically, both parties must agree on a termination and a court of law must determine that conditions on or surrounding the land make it impossible or impractical to continue to use the land for agricultural purposes. Attempts to terminate without following the stated procedures can result in penalties for the current landowner. If there was a payment for the agricultural easement, a deed of easement will likely require the landowner to reimburse the paying party for the proportionate share of the fair market value of the land with the easement removed and will also require the party receiving the reimbursement to use the funds only for similar conservation purposes.
Eminent domain can be an issue. As one Ohio farm family has learned, an agricultural easement might not protect the farmland from an eminent domain proceeding. In Columbia Gas v. Bailey, 2023-Ohio-1245, the Bailey family was forced to litigate an attempt by Columbia Gas to use eminent domain for the construction of a gas pipeline across their farmland. Their predecessor had placed an agricultural easement on the farmland in 2003, and the family argued the easement prevented the taking of land for the pipeline under the doctrine of “prior public use.” That doctrine prohibits an eminent domain action that would destroy a prior public use. The court agreed that the agricultural easement did create a prior public use on the land, and the court shifted the burden to Columbia Gas to prove that the pipeline would not destroy the established prior public use. Rather than doing so, Columbia Gas withdrew its eminent domain proceeding and moved the location of the pipeline. The court's decision to recognize an agricultural easement as a prior public use might provide some protection from eminent domain for future owners of agricultural easement land but, like the Baileys, landowners may have to fight a long, expensive battle to prove that an eminent domain action would destroy an established prior public use.
Lenders and other interests must be on board. A landowner must deal with any existing mortgages, liens, leases, or easements on the farmland before entering into an agricultural easement. The State of Ohio’s agricultural easement, for example, requires a lender to subordinate a mortgage to the rights of the easement holder. Renegotiation of the mortgage might be necessary, and the lender might require a paydown of the outstanding mortgage if the property’s value could reduce below that amount. Without subordination and other approvals, a landowner will not be able to enter into an agricultural easement.
Local governments must be on board. Ohio’s program for purchasing agricultural easements requires a landowner to submit a resolution of support from the township and county where the land is located. This means the local governments must agree that committing the land to agriculture is consistent with local land use plans. An early conversation with local officials is necessary to ensuring consistency with the community’s future plans.
There will be monitoring. An easement holder has the responsibility of ensuring there is not a violation of the easement or conversion of the land to non-agricultural uses. This means there will be a baseline or “present condition” report of the easement property upon easement creation and monitoring of the property “in perpetuity.” An annual visit to the property and completion of an annual monitoring report by the easement holder is common.
It's a lengthy process. Agricultural easements don’t pop up overnight. Especially when applying for funding from competitive programs like Ohio’s Local Agricultural Easement Purchase Program or the NRCS Agricultural Land Easements Program, it can be a year or more before an agricultural easement is in place.
Planning and integration with plans is necessary. An agricultural easement is one piece of what can be a complex plan addressing a landowner’s expansion, retirement, estate, and transition needs. A landowner would be wise to work with a team of professionals—financial planner, tax professional, attorney—to ensure that an agricultural easement integrates with all other parts of the plan.
Still interested? Ohio landowners interested in learning more about agricultural easements may want to consider these steps:
- Review the resources on the Ohio Department of Agriculture’s Office of Farmland Preservation.
- Talk with other landowners who have entered into easements. Refer to the Coalition of Ohio Land Trusts landowner resources and landowner stories.
- Visit American Farmland Trust’s Farmland Information Center.
- Talk with a “local sponsor” or land trust in your area. The Office of Farmland Preservation provides a list of local sponsors for the Clean Ohio Agricultural Easement Purchase Program on its website.
- Talk with your attorney, financial planner, and accountant about the implications of entering into an agricultural easement.
Questions from farmers and farmland owners about agricultural easements are on the rise at the Farm Office. Why is that? From what we’re hearing, the questions are driven by concerns about the loss of farmland to development as well as desires to keep farmland in the family for future generations. An agricultural easement is a unique tool that can help a farmland owner and farming operation meet goals to protect farmland from development or transition that land to the next generation. Here are answers to some of the questions we’ve been hearing.
What is an agricultural easement? An agricultural easement is a voluntary legal agreement by a landowner to use land primarily for agricultural purposes and forfeit the right to develop the land for other purposes, either permanently or, less often, for a term of years. In an agricultural easement, a landowner grants an easement “holder” the legal right to enforce the easement against a landowner or other party who attempts to convert the land to a non-agricultural use. A written legal instrument details and documents this agreement between a landowner and the easement “holder.” The agricultural easement instrument must be recorded in the county land records, and the agricultural easement is binding on all future landowners for the duration of its term.
A state legislature must authorize the use of the agricultural easement instrument, and Ohio’s legislature did so in 1999. At that time, the legislature adopted a detailed legal definition of “agricultural easement” in Ohio Revised Code 5301.67(C):
"Agricultural easement" means an incorporeal right or interest in land that is held for the public purpose of retaining the use of land predominantly in agriculture; that imposes any limitations on the use or development of the land that are appropriate at the time of creation of the easement to achieve that purpose; that is in the form of articles of dedication, easement, covenant, restriction, or condition; and that includes appropriate provisions for the holder to enter the property subject to the easement at reasonable times to ensure compliance with its provisions.
