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By: Evin Bachelor, Friday, May 10th, 2019

We might be in the middle of planting season, but it’s time for another harvest!  Here’s our latest gathering of agricultural law news that you may want to know:

Hemp bill completes third hearing in Ohio House committee.  The Agriculture and Rural Development Committee in the Ohio House of Representatives completed its third hearing regarding Senate Bill 57 on Tuesday.  The bill would decriminalize hemp produced under the regulatory system proposed in the bill.  The committee heard testimony from nearly two dozen individuals and organization representatives.  None of the witnesses gave testimony in opposition to the bill.  Nearly all of the testimony, including the testimony given on behalf of the Ohio Farm Bureau Federation and Ohio Chamber of Commerce, was offered in support of the bill.  The Ohio Farmers Union submitted testimony only as an “interested party” rather than as a “proponent,” saying that it supports the principle of hemp decriminalization, but does not believe that the hemp marketing program established in the current version of the bill would be necessary.  Click HERE to view the witness testimony regarding Senate Bill 57 on the Ohio General Assembly’s webpage.

Food and Drug Administration sets public hearing on cannabis in food and drinks.  The U.S. Food and Drug Administration has set May 31, 2019 as the date of its first hearing on whether to legalize the use of cannabis derived compounds like CBD in foods and drinks.  According to the Federal Register, the hearing is open to the public, and intended for the FDA to obtain scientific data and information about the safety, manufacturing, product quality, marketing, labeling, and sale of products containing cannabis or cannabis-derived compounds.  The hearing will be held in Maryland on May 31st, but those wishing to submit written or electronic comments may do so until July 2nd.  Click HERE for more information from the Federal Register about the hearing.

Cattle ranchers file class action suit against major meatpacking companies.  The Ranchers-Cattlemen Action Legal Fund United Stockgrowers of America (R-CALF USA) and six other named parties brought suit against major meatpackers, including Tyson Foods, JBS USA, Cargill, and National Beef Packing Company.  Filed in federal court in the Northern District of Illinois, the plaintiffs’ complaint alleges that these meatpackers colluded to suppress the price of fed cattle since at least 2015, and that as a result, the plaintiffs suffered significant economic harm from the deflated prices.  When companies agree to set prices for an industry, they engage in collusion, which could violate U.S. antitrust laws.  The 121 page complaint includes a number of charts, graphs, and visuals that explain the alleged economic manipulation, along with a thorough history of an alleged pattern of collusion.  If the federal judge certifies the class as requested, other cattle ranchers will have the choice of whether to be included in the class or not.  This is important in determining whether the unnamed members of the class are bound by a final decision or able to participate in any settlement or final award.  Click HERE to view the complaint and learn more about this lawsuit.

Indiana Right-to-Farm law upheld by Court of Appeals of Indiana.  When a federal court in North Carolina decided that that state’s right-to-farm law did not protect hog barns operated by Smithfield Foods in lawsuits alleging agricultural nuisance, there was concern that right-to-farm laws in the United States may be in trouble.  However, those fears have begun to subside in other states.  As we explained in a previous blog post, Ohio’s right-to-farm law provides greater protections from a nuisance lawsuit than North Carolina’s law.  Further, the Court of Appeals of Indiana recently upheld the use of Indiana’s Right to Farm Act.  In doing so, it upheld a lower court decision that granted summary judgment in favor of the defendant livestock operators.  At the start of the case, the plaintiffs alleged that the defendants created a nuisance, acted negligently, and caused a trespass when the defendants constructed and began to operate a new concentrated animal feeding operation in 2013.  However, the defendants cited Indiana’s Right to Farm Act as a defense and won.  The plaintiffs sought to challenge the constitutionality of the Indiana’s Right to Farm Act, but the appellate court found that the law was within the legislature’s proper authority, did not constitute a taking, and did not improperly set farmers apart for preferential treatment.  The original plaintiffs have a few more days to file an appeal with the Indiana Supreme Court.  Click HERE to read the appellate court’s opinion.

State of Washington passes cage-free egg production law.  Washington is set to join states like Massachusetts and California in requiring egg-laying hens to live free of cages.  Once signed into law by the governor, Substitute House Bill 2049 would require poultry operators to use a cage-free housing system that would allow hens to roam within the confined area by 2023.  Further, hens must be “provided enrichments that allow them to exhibit natural behaviors including, at minimum, scratch areas, perches, nest boxes, and dust bathing areas.”  Farm employees must be able to provide care while standing in the hens’ usable floor space.  The bill would also make it illegal to buy, sell, or transport eggs and egg products that were not produced in compliance with the state’s cage free egg production law.  The Humane Society of the United States spearheaded the legislative effort on this bill, which initially passed the Washington House of Representatives 90-6 and the Senate 40-6.  Click HERE for more information about the bill’s status, and HERE to read the final text of the bill.

Missouri legislature considers ending local regulation of CAFOs.  The Missouri General Assembly is considering a pair of bills that would 1) limit the ability of county commissions and health boards from imposing restrictions on confined animal feeding operations that are more stringent than state law, and 2) eliminate the authority of county commissions and health boards from inspecting livestock operations.  So far, each bill has passed one chamber of the Missouri General Assembly, and is being considered in the other chamber.  Supporters argue that the bills would provide for regulatory consistency across the state in light of varying local regulations.  Opponents argue that the bills would harm local jurisdictions from enacting restrictions that better protect the environment than current state law.  This debate is similar to recent and ongoing debates in states like Tennessee and Wisconsin over which entities can regulate confined animal feeding operations, and how much.  Click HERE for more information about Missouri’s Senate Bill 391, and HERE for more information about Missouri’s House Bill 951.

By: Evin Bachelor, Monday, March 25th, 2019

Depending upon who you talk to and when you talk to them, Ohio is either blessed or cursed as a water rich state.  Droughts certainly occur, but in the past couple of years Ohio farmers have experienced record breaking rainfall both by measures of inches and intensity.  As spring showers bring about a transition from winter to spring, we wanted to take a moment to look at Ohio’s surface water drainage laws.

Ohio courts follow the “reasonable use” doctrine for surface water drainage.  Under this doctrine, a landowner may drain surface water from his or her property in a reasonable manner.  When a landowner’s attempts to drain surface water from his or her property seem to result in harm to the property of another, legal issues may arise.

Courts and juries generally determine whether a landowner acted reasonably by looking at a number of factors, such as: the utility of the drainage, the gravity of the harm, the practicality of avoiding the harm, and whether it is fair to relieve the landowner of liability.  These factors are examined and balanced on a case-by-case basis to determine whether the landowner should be found liable for the harm experienced by another.

Certainly there are ways to resolve a dispute before resorting to a lawsuit.  Landowners may talk with their neighbors to work out an agreeable solution.  Landowners also have the option to work with the county Soil and Water Conservation District or county engineer’s office to file a petition for a drainage improvement project that would address the drainage need.

For more information, check out our law bulletin on Surface Water Drainage Rights in Ohio, which is available HERE.  It explains the “reasonable use” doctrine, describes how reasonableness is determined, and discusses remedies for harm caused by drainage.

The Ohio Statehouse
By: Evin Bachelor, Wednesday, February 20th, 2019

The 133rd Ohio General Assembly and 116th United States Congress have released their committee assignments for the upcoming legislative terms.  Chamber leaders like the House Speaker or party leaders generally select committee chairs and members, but the members themselves often have an opportunity to preference their assignments.  Below are the lists of representatives and senators on each of the agriculture-related committees, with brief biographies of committee leaders included.  Ohio readers may note that the agriculture committees for the U.S. House and U.S. Senate only have one member each from Ohio: Representative Marcia Fudge and Senator Sherrod Brown.

