"Farm Office Live" returns this summer as an opportunity for you to get the latest outlook and updates on ag law, farm management, ag economics, farm business analysis, and other related issues. Targeted to farmers and agri-business stakeholders, our specialists digest the latest news and issues and present it in an easy-to-understand format.
The live broadcast is presented monthly. In months where two shows are scheduled, one will be held in the morning and one in the evening. Each session is recorded and posted on the OSU Extension Farm Office YouTube channel for later viewing.
|July 23, 2021||10:00 - 11:30 am||December 17, 2021||10:00 - 11:30 am|
|August 27, 2021||10:00 - 11:30 am||January 19, 2022||7:00 - 8:30 pm|
|September 23, 2021||10:00 - 11:30 am||January 21, 2022||10:00 - 11:30 am|
|October 13, 2021||7:00 - 8:30 pm||Februrary 16, 2022||7:00 - 8:30 pm|
|October 15, 2021||10:00 - 11:30 am||February 18, 2022||10:00 - 11:30 am|
|November 17, 2021||7:00 - 8:30 pm||March 16, 2022||7:00 - 8:30 pm|
|November 19, 2021||10:00 - 11:30 am||March 18, 2022||10:00 - 11:30 am|
|December 15, 2021||7:00 - 8:30 pm||April 20, 2022||7:00 - 8:30 pm|
Topics we will discuss in upcoming webinars include:
- Coronavirus Food Assitance Program (CFAP)
- Legislative Proposals and Accompanying Tax Provisions
- Outlook on Crop Input Costs and Profit Margins
- Outlook on Cropland Values and Cash Rents
- Tax Issues That May Impact Farm Businesses
- Legal Trends
- Legislative Updates
- Farm Business Management and Analysis
- Farm Succession & Estate Planning
To register or to view a previous "Farm Office Live," please visit https://go.osu.edu/farmofficelive. You will receive a reminder with your personal link to join each month.
The Farm Office is a one-stop shop for navigating the legal and economic challenges of agricultural production. For more information visit https://farmoffice.osu.edu or contact Julie Strawser at email@example.com or call 614.292.2433
Tags: Farm Office Live, farm management, Farm Succession, Estate Planning, Farm Business, Dairy Production, Farm Tax, Agricultural Law, Resource Law
Fair season is in full swing, and after a year off, fair goers are eager to indulge in fair food, games, and rides. Additionally, thanks to a new law, Ohio is hoping to make this the safest fair season yet. This comes after the tragic death of Tyler Jarrell at the 2017 Ohio State Fair. The 18-year-old fair goer passed away when the Fire Ball ride broke apart. Tyler and seven others were injured in the accident, which was later blamed on excessive corrosion. To help prevent another tragedy, Governor DeWine signed House Bill 189, also known as “Tyler’s Law”, into action last November. Tyler’s Law, which is enforced by the Ohio Department of Agriculture (“ODA”), strengthens Ohio’s existing laws on amusement rides, adds additional safety inspection standards, defines specific qualifications for ride inspectors, and outlines additional owner responsibilities.
Tyler’s Legacy on Ohio’s Amusement Ride Laws
It may come as a surprise, but the ODA is not only responsible for safe food, meat, dairy, and protecting Ohio’s livestock, crops, and plants; it is also responsible for ensuring the safety and wellbeing of Ohioans and visitors from across the world when they visit Ohio’s fairs, festivals, and amusement parks. Specifically, the ODA is responsible for ensuring that all amusement rides are safe for ride enthusiasts. Below is a brief overview of Ohio’s current amusement ride laws and the ODA’s new requirements enacted by Tyler’s Law.
Amusement Ride Permits. Owners of amusement rides must apply for a yearly permit through the ODA. The ODA will only issue a permit if the owner has submitted a completed application with inspection fees, provided proof of insurance, provided an itinerary of where the amusement ride will be operating, and proof that the ride has undergone and passed an initial inspection.
Initial inspection, midseason inspection, and additional safety inspections. Ohio law requires that all amusement rides complete an initial inspection and requires certain amusement rides to undergo a midseason inspection. All inspections must be completed by authorized inspectors and the ODA may require additional safety inspections of any amusement ride throughout the year.
