Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
If you are an agritourism provider or are interested in learning more about agritourism, sign up for our AgritourismReady event on April 5th! Details of the event are here.
Spring has sprung and many agritourism providers are busy gearing up for spring agritourism activities such as maple syrup production, school tours, and berry picking. Agritourism providers should take time this spring to review the key elements of Ohio’s new agritourism law and understand how the law affects the agritourism operation.
Ohio’s new agritourism law applies to qualifying farms, including you-pick operations and farm markets, when an agritourism activity is conducted on that farm. A qualifying farm under the law is either at least 10 acres in size or a farm under 10 acres that grosses an average income of $2500 from production (the same requirements for qualifying for Ohio’s CAUV property tax program). Agritourism activities include agriculturally related educational, entertainment, historical, cultural, or recreational activities. Below are two important benefits of Ohio’s agritourism law that agritourism providers should review this spring: liability protection and zoning protection.
One of the main benefits of the law is liability protection for agritourism providers against claims by participants injured as a result of an inherent risk of an agritourism activity. The law defines inherent risks to be dangers and conditions that are an integral part of the activity, including surface and subsurface land conditions, actions of wild animals and domestic animals other than vicious or dangerous dogs, dangers of farm structures and equipment, illness from contacting animals, feed or waste, and the participant’s failure to follow instructions or use reasonable caution.
There are several limitations and requirements under the law that impact this liability protection. Most importantly, agritourism providers must post signs either at the entrance to the farm or at each agritourism activity in order to receive liability protection under the law. The signs must meet the specifications of the law. For more information about posting signs and the law’s liability protection, our previous post on agritourism is here.
Ohio’s agritourism law also provides some zoning protections to agritourism providers. Under the law, township and county zoning authorities cannot prohibit agritourism activities on farms. But, townships and counties can regulate some factors related to agritourism to protect public health and safety. These factors include the size of structures used primarily for agritourism, setbacks for structures, ingress and egress from the parcel, and the size of parking areas. A township or county that wants to regulate these limited factors must have provisions addressing the factors in the local zoning code. We explain the zoning provisions of the agritourism law in more detail in our law bulletin, here.
Preparing for the 2017 Season
As agritourism providers prepare for the 2017 season, providers should take a few actions to ensure the benefits of the agritourism law for their operations:
- Post the required signs at the entrance to the agritourism operation or at each agritourism activity. Also, consider adding your own signs to give instructions, guide visitors safely around the property or warn visitors of potential hazards.
- Even with the law’s liability protection, make sure the property is as safe and clean as possible. Spring is a good time to walk the property to identify any dangerous conditions that might put a visitor at risk and fix those conditions before inviting guests on the property.
- Farms under 10 acres in size should take time to brush up on good recordkeeping practices. Farms that are under 10 acres may be required to prove that they qualify as a farm under the agritourism law by showing $2500 in gross receipts. Be sure to maintain all records of farm income.
- If starting a new agritourism activity, check the local zoning code to see if the township or county has zoning requirements for the few agritourism factors it can regulate. Be prepared for a visit by the local zoning inspector and be ready to show the inspector that the activity falls under the new agritourism law’s zoning protections because it is “agritourism” conducted on a “farm.”
A full description of the Ohio Agritourism Law is available via our law bulletin here.
Tags: agritourism liability; agritourism; agritourism zoning; agritourism taxation; premises liability
The Senate Judiciary today heard sponsor testimony for a proposed change to Ohio’s criminal trespass laws. The “purple paint law” proposed by Sen. Bill Coley (R-Liberty Twp.) allows landowners to use purple paint to alert potential trespassers of property boundary lines. The purple paint would serve the same purpose as a “No Trespassing” sign by indicating that a person does not have permission to enter the property.
“It is often difficult for landowners, particularly owners who have large pieces of real estate, to maintain and replace their “No Trespassing” signs on a regular basis,” states Rep. Coley. “This legislation amends Ohio’s criminal trespass law to allow purple paint to be a warning sign for trespassers.”
