Written by Ellen Essman, Sr. Research Associate
Over the last several months, three nuisance cases have been decided against Smithfield Foods in federal court in North Carolina. The juries in the cases have found Smithfield’s large farms, with thousands of hogs, and the odor, traffic, and flies that come along with them, to be a nuisance to neighboring landowners. Smithfield has been ordered to pay hefty damages to the neighbors, and more cases against the company remain to be decided. Given the outcomes of the cases that have been decided thus far, farmers and landowners in Ohio might be wondering how Ohio law compares to North Carolina law as pertains to agricultural nuisances.
Ohio’s Right-to-Farm law
Many states, including both Ohio and North Carolina, have “right-to-farm” legislation, which in part is meant to protect agriculture from nuisance lawsuits such as those filed against Smithfield. While nearly every state has a right-to-farm statute, they do differ in language and how they go about protecting agriculture.
Ohio farmers have right-to-farm protection in two parts of the Revised Code. ORC Chapter 929 establishes “agricultural districts.” Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor. Certain requirements must be met in order for an application to be accepted. Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality. If the application is accepted, the land is placed in an agricultural district for five years. The owner may submit a renewal application after that time is up.
Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits. ORC 929.04 reads:
In a civil action for nuisances involving agricultural activities, it is a complete defense if:
- The agricultural activities were conducted within an agricultural district;
- Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
- The plaintiff was not involved in agricultural production; and
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.” Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.
North Carolina’s Right-to-Farm law
Much like Ohio, North Carolina farm land can be part of an “agricultural district.” North Carolina’s preservation of farmland law is available here. This program is meant to protect agricultural land—land that is part of an agricultural district is must be used for agriculture for at least 10 years. However, unlike Ohio’s law, North Carolina does not specifically spell out that land in agricultural districts will be protected from nuisance suits when the landowner follows the rules of the agricultural district. North Carolina’s law does state that one of the purposes of agricultural districts is to “increase protection from nuisance suits and other negative impacts on properly managed farms,” but unlike Ohio, it does not explicitly state that being part of an agricultural district is a defense to a nuisance lawsuit.
North Carolina also has a statute which specifically spells out the right-to-farm. In response to the recent jury decisions, however, North Carolina has changed its right-to-farm law. The original law read:
- No agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality outside of the operation after the operation has been in operation for more than one year, when such an operation was not a nuisance at the time the operation began.
(a1) The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change. A fundamental change does not include any of the following:
- A change in ownership or size.
- An interruption of farming for a period of no more than three years.
- Participation in a government-sponsored agricultural program.
- Employment of new technology.
- A change in the type of agricultural or forestry product produced.
The original law did not protect agricultural operations if their actions were negligent or improper. The original law is available here.
Following the first decision against Smithfield, the North Carolina legislature overrode the Governor’s veto to implement amendments to the state’s right-to-farm law. In the amendments, available here (sections 106-701 and 106-702), the legislature substantially changed the language of the law, making what constitutes a nuisance much more explicit and dependent on certain factors. What is more, the new version of the law places limits on when plaintiffs can recover punitive damages for a private nuisance action.
A comparison of the Ohio and North Carolina’s sections of legislation promoting the “right-to-farm” shows how different the two states are. Ohio’s legislative language makes it obvious that the meaning of the law is to protect agriculture from nuisance suits—by specifically stating that being in an agricultural district is a complete defense to nuisance, and that otherwise, agriculture is generally exempt from nuisance suits. North Carolina’s law concerning agricultural districts does not specifically state that being in such a district is a defense to nuisance, instead, it simply expresses the hope that districts will “increase protection from nuisance suits.” Furthermore, while North Carolina’s original right-to-farm law stated that agricultural operations do not “become a nuisance” due to changed conditions in the community, that language is not very specific. Ohio’s agricultural district language lays out exactly what must be done to have a complete defense against a nuisance lawsuit; North Carolina’s language in multiple parts of the General Statutes does not have the same degree of specificity.