Here are the names to know for agriculture:

Ohio House of Representatives Agriculture and Rural Development Committee

  • Chairman J. Kyle Koehler (R-Springfield).  Representative Koehler is a third term member of the Ohio House, and received a Bachelor’s of Science in Computer Science from Wright State University.  He worked for a number of years as a software engineer for government contractors, as well as working for his family business, K.K. Tool Company.
  • Vice-Chair J. Todd Smith (R-Germantown).  Representative Smith is entering his first full term as a member of the Ohio House, and is a pastor in his home community.
  • Ranking Member Juanita O. Brent (D-Cleveland).  Representative Brent is a first term member of the Ohio House, and has experience in non-profit and community engagement work.
  • Rep. Jack Cera (D-Bellaire)
  • Rep. Randi Clites (D-Ravenna)
  • Rep. Paula Hicks-Hudson (D-Toledo)
  • Rep. Don Jones (R-Harrison County)
  • Rep. Darrell Kick (R-Loudonville)
  • Rep. Mary Lightbody (D-Westerville)
  • Rep. Susan Manchester (R-Lakeview)
  • Rep. Don Manning (R-New Middletown)
  • Rep. John Patterson (D-Jefferson)
  • Rep. Jena Powell (R-Arcanum)
  • Rep. Tim Schaffer (R-Lancaster)
  • Rep. Bill Seitz (R-Cincinnati)
  • Rep. Reggie Stoltzfus (R-Minerva)
  • Rep. Casey Weinstein (D-Hudson)

Ohio Senate Agriculture Committee

  • Chairman Frank Hoagland (R-Mingo Junction).  Senator Hoagland is a first term member of the Ohio Senate.  He owns a small business, and has nearly 30 years of experience as a Navy SEAL.
  • Vice-Chair Brian Hill (R-Zanesville).  Senator Hill is entering his first full term in the Ohio Senate.  He holds a Bachelor’s Degree in Animal Science and an Associate’s Degree in Applied Science from Ohio State.  Senator Hill raises beef cattle and grows crops on his family farm, and previously served as a Muskingum County Commissioner.  Before entering the Ohio Senate, Senator Hill served in the Ohio House, where he chaired the House Agriculture and Rural Development Committee.
  • Ranking Member Sean J. O’Brien (D-Bazetta).  Senator O’Brien is a first term member of the Ohio Senate, and previously served three terms in the Ohio House.  He holds a law degree from the University of Akron, and served as a prosecuting attorney for a number of years.
  • Sen. Teresa Fedor (D-Toledo)
  • Sen. Bob Hackett (R-London)
  • Sen. Stephen Huffman (R-Tipp City)
  • Sen. Stephanie Kunze (R-Hilliard)
  • Sen. Tina Maharath (D-Canal Winchester)
  • Sen. Rob McColley (R-Napoleon)
  • Sen. Bob Peterson (R-Washington Court House)
  • Sen. Joe Uecker (R-Miami Township)

United States House of Representatives Agriculture Committee

  • Chairman Collin Peterson (D-Minnesota).  Representative Peterson represents the western portion of Minnesota, which is predominantly rural and agricultural.  He grew up on a farm, and was a Certified Public Accountant.  He has many years of legislative experience at the state and federal level, and takes a keen interest in federal tax policy and conservation as it pertains to agriculture.
  • Vice-Chair Alma Adams (D-North Carolina).  Representative Adams’ district includes much of Charlotte, North Carolina and the surrounding areas.  She taught art for over 40 years, and received her Ph.D. in Art Education and Multicultural Education from the Ohio State University in 1981.  She has many years of legislative experience at the local, state, and federal level, and takes a keen interest in nutrition and education.
  • Ranking Member K. Michael Conaway (R-Texas).  Representative Conaway represents much of central Texas.  He has a business background, having worked with former-President George W. Bush as the chief financial officer for Bush Exploration, an oil company.
  • Rep. David Scott (D-Georgia)
  • Rep. Jim Costa (D-California)
  • Rep. Marcia Fudge (D-Ohio)
  • Rep. Jim McGovern (D-Massachusetts)
  • Rep. Filemon Vela (D-Texas)
  • Rep. Stacey Plaskett (D-U.S. Virgin Islands)
  • Rep. Abigail Spanberger (D-Virginia)
  • Rep. Jahana Hayes (D-Connecticut)
  • Rep. Antonio Delgado (D-New York)
  • Rep. TJ Cox (D-California)
  • Rep. Angie Craig (D-Minnesota)
  • Rep. Anthony Brindisi (D-New York)
  • Rep. Jefferson Van Drew (D-New Jersey)
  • Rep. Josh Harder (D-California)
  • Rep. Kim Schrier (D-Washington)
  • Rep. Chellie Pingree (D-Maine)
  • Rep. Cheri Bustos (D-Illinois)
  • Rep. Sean Patrick Maloney (D-New York)
  • Rep. Salud Carbajal (D-California)
  • Rep. Al Lawson (D-Florida)
  • Rep. Tom O’Halleran (D-Arizona)
  • Rep. Jimmy Panetta (D-California)
  • Rep. Ann Kirkpatrick (D-Arizona)
  • Rep. Cindy Axne (D-Iowa)
  • Rep. Glenn ‘GT’ Thompson (R-Pennsylvania)
  • Rep. Austin Scott (R-Georgia)
  • Rep. Rick Crawford (R-Arkansas)
  • Rep. Scott DesJarlais (R-Tennessee)
  • Rep. Vicky Hartzler (R-Missouri)
  • Rep. Doug LaMalfa (R-California)
  • Rep. Rodney Davis (R-Illinois)
  • Rep. Ted Yoho (R-Florida)
  • Rep. Rick Allen (R-Georgia)
  • Rep. Mike Bost (R-Illinois)
  • Rep. David Rouzer (R-North Carolina)
  • Rep. Ralph Abraham (R-Louisiana)
  • Rep. Trent Kelly (R-Mississippi)
  • Rep. James Comer (R-Kentucky)
  • Rep. Roger Marshall (R-Kansas)
  • Rep. Don Bacon (R-Nebraska)
  • Rep. Neal Dunn (R-Florida)
  • Rep. Dusty Johnson (R-South Dakota)
  • Rep. Jim Baird (R-Indiana)
  • Rep. Jim Hagedorn (R-Minnesota)

United States Senate Agriculture, Nutrition, & Forestry Committee

  • Chairman Pat Roberts (R-Kansas).  Senator Roberts has served in both houses of Congress since the 1980s, and was the first person to have been the chair of both the House and Senate agriculture committees.  His educational background is in journalism, and he served in the U.S. Marine Corps.
  • Ranking Member Debbie Stabenow (D-Michigan).  Senator Stabenow has served in both houses of Congress, and began her career in public service at the county and state level in the late 1970s.  She has long taken an interest in agricultural issues, and serves as a co-chair of the U.S. Senate Great Lakes Task Force.
  • Sen. Sherrod Brown (D-Ohio)
  • Sen. Mitch McConnell (R-Kentucky)
  • Sen. Patrick Leahy (D-Vermont)
  • Sen. John Boozman (R-Arkansas)
  • Sen. John Hoeven (R-North Dakota)
  • Sen. Amy Klobuchar (D-Minnesota)
  • Sen. Joni Ernst (R-Iowa)
  • Sen. Michael Bennet (D-Colorado)
  • Sen. Cindy Hyde-Smith (R-Mississippi)
  • Sen. Kirsten Gillibrand (D-New York)
  • Sen. Mike Braun (R-Indiana)
  • Sen. Robert P. Casey Jr. (D-Pennsylvania)
  • Sen. David Perdue (R-Georgia)
  • Sen. Tina Smith (D-Minnesota)
  • Sen. Chuck Grassley (R-Iowa)
  • Sen. Richard Durbin (D-Illinois)
  • Sen. John Thune (R-South Dakota)
  • Sen. Deb Fisher (R-Nebraska)

As these committees take action over the next two years, we will do our best to keep you in the know.  Stay tuned to the Ohio Ag Law Blog for updates.