Ohio’s criminal trespass law establishes misdemeanor penalties for persons who knowingly or recklessly enter or remain on land of another without authorization from the landowner. The law allows several ways for a landowner to notify a potential intruder that access is prohibited: by actual communication, by fencing designed to restrict access, or by signage or posting in a manner reasonably calculated to come to the attention of potential intruders. The proposed bill would clarify that “posting in a manner reasonably calculated to come to the attention of potential intruders” would include placing identifying purple paint marks on trees or posts around the property. The purple marks would have to be readily visible vertical lines at least eight inches long, with the bottom of the mark being at least three feet but no more than five feet from the base of the tree or post and no more than 25 yards from the next paint mark.
Today’s committee hearing is the first for the bill. If the legislation eventually passes through the House and Senate, Ohio would join a dozen other states around the country in allowing purple paint to mark property boundary lines for trespassing purposes. Similar laws exist in West Virginia, Kansas, Arizona, Montana, Arkansas, Idaho, Florida, Maine, North Carolina, Missouri, Illinois and Texas.
Follow the proposed purple paint law, SB 76, here.
Written by: Chris Hogan, Law Fellow, OSU Agricultural & Resource Law Program
Several major pipeline projects, which plan to crisscross the state, are in the final stages of preparation. As part of the planning process for a project, pipeline builders plot the path that the pipeline will travel across the state. That path inevitably crosses private landowners’ property. Some landowners may feel overwhelmed trying to understand the rights of private pipeline companies to cross private property in Ohio. The frequently asked questions discussed below should help answer some of the common questions about pipeline projects in Ohio.
Can a pipeline company come on to my property to conduct a survey?
Yes. Prior to building a pipeline, pipeline companies must select a route where the pipeline is to be constructed. A pipeline project usually crosses private property along a proposed route. When a pipeline must cross private property along the project’s route, the pipeline company will ask the landowner for an easement that allows for pipeline construction on the property. However, even before signing an easement, a survey of the property may be necessary to determine the feasibility of constructing a pipeline on the property. Therefore, a pipeline company may need to enter a landowner’s private property to conduct a survey.
In Ohio, the law allows private companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land to examine or survey for pipelines. This means that a pipeline company organized for these specific purposes does have the right in Ohio to enter onto a landowner’s property to conduct a private survey for the purpose of pipeline construction.
A pipeline company is telling me that they might use Eminent Domain to acquire my property. Is that legal?
Most likely, yes. A pipeline company may negotiate an easement with landowners which compensates landowners in exchange for the right to build a pipeline. However, landowners may not want to give a pipeline company the right to cross their property. In that scenario, pipeline companies have the option of crossing a landowner’s property by using eminent domain. Eminent domain is the taking of private property for public purposes with compensation.
In Ohio, the same law that allows for companies that are organized “for transporting natural or artificial gas, petroleum, coal or its derivatives . . . through tubing, pipes or conduits” to enter upon private land for survey also allows those same companies to use eminent domain to take private land. The law states that a company organized for the above purpose “may appropriate so much of such land, or any right or interest [to the land], as is deemed necessary for the laying down or building of pipes . . .” This suggests that pipeline companies have the power of eminent domain in Ohio.
Some argue that the law only grants eminent domain rights for transporting gas, and does not extend the right of eminent domain for the transport of gas derivatives such as ethane. While there is not strong legal support for this argument, it is under litigation in Ohio courts.
To use eminent domain, the pipeline company must prove that the landowner and the company were not able to reach an agreement about granting a pipeline easement and that the taking of the pipeline easement is “necessary.” A pipeline company must establish that the taking of property will serve a “public use.” Ohio courts have noted that the term public use is flexible. Accordingly, Ohio courts have held that private pipelines are a public use if those pipelines provide an economic benefit to Ohio. After establishing necessity and public use, the pipeline company must follow the procedures for eminent domain in Ohio Revised Code Chapter 163.