Fatigue and Corrosion Review. One of the key changes implemented by Tyler’s law is an owner’s obligation to complete a fatigue and corrosion review. These reviews are additional safety inspections to help prevent another tragedy like the one in 2017. A ride owner’s obligations are determined by how their ride is categorized. Ohio has categorized amusement rides as follows:
- “Low Intensity Rides” – includes all kiddie rides, carousels, go karts, and inflatable devises. A kiddie ride is a ride that is primarily designed for children 48 inches and under.
- “Intermediate Rides” – all rides that are not Low Intensity Rides, Towers, or Rollercoasters.
- “Towers” – any amusement ride, other than a roller coaster, whose main body components reach a height of twenty feet or more.
- “Roller Coasters” – any ride licensed under Ohio law and whose main body components reach a height of fifty feet or more.
Owners of any type of amusement ride must ensure that that their ride meets the manufacturer’s minimum requirements for inspection and testing. If there are no manufacturer specifications, then an owner must ensure that the ride conforms to generally accepted engineering standards and practices.
In addition to meeting a manufacturer’s specifications or accepted engineering standards, owners of Intermediate Rides, Towers, and Roller Coasters must also conduct a visual inspection of their ride looking for signs of fatigue and corrosion. If fatigue or corrosion are found, the owner must discuss the findings with the ride’s manufacturer or a registered engineer and implement any suggested mitigation strategies. Once an owner has completed their visual fatigue and corrosion review, the owner must document the findings and provide the ODA with a copy. All documents must be maintained for the life of the ride and provided to any subsequent owner. If an owner fails to implement and follow the suggested mitigation strategies, the ODA can immediately shut down the ride.
As it stands, owners of Low Intensity Rides and Intermediate Rides are the only category of owners obligated to follow the new fatigue and corrosion review rules. Owners of Towers will be required to follow the new rules starting in April of 2022 and Owners of Roller Coasters will have to comply starting in April of 2023.
Records of storage and/or out state operation. Tyler’s law also requires owners of portable amusement rides to provide documentation providing all locations and dates where the ride was stored for 30 days or more. Additionally, an owner is required to provide documentation identifying all locations and dates where the ride was operated, if it was operated outside of Ohio.
Ride Inspections. Ohio law also establishes the minimum number of times a ride must be inspected each year as well as the number of inspectors that must be at each inspectio
Number of Inspections
Number of Inspectors for Initial Inspection
Number of Inspectors for Additional Inspections
Maintenance requirements. Owners are required to maintain maintenance, repair, pre-opening inspection, and any additional inspection records for each amusement ride. An owner is required to keep these records for at least two years. Owners must also provide checklists and training to any person who is to be performing ride maintenance throughout the ride’s operational cycle.
Valid decals. Owners of amusement rides are required to display a decal issued by the ODA representing that the owner and ride have complied with Ohio’s laws and are allowed to operate within the state. If no decal appears, a ride should be prevented from operating until a valid permit is furnished by the owner.
Rider Obligations. Owners are not the only party with responsibilities when it comes to amusement rides. Riders are prohibited from engaging in certain conduct that create an increased risk of danger for a rider and others around them. A rider must:
- Heed all warnings and directions of an amusement ride; and
- Not behave in any way that might cause injury or contribute to injuring self or other riders while occupying an amusement ride.
Conclusion. Although amusement parks like King’s Island and Cedar Point are already subject to some of the additional safety measures of Tyler’s Law, this will be the first fair season with the new regulations. Fair has provided generations of Ohioans with fond memories, joy, and reasons to celebrate, and through Tyler’s legacy, Ohio seeks to take all the steps necessary to try and ensure that fair is nothing but a happy occasion for all. To learn more about Ohio’s laws regarding amusement rides visit the Ohio Revised Code and the Ohio Administrative Code.
Happy Friday! It's time for another Ag Law Harvest and in this week's edition we explore landmark court rulings, pending lawsuits, and newly enacted laws that affect agriculture and the environment from around the country.
USDA announces $92.2 million in grants under the Local Agriculture Market Program. The USDA announced last week that it will be funding Local Agriculture Market Program (LAMP) grants through the Farmers Market program as part of the USDA’s Pandemic Assistance for Producers Initiative. Through these grants, the USDA hopes to support the development and growth of direct producer-to-consumer marketing and boost local and regional food markets. $76.9 million will be focused on projects that support direct-to-consumer markets like farmers markets and community supported agriculture. $15.3 million will fund public-private partnerships that will build and strengthen local and regional food markets. All applications must be submitted electronically through www.grants.gov. More information can be found on the following webpages: Farmers Market Promotion Program, Local Food Promotion Program, or Regional Food System Partnerships.