By: Evin Bachelor, Monday, February 18th, 2019

As our readers can probably tell by now, there has been a lot happening in the agricultural law world over the past couple of weeks.  From the Lake Erie Bill of Rights going on the ballot in Toledo to a new court decision on wedding barns, we’ve done our best to keep you in the know.  While the legislative sessions in Congress and the Ohio General Assembly have started to shift into a higher gear, covering those bills will take up a lot of space, so be on the lookout for a legislative update soon.

For now, here’s our latest gathering of agricultural law news that you may want to know:

Yep, more WOTUS.  The U.S. EPA has announced new public hearings regarding its proposed revised definition of Waters of the United States.  The hearing will be held on Wednesday, February 27th and Thursday, February 28th at the Reardon Convention Center in Kansas City, Kansas.  For those who wish to provide input, but are unable to make the trip, the U.S. EPA will accept written comments from the public online at http://www.regulations.gov with the docket ID number: EPA-HQ-OW-2018-0149.  The online comment portal will accept new submissions until April 14th.  The text of the proposed rule, which the U.S. EPA released just in time for Valentine’s Day, is available on the online comment portal page as well as in the Federal Register.  For more information about either attending the meeting or submitting a comment to the U.S. EPA, visit the Federal Register’s webpage here.  For more information about WOTUS rulemaking, see our most recent WOTUS blog post, or visit the U.S. EPA’s webpage here.

Conservation funding for federal lands could be restored under U.S. Senate bill.  In a sign of bipartisanship, the U.S. Senate passed the National Resources Management Act by a vote of 92-8.  If the House approves and it receives the President’s signature, the bill would modify a number laws addressing the management and conservation of federal lands, and would also restore funding to the Land and Water Conservation Fund, which had expired last fall.  This fund primarily supports the protection of federal public lands and waters, but it also promotes voluntary conservation on private lands and awards grants to states for the acquisition and development of parks and outdoor recreation sites.  Also in the bill are two specific changes of note for Ohio.  First, section 6004(c) of the bill would increase the cap on total spending for the Ohio & Erie National Heritage Canalway from $10 million to $20 million.  Second, section 2502 of the bill would extend the Lewis and Clark National Historic Trail from Illinois to Pennsylvania, which will include portions in Ohio.  You can read the full text of the bill and see the official analyses on Congress’s website here.

FFA charter amendments approved by Congress and the President.  Citing issues arising from the U.S. Department of Education’s not filling seats on the National FFA Board of Directors, the National FFA sought an amendment to its charter.  Congress originally granted the charter in 1950, and any changes to the charter must be done so by an act of Congress.  One of the major changes sought by National FFA was a reduction in the number of seats on the board of directors that must be appointed by the Department of Education.  By not filling all of the seats on the Board of Directors, the National FFA faced difficulty making decisions because it often could not meet its quorum for meetings.  The new amendments reduce the organization’s reliance on an appointment to its board of directors by the U.S. Department of Education, which increases the organization’s ability to self-govern.  You can read the text of the bill on Congress’s website here, or visit the National FFA’s webpage on frequently asked questions about the charter revision here.

The PACT Act is back.  The Prevention of Animal Cruelty and Torture Act has been reintroduced into the U.S. House of Representatives.  The act would allow for significant fines and up to seven years in prison for those convicted of animal crushing, creating animal crushing videos, or distributing animal crushing videos.  The bill defines crushing as “actual conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.”  However, the bill does contain exceptions for conduct that is related to “customary and normal veterinary, agricultural husbandry, or other animal management practice[s];” “the slaughter of animals for food;” legal hunting, trapping, and fishing activities; research; defense of a human; and euthanizing an animal.  Many in the agriculture community have opposed the bill, arguing that it is duplicative in light of animal protections created by the states and that it risks courts and juries interpreting the language too broadly.  At this time, the bill has only been introduced in the U.S. House and referred to the Judiciary Committee.

Nebraska wind farms sue to enforce contract and keep utility from flying off into the sunset.  Three Nebraska windfarms in a power supply contract with the Nebraska Public Power District (NPPD) have filed suit to prevent the utility from backing out of the contract.  The wind farms filed a complaint in federal court in Nebraska on January 30th, alleging that NPPD expressed its intention to terminate a power purchase agreement, and that doing so would be wrongful.  The complaint explains NPPD’s position that the wind farms materially violated the contract by investing in other businesses and operations.  The plaintiffs disagree that there was a breach, but say that even if there was, NPPD cannot terminate the contract because it knew of the transactions.  The plaintiffs also note that NPPD has eminent domain power.  They argue that by terminating the contract, NPPD knows that the wind farms will likely enter default with creditors.  This could allow NPPD to acquire the rights of the wind farms through a foreclosure sale or eminent domain.  To prevent NPPD from terminating the contract, the parties requested, and were granted, a temporary restraining order until March 1st that requires NPPD to honor the contract.  The case is cited as Laredo Ridge Wind, LLC v. Nebraska Pub. Power Dist., No. 8:19-cv-45 (D. Neb.).

Wisconsin Supreme Court asked to decide scope of agency power to regulate agriculture.  A Wisconsin court of appeals has certified two cases to the Wisconsin Supreme Court, asking the court to determine the extent of the Wisconsin Department of Natural Resource’s authority to regulate agriculture in order to protect groundwater.  A certification represents a lower court seeking guidance on an issue that the lower court believes it is not in the best position to decide without knowing what the higher court thinks.  These cases are important for Wisconsin because they pertain to a law passed in 2011 that restrained authority of state agencies to act beyond express grants of authority by the state legislature.  Specifically, the cases ask whether the Wisconsin DNR can impose conditions on issuing a permit beyond the conditions stated in a statute.  The affected parties in the cases range from dairy farms to manufacturers and from food processors to municipal water utilities.  Environmental groups hope that state agencies may take a more expansive look at environmental impacts when reviewing permit applications.  The two certification orders are available here and here.

By: Evin Bachelor, Friday, January 11th, 2019

Written by: Evin Bachelor, Law Fellow

Welcome to 2019 from all of us at the OSU Extension Agricultural and Resource Law Program!  With a new Congress, a new Ohio General Assembly, and a new slate of leaders atop Ohio’s executive offices, we are expecting a flurry of activity in the new year.  Our resolution this year is to keep you in the know about agricultural law news, and maybe find some time to exercise.

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

U.S. Supreme Court declines to hear state livestock standard lawsuits.  In a previous blog post, we noted that California and Massachusetts had adopted laws that would require sellers of certain meats and eggs to follow heightened animal care standards in order to sell those products within California or Massachusetts.  Thirteen states, led by Indiana, quickly sued Massachusetts to stop its law from taking effect.  Missouri led another group of thirteen states in suing California.

Indiana and Missouri had attempted to have their cases brought directly before the U.S. Supreme Court, arguing that the U.S. Supreme Court has “original jurisdiction” over claims between states.  After the states filed their arguments with the Supreme Court, the justices asked the U.S. Solicitor General whether he believed these cases were appropriate for the Court’s original jurisdiction.  The Solicitor General filed briefs in the Indiana v. Massachusetts and Missouri v. California maters, and suggested that the Supreme Court should not exercise original jurisdiction because, among other things, the states lack the proper standing to sue.  Here, this argument essentially means that the resulting harm from enforcement of the statutes would not harm the states as states, but only some of their citizens, and that those citizens may still sue California or Massachusetts for their individualized harm.

The Supreme Court took the position of the Solicitor General and denied the requests of Indiana and Missouri to have the cases brought before the Court.  Any further action will have to be taken through the lower courts.  For more information about the Missouri v. California matter as argued to the Supreme Court, click here.  For more information about the Indiana v. Massachusetts matter as argued to the Supreme Court, click here.