For an interstate pipeline that runs between Ohio and another state, federal law could allow a company to use eminent domain to obtain land from unwilling landowners. Federal law states that a company may acquire property rights for a gas pipeline if the company has obtained a Certificate of Public Convenience and Necessity from the Federal Energy Regulatory Commission and the company and landowner have not been able to agree on compensation for the pipeline easement. See 15 USC §717(F).
What about the pipeline cases that are in court right now, do those affect my rights?
Ohio landowners have probably heard about several high-profile pipeline projects that are planning to cut across the state. Some landowners have challenged the construction of these pipeline projects on their property. These landowners are challenging the right of the pipeline companies to use eminent domain to acquire an easement on their property. Two pipeline projects in Ohio are of particular interest: Kinder Morgan’s Utopia Project and Rover Pipeline LLC.
A court in Wood County, Ohio decided in 2016 that Kinder Morgan’s Utopia Project, which plans to run across Ohio and into Canada, did not have eminent domain authority. The court concluded that the pipeline did not “serve the public of the State of Ohio or any public in the United States.” The court based its conclusion on the fact that Utopia did not provide a benefit to Ohio. However, Kinder Morgan quickly appealed that case to Ohio’s Sixth Circuit Court of Appeals. Therefore, this opinion is on hold while a higher court decides whether it agrees with the lower court’s interpretation of the eminent domain law.
A second high-profile pipeline case involves the right of Rover Pipeline LLC to use eminent domain for an interstate pipeline project. The Federal Energy Regulatory Commission issued this pipeline project a certificate of public convenience and necessity on February 2, 2017. As a result, Rover Pipeline LLC is moving forward with construction on landowners’ property, because a federal court found that the pipeline company has eminent domain authority.
So how do these court cases affect landowners? First, landowners should be aware that other pipeline projects in Ohio likely have eminent domain authority, if they meet the requirements for eminent domain described by Ohio law. Second, landowners should be aware that that the pipeline case that began in Wood County and is currently being appealed is still pending. It is important to note that this case is reviewing the Utopia Project’s right to use eminent domain in Ohio. Therefore, this does not mean that all pipeline companies in Ohio no longer have the right to use eminent domain to acquire private property in Ohio. Instead, this case will determine the fate of that particular pipeline project and whether or not that project has the right to use eminent domain to acquire an easement. In the meantime, pipeline companies continue to have the right to use eminent domain in Ohio.
More information on pipelines in Ohio and resources for landowners considering signing an easement is available here.
Many Ohioans choose to avoid the probate process by using a transfer on death designation. Since 2000, Ohio has permitted property owners to use transfer on death designations to transfer property upon the owner’s death. In 2009, Ohio law allowed property owners to make transfer on death designations with an affidavit instead of by designation on a deed. The new Ohio law forces the automatic termination of transfer on death affidavits for changes in marital status.
The new changes took effect on December 13, 2016 when the Governor signed Senate Bill 232 into law. Under Senate Bill 232, a transfer on death designation made either by a deed or by an affidavit to a spouse terminates upon a divorce, dissolution, or annulment. The new law applies to new and pre-existing transfer on death designations.
Because the law applies to pre-existing transfer on death designations, it may be a good time for property owners to revisit their estate plans. Property owners should be aware of the effect of divorce, dissolution, or annulment on their transfer on death designations.
Update: For a full explanation of the rule, refer to our new Law Bulletin, The New FAA Rule for Using Drones on the Farm
Part 1: Drone Pilots Must Obtain FAA Certification
The Federal Aviation Administration (FAA) yesterday filed its final rule in the Federal Register for the Operation and Certification of Small Unmanned Aircraft Systems (sUAS). The new rule allows for the non-recreational operation of sUAS less than 55 pounds in the national airspace. Farmers and professionals planning to use UAS or “drones” for agricultural purposes must comply with the rule beginning on August 29, 2016. An important first step toward compliance is to obtain the proper license to operate a sUAS, referred to as “remote pilot certification” by the FAA.