Mexico Supreme Court Rules in favor of U.S. Potato Growers. On April 28, 2021, Mexico’s highest court overturned a lower court’s decision preventing the Mexican government from implementing regulations to allow for the importation of U.S. potatoes. The ruling comes after nearly a decade of legal battles between Mexican potato growers and their government. Beginning in 2003, Mexico restricted U.S. potato imports but then lifted the restrictions in 2014, allowing U.S. potatoes full access to the Mexican market. Shortly after lifting the restrictions, the National Confederation of Potato Growers of Mexico (CONPAPA) sued its government claiming that Mexican regulators have no authority to determine if agricultural imports can enter the country. Since the filing of the lawsuit, the U.S. has been bound by the 2003 restrictions on U.S. potatoes entering the Mexican market. Mexico’s Supreme Court ultimately rejected CONPAPA’s argument and ruled that the Mexican government does have the authority to issue regulations about the importation of agricultural and food products, including U.S. potatoes. Mexico represents the third largest export market for U.S. potatoes, making this a landmark decision for U.S. potato farmers.
Indiana enacts new wetlands law. Indiana governor, Eric Holcomb, has approved a new controversial wetlands law. The new law amends the requirements for permits and restoration costs for “wetland activity” in a state regulated wetland (federally protected wetlands are excluded). Under Senate Bill 389, permits are no longer required to conduct activity in Class I wetlands, some Class II wetlands, and certain farmland. In Indiana, Class I wetlands are either: (a) at least 50% disturbed or affected by human activity; or (b) support only minimal wildlife or hydrological function. Class III wetlands are minimally disturbed by human activity and can support more than minimal wildlife or hydrologic function. Class II wetlands fall somewhere in the middle. Supporters of the law argue that the changes will reduce the cost to landowners and farmers for conducting activity in wetlands that only provide nominal environmental benefits. Opponents of the law argue otherwise. Some environmental groups believe that wetlands, whether they can support more than minimal wildlife or not, provide profound economic benefit by reducing the cost to citizens for water storage and water purification. Additionally, environmental groups argue that the subsequent loss of wetlands from this law will greatly increase flooding and erosion and reduce Indiana’s diverse wildlife. Some even suggest that this law is nothing more than a subsidy for the building and housing development industry. Senate Bill 389 became law on April 29, 2021, and has a retroactive effective date of January 1, 2021.
USDA being sued for promotion of meat and dairy industry. Three physicians have filed a lawsuit against the USDA in a federal court in California. The doctors, part of the Physicians Committee for Responsible Medicine (PCRM), argue that some of the USDA’s new 2020-2025 Dietary Guidelines for Americans, issued last December, contradict current scientific and medical knowledge. PCRM believes that the USDA is acting out of its interests in the dairy and meat industry rather than the health interests of U.S. residents. For example, PCRM argues that the USDA’s statement suggesting that more individuals would benefit by increasing their intake of dairy contradicts scientific evidence that increased dairy intake can increase the chances of prostate cancer and that 1 in 4 Americans is lactose intolerant. PCRM seeks a court order requiring the USDA to delete dairy promotions, avoid equating protein with meat, and eliminate deceptive language hiding the ill effects of consuming meat and dairy products. In an email to the Washington Post, a spokesperson for the USDA, claims that the dietary guidelines are just that – guidelines. The USDA argues that the dietary guidelines are meant to help provide guidance based on the best available science and research and provide many alternatives for people based on an individual’s preferences and needs.
Sesame added to the list of major allergens. On April 23, 2021, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law requires that sesame be added to the list of major allergens and be disclosed on food labels. Up until this law was enacted, sesame was allowed to be labeled as a “natural flavor” or a “natural spice.” With the new law, sesame, in any form, must be labeled as an allergen on packaged foods. Food manufacturers have until 2023 to add sesame allergen statements to their labels. This is the first time since 2006 that a new allergen has been added to the Food Allergen and Consumer Protection Act (FALCPA). Sesame joins peanuts, tree nuts, fish, shellfish, soy, dairy, eggs, and wheat as the FDA’s list of allergens that require specific labeling.