USDA not required to adopt Obama-era “Farmer Fair Practice Rules,” according to federal appeals court.  In December 2016, the USDA published the Farmer Fair Practices Rules as an interim final rule, and published two amendments to its rules that deal with the Packers and Stockyards Act.  The amendments addressed the ease of bringing a lawsuit for unfair and uncompetitive business practices under the Packers and Stockyards Act.  The rule was set to take effect at the end of February 2017, although the amendments were only proposals that had not fully gone through the required notice and comment process.  In early February 2017, citing the President’s regulatory freeze, and arguing that the rule would cause more litigation and confusion, the USDA postponed, and ultimately withdrew, the rule.  The USDA also did not take action on the two proposed amendments.  The Organization for Competitive Markets sued to stop the USDA from withdrawing the interim final rule, and to compel the USDA to promulgate the two amendments, arguing that the 2008 Farm Bill requires action by the USDA.

On December 21, 2018, the United States Court of Appeals for the Eighth Circuit denied the Organization for Competitive Markets’ request for review.  The court explained that the USDA did not fail to fulfill its mandate, describing Congress’s language as ambiguous.  Further, the court said that the USDA’s withdrawal of the interim final rule followed the proper notice and comment procedures.  Ultimately the court believed that Congress has been monitoring this issue and if Congress wishes for a more specific action, then Congress should act.  The court’s opinion in Organization for Competitive Markets v. USDA, No. 17-3723 (8th Cir. 2018) is available here.

Funding for National Weather Service and National Algal Bloom Program receives President’s signature.  On Monday, January 7th, President Trump signed Senate Bill 2200, which passed during the previous Congress.  The bill increases funding for the National Weather Service’s agriculture related weather monitoring and forecasting from $26.5 million in 2019 to $28.5 million by 2023.  The Office of Oceanic and Atmospheric Research, the research arm of the National Oceanic and Atmospheric Administration (NOAA), will see an increase in funding from $136.5 million in 2019 to $154 million by 2023.  The bill also instructs NOAA to “plan the procurement of future data sources and satellite architectures,” essentially instructing NOAA to think about cost-effective ways to upgrade weather monitoring systems both on the ground and in space.  The National Integrated Drought Information System will also see an increase in funding from $13.5 million this year to $14.5 million by 2023.  The program is to use some of the funding to “develop a strategy for a national coordinated soil moisture monitoring network” within the next year.  Finally, the bill also reauthorizes $20.5 million each year through 2023 for relief from hypoxia or harmful algal blooms “of national significance,” which the bill defines as “a hypoxia or harmful algal bloom event that has had or will likely have a significant detrimental environmental, economic, subsistence use, or public health impact on an affected state.”  For the text of the act, visit Congress’s webpage here.


Ohio Case Law Update

  • Ohio Power Citing Board cannot extend construction certificate for wind farm by simple motion, but must follow amendment process, according to the Ohio Supreme Court.  Black Fork Wind Energy filed an application with the Ohio Power Citing Board (“the board”) to construct a wind farm in Crawford and Richland Counties in 2011, and the board approved the application in January 2012.  Black Fork had five years, until January 2017, to begin construction on the project.  The project was delayed due to a lawsuit challenging the project, and Black Fork sought an additional two years to begin construction.  The board granted Black Fork’s motion without a full application to amend and investigation.  The board argued that it regularly grants such extensions and that extensions do not amount to an “amendment” that would require an application because an extension is not “a proposed change to the facility.”  The majority of the Ohio Supreme Court disagreed, and held that the board acted improperly.  Because the commencement of construction was a term in the certificate, granting an extension amounts to an amendment in the certificate.  As such, the board should not have acted on the request without requiring an application for amendment and investigation.  The Court reversed the order and remanded the issue back for further proceedings.  Justices Fischer and O’Donnell dissented, arguing that the Court should defer to the board in how it reads “amendment” under Ohio Revised Code § 4906.07(B).  For the Ohio Supreme Court’s opinion from In re application of Black Ford Wind Energy, Slip Opinion No. 2018-Ohio-5206, click here.
  • Creditors must first seek payment of unpaid bills from estate of deceased spouse before attempting to collect from a surviving spouse, according to the Ohio Supreme Court.  In Embassy Healthcare v. Bell, Mr. Robert Bell received care at a nursing home operated by Embassy Healthcare.  Embassy sent a letter for collection to his wife, Mrs. Bell, six months and three days after he had passed away, but no estate for Mr. Bell had been opened.  In Ohio, creditors have six months to request an estate administrator be appointed in order to collect a debt from an estate, but Embassy did not make such a request.  Since it missed the six month statute of limitations, Embassy tried to seek collection from Mrs. Bell under Ohio’s “necessaries” law, as provided in Ohio Revised Code § 3103.03.  This law requires spouses to support their spouse with money, property, or labor if their spouse cannot do so on their own; however, the Ohio Supreme Court has said that a person is responsible for their own debts first, and that under this statute their spouse will only be liable if that person cannot pay for their debts.  In this case, the Ohio Supreme Court said that Embassy had to seek payment from Mr. Bell’s estate before it could require payment from his spouse.  Since the statute of limitations had run to bring a claim against Mr. Bell’s estate, Embassy would be unable to demonstrate that Mr. Bell’s estate could not cover his personal debts.  Therefore, Embassy would not be able to prove an essential requirement of Ohio’s necessaries law, and cannot recover from his spouse.  For the Ohio Supreme Court’s opinion in Embassy Healthcare v. Bell, Slip Opinion No. 2018-Ohio-4912, click here.
  • Trial court may determine width of easement as a question of fact, and will not be reversed by appellate court unless the evidence shows it clearly lost its way, according to Ohio Court of Appeals for the 7th District.  A property owner signed an express easement to a neighbor so that the neighbor could cross the property owner’s land to access the public road.  The written easement did not specify the width of the easement, but the neighbor cleared a path approximately 10 feet wide.  The property owner eventually sold the property, and the new owner laid gravel on the path from the public road to their garage, and the neighbor extended the gravel all the way to his own property.  Disputes later arose regarding the easement, and the neighbor sued the new property owners for breach of easement, and sought a declaration that the easement was thirty feet wide.  Ohio case law allows trial courts to establish the dimensions of an easement if the writing does not specify any dimensions if the trial court examines: 1) the language of the granting document, 2) the context of the transaction, and 3) the purpose of the easement.  The trial court found the easement to be ten feet wide.  The neighbor appealed, but the Seventh District found the trial court’s decision to be reasonable given the evidence and Ohio law.  Since the width of an easement is a question of fact, an appellate court will not reverse the trial court absent evidence that the trial court clearly lost its way given the weight of the evidence.  For the Seventh Districts’ opinion in Cliffs and Creek, LLC v. Swallie, 2018-Ohio-5410 (7th Dist.), click here.
By: Evin Bachelor, Friday, December 28th, 2018

Written by: Evin Bachelor, Law Fellow, and Ellen Essman, Sr. Research Associate

The end of the year is here, and there is a flurry of news coming across our desks.  We wish you a prosperous 2019 and look forward to keeping you up to date on what is happening in the agricultural law world.

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

GMO labeling rule released by USDA.  The Agricultural Marketing Service posted the National Bioengineered Food Disclosure Standard rule on the Federal Register, located here, on Friday, December 21, 2018.  According to the rule page, the rule “establishes the new national mandatory bioengineered (BE) food disclosure standard (NDFDS or Standard).”  The standards require foods labeled for retail sale to disclose certain information either through a new symbol, inclusion of a QR code that provides a link to a website, including a phone number to text for more information, or including the term “bioengineered” on the label.  The rule defines bioengineered food as food that contains genetic material modified through changing DNA or other modifications that could not be done through conventional breeding or otherwise found in nature.  Exemptions for foods served in restaurants and very small food manufacturers with gross receipts of less than $2.5 million limit the rule’s applicability.  The rule will take effect on February 19, 2019, with compliance becoming mandatory by January 1, 2022.  For more information, or to see the new label, visit the USDA Agricultural Marketing Service’s BE Disclosure webpage here.