The Remote Pilot Certification Requirement
The Remote Pilot in Command (Remote PIC) is the person who is directly responsible for the operation of the sUAS. The new rule requires the Remote PIC to obtain a remote pilot certificate with a small UAS rating. To do so, an applicant must meet eligibility requirements, pass a knowledge test and complete the application process.
1. Eligibility requirements. An applicant for a Remote PIC must be at least 16 years old, proficient in the English language, and in a physical and mental condition that would not interfere with safe operation of a sUAS.
2. Knowledge test. An applicant must pass the unmanned aircraft general (UAG) knowledge test before applying for the remote pilot certificate. The knowledge test, which will be available beginning August 29, 2016, will contain 60 multiple choice questions on:
- Federal regulations for sUAS.
- Airspace classification and operating requirements.
- Weather sources and effects of weather on sUAS.
- Loading and performance of sUAS.
- Emergency procedures.
- Crew resource management.
- Radio communication procedures.
- Determining performance of sUAS.
- Effects of drugs and alcohol.
- Aeronautical decision-making.
- Airport operations and maintenance.
- Preflight inspection procedures.
The FAA provides a free online learning course for knowledge test preparation, available through www.faasafety.gov or here. The FAA also presents a sample exam on its website, available here. Applicants must take the knowledge test at an FAA-approved Knowledge Testing Center. A list of Ohio’s 23 test centers is available at www.faa.gov/training_testing/testing/media/test_centers.pdf . Passing the test requires a score over 70%; an applicant who fails the test may retake the test after 14 days.
Applicants already holding a pilot certificate, other than a student pilot, must follow a different process that includes completing a two-hour online course. The course, which includes an exam, is available through www.faasafety.gov or here.
3. Application. An applicant who passes the UAG knowledge test must complete the application for a remote pilot certificate, FAA Form 8710-13. The form will be available as a paper application or online through the FAA’s Integrated Airmen Certificate Rating Application System at https://iacra.faa.gov. The Transportation Security Administration (TSA) will then conduct a background security screening of the applicant to determine if the applicant represents a security threat. If the screening is successful, an applicant will receive the remote pilot certificate. An unsuccessful security screening will disqualify the applicant, who would have a right to appeal the security screening decision. Note that an applicant who uses the online application can obtain a temporary certificate online upon successful completion of the security screening, while an applicant who submits a paper application must wait to receive the permanent remote pilot certificate through U.S. mail. The FAA has announced that it hopes to issue a temporary remote pilot certificate within 10 business days after submission of an online application.
What Happens After Certification?
A certified Remote PIC may legally fly a sUAS and may also directly supervise persons who do not hold a remote pilot certificate, as long as the Remote PIC maintains the ability to take control of the sUAS. This provision will allow Remote PICs to teach, demonstrate and train uncertified operators. The Remote PIC has several responsibilities:
- Register the sUAS with the FAA.
- Conduct pre-flight inspections.
- Abide by operational limitations in the new sUAS rule.
- Maintain records on the sUAS and its flights.
- Upon request, make the sUAS and records available to the FAA for inspection or testing.
- Report any operation that results in injury, loss of consciousness or property damage of at least $500 to the FAA within 10 days of occurrence.
Recurrent knowledge test. A person who receives the remote pilot certificate must take a recurrent knowledge test within 24 months to retain the certification.
Part 2 of this Series
In our next post in this series on implications of the new rule for sUAS in agriculture, we’ll explain the operational limitations and requirements for sUAS. To read the new rule or access up-to-date information on sUAS, go to www.faa.gov/uas.
A landowner may immediately appeal an agency’s determination that property contains “waters of the United States” that is subject to the federal Clean Water Act, according to a decision issued today by the United States Supreme Court.
The court’s holding in Army Corps of Engineers v. Hawkes Co. centered on a decision by the U.S. Army Corps of Engineers (the Corps) that property in Minnesota owned by the Hawkes Company (Hawkes) contained wetlands that were subject to the Clean Water Act. Hawkes planned to mine peat on the property, and would have to comply with Minnesota regulations. The Corps decided that Hawkes must also comply with federal Clean Water Act regulations, based on its “jurisdictional determination” that the property contained waters of the United States because its wetlands had a “significant nexus” to the Red River of the North, located 120 miles away.