Florida passes updated Right to Farm Law. Florida Governor, Ron DeSantis, signed into law Florida’s new and improved Right to Farm Act. The new law adds agritourism to the definition of “farm operations” so that agritourism is also protected under Florida’s Right to Farm Law. Additionally, Florida lawmakers have expanded the protection given to farmers under the new law by defining the term nuisance. Under Florida’s Right to Farm Law, nuisance is defined as “any interference with the reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibrations.” Florida’s definition of nuisance also includes all claims brought in negligence, trespass, personal injury, strict liability, or other tort, so long as the claim could meet the definition of nuisance. This protects farmers from individuals disguising their nuisance claim as a trespass claim. The importance of defining nuisance to include claims such as trespass can best be demonstrated by an ongoing federal lawsuit in North Carolina. In that case, Murphy-Brown, LLC and Smithfield Foods, Inc. are being sued for having ownership in a hog farm that caused odors, dust, feces, urine, and flies to “trespass” onto neighboring properties. North Carolina’s Right to Farm Law only protects farmers from nuisance claims, not trespass claims. Although Murphy-Brown and Smithfield argue that the neighbors are disguising their nuisance claim as a trespass claim, the federal judge is allowing the case to move forward. The judge found that farmers are protected from nuisance claims, not trespass claims and even if the trespass could also be considered a nuisance, the neighbors to the hog farm are entitled to seek compensation for the alleged trespass.
As disruptive as 2020 was, the Ohio General Assembly persisted in working for Ohio citizens. On our blog we have been providing you with some in-depth analysis on key legislation passed by the previous General Assembly. Below you will find brief summaries on additional pieces of legislation passed by the Ohio Legislature in 2020.
House Bill 24 – Revising Humane Society Law
H.B. 24 seeks to improve accountability for humane societies and other organizations throughout the state – this includes: (1) requiring each county humane society to submit an annual report of enforcement activities to the county sheriff; (2) making records of an enforcement activity by a humane society agent a public record; (3) prohibiting a humane society from entering into an agreement not to prosecute unless a judge has reviewed and approved the agreement; (4) specifying the removal procedures of a humane society agent from office; and (5) asserting that a humane society agent is a public servant for the purposes of bribery law and therefore a humane society agent is subject to criminal prosecution for bribery.
H.B. 24 also expands the current law governing the seizure and impoundment of companion animals. Under H.B. 24, any animal can be seized and impounded when related to a violation of an animal cruelty law. However, written notice is required within 24 hours after the animal is seized and impounded.
Governor DeWine signed H.B. 24 into law on December 29, 2020 and it becomes effective on March 31, 2021.
House Bill 33 – Establishing Animal Abuse Reporting Requirements
H.B. 33 adds dog wardens, deputy dog wardens, or other persons appointed to act as an animal control officer to the list of professionals who must immediately report child abuse to a public services agency or peace officer.
H.B. 33 requires veterinarians and specified social service or counseling professionals to report abuse of a companion animal to a law enforcement officer, humane society agent, or other animal control-type professional. Law enforcement, humane society agents, and animal control-type professionals must report abuse of a companion animal, under certain circumstances, to the appropriate social service professional. Lastly, H.B. 33 grants immunity to those required to make an animal abuse report, from criminal or civil actions, so long as the report was made in good faith.
H.B. 33 goes into effect on April 12, 2021.
House Bill 67 – Veterinarian Student Debt Assistance Program
H.B. 67 creates a Veterinarian Student Debt Assistance Program which allows the State Veterinary Medical Licensing Board to agree to repay all or part of any educational loans taken out by a veterinarian while in veterinary college. Veterinarians must apply for the program and perform 12 or more hours of charitable veterinary services to be eligible. H.B. 67 goes into effect on April 12, 2021.
Senate Bill 21 – Benefit Corporations
S.B. 21 allows certain corporations to become benefit corporations. A benefit corporation is a corporation that includes a beneficial purpose in the corporation’s articles of incorporation. Under the new law, a beneficial purpose is defined as a “purpose to have a bona fide positive effect, or to reduce one or more bona fide negative effects, of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific, or technological nature for the benefit of persons, entities, communities, or interests aside from shareholders.” A benefit corporation is still allowed to operate for other purposes that help make the corporation profitable and neither the beneficial purpose nor any other purpose of the corporation has priority over the other. Under the law, once a benefit corporation is established, the corporation is allowed to use “benefit” or “b-“ as a prefix. Examples of popular benefit corporations include Patagonia, Seventh Generation, TOMS, and Ben & Jerry’s.