Permit as a defense to nuisance
In addition to the right-to-farm law, under ORC 903.13, those owning, operating, or responsible for concentrated animal feeding facilities in Ohio have an affirmative defense to a private civil action for nuisance against them if the CAFO is in compliance with best management practices established in the installation permit or permit to operate and the agricultural activities do not violate federal, state, and local laws governing nuisances. North Carolina does not appear to have similar language protecting permitted farms in its General Statutes.
Other factors that may come into play
In the lawsuits against Smithfield farms, the lawyers for the plaintiffs (neighboring landowners) have continuously asserted that Smithfield has “means and ability” to “reduce the nuisance from existing facilities” by ending the use of “lagoon and sprayfield” systems at their farms. Plaintiffs stress that not only is Smithfield Foods, Inc. a large, wealthy, multinational company, but that they have also changed their lagoon and sprayfield practices outside of North Carolina. In lagoon and sprayfield systems, all waste is collected in an open-air lagoon and then sprayed on fields as fertilizer. The practice was first banned for new construction in North Carolina in 1997, and in 2007, the state permanently banned the practice for newly constructed swine facilities. Although many of the facilities in question were opened before any ban on the construction of lagoon and sprayfield facilities, the plaintiffs contend that changes made in other states mean Smithfield can afford to change in North Carolina. The ban on new lagoon and sprayfield systems in North Carolina, and evidence that Smithfield has used different practices to reduce the smell from the farms in other states, likely helped the juries in the cases that have been tried to date find that the farms are a nuisance to their neighbors. The above argument is something operators of livestock facilities in Ohio should be aware of. Although Ohio has not specifically banned lagoon and sprayfield systems like North Carolina has, the ability to change the system could still potentially be used to argue nuisance. Ohio operators are supposed to follow best management practices and the Natural Resources Conservation Service’s Field Office Technical guide when applying and storing manure, which include ways to reduce odor from manure and other applications, as well as reducing other types of nutrient pollution. Following such guidelines would likely help operators in any argument against nuisance.
Since significant changes were made to Ohio’s Line Fence Law in 2008, landowners have contacted us with a variety of questions about how it works. We have compiled many of the frequently asked questions in our new law bulletin, appropriately titled Ohio’s Line Fence Law: Frequently Asked Questions. The law bulletin answers questions like:
- Who has to pay for a new line fence?
- Can I stop my neighbor from installing a new line fence?
- Who has to pay for maintenance and upkeep of a line fence?
- What is the role of the township trustees?
- What happens when my neighbor and I disagree?
The new law bulletin is available here. If you still have some questions about Ohio’s line fence law, check out the Line Fence Law section of our Ag Law Library here, including our more in-depth fact sheet and our explanation about line fence affidavits.
New changes to Ohio’s prohibited noxious weeds list took effect last Friday, September 14th. In a previous blog post, we explained that the Ohio Department of Agriculture (ODA) was considering an update to the list as part of a mandatory five year review of all administrative rules. ODA ultimately added 13 new species to the list, and removed 3 species.
Added to the list of prohibited noxious weeds are:
- Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
- Field bindweed (Convolvulus arvensis).
- Heart-podded hoary cress (Lepidium draba sub. draba).
- Hairy whitetop or ballcress (Lepidium appelianum).
- Perennial sowthistle (Sonchus arvensis).
- Russian knapweed (Acroptilon repens).
- Leafy spurge (Euphorbia esula).
- Hedge bindweed (Calystegia sepium).
- Serrated tussock (Nassella trichotoma).
- Columbus grass (Sorghum x almum).
- Musk thistle (Carduus nutans).
- Forage Kochia (Bassia prostrata).
- Water Hemp (Amaranthus tuberculatus).
Removed from the list are:
- Wild carrot (Queen Anne’s lace) (Daucus carota L.).
- Oxeye daisy (Chrysanthermum leucanthemum var. pinnatifidum).
- Wild mustard (Brassica kaber var. pinnatifida).
Still on the list are:
- Shatter cane (Sorghum bicolor).
- Russian thistle (Salsola Kali var. tenuifolia).