Hawkes challenged the Corps’ jurisdictional determination in federal district court. The Corps requested dismissal of the case, arguing that its jurisdictional determination was not a "final agency action" that Hawkes could appeal in court. Rather, the Corps asserted that Hawkes should apply for a Clean Water Act permit and challenge the results of the permit request if dissatisfied or should proceed without a permit and challenge the jurisdictional determination in a likely enforcement action.
The federal district court agreed with the Corps and dismissed the case. Hawkes then appealed to the Eighth Circuit Court of Appeals, which reversed the district court’s decision. The Corps requested review of the appeal by the United States Supreme Court, which accepted the case.
The Supreme Court concluded that the Corps’ jurisdictional determination is appealable according to the federal Administrative Procedures Act, which allows an aggrieved party to appeal a “final” agency action. An action is final if it determines legal consequences,“marks the consummation of the agency’s decision making process,” and when there are no adequate alternatives for relief other than judicial review. All three circumstances existed in the Hawkes case, said the Court, stating that parties should not have to await enforcement proceedings that carry the risk of criminal and civil penalties before challenging a jurisdictional determination or be forced through a lengthy and costly permitting process before being able to challenge the Corps’ jurisdictional determination.
Read the decision in Army Corps of Engineers v. Hawkes Co. here.
Grain bins are “business fixtures” that are personal property not subject to real property tax, according to a decision issued today by the Ohio Supreme Court.
The court case arose when the Metamora Elevator Company challenged the Fulton County auditor’s inclusion of grain storage bins in the company’s real property valuation. Metamora filed complaints with the county Board of Revision, arguing that the grain bins are business fixtures that should not be included in the company’s real property assessment. The Board of Revision disagreed with Metamora and the company appealed to the Board of Tax Appeals (BTA).
The Fulton County BTA ruled in favor of the company, determining that grains bins are personal property and should not be taxed as real property. The BTA reduced Metamora’s real property value by nearly $1.1 million, the value of the grain bins. Fulton County requested a review of the BTA decision by the Ohio Supreme Court, which agreed to hear the case. The issue before the Court was whether the grain bins are “fixtures” or “improvements” that are subject to real property tax or whether they are not subject to real property tax because they are “business fixtures” that qualify as personal property.
Ohio Supreme Court’s reasoning
In its decision authored by Justice O’Donnell, the Supreme Court explained that the legislature amended the Ohio Revised Code in 1992 to clarify the historically “elusive” distinction between real and personal property in Ohio. The court stated that the changes expressed a clear intent to identify fixtures as real property while defining business fixtures as personal property, according to two of th revised sections of Ohio law:
- ORC 5701.02(A), which states that “real property” includes “land itself * * * and, unless otherwise specified in this section or section 5701.03 of the Revised Code, all buildings, structures, improvements, and fixtures of whatever kind on the land.”
- ORC 5701.03(B), which defines “business fixture” as “an item of tangible personal property that has become permanently attached or affixed to the land or to a building, structure, or improvement, and that primarily benefits the business conducted by the occupant on the premises and not the realty. Business fixture includes, but is not limited to, machinery, equipment, signs, storage bins and tanks, whether above or below ground, and broadcasting, transportation, transmission, and distribution systems, whether above or below ground.
“Our analysis need go no further than to apply the expressed intent of the General Assembly to the undisputed facts of this case,” said the Court, and concluded that the legislature clearly intended for the term “business fixture” to include storage bins, and therefore to define storage bins as personal property not subject to real property tax.
The Court rejected the two arguments advanced by the county, that property classification cases depend upon what constitutes an “improvement” under the Ohio Constitution and that it would be unconstitutional for the legislature to classify constitutional “improvements” such as fixtures or structures as personal property simply because the fixtures might be used in business. Because the grain bins related more to the personal business than to the land, based on the definition of “business fixture” in ORC 5701.03, the Court saw no conflict between the personal property classification and the Ohio Constitution.