S.B. 21 goes into effect March 24, 2021.
Senate Bill 276 – Updated Limited Liability Company Laws
S.B. 276 enacts the Ohio Revised Limited Liability Company Act (ORLLCA) and makes some major updates to Ohio’s LLC laws. While the Bill is expansive, the following are two major highlights from the legislation.
Under current law, an Ohio LLC may be managed by its members or by a manager. In different scenarios, the authority to bind the LLC by a member or manager may vary. The ORLLCA does away with the member/manager distinction and provides that a person’s authority to bind the LLC must be determined by referencing the operating agreement, decisions of the members in accordance with the operating agreement, or by the default rules laid out in the ORLLCA.
Another major change includes the creation of the series LLC. A series LLC consists of a “parent” LLC and separate subdivisions (or series). Under the ORLLCA, a “parent” LLC’s operating agreement may provide for the establishment of one or more designated series that has at least one member associated with each series and either (or both) of the following: (1) separate rights, powers, or duties with respect to each series; and/or (2) a separate purpose or investment objective.
Under the ORLLCA, the debts, obligations, liabilities of a series do not jeopardize the assets held by the “parent” LLC or any other series. However, this limitation only applies if: (1) the records maintained for that series account for the assets of that series separately from any other assets of the “parent” LLC or other series; (2) the “parent” LLC’s operating agreement contains a statement to the effect of the limitation; and (3) the “parent” LLC’s articles of organization contain a statement that the LLC may have one or more series of assets subject to this limitation. So long as the records of the series are maintained in a manner that the assets of the series can be reasonably identified, the protection is likely to apply.
The ORLLCA is set to take effect January 1, 2022.
In case you didn’t notice, we are deep into election season. Discussion of Supreme Court vacancies, presidential debates, and local races abound. Even with all the focus on the election, the rest of the world hasn’t stopped. The same is true for ag law. This edition of the Harvest includes discussion of ag-related bills moving through the Ohio General Assembly, federal lawsuits involving herbicides and checkoff programs, and some wiggle room for organic producers who have had a hard time getting certified with all the pandemic-related backups and shutdowns.
Changes to Ohio Drainage Law considered in Senate—The Ohio Senate’s Agriculture & Natural Resources Committee continues to hold hearings on HB 340, a bill that would revise drainage laws. The bill was passed in the house on June 9, 2020. The 157 page bill would amend the current drainage law by making changes to the process for proposing, approving, and implementing new drainage improvements, whether the petition is filed with the board of the Soil and Water Conservation District, the board of county commissioners, or with multiple counties to construct a joint county drainage improvement. The bill would further apply the single county maintenance procedures and procedures for calculating assessments for maintenance to multi-county ditches and soil and water conservation districts. You can find the current language of the bill, along with a helpful analysis of the bill, here.
Purple paint to warn trespassers? Elsewhere in the state Senate, SB 290 seems to be moving again after a lengthy stall, as it was recently on the agenda for a meeting of the Local Government, Public Safety & Veterans Affairs Committee. If passed, SB 290 would allow landowners to use purple paint marks to warn intruders that they are trespassing. The purple paint marks can be placed on trees or posts on the around the property. Each paint mark would have to measure at least three feet, and be located between three and five feet from the base of the tree or post. Furthermore, each paint mark must be “readily visible,” and the space between two marks cannot be more than 25 yards. You can see the text, along with other information about the bill here.
Environmental groups look to “Enlist” more judges to reevaluate decision. In July, the U.S. Court of Appeals for the Ninth Circuit decided it would not overturn the EPA registration for the herbicide Enlist Duo, which is meant to kill weeds in corn, soybean, and cotton fields, and is made up of 2,4-D choline salt and glyphosate. Although the court upheld registration of the herbicide, it remanded the case so that EPA could consider how Enlist affects monarch butterflies. The court found that EPA failed to do this even though it was required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). On September 15, 2020, the Natural Resources Defense Council (NRDC) and other groups involved in the lawsuit filed a petition to rehear the case “en banc,” meaning that the case would be heard by a group of nine judges instead of just three. If accepted, the rehearing would involve claims that the EPA did not follow the Endangered Species Act when it made the decision to register Enlist Duo.