- Johnsongrass (Sorghum halepense).
- Wild parsnip (Pastinaca sativa).
- Grapevines: when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
- Canada thistle (Cirsium arvense).
- Poison hemlock (Conium maculatum).
- Cressleaf groundsel (Senecio glabellus).
- Musk thistle (Carduus nutans).
- Purple loosestrife (Lythrum salicaria).
- Mile-A-Minute Weed (Polygonum perfoliatum).
- Giant Hogweed (Heracleum mantegazzianum).
- Apple of Peru (Nicandra physalodes).
- Marestail (Conyza canadensis).
- Kochia (Bassia scoparia).
- Palmer amaranth (Amaranthus palmeri).
- Kudzu (Pueraria montana var. lobata).
- Japanese knotweed (Polygonum cuspidatum).
The revised list can be found online at Ohio Administrative Code § 901:5-37-01. Readers may recall that the Farm Office’s Ag Law Library has a law bulletin on Ohio’s Noxious Weed Laws. It has been updated to reflect the changes, and is available here.
A question we often hear from landowners is "will I be liable if a hunter is injured on my property?" Ohio's Recreational User's Statute is an excellent risk management tool for farmers who so often have hunters stopping by and asking for permission to hunt on the farm. The law provides immunity for landowners of non-residential land who allow people to engage in recreational activities on the land without charging a fee for the activity. The law states that by granting permission, the landowner is not extending any assurance to a recreational user that the premises are safe for entry or use.
To receive the law's liability protection, it's important for a landowner to meet the following requirements:
- Grant permission to a person to engage in a recreational activity such as hunting, fishing, hiking, snowmobiling, four-wheeling, or other recreational activities.
- Don't charge a fee or benefit for the use, except that the law does allow a lease payment fee.
Read more about the law in our new bulletin, Okay to Play: Ohio's Recreational User Statute Limits Liability for Hunters, Snowmobilers and More. The bulletin is available here.
New law bulletin explains Ohio surface water drainage law
The drainage of surface water is undoubtedly important to agricultural landowners. A question we often hear is whether someone can interfere with the surface water drainage on someone else’s property. The answer to this question lies in Ohio’s “reasonable use doctrine,” which establishes guidelines for when a landowner has a legal right to affect the drainage of surface water onto another property. Our new law bulletin, “Surface Water Drainage Rights,” explains this important legal doctrine.
Here is a quick summary of the bulletin:
- A landowner does not have an absolute privilege to deal with surface water as he or she pleases but does have a legal right to alter the flow of surface waters from the property.
- However, a landowner has a legal duty of “reasonable use” when affecting surface water drainage and can be liable if a harmful interference with the flow of surface water is “unreasonable.”
- To determine whether land uses and drainage interferences are “reasonable” or “unreasonable,” Ohio courts will examine four important factors: the utility of the land use or drainage use, the gravity of harm caused to others, the practicality of avoiding the harm, and the fairness of requiring other landowners to bear harm from the drainage interference.
- A harmed party can seek damages for injuries resulting from an “unreasonable” drainage interference. Options for pursuing damages include hiring an agricultural attorney to send a “demand letter” or file a negligence claim or using the small claims court for damages that are $6,000 or less.
- Another way to resolve a drainage interference is to work with the county Soil and Water Conservation District or county engineer’s office to develop a drainage improvement project. Landowners may use the drainage petition process, which requires all landowners within the area benefitted by drainage improvement project to pay for the project through property assessments.
For a detailed explanation of drainage rights, read the full bulletin here.
When you think of “agritourism,” corn mazes and hay rides may first come to mind. While those activities can fall under Ohio's definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio. This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities. The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.
It's important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:
Conditions for immunity from liability
1. Qualify as an “agritourism provider.” The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee. An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.” This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals. Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:
- At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,” which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”
- Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land.
2. Post required signs. Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection. The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm. The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau. Each sign must:
- Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
- Contain the following statement, in black letters measuring at least one inch high:
WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity. Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death. You are assuming the risk of participating in this agritourism activity.