Farm Bill provides good news for dairy farmers.  Under the 2018 Farm Bill Conference Report, available here, the Margin Protection Program (MPP) was renamed the Dairy Margin Coverage (DMC).  The name was not the only change made to the program.  Per the USDA, the program “is a voluntary risk management program… offer[ing] protection to dairy producers when the difference between the all milk price and the average feed cost (the margin) falls below a certain dollar amount selected by the producer.”  The Farm Bill lowers the premium rates for risk coverage.  Furthermore, the bill adds coverage levels of $8.50, $9.00 and $9.50 for a dairy operation’s “first five million pounds of participating production.”  If a farmer covers his first five million pounds at $8.50, $9.00, or $9.50, he then has the option to cover anything in excess of five million pounds at coverage levels of $4.00-$8.00 (in fifty cent increments).  Another notable change—the Farm Bill allows farmers who maintain “their coverage decisions, including coverage level and covered production, through 2023,” to “receive a 25% discount on their premiums each year.”  The DMC language can be found in section 1401 of the Farm Bill.

Missouri farmer pleads guilty to wire fraud for falsely marketing grains as organic.  Federal prosecutors charged Mr. Randy Constant with wire fraud, alleging that since 2008 he and his associates improperly marketed millions of dollars worth of grain as certified organic while knowing that it was not.  Mr. Constant operated certified organic farms as part of his larger operation, but “at least 90% of the grain being sold was actually either entirely non-organic or a mix,” according to the information filed by the federal prosecutors.  Federal prosecutors sought full restitution of approximately $128 million for victims/purchasers, in addition to the forfeiture of 70 pieces of equipment, ranging from pickup trucks to combines and semi-trucks to GPS yield mapping systems.

On December 20, 2018, Mr. Constant entered a plea of guilty.  The magistrate filed a report indicating that Mr. Constant understood what his plea meant, and that the one count of wire fraud is punishable by (1) a maximum of 20 years in prison, (2) a maximum of 3 years of supervised release following prison, and (3) a maximum fine of $250,000.  Further, Mr. Constant will be barred from receiving USDA benefits, including those from USDA Farm Service Agency, Agricultural Marketing Service National Organic Program, and Federal Crop Insurance Program.  Additionally, Mr. Constant could face restitution to all victims/purchasers of approximately $128 million.  For more information, search for United States v. Constant, 6:18-cr-02034-CJW-MAR (N.D. Iowa 2018).

Japan set to lower tariffs on agricultural commodities from TPP members and the EU.  The United States exports a significant share of the beef, pork, wheat, and other farm products imported by Japan.  However, two major trade agreements set to take effect early in 2019 will result in reduced tariffs for imports into Japan from a number of other countries.  The United States withdrew from the Trans-Pacific Partnership negotiations, but 11 other nations continued to pursue the agreement, which is set to begin taking effect at the start of 2019.  On February 1st, the Japan-EU Economic Partnership Agreement takes effect, and will result in lowered tariffs for a number of agricultural products, especially for beef.  Under the new agreements, chilled or frozen beef from EU and TPP exporters will face a 26.6% tariff, while tariffs on American beef will remain at 38.5%.  Prepared pork from EU and TPP exporters will face a 13.3% tariff, while tariffs on American pork will remain at 20%.  For more information on Japan’s participation in the Trans-Pacific Partnership, visit the Ministry of Foreign Affairs of Japan’s TPP webpage here.  For more information on Japan’s agreement with the European Union, visit the Ministry of Foreign Affairs of Japan’s EU agreement webpage here.

Ohio Case Law Update

  • Signing a mortgage is enough to bind signatory despite not being named in the mortgage if the signature demonstrates an intent to be bound by the mortgage.  The Bankruptcy Appellate Panel for the United States Sixth Circuit Court of Appeals asked the Ohio Supreme Court to clarify “whether a mortgage is invalid and unenforceable against the interest of a person who has initialed, signed, and acknowledged the mortgage agreement but who is not identified by name in the body of the agreement.”  In this case, Vodrick and Marcy Perry filed for bankruptcy.  At issue was a piece of property subject to a promissory note and mortgage.  The bank held the promissory note, which was signed and initialed by Mr. Perry only, while the mortgage was signed by both Mr. and Mrs. Perry.  The Ohio Supreme Court held that “the failure to identify a signatory by name in the body of a mortgage agreement does not render the agreement unenforceable as a matter of law against that signatory.”  The focus is on the signor’s intent to be bound by the mortgage, even if the mortgage itself does not mention the signor by name.  The case is cited as Bank of New York Mellon v. Rhiel, Slip Opinion No. 2018-Ohio-5087, and the Ohio Supreme Court’s opinion is available here.
  • Specific reference in a deed to a mineral interest preserves the interest despite Marketable Title Act when the reference includes the type of interest created and to whom the interest was granted.  Generally, Ohio’s Marketable Title Act allows a landowner with an unbroken chain of title for forty years or more to take an interest in the land free and clear of other claims that arose before the “root of title.”  However, there is an exception where prior interests will still apply if there is a specific identification of a recorded title transaction, rather than a general reference to an interest.  In this case, Nick and Flora Kuhn conveyed a 60-acre tract of land in 1915, but retained an interest in royalties from any oil and gas extracted from the parcel, specifically naming Nick and Flora Kuhn and their heirs and assigns.  Then in 1969, the Blackstone family purchased the 60-acre parcel, and received a deed that included language “[e]xcepting the one-half interest in oil and gas royalty previously excepted by Nick Kuhn, their [sic] heirs and assigns in the above described sixty acres.”  The Blackstone family sought to quiet title and have the Kuhn heirs’ interest extinguished or deemed abandoned in 2012.  The Ohio Supreme Court interpreted the language in the deed as sufficient to survive Ohio’s Marketable Title Act, which preserves the Kuhn heirs’ oil and gas interest that dates back to 1915.  The case is cited as Blackstone v. Moore, Slip Opinion No. 2018-Ohio-4959, and the Ohio Supreme Court’s opinion is available here.
By: Ellen Essman, Thursday, December 27th, 2018

Hemp is one of the most talked-about provisions of the new Farm Bill passed earlier this month by Congress and signed by the President on December 20.   There’s a lot of excitement about the removal of federal restrictions on hemp production and the economic opportunities for growing hemp.  But what exactly does the Farm Bill say about hemp?  Can Ohioans now grow, use and sell hemp and hemp products?  We dove into the 807 pages of the Farm Bill Conference Report (available here for your reading pleasure) to find answers to your questions about the new legal status of hemp and hemp cultivation.

What is hemp?

Before we go much further in this discussion, it’s important to understand that both hemp and marijuana are species of cannabis, but they have different properties.  Of particular note is the fact that marijuana contains much more tetrahydrocannabinol (THC) than hemp.  THC is the part of a cannabis plant that can cause a psychoactive effect in certain concentrations, but hemp plants generally do not contain enough THC to produce a “high.”  Hemp has many uses— it can be used for construction materials, fabrics and clothing, and animal bedding.  It has even been discussed as a potential cover crop.  Cannabidiol, or CBD, is a very popular extract of the hemp plant that is alleged to help those with anxiety, pain, inflammation, and other ailments, but not much research has been done to verify its effectiveness for medical use.  Note that CBD is also an extract of the higher THC marijuana plant.

Hemp is removed from the federal list of controlled substances—but only if it meets certain requirements

First and foremost, the Farm Bill removes hemp from the federal list of controlled substances.  Section 12619 of the bill removes hemp from the definition of marijuana, which is still an illegal drug under federal law.  In the same section, the bill federally decriminalizes tetrahydrocannabinols (THC) in hemp.  Not all hemp, however, is subject to this exemption.  Only hemp and THC as defined in the Farm Bill and as grown under the conditions set forth in the Farm Bill are accorded the exemption.