R-CALF USA has a “beef” with federal checkoff program. Earlier this month, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) sued the United States Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia. R-CALF USA has filed a number of lawsuits involving the Beef Checkoff program over the years, including several that are on-going. Their argument, at its most basic, is that the Beef Checkoff violates the Constitution because ranchers and farmers have to “subsidize the private speech of private state beef councils through the national beef checkoff program.” In this new complaint, R-CALF USA alleges that when USDA entered into MOUs (memorandums of understanding) with private state checkoff programs in order to run the federal program, its actions did not follow the Administrative Procedure Act (APA). R-CALF USA argues that entering into the MOUs was rulemaking under the APA. Rulemaking requires agencies to give notice to the public and allow the public to comment on the rule or amendment to the rule. Since USDA did not follow the notice and commenting procedures when entering into the MOUs, R-CALF USA contends that the MOUs violate the APA. R-CALF USA further argues that did not consider all the facts before it decided to enter into the MOUs, and therefore, the agency’s decision was arbitrary and capricious under the APA. You can read R-CALF USA’s press release here, and the complaint here.
Flexibility for organics during COVID-19. Back in May, due to COVID uncertainty and state shutdowns, the Risk Management Service (RMS) stated that approved insurance providers “may allow organic producers to report acreage as certified organic, or transitioning to organic, for the 2020 crop year if they can show they have requested a written certification from a certifying agent by their policy’s acreage reporting date.” RMS’s original news release can be found here. In August, RMS extended that language. The extension will provide certification flexibility for insurance providers, producers, and the government in the 2021 and 2022 crop years. Other program flexibilities may apply to both organic and conventional producers. Information on those can be found here.
Our newest report for the National Agricultural Law Center examines the different approaches states are taking to regulate hemp under the 2018 Farm Bill. Innovative State Approaches to Hemp Regulations under the 2018 Farm Bill is available on our website here and on the National Agricultural Law Center website here.
Over the last few years, the agricultural sector has been buzzing with excitement about the potential of a new crop—industrial hemp. For years, hemp was increasingly regulated across the country because it was legally classified the same as marijuana, another type of cannabis.
In 1970, the Controlled Substances Act completely illegalized hemp production. This criminalized approach to hemp changed with the 2018 Farm Bill, however, which removed hemp from the definition of “marijuana” and gave states a chance to create their own hemp regulation programs. Many states seized the opportunity. As of May 5, 2020, the United States Department of Agriculture (USDA) had approved hemp plans from 16 states: Delaware, Florida, Georgia, Iowa, Kansas, Louisiana, Montana, Nebraska, New Jersey, Ohio, Pennsylvania, South Carolina, Texas, Washington, West Virginia, and Wyoming.
In this white paper, we examine the requirements for state hemp programs prescribed by the 2018 Farm Bill. Even within these “requirements,” there is room for states to innovate. We’ll take a look at how they’ve done so as we summarize the unique aspects of state hemp programs that go beyond the USDA’s minimum requirements. There are many creative approaches that states are taking in regulating hemp production. We will touch on some of these notable approaches and highlight the similarities and differences among the approved state hemp regulatory programs.
The USDA’s National Agriculture Library funded our research on this project, which we conducted in partnership with the National Agricultural Law Center.
This edition of the Ag Law Harvest is heavily focused on recent environmental case law at the federal level. Read on to find out how habitats, migratory birds, environmental and administrative laws, and Trump’s new Waters of the United States rule have fared in recent decisions.
What does “habitat” mean to you? Think about it carefully, because now is your chance to provide your input to the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS). Readers of the blog may remember we reported on a Supreme Court case dealing with critical habitat under the Endangered Species Act (ESA) a few years ago. The Supreme Court remanded the case back to the Fifth Circuit Court of Appeals. The Court of Appeals was charged with interpreting the word “habitat.” The Court of appeals then punted the interpretation to the U.S. District Court for the Eastern District of Louisiana, where the parties settled the case. Even with a settlement, the question of what “habitat” means remains. To remedy this omission, the FWS and NMFS published a proposed rule on August 5th to define “habitat” under the ESA. In this proposal, FWS and NMFS put forward two possible definitions of “habitat”:
- The physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species; or
- The physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.
The agencies are asking for public comment on the two definitions, and “on whether either definition is too broad or too narrow or is otherwise proper or improper, and on whether other formulations of a definition of ‘habitat’ would be preferable to either of the two definitions, including formulations that incorporate various aspects of these two definitions.” The comment period is open until September 4, 2020.