The legislature also required in Ohio Revised Code 5301.68 that a landowner may only grant an agricultural easement on land that qualifies for Ohio’s Current Agricultural Use Valuation (CAUV) program under Ohio Revised Code 5713.31.
Is an agricultural easement the same as a conservation easement? No, not in Ohio, but they share the same legal concept of dedicating land to a particular use. Ohio also allows a landowner to grant a conservation easement, which is a promise to retain land predominantly in its natural, scenic, open, or wooded condition and forfeit the right to develop the land for other purposes. A conservation easement might allow agricultural land uses, and an agricultural easement might allow some conservation uses. The terms used in federal law and some other states vary from Ohio, and include “agricultural conservation easement” or “agricultural land easement.”
Who can be a “holder” of an agricultural easement? Ohio law answers this question in Ohio Revised Code 5301.68, which authorizes only these entities to enter into an agricultural easement with a landowner:
- The director of the Ohio Department of Agriculture;
- A municipal corporation, county, or township;
- A soil and water conservation district;
- A tax exempt charitable organization organized for the preservation of land areas for public outdoor recreation or education, or scenic enjoyment; the preservation of historically important land areas or structures; or the protection of natural environmental systems (generally referred to as a “land trust” or a “land conservancy.”)
What kinds of land uses would be inconsistent with keeping the land in agricultural use? That depends on the terms in the written deed for the agricultural easement. Activities that might violate the agreement to maintain the land as agricultural include subdivision of the property, commercial and industrial uses, major surface alterations, and oil and gas development. It’s typical to identify the homestead or “building envelope” area and allow new buildings, construction and similar activities within that area, but those activities might not be permitted on other parts of the land. Review the Ohio Department of Agriculture’s current Deed of Agricultural Easement through the link on this page: https://agri.ohio.gov/programs/farmland-preservation-office/landowners.
Can a landowner transfer land that is subject to an agricultural easement? Yes. An agricultural easement does not restrict the right to sell or gift land, but it does carry over to the new landowner. That landowner must abide by the terms of the agricultural easement.
Are there financial incentives for entering into an agricultural easement? Yes. There are several financial incentives:
- The Ohio Department of Agriculture’s Office of Farmland Preservation oversees the Local Agricultural Easement Purchase Program, which provides Clean Ohio grant funds to certified local sponsors to purchase permanent agricultural easements in their communities. It’s a competitive process that requires a landowner to work with an approved local sponsor to apply for the program and to donate at least 25% of the agricultural easement’s value if selected. A landowner can receive up to 75% of the appraised value of the farm’s “development rights,” with a payment cap of $2,000 per acre and $500,000 per farm per application period.
- Federal funds are also available through the Natural Resource Conservation Service’s Agricultural Conservation Easement Program. This program is also competitive and requires a landowner to work with an approved partner to determine eligibility and apply for easement funding. NRCS may contribute up to 50 percent of the fair market value of the agricultural land easement.
- There are also federal income tax incentives for donating a portion or all of an agricultural easement’s value to a qualified charitable organization. Internal Revenue Code section 170(h) allows a landowner to deduct the value of the easement up to 50 percent of their adjusted gross income (AGI) in the year of the gift, with a 15-year carryover of excess value. That AGI percentage increases to 100% for a “qualified farmer” who earns more than 50% of their gross income from farming.
- There can also be federal estate tax benefits for land subject to a permanent agricultural or conservation easement. The land is valued at its restricted value, which lowers the estate value. Additionally, Section 2055(f) of the Internal Revenue Code allows donations of qualifying easements to a public charity to be deducted from the taxable value of an estate. Up to 40% of the value of land restricted by an agricultural or conservation easement can be excluded from the value of an estate if the easement meets Internal Revenue Code section 2031(C) provisions, limited to $500,000.
How can a family use an agricultural easement to enable farm transition goals? Here’s an example. John and Sue are fourth generation owners of 250 acres of farmland they plan to leave to their child Lee, and they want the land to remain as farmland into the future. Lee is committed to farming and wants to farm, and John and Sue would like Lee to have more land to improve the viability of the farming operation. They find a local sponsor and apply to Ohio’s Local Agricultural Easement Purchase Program, offering to donate 25% of the agricultural easement value to the program. They are selected for the funding and receive a payment of $2,000 per acre for the agricultural easement. They use the $500,000 in easement proceeds to purchase additional farmland for Lee. John and Sue receive a federal income tax credit for the portion of the easement value they donated to qualify for the program, and carryover the amount until it is fully used, up to 15 years.
What are the drawbacks of agricultural easements? There are challenges and drawbacks of agricultural easements, and we’ll discuss those in our next blog post.
Agricultural easements require legal and tax advice and careful planning. Our short Q&A doesn’t address all of the nuances of agricultural easements. It’s a big decision, and one that should align with current goals and estate and transition plans. To determine if an agricultural easement works for your situation, seek the advice and planning assistance of knowledgeable legal and tax professionals.
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