So, how does the Farm Bill change the definition of hemp?  The main hemp provision of the bill, Section 10113, separates hemp from the definition of marijuana and redefines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Coming soon: state and federal hemp production plans

The new law doesn’t allow a producer to start growing hemp today.  Instead, Section 10113 of the Farm Bill describes the two situations under which a producer will be able to engage in legal hemp production in the future.  In the first situation, the States or Indian tribes may take charge of the regulation of hemp production within their boundaries.  To do this, a State must first submit a plan to the USDA through their state department of agriculture.  A State plan must include: 

  1. A way to keep track of land where hemp is produced within the state;
  2. Methods the state will use to test how much THC is in hemp plants;  
  3. A way to dispose of plants or products that have a higher THC concentration than is legally allowed;
  4. A procedure for inspecting hemp producers;
  5. A plan for enforcing the law;
  6. A system for dissemination of a hemp producer’s information to the USDA; and
  7. Assurances that the state has the resources to carry out the plan. 

A producer who wants to cultivate hemp in a State that has an approved hemp production plan must first comply with the State’s plan before beginning to grow hemp.   Predictions are that it may take a State about a year to create its hemp production plan and obtain the required USDA approval for the plan.

The second situation for growing hemp comes into play if a State or Tribe does not submit a hemp plan to USDA.  In this case, as long as the State has not limited the regulation or production of hemp under state law, the Secretary of Agriculture for the USDA may establish a plan “to monitor and regulate” hemp production within that State.  A plan established by the USDA must meet the same criteria as a plan written by a State, and the law also requires the USDA to establish a licensing procedure for producers.   Thus, a producer in a State that doesn’t have a hemp plan could legally grow hemp by obtaining a USDA hemp license through the hemp regulations that the USDA will develop, unless the State has prohibited hemp cultivation.  Section 10113 specifically states that it does not preempt or limit any state law that “regulates the production of hemp” as well as any state law that is “more stringent” than federal law in regulating hemp production.  Thus, a State can outlaw hemp production within its boundaries or include additional restrictions and requirements in its State plan as long as the plan complies with the federal law requirements.  

Handling producer violations

What if a hemp producer doesn’t comply with the new law or with the State or USDA hemp production plan?  Section 10113 also describes how violations of the law will be handled.  If a hemp producer negligently violates a State or USDA hemp production plan, the producer could be subject to enforcement.  One negligent violation of the plan would not trigger criminal punishment, but the violator would have to comply with a corrective action plan prescribed by the State or USDA.  However, if a producer negligently violates a plan three times in five years, the producer will be banned from producing hemp for five years. Examples of negligent violations in the law include: not providing a legal description of the land where hemp is produced, growing hemp without obtaining a license “or other required authorization” from the State, Tribe, or USDA, or producing hemp with a THC concentration higher than 0.3 percent. If a producer violates a State or USDA plan “with a culpable mental state greater than negligence” (that is, purposely, knowingly, or recklessly), then the State or USDA must report the violation to law enforcement authorities.  Furthermore, persons convicted of a felony relating to a controlled substance under state or federal law are generally barred from hemp production for ten years following the date of their conviction, with the exception of persons convicted of a controlled substances felony but lawfully participating in a pilot program under the 2014 Farm Bill.  Finally, if a person falsifies an application to participate in hemp production, that person will be totally barred from producing hemp. 

Legal hemp not to be prohibited in interstate commerce

The new law also allows for the interstate commerce of legally produced hemp and hemp products. Section 10114 says that a State or Indian Tribe cannot prevent the transportation or shipment of legally produced hemp through its state or territory.  While a State may ban the sale of hemp or hemp products solely within its borders, it must allow hemp products to move freely through the State.  For example, imagine that Pennsylvania allows hemp production but Ohio does not.  Producers of legal hemp in Pennsylvania could not sell the hemp within Ohio, but Ohio could not prohibit a truck, train, or other type of transport from carrying the hemp through Ohio to a destination outside of Ohio. 

Hemp becomes eligible for crop insurance

Importantly, the Farm Bill also addresses hemp production risk by amending the Federal Crop Insurance Act to include hemp.  Section 11119 adds hemp to the definition of “agricultural commodities” that can be insured and section 11106 adds legally produced hemp to the list of crops that can be insured even after harvested.  Other provisions in Title XI waive marketability requirements for researching hemp. 

Making way for hemp research funding

Several provisions in the Farm Bill ensure that it is legally permissible to fund hemp research.  Section 7129 amends the National Agricultural Research, Extension, and Teaching Policy Act to allow the Secretary of Agriculture to award grants for researching hemp and the development of hemp products.  In section 7501, the bill amends the Critical Agricultural Materials Act to allow research on hemp, meaning that Congress believes hemp has the “potential of producing critical materials for strategic and industrial purposes.” 

Finally, section 7605 amends the hemp pilot program language from the 2014 Farm Bill (for information on the pilot program, see our previous blog post).  The Secretary of Agriculture is tasked with conducting a study on the pilot program and submitting a report on the study to Congress within a year.  Section 7605 also repeals the hemp pilot programs, but only one year after final regulation on hemp production under section 10113 is published. 

How does current Ohio law treat hemp production?

Ohio law defines marijuana as “all parts of a plant of the genus cannabis…” in Ohio Revised Code section 3719.01.  Hemp is in the genus cannabis, as discussed earlier in this post.  Therefore, under current Ohio law, hemp is the same as marijuana.  Marijuana is a controlled substance under Ohio law, and the law states that “[n]o person shall knowingly obtain, possess, or use a controlled substance.” 

What about hemp-derived CBD oil?  Ohio enacted a medical marijuana law in 2016, although dispensaries in the state have yet to open (so far, only one dispensary in the state has been licensed).  In order to obtain medical marijuana in Ohio, it would have to be prescribed by a physician with which the patient has a “bona fide physician-client relationship,” and the patient would have to have a qualifying medical condition.  Medical marijuana can be prescribed and used in oil form under the law.  Since Ohio law lumps hemp in with marijuana, this means that in order to obtain CBD oil derived from hemp, a person would also have to follow the steps to obtain medical marijuana. Hemp-derived CBD oil also does not fall under any exceptions in Ohio’s definition of marijuana.  Ohio’s State Board of Pharmacy specifically stated in a guidance document that CBD oil can only be legally dispensed from a licensed dispensary.  In releasing this guidance, the Board of Pharmacy is purporting to act under the rulemaking authority granted under ORC 3796.04.

Note, however, that there are exceptions to Ohio’s definition of marijuana.  According to Ohio law, marijuana “does not include the mature stalks of the plant, fiber produced from the stalks, oils or cake made from the seeds of the plant, or any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from the mature stalks, fiber, oil or cake, or the sterilized seed of the plant that is incapable of germination.”  Since hemp falls under the definition of marijuana, it is possible that some of these exceptions could also apply to certain hemp products made from stalks or seeds. Thus, it is plausible that some hemp products could be sold and used in Ohio.  The law also states, however, that no person (other than those licensed under the medical marijuana law) “shall knowingly cultivate” marijuana.  Again, since hemp is part of the state’s definition of marijuana, under the law, that means that nobody can “knowingly cultivate” hemp, either. 

In sum, it appears as though some excepted hemp products could be sold in Ohio, but not CBD oil, as it does not fall under the exception.  Even if some hemp products can be sold in Ohio, hemp itself cannot currently be cultivated in Ohio.  The new hemp language in the Farm Bill allows states to be more restrictive with hemp than the federal government, so Ohio can continue its ban on certain hemp products even with the new federal law.  The State cannot, however, stop the transportation of hemp across the State, as explained above.  Conversely, Ohio’s General Assembly could remove hemp from Ohio’s definition of marijuana and redefine hemp according to the Farm Bill’s new definition, which could allow for legal hemp cultivation under the Farm Bill.  For the time being, growing hemp in Ohio is not legal, but that is subject to change. 

Stay tuned to the Ag Law Blog for continuing updates on hemp laws!