Will a lawsuit stop planned changes to NEPA? At the end of July, a number of environmental groups banded together and filed a 180-page complaint against the U.S. Council on Environmental Quality (CEQ). The complaint challenges the Council’s update to rules under the National Environmental Protection Act (NEPA). The groups’ basic argument is that the CEQ, under the direction of the Trump administration, published a new administrative rule under NEPA, but did not follow the Administrative Procedure Act (APA), which governs agency actions, when doing so. The lawsuit alleges: “[r]ather than make this drastic change deliberately and with the careful process the APA requires, CEQ cut every corner. The agency disregarded clear evidence from over 40 years of past implementation; ignored the reliance interests of the citizens, businesses, and industries that depend on full and complete NEPA analyses; and turned the mandatory public engagement process into a paper exercise, rather than the meaningful inquiry the law requires.” Basically, the groups argue that the administration ignored the APA all together. Why is this important? The environmental groups argue that the new rule essentially makes it possible for the federal government to push through projects that might have impacts on citizens and the environment, such as pipelines and roadways, much more quickly, and without much input from the public. You can read the final NEPA rule here. We will have to wait and see whether the court agrees that the APA was violated in the creation of this rule.
Ruling on Migratory Bird Act clips the administration’s wings. Another lawsuit against the federal government was decided on August 11, 2020. The U.S. District Court for the Southern District of New York sided with a number states as well as environmental groups, including the Natural Resources Defense Fund and the National Wildlife Federation. The Court found that the U.S. Department of the Interior (DOI) and FWS (at the direction of the administration) could not overturn 50 years of DOI interpretations of what “killings” and “takings” of birds meant under the Migratory Bird Treaty Act of 1918 with a single memo. Traditionally, the killing or taking any migratory bird, even accidentally or incidentally, has been interpreted as a violation of the Act. DOI’s memo sought to change this, only making the Act only apply to intentional hunting, killing, or taking. Essentially, if a business or person had a pond full of wastewater, and migratory birds swam in it, eventually killing the birds, it would only be “incidental” taking and not intentional under DOI’s logic in the memo. Ultimately, Judge Valerie Caproni channeled Atticus Finch by stating “It is not only a sin to kill a mockingbird, it is also a crime,” meaning that one memorandum could not overturn the fact that incidental and accidental takings of birds are still takings punishable by the Act.
Another WOTUS lawsuit bites the dust. There’s always something going on with the Waters of the United States (WOTUS) rule. In April, the Trump administration published its final rule on WOTUS, which replaced the Obama administration’s beleaguered rule from 2015. Almost immediately, the rule was challenged in court by those who thought it went too far in protecting waters, as well as those who felt it didn’t go far enough. The Oregon Cattlemen’s Association, which falls into the latter camp, filed suit against the EPA and the U.S. Army Corps of Engineers over the 2015 rule, later amending their complaint to address the 2020 rule. The Association claimed that both the old and new rules went too far, and that EPA did not have the authority to carry them out under the Clean Water Act. The judge dismissed the Association’s case without prejudice for lack of standing, meaning that the issue may be litigated again, but the Oregon Cattlemen’s Association could not show that its members are being negatively affected by the 2020 rule at this time.
Written by Ellen Essman and Peggy Hall
This edition of the Ag Law Harvest has a little bit of everything—Ohio and federal legislation responding to COVID issues, new USDA guidance on bioengineered foods, and a judicial review of Bayer’s Roundup settlement. Read on to learn about the legal issues currently affecting agriculture.
Ohio COVID-19 immunity bill stalls. While the Ohio House and Senate agree with the concept of immunity for COVID-19 transmissions, the two chambers don’t yet see eye-to-eye on the parameters for COVID-19 liability protection. H.B. 606, which we reported on here, has passed both the House and Senate, but the Senate added several amendments to the legislation. The House won’t be addressing those amendments soon because it’s in recess, and doesn’t plan to return for business until at least September 15. The primary point of disagreement between the two bills concerns whether there should be a rebuttable presumption for Bureau of Workers’ Compensation coverage that certain employees who contract COVID-19 contracted it while in the workplace. The Senate amendment change by the Senate concerns exemption from immunity for "intentional conduct," changed to "intentional misconduct.” Currently, there is not a plan for the House to consider the Senate’s amendments before September 15.
Lawmakers propose bill to avoid more backlogs at processing plants.