Immunity from what?
The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.” An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize. According to the law, “inherent risks” include:
- The surface and subsurface conditions of the land;
- The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
- The behavior or actions of domestic animals other than vicious or dangerous dogs;
- The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
- The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
- The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant.
If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries. In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property.
Exceptions to immunity
Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute. The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:
- Fails to post and maintain signs (discussed above)
- Acts with a willful or wanton disregard for the safety of the participant,
- Purposefully causes harm to the participant,
- Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
- Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant.
Use the agritourism law to your advantage
Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture. But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure. Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection. Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries.
The agritourism immunity law is in Ohio Revised Code section 901.80. For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.
Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:
- Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
- Field bindweed (Convolvulus arvensis)
- Heart-podded hoary cress (Lepidium draba sub. draba). Hairy whitetop or ballcress (Lepidium appelianum)
- Perennial sowthistle (Sonchus arvensis)
- Russian knapweed (Acroptilon repens)
- Leafy spurge (Euphorbia esula)
- Hedge bindweed (Calystegia sepium)
- Serrated tussock (Nassella trichotoma)
- Columbus grass (Sorghum x almum)
- Musk thistle (Carduus nutans)
- Forage Kochia (Bassia prostrata)
- Water Hemp (Amaranthus tuberculatus)
The director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property. The current noxious weeds list also contains the following plants, which will remain on the list:
- Grapevines: (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
- Canada thistle (Cirsium arvense L. (Scop.))
- Poison hemlock (Conium maculatum)
- Cressleaf groundsel (Senecio glabellus)
- Musk thistle (Carduus nutans)
- Purple loosestrife (Lythrum salicaria)
- Mile-A-Minute Weed (Polygonum perfoliatum)
- Giant Hogweed (Heracleum mantegazzianum).
- Apple of Peru (Nicandra physalodes)
- Marestail (Conyza canadensis)
- Kochia (Bassia scoparia)
- Palmer amaranth (Amaranthus palmeri)
- Kudzu (Pueraria montana var. lobata)
- Japanese knotweed (Polygonum cuspidatum)
ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018. E-mail comments to email@example.com or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068. Learn more about noxious weed laws in our bulletin, here.
Decisions announced today by the Ohio Supreme Court will allow landowners to challenge Current Agricultural Use Valuation (CAUV) land values established by Ohio’s tax commissioner by appealing the values to the Board of Tax Appeals.
Twin rulings in cases filed by a group of owners of woodland enrolled in CAUV, Adams v. Testa, clarify that when the tax commissioner develops tables that propose CAUV values for different types of farmland, holds a public hearing on the values and adopts the final values by journal entry, the tax commissioner’s actions constitute a “final determination” that a landowner may immediately appeal to the Board of Tax Appeals. The Board of Tax Appeals had argued that the adoption of values is not a final determination and therefore is not one that a landowner may appeal to the Board.
The tax commissioner forwards the CAUV tables to the county auditors, who must use the values for a three year period. An inability to appeal the values when established by the tax commissioner would mean that a landowner must wait until individual CAUV tax values are calculated by the county auditor, who relies upon the tax commissioner’s values to calculate the county values. As a result of today’s decision, landowners may appeal the values as soon as the tax commissioner releases them.
The landowners also claimed that the process and rules for establishing the CAUV values are unreasonable and not legal. However, the Court rejected those claims.
For an excellent summary of the Adams v. Testa cases by Court News Ohio, follow this link.
We're happy to return to our blog after a short summer recess, but are sad to have lost fellow blogger and Law Fellow Chris Hogan, who has moved to California. Chris is now in private practice with agricultural attorney Tim Kelleher. We are confident that California agriculture is in good hands!
Our first blog post concerns updates to Ohio’s Agricultural Fertilizer Applicator Certification Program. The Ohio Department of Agriculture (ODA) recently revised the rules in order to fine-tune the program established in 2014 by Ohio’s legislature. ODA made several changes to the certification, education, and recordkeeping requirements for those who apply agricultural fertilizers to more than 50 acres of land in agricultural production. The changes go into effect on October 1, 2017.