 

 

 

 

By: Evin Bachelor, Wednesday, December 19th, 2018

Here’s our gathering of ag law news you may want to know:

We have a Farm Bill.  After months of waiting, the United States Congress has passed the Agriculture Improvement Act of 2018, known as the Farm Bill.  Members of Congress have been working for months trying to reconcile a House version and a Senate version in what is known as a Conference Committee.  On Monday, December 10th, the Conference Committee submitted a report to members of Congress.  Both the House of Representatives and the Senate approved the report by bipartisan majorities within a matter of days.  The bill will become law once signed by President Trump, which analysts expect him to do by the end of this week.

The Ohio Ag Law Blog will explore some of the major provisions that will affect Ohio from a legal perspective, rather than restate what other news outlets and other sources have already said about the Farm Bill.  First up will be a blog post about what the Farm Bill means for hemp in Ohio, so stay tuned for an in-depth analysis.

Syngenta settlement approved by federal judge.  As previously reported in the Ohio Ag Law Blog here and here, the major multi-year class action lawsuit against Syngenta for failing to receive import approval from China before selling its Viptera and Duracade seeds in the United States has been settled for $1.51 billion.  On December 7th, Judge John Lungstrum of the U.S. District Court for the District Kansas issued a final order granting the settlement.  In the order, the court overruled a number of objections from class members who opposed the settlement.  It also awarded one third of the settlement amount to the plaintiffs’ attorneys as attorney fees, valued at $503,333,333.33.  The next step could involve appeals by those opposed to the settlement.  According to a statement posted by one of the co-lead counsels for the plaintiffs, payments to eligible parties could begin as early as the second quarter of 2019, depending upon whether any appeals are filed.

Lawsuit centered on definition of “natural” allowed to proceed in California.  Sanderson Farms labels its chicken products as “100% Natural.”  However, the environmental groups Friends of the Earth and the Center for Food Safety have alleged that Sanderson Farms’ labeling is misleading, false, and unfair to competition.  The lawsuit hinges around Sanderson Farms’ use of antibiotics in light of its “100% natural claims,” as the plaintiffs have argued that the reasonable consumer would believe “100% natural” to mean that the chickens were antibiotic free.  Sanderson Farms has repeatedly countered that its chickens were cleared of any antibiotics before processing.

Sanderson Farms has asked Judge Richard Seeborg of the U.S. District Court for the Northern District of California to dismiss the case multiple times.  Each time the court has either allowed the plaintiffs to amend their complaint or rejected Sanderson Farms’ motions.  The most recent denial came days after Sanderson Farms issued a press release announcing that it would no longer routinely use antibiotics considered medically important for humans by March 1, 2019.  The judge’s denial of the motion to dismiss does not mean that the plaintiffs are correct, it only means that the plaintiffs have presented enough facts for the case to continue.

The controversy stems from labeling and consumer expectations.  We previously talked about the “what is meat” and “what is milk” debates in a previous blog post, and this issue is not much different.  Again there is a word that has not been thoroughly regulated by a governing entity such that companies have used it to mean different things.  As more labeling questions arise, the Ohio Ag Law Blog will keep you posted on trends and updates.


Ohio legislation on the move:

Lake Erie shoreline improvement bill passes.  Last Thursday, the Ohio Senate and House of Representatives agreed to modifications to Senate Bill 51, which addresses Lake Erie shoreline improvements, along with multiple amendments.  The primary purpose of the bill is to add projects for Lake Erie shoreline improvement to the list of public improvements that may be financed by a special improvement district (SID).  According to the Legislative Service Commission’s analysis when the bill was introduced, a SID is “an economic development tool” that facilitates improvements and services in the district “through a special assessment levied against property in the district.”

The bill as passed also would remove a requirement, previously included in Senate Bill 299, for the Ohio Department of Agriculture to establish rules regarding the Soil and Water Phosphorous Program.  Instead, the department would now be instructed to “establish programs to assist in reducing” phosphorous in the Western Lake Erie Basin.

Further, the House added amendments that change a previously passed spending bill, House Bill 529.  The bill would authorize $15 million for a flood mitigation project in the Eagle Creek Watershed.  The Columbus Crew would also receive $15 million for construction of a new stadium in Columbus.  The Armstrong Air & Space Museum in Wapakoneta would receive $250,000 for improvements.  A few other tax items were addressed.

The bill as passed is available for download from the Ohio General Assembly’s website here.  An analysis of the bill as most recently referred from the House Finance Committee is available here.  As of the time of posting, the Governor still has to sign Senate Bill 51 for it to take effect.

Ohio township bill passes.  Last Thursday, the Ohio House of Representatives and Senate agreed to modifications to House Bill 500, which would make a number of changes to Ohio’s township laws.  Some of the highlights of the most recent version include:

  • A boards of township trustees must select a chairperson annually.
  • Petitions to change the name of township roads will result in an automatic name change if the county commissioners do not adopt a resolution regarding the petition within 60 days.
  • County commissioners will not be able to vacate township roads unless the applicable board of township trustees have adopted a resolution approving the vacation.
  • A board of township trustees will have the authority to charge a fee against a person who appeals a zoning decision to the board of zoning appeals in order to defray costs associated with advertising, mailing, and the like.
  • A board of township trustees may suspend a member of a township zoning commission or township board of zoning appeals after charges are filed against a member, but must provide a hearing for removal no later than 60 days after the charges are filed.
  • In limited home rule townships, the current requirement that a township must submit a proposed zoning amendment or resolution to a planning commission will be optional.

This list comes from the Ohio Legislative Service Commission’s bill analysis as of the bill’s re-reporting by the Senate Finance Committee.  The bill analysis has a full list of the changes that House Bill 500 would make.  For more information on the bill, visit the bill’s webpage on the Ohio General Assembly website.

Importantly for agriculture, the Ohio Senate removed language from the bill that would have changed Ohio Revised Code § 519.21(B), which limits the authority of townships to restrict agricultural uses via zoning.  Currently, townships may only regulate agricultural uses in platted subdivisions created under certain statutory procedures, and only if certain conditions are met.  The House had passed a version that would have allowed townships to regulate agricultural uses in any platted subdivision, but the language would not have changed the certain conditions that would have to be met.

By: Ellen Essman, Sunday, December 09th, 2018

The Joint Committee on Agency Rule Review (JCARR) plays an important role in Ohio’s government. Its review of new and old rules assists in verifying that administrative rules are not duplicative, overly-burdensome, or costly.  Among other things, JCARR also helps to confirm that rules in fact carry out what the legislature had in mind when passing the law.  In fact, on Monday, December 10, 2018, JCARR will decide the fate of the controversial watersheds in distress rules (we explained the proposed rules in this blog post) prompted by Governor Kasich’s July 2018 executive order

The Joint Committee on Agency Rule Review, often referred to by its acronym, JCARR, was enacted by the Ohio General Assembly in 1977, and is codified in section 101.35 of the Ohio Revised Code.  JCARR is charged with “review[ing] proposed new, amended, and rescinded rules” from Ohio’s administrative agencies.  The state’s administrative agencies are numerous and include the Ohio Department of Agriculture, the Ohio Environmental Protection Agency, and the Ohio Department of Natural Resources, just to name a few.  The administrative agencies are responsible for making the administrative rules to help carry out the Ohio General Assembly’s legislation. 

Make-up of the committee

JCARR is made up of five members of each house of the Ohio General Assembly, meaning that five members from the house of representatives and five members from the senate make up the full committee.  The speaker of the house appoints the five representatives, and the president of the senate appoints the five senators.  The appointments must be bipartisan; each house may only appoint three members of the same political party.  During the general assembly’s first regular session, the speaker of the house chooses the chairperson of JCARR from their house appointees, and the president of the senate chooses the vice-chair.  During the second regular session, the chair and vice-chair are chosen in the reverse. 