Implications for agriculture
Fulton County may not be the only county that classifies grain bins as real property for tax purposes. Landowners who own grain bins should review their property tax records and determine whether the real property value includes the value of grain bins located on the parcel. If the property tax does incorporate grain bin values, consult with the county auditor to discuss the situation. Ohio law allows a county auditor to correct "clerical errors" made in the collection of real property taxes, although there is a question of whether inclusion of grain bins in the real property value constitutes a clerical error. Ohio law also provides remedies for taxpayers who have overpaid taxes; landowners should consult with a tax attorney for guidance on these remedies. Note that filing a complaint with the Board of Revision is not an option, as March 30 was the deadline for filing complaints for the current tax year.
The case of Metamora Elevator Co. v. Fulton Cty. Bd. of Revision, Slip Opinion No. 2015-Ohio-2807 is available on the Ohio Supreme Court’s website, here.
After much anticipation, the Federal Aviation Administration (FAA) has published proposed regulations that would govern the operation of drones used for agricultural and other activities. The proposal would allow farmers and ranchers to operate drones, referred to in the rule as “unmanned aircraft” and “unmanned aircraft systems” (UAS), subject to requirements intended to address public safety and national security concerns.
Under the proposed small UAS rule, operators must comply with a certification process, register and maintain aircraft, and follow limitations on aircraft operation. Of the proposed limitations, agricultural operators might have concerns about a “visual line-of-sight” rule requiring that operators have visual contact with aircraft, a flight ceiling of 500 feet above ground level and prohibitions against night flights. Additionally, the proposal fails to address privacy issues and the potential use of drones for surveillance activities on another person’s property.
The following provisions are the major components of the proposed rule, which would apply to unmanned aircraft weighing less than 55 pounds that are used for non-hobby and non-recreational purposes:
Operator Certification and Reporting
Certification. An operator of a UAS must have an “unmanned aircraft operator certificate with a small UAS rating,” which requires:
- Meeting eligibility requirements: the applicant is at least 17 years old, speaks English, has no state or federal drug offenses, has no physical or mental condition to prevent safe UAS operation, and the applicant’s identity is verified by the FAA.
- Passing an initial aeronautical knowledge test at an FAA-approved knowledge testing center, which covers: (1) applicable regulations relating to small UAS rating privileges, limitations, and flight operation; (2) airspace classification and operating requirements, obstacle clearance requirements, and flight restrictions affecting small UAS operation; (3) official sources of weather and effects of weather on small UAS performance; (4) small UAS loading and performance; (5) emergency procedures; (6) crew resource management; (7) radio communication procedures; (8) determining the performance of small UAS; (9) physiological effects of drugs and alcohol; (10) aeronautical decision-making and judgment; and (11) airport operations.
- Passing a recurrent aeronautical knowledge test every 24 months.
Reporting. An operator must report an accident to the FAA within 10 days of any operation that results in injury or property damage.
- Aircraft registration. A small unmanned aircraft must be registered with the FAA.
- Markings. A small unmanned aircraft must display nationality and registration markings.
- Aircraft condition. An operator must maintain a small unmanned aircraft in a condition for safe operation.
Pre-flight requirements. Before a flight, an operator must conduct a pre-flight inspection and assessment that includes:
- Inspection of the links between the unmanned aircraft and its control station.
- Verification of sufficient power to operate the aircraft at least 5 minutes beyond the intended operational time period.
- Assessment of the operating environment, including local weather conditions, local airspace and flight restrictions, locations of persons and property on the ground and other ground hazards.
- A briefing to all persons involved in the aircraft operation that addresses operating conditions, emergency procedures, contingency procedures, roles and responsibilities and potential hazards.
Visual line of sight requirement. An operator must maintain a “visual line-of-sight” with the unmanned aircraft, using only human vision that is unaided by any device other than glasses or contact lenses.