Updates to the Certification Requirements
Three modifications to the certification requirements will: 1) provide additional clarity about how the certifications apply to employees, 2) adjust the cycle for when the certifications begin and expire, and 3) establish a grace period to obtain a renewal certification after a prior certification has expired.
- The new rule clarifies how the requirements apply to employees of businesses and farms, a provision that was unclear under the old rule. The certification rule requires all persons who apply fertilizer for the purpose of agricultural production on more than 50 acres of land to either personally have a certificate issued by the ODA Director, or to act under the instruction and control of a certificate holder. The person acting under the certificate holder must be either a family member of the certificate holder, or “employed by the same business or farm as the certificate holder.”
- Instead of starting on June 1 of year one and ending on May 31 of the third year, the certification period for an applicator will run from April 1 of year one until March 31of the third year. The new cycle will avoid mid-season headaches by ensuring that certifications will generally be in place prior to planting season.
- The new rule provides a grace period to certificate holders who do not renew their certificates prior to the expiration of their old certificates. If a certificate holder’s certificate expires before they complete a renewal application, the new rule gives the expired certificate holder 180 days after the date of expiration to complete the renewal process. The primary benefit of this grace period is that within the 180 day period, the application will be treated as a renewal application rather than a new application, which requires fewer training hours.
Updates to the Education Requirements
ODA has modified the education requirements in two important ways:
- The rule provides an examination option as opposed to requiring all applicants to attend a certain number of hours of agricultural nutrient training. This allows individuals who know what ODA wants them to know about the topic to bypass the hours of training requirement.
- The new rule differentiates education requirements for new certification applications and renewal applications. Fewer training hours will be required for renewal applications than new applications.
- New applicants have the option of either attending at least three hours of agricultural nutrient training or passing an ODA-approved fertilizer examination that demonstrates an “adequate knowledge of the fertilizer training requirements.” New applicants must successfully complete one of these options within the twelve months prior to applying for certification.
- Those wishing to renew their certifications have the option of either attending one hour of agricultural nutrient training or passing an ODA-approved fertilizer examination. Those who obtain their fertilizer certificate within twelve months of applying for a renewal certificate do not have to complete the renewal education requirements.
Additional Recordkeeping Requirements
The final change to the program rules adds two new recordkeeping requirements. For each application of fertilizer, the fertilizer certificate holder must record:
- The number of acres on which fertilizer is applied, and
- The total amount of fertilizer applied, by either weight or volume.
These are in addition to the current requirements, which include maintaining records of:
- The date, place, and rate of the application of fertilizer,
- An analysis of the fertilizer applied,
- The name of the individual who applied the fertilizer,
- The name of the certificate holder,
- The type of application method used,
- The soil and weather conditions at the time of application,
- The weather forecast for the day following the fertilizer application, and
- For surface applications, whether the land was frozen and/or snow covered during the fertilizer application.
Each of these must be documented within 24 hours of the application. The existing timing requirements, such as how long the applicator has to submit the information to the certificate holder, have not changed.
For more information, visit ODA’s Agricultural Fertilizer Applicator Certification web page and OSU’s Nutrient Education and Management website. The program rules in Chapter 901:5-4 of the Ohio Administrative Code are here.
Written by Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
Several pipeline projects are crisscrossing the state. While some landowners are just seeing equipment and workers show up on their property, others are seeing pipelines be buried and the land being reclaimed. Some Ohio landowners question whether pipelines on their property and reclamation of the land are being carried out properly.
Safety Issues Related to Construction of Pipelines
In certain circumstances, landowners with completed pipelines on their property can contact the Public Utilities Commission of Ohio (PUCO) with their concerns. PUCO has the authority to oversee safety issues on completed pipelines in Ohio. If a landowner is concerned that an existing pipeline on their property has a legitimate safety issue, that landowner should contact PUCO to report suspected safety issues. PUCO inspectors may issue a noncompliance letter to pipeline companies, if a violation is discovered.
If the landowner specifically suspects that the pipeline company is not following recommended standards and construction specifications, local Soil and Water Conservation Districts or the Ohio Department of Agriculture (ODA) may be able to assist. By law ODA must cooperate with other agencies to protect the agricultural status of rural lands adjacent to projects such as pipelines. ODA publishes model pipeline standard and construction specifications intended to limit the impact of construction of a pipeline on agricultural productivity.
Contract Disagreement Issues (Non-Safety Issues)
If a landowner has an issue that is not related to safety, that issue may be addressed in the easement agreement between the landowner and the pipeline company. A pipeline easement is a contract. Both parties agree to uphold their obligations under the contract. Essentially, the landowner agrees to provide subsurface land and access rights to a pipeline company in return for monetary compensation.
Of course, an easement is much more complicated than that. As part of this contractual relationship, a landowner has the right to request that the pipeline company uphold their duties under the contract. If a landowner doesn’t believe that a pipeline company is following the terms of an easement, the landowner has the right to enforce the agreement. While the landowner may seek an attorney to do this, it may be best to work with the pipeline company first.
Landowners should consider keeping detailed notes of issues as they arise. For example, a landowner may wish to take written notes on and photographs of the property after noticing a construction issue. This may be helpful in presenting the issue to the pipeline company. It may be cheaper and faster to raise the issue with the pipeline company first, before speaking with an attorney. However, if a landowner’s complaints aren’t resolved in a timely manner after speaking with the company, the landowner will want to speak with an attorney to enforce the contract.
What to Remember When Speaking with a Pipeline Company Representative
As a practical note, it is important for a landowner to realize that the workers on a pipeline might not be from the pipeline company itself. For example, if a landowner has an issue with the way that the easement is re-soiled and re-planted, it could be a third party that did the work. Landowner’s should re-read their easement to ensure that sub-contracting is allowed. When a landowner calls a company, he or she should realize that the company may not have done the work, but rather a subcontractor completed the work. Therefore, the landowner should fully describe the issue to the pipeline company so that the company understands the issue. Any evidence, such as photographs or written notes may be very helpful in resolving an issue with the pipeline company.
It is always best to identify potential issues early. Landowners may want to check the progress of pipeline construction on their property as it occurs. If there is an issue, landowners should promptly contact the company. Landowners should check their easement agreement to see if the easement outlines a process to dispute terms of the agreement.
If the contract does not outline a process to dispute terms of the agreement, it would be best for landowners to speak with the construction foreman first, then moving up the management chain if the company doesn’t react favorably. If the company and the landowner can’t come to a resolution, the landowner may need an attorney at some point.
Reclamation of the Land
After a pipeline is buried, the soil and the surface of the land is ideally placed back in its original condition. This process is sometimes referred to as reclamation. The pipeline easement agreement between a landowner and a pipeline company usually discusses how this process will be completed. Landowners and pipeline companies often agree beforehand how the land will be reclaimed after the pipeline is constructed. Pipelines may disturb trees, soil, and waterways during the construction process. These disturbances may impact crop yields and grazing habits in future years. For this reason, landowners may wish to carefully monitor the reclamation process and enforce the terms of the easement.
Living with a Pipeline Easement
When landowners have concerns or questions regarding a pipeline on their property, the best place to start is the pipeline easement. Landowners may have recently signed an easement, or landowners may be subject to a pre-existing easement signed by a previous owner of the property. Current landowners are subject to pre-existing easements, because easements “run with the land.” Old easements don’t typically expire, unless the original easement language provides for extinguishment of the easement under certain circumstances (for example, abandonment the easement).
Pipelines are a common tool for the transportation of natural resources. Many Ohio landowners have pipelines crisscrossing their property. Landowners should raise any pipeline safety or construction issues with the appropriate state agency, and any contractual issues should be brought to the pipeline company. As always, a landowner should pay careful attention to the language of the pipeline easement in determining how to approach a potential problem.
More information on pipeline easements is here.