Conditions that rules must meet

If JCARR reviews an administrative rule and finds that rule to “violates one or more” of six requirements, the committee may “make a recommendation to invalidate the rule.”  The six requirements are as follows:

  1. The rules do not exceed the scope of the rule-making agency’s statutory authority;
  2. The rules do not conflict with a rule of that agency or another rule-making agency;
  3. The rules do not conflict with the intent of the legislature in enacting the statute under which the rule is proposed;
  4. The rule-making agency has prepared a complete and accurate rule summary and fiscal analysis of the proposed rule, amendment, or rescission (Revised Code 127.18);
  5. The rule-making agency has met the incorporation by reference standards for a text or other material as stated in Revised Code 121.72, Revised Code 121.75, or Revised Code 121.76; and
  6. If the rule has an adverse impact on business (Revised Code 107.52), the rule-making agency has demonstrated through the business impact analysis, the Common Sense Initiative office recommendations, and the agency’s memorandum of response to the recommendations, that the regulatory intent of the rule justifies its adverse impact on business.

Rule Invalidation

If a rule is found to violate any of the conditions listed above, a member of JCARR can move to recommend a resolution to invalidate the rule.  The motion for invalidation must include the reason for the invalidation specifically based on one or more of the above conditions.  The motion can be to invalidate the whole rule, or just part of the rule.  If the motion for invalidation is seconded by another committee member, the members of JCARR can then vote on the motion.  A majority of the committee is required to recommend a resolution for amended, revised, and rescinded rules.  A two-thirds super majority is required to recommend a resolution to invalidate a no-change 5 year review. 

If a motion for invalidation passes JCARR, the rule is put into suspension, meaning the administrative agency cannot proceed with the rule.  A member of the committee then writes a concurrent resolution about invalidating the rule. Then, depending on which house the writer of the resolution comes from, the resolution goes to the house of representatives or senate, where the body has five session days to act on the resolution.  If that time lapses, or there is no majority vote within five days, then the resolution dies, meaning the rule would no longer be suspended.  If the resolution does pass the first body by majority vote, it then goes to the other house of General Assembly.  Again, in the second body, the resolution must be voted on within 5 session days and be passed by a majority vote.  If the resolution does not pass or is not voted on, again, the rule comes out of suspension.  Finally, if the concurrent resolution for invalidating the rule passes both the house and senate, the rule is invalidated. 

5 Year Review of Rules

Administrative agencies in Ohio must review their administrative rules every five years.  The first part of the review requires the agency to ascertain whether or not the rule has a harmful effect on business in the state of Ohio. If the agency decides that the rule does have a bad impact on business, then the rule must be sent to the Common Sense Initiative office (CSI).  The CSI is charged with finding ways to diminish the effects on business. 

After the analysis of the effect on business, the agency decides whether or not the rule needs to be updated or removed.  Upon deciding that a rule needs to be changed or removed, the agency must then file the rule with JCARR as a five year amended or rescinded rule.  Then, JCARR goes through the process described above—the committee determines whether the amended or rescinded rule violates any of the six requirements, and if it does, the committee follows the process for rule invalidation. 

If the agency determines that the rule should remain as it is, then it should file the rule as a five year no-change rule.  JCARR then considers the following questions as pertains to the no-change rule:

  • Should the rule be continued based on the intent of the statute under which the rule was adopted?
  • Should the rule be amended to give more flexibility at the local level?
  • Should the rule be rescinded or eliminated because of unnecessary paperwork?
  • Does the rule meet the standards for incorporation by reference?
  • Does the rule duplicate, overlap, or conflict with other rules?
  • Is there a continued need for the rule?
  • If the rule has an adverse impact on business, did the rulemaker demonstrate through the business impact analysis, CSI recommendations, and the memorandum of response that the regulatory intent of the rule justifies its adverse impact on business?

If JCARR finds that one of the above questions was violated or not sufficiently addressed by the agency, then the committee can entertain a motion for invalidation of the rule, triggering the rule invalidation process discussed above. 

More information

JCARR has an excellent website with informative videos and other information about its purpose and how it carries out the review process, available here.  For a deeper dive into JCARR and the review process, the committee’s procedure manual is also very helpful. 

By: Evin Bachelor, Tuesday, November 20th, 2018

The midterm elections are over, and Thanksgiving is upon us.  A lot of activity is expected out of Washington and Columbus as the legislative sessions wind up.  The OSU Extension Agricultural and Resource Law team will continue to keep you up to date on the legal issues affecting agriculture as we enter into the holiday season.

Here’s our gathering of ag law news you may want to know:

State of Ohio sued over wind turbine setbacks.  Four farmers in Paulding County have joined with The Mid-Atlantic Renewable Energy Coalition to sue the State of Ohio over wind turbine setbacks added to the 2014 biennial budget that some allege curtailed wind energy development in Ohio.  In that budget bill, lawmakers included provisions late in the lawmaking process to amend Ohio Revised Code § 4906.20, which establishes the setback requirements for wind turbines.  Those provisions more than doubled the distance that wind turbines must be located away from the nearest residential structures.  The plaintiffs in this lawsuit allege that including these restrictions in the budget bill violated the single-subject provisions of the Ohio Constitution because the setbacks lack a “common purpose or relationship” to the rest of the budget bill.  On this issue, the Ohio Supreme Court said in the case In re Nowak (cited as 2004-Ohio-6777) that the single-subject rule is a requirement that legislators must abide by, but that only a “manifestly gross and fraudulent” violation will result in the law being struck down.  The plaintiff’s complaint is available here.  Stay tuned to the Harvest for updates.

Department of Labor proposes rule requiring H-2A advertisements be posted online.  The U.S. Department of Labor (DOL) published a notice of proposed rulemaking in the Federal Register on November 9th that would change how employers must advertise available positions before they may obtain H-2A worker permits.  H-2A permits are work visas for temporary agricultural workers who are non-U.S. citizens.  Currently, employers must advertise work in a local newspaper of general circulation for at least two consecutive days, one of which must be a Sunday.  This requirement is located in the Code of Federal Regulations at 20 C.F.R. § 655.151.  The DOL now proposes to modernize the recruitment advertising rule by requiring employers to post the jobs online instead of in print.  The DOL’s notice explained that it believes online postings would more effectively and efficiently give U.S. workers notice of job opportunities.  Further, the notice explained that the DOL intends to only require online advertisements, which would render newspaper advertisements unnecessary.  U.S. Secretary of Agriculture Sonny Perdue issued a press release in support of the DOL’s proposal.  The public may submit comments to the DOL about the proposed rule.  Those wishing to comment may do so until December 10th, 2018, by visiting the proposed rule’s webpage in the Federal Register.

LLC agreement to adjust member financial contributions must be in writing.  The Ohio Fourth District Court of Appeals recently affirmed a decision finding a verbal agreement to adjust contributions between members of a Limited Liability Company (LLC) to be unenforceable, even if the other party admitted to making the statements.  Ohio Revised Code § 1715.09(B) requires a signed writing in order to enforce a “promise by a member to contribute to the limited liability company,” and therefore the court could not enforce an oral agreement to adjust contributions.  The Fourth District Court of Appeals heard the case of Gardner v. Paxton, which was originally originally filed in the Washington County Court of Common Pleas.  The plaintiff, Mr. Gardener, argued that his business partner breached an agreement to share in LLC profits and losses equally.  In order to share equally, both parties would have needed to adjust their contributions, but Mr. Paxton only made verbal offers that were never reduced to writing.  Because there was no writing, Mr. Paxton’s statements were not enforceable by his business associate against him.

Ohio legislation on the move:

The Ohio General Assembly has returned from the midterm elections with a potentially busy lame duck session ahead of it.  Already a number of bills that we have been monitoring have seen activity in their respective committees.

  • Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill.  State senators heard testimony on House Bill 480 last Tuesday, November 13th.  The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code.  The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole.  The bill would also establish certain advertising requirements.  The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry.  The bill passed the Ohio House of Representatives 93-0 in June.  For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.

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