Use of visual observer. An operator may use “visual observers” to assist with the visual line-of-sight requirement.
- An operator and visual observer must maintain constant communication, which may be made through communication-assisted devices.
- The aircraft must still remain close enough to the operator for the operator to be capable of maintaining the visual line-of-sight.
Operating limitations. An operator must not operate an unmanned aircraft:
- More than 500 feet above ground level.
- More than 100 mph.
- After daylight, which is the time between official sunrise and sunset.
- When there is not minimum weather visibility of 3 miles from the aircraft’s control station.
- No closer than 500 feet below and 2,000 feet horizontally away from any clouds.
- Over any persons not directly involved in the operation and not under a covered structure that would protect them from a falling UAS.
- From a moving aircraft or vehicle, unless the moving vehicle is on water.
- Within Class A airspace; or within Class B, C, or D airspace or certain Class E airspace designated for an airport, without prior authorization from the appropriate Air Traffic Control facility.
- Carelessly or recklessly, including by allowing an object to be dropped from the aircraft in a way that would endanger life or property.
In the proposed rule, the FAA also presents the possibility of including regulations in the final rule for “micro-UAS,” or unmanned aircraft weighing no more than 4.4 pounds that are composed of “frangible” materials that yield on impact and present minimal safety hazards. The micro-UAS category would require operators to self-certify their familiarity with the aeronautical knowledge testing areas; would limit operation to: 1,500 feet within the visual line-of-sight of the operator, no more than 400 feet above ground, only in Class G (uncontrolled) airspace and at least 5 miles from an airport; and would allow flight over people not involved in the operation. The agency invites comments on whether to include a micro-UAS category in the final rule.
What’s not in the Proposed Rule?
Privacy concerns. Many in the agricultural community worry about the potential use of drones for surveillance activities that violate a property owner’s privacy. The FAA states that privacy concerns about unmanned aircraft operations are beyond the scope of this rulemaking and that “state law and other legal protections for individual privacy may provide recourse for a person whose privacy may be affected through another person’s use of a UAS.”
The agency also notes the recent Presidential Memorandum issued by President Obama, Promoting Economic Competitiveness While Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems (February 15, 2015), which requires the FAA to participate in a multi-stakeholder engagement process led by the National Telecommunications and Information Administration to develop a framework for privacy, accountability, and transparency issues concerning the commercial and private use of UAS in the NAS. The memorandum also requires agencies to “ensure that policies are in place to prohibit the collection, use, retention, or dissemination of data in any manner that would violate the First Amendment or in any manner that would discriminate against persons based upon their ethnicity, race, gender, national origin, religion, sexual orientation, or gender identity, in violation of law.” Read the Presidential Memorandum here.
External loads and towing operations. The FAA declined to propose new regulations for small unmanned aircraft with towing and external load capabilities. Instead, the agency invites comments, with supporting documentation, on whether external load and towing UAS operations should be permitted and whether their use should require airworthiness certification, higher levels of airman certification or additional operational limitations.
The FAA will accept public comments on the proposed small UAS rule until April 24, 2015. Issuing a final rule could take at least another year after the comment period closes. In the interim, FAA encourages operators to visit http://knowbeforeyoufly.org/ to understand current regulations for the use of small UAS, which remain in place until the FAA issues its final rule.
With fall quickly approaching, now is a good time to consider whether you should lease your land for hunting. Leasing your land for hunting can be beneficial by giving you an extra source of income as well as managing wildlife populations and decreasing crop damage. However, there are some considerations to make before granting that lease to someone.
Your first concern should be whether or not you would be liable for hunting accidents on your property. You likely wouldn’t be, thanks to Ohio’s Recreational User Statute. In certain situations, Ohio’s Recreational User Statute provides immunity from legal liability for someone harmed on your property during recreational activities. The types of recreational activities included in the Recreational User Statute include: hunting, fishing, trapping, camping, hiking, swimming, operating a snowmobile, all-purpose vehicle, or four-wheel drive motor vehicle, or engaging in “other recreational pursuits.”