Most people are aware that the COVID-19 pandemic created a huge backlog and supply chain problem in U.S. meatpacking plants. A group of bipartisan representatives in the House recently proposed the
Requiring Assistance to Meat Processors for Upgrading Plants Act, or RAMP-UP Act. The bill would provide grants up to $100,000 to meat and poultry processing plants so the plants could make improvements in order to avoid the kind of problems caused by the pandemic in the future. The plants would have to provide their own matching funds for the improvements. You can find the bill here.
Revisiting the Paycheck Protection Program, again. In a refreshing display of non-partisanship, Congress passed legislation in late June to extend the Paycheck Protection Program (PPP). Employers who haven’t taken advantage of PPP now have until August 8, 2020 to apply for PPP funds to cover payroll and certain other expenses. Several senators also introduced the Paycheck Protection Program Small Business Forgiveness Act, a proposal to streamline an automatic approval process for forgiveness of PPP loans under $150,000, but there’s been little action on the bill to date. Meanwhile, the American Farm Bureau Federation is in discussion with the Senate on its proposal for other changes to PPP that would expand access to PPP for agriculture.
More clarification for bioengineered food disclosure. You may recall that the National Bioengineered Food Law was passed by Congress in 2016. The legislation tasked USDA with creating a national mandatory standard for disclosing bioengineered foods. The standard was implemented at the beginning of 2020, but USDA still needed to publish guidance on validating a refining process and selecting an acceptable testing method. On July 8, 2020, that guidance was published. The guidance provides steps for industry to take when validating a food refining process under the rule. A lot of food refining processes remove traces of modified genetic material. So, if a refining process is validated, there is no further need to test for bioengineered material to disclose. The guidance also contains instructions on testing methods. Basically, “any regulated entity that is using a food on the AMS List of Bioengineered Foods and does not want to include a bioengineered food disclosure because the food or ingredient is highly refined and does not include detectable modified genetic material” should follow these testing instructions. Therefore, any entity with highly refined foods that do “not include detectable modified genetic material” should follow the recently published guidance.
Bayer settlement proposal under scrutiny. Last month, Bayer, the owner of Roundup, announced that it would settle around 9,500 lawsuits related to alleged injuries caused by using the product. Not only was the proposal supposed to settle previous lawsuits, but it was also meant to address any future lawsuits stemming from purported injuries caused by Roundup. A judge from the United States District Court for the Northern District of California recently pumped the breaks on this plan, stating that any settlement that would resolve “all future claims” against Roundup must first be approved by the court. A hearing will be held on July 24, where the court will decide whether or not to “grant preliminary approval of the settlement.”
Dicamba, Roundup, WOTUS, and ag-gag: although there are important updates, this week’s Harvest topics could be considered some of the Ag Law Blog’s “greatest hits.” In addition to these ongoing issues, a bill that is meant to encourage farmers to participate in carbon markets was recently introduced in the Senate. June has certainly been a busy month.
Decisions on dicamba. If you’ve been following along with our blog posts over the past few weeks, you know that the Ninth Circuit Court of Appeals vacated the registration of several over-the-top dicamba products, and in response, the EPA announced that all such products in farmers’ possession must be used before July 31, 2020 (our last post on the topic is available here). The Ohio Department of Agriculture went a step further, making the final date for dicamba use in the state June 30, 2020, due to the state registrations expiring on that day. Since the Ninth Circuit decision, the companies that produce dicamba products such as Engenia and, FXapan, and XtendiMax have filed numerous motions with the Ninth Circuit. On June 25, the court declined a motion from the BASF Corporation, which makes Engenia, asking the court to pause and withdraw their decision from the beginning of the month. What does this mean? Basically, at this moment, the court’s ruling still stands, and use of certain over-the-top products will have to cease on the dates mentioned above. That’s the latest on this “volatile” issue.
Bayer settles Roundup lawsuits, but this probably isn’t the end. Bayer, the German company that purchased Monsanto and now owns rights to many of the former company’s famous products, has been fighting lawsuits on multiple fronts. Not only is the company involved in the dicamba battle mentioned above, but over the past few years it has had a slew of lawsuits concerning Roundup. On June 24, Bayer, the German company that now owns the rights to Roundup, announced that it would settle around 9,500 lawsuits. The lawsuits were from people who claimed that Roundup’s main ingredient, glyphosate, had caused health problems including non-Hodgkin’s lymphoma. The