Under the Recreational User Statute, those who lease nonresidential property for hunting do not have any duty to keep the premises safe, do not give any promises of safety by granting permission, and do not assume responsibility or liability for injuries caused by any act of the hunters.
Next, you should consider the lease itself. To create an enforceable lease, the lease must:
- Be in writing
- Identify the land being leased by legal description, address, and acreage
- Properly name the lessor (the owner of the land) and the lessee (the person leasing the land to hunt)
- Be signed by both parties
- Be acknowledged and certified by a notary public or local official if the lease is over three years
It is also important to consider what should be included in the lease. Some terms and conditions you should consider including are:
A description of the property
- Clearly defining what property is/is not included in the lease will set clear boundaries for the lessee
A description of what activities are/are not allowed
- Fishing, camping, tree stand or duck blind construction, etc.?
Allowance or restriction of sub-leasing
- Do you want to give permission to the lessee to sub-lease or is the lease strictly between you and the lessee?
Who is allowed to hunt or access the property
- Just the lessee? Or may the lessee bring guests? Is there a limit to the number of people allowed to hunt at any given time? Do you want the lessee to ask permission to bring guests?
Amount of payment and payment dates
- How much will you charge for the lease and when do you want paid?
- When will the lease end? On a specific date and/or if a violation of the lease agreement occurs?
- Limiting the number of deer that may be killed? Requiring a certain number of female deer killed?
Landowners reserving some rights to hunt on their land
- When leasing your land for hunting, you give up your right to hunt the land yourself unless you reserve some rights to hunt for yourself
What season is the lease in effect?
- Only deer, deer and turkey, etc.
Vehicle access to the property
- Where can vehicles drive and park on your property? What vehicles are permitted – will you allow ATV’s?
- Requiring hunters to maintain liability insurance
These are important considerations to think about including in a hunting lease, but this is not an exhaustive list. You should really consider what your goal is for leasing your land for hunting. Make sure the terms and conditions you include in your lease will help accomplish those goals. While hunting lease templates can be found online, you should consult with an attorney to create a hunting lease that will satisfy the goals and needs of your particular situation.
To read Ohio’s Recreational User Statute, visit: http://codes.ohio.gov/orc/1533.181
The Ohio House of Representatives gave final approval on May 21, 2014 to a bill initiated in the Senate that addresses invasive plants. As approved by both chambers, Senate Bill 192 grants regulatory authority over invasive plants to the Ohio Department of Agriculture (ODA). While ODA, Ohio EPA and Ohio's Division of Forestry already have programs in place to educate and assist in the identification and removal of invasive species, the new law clarifies that the director of ODA has "sole and exclusive authority to regulate invasive plant species in this state." This authority includes the identification of invasive plant species and the establishment of prohibited activities regarding invasive plants.
The bill defines "invasive plant species" as:
"plant species that are not native to this state whose introduction causes or is likely to cause economic or environmental harm or harm to human health as determined by scientific studies."
A committee amendment to the bill clarifies that the definition of invasive plant species does not include "cultivated plants grown as food or livestock feed in accordance with generally accepted agricultural practices, including all plants authorized by the animal and plant health inspection service in the USDA." In committee hearings, the Ohio Invasive Plants Council expressed serious concerns about this exclusion for cultivated crops. The group's concern is that ODA would not have authority to evaluate plants with invasive properties if they are grown for livestock feed. Other groups have raised similar worries about plants with invasive characteristics grown for biofuel production. The Ohio Farm Bureau submitted testimony supporting the exemption, stating that the federal government already regulates plants grown for agricultural crops.
The bill contains one exception to ODA's authority over invasive plant regulation. The director of Ohio EPA may continue to consider invasive plant species when evaluating applications and permits for wetlands under Ohio's Water Pollution Control Act. Once ODA develops invasive plant regulations, however, the EPA must refer to ODA's list of invasive plant species when reviewing wetland applications and permits.
Read S.B. 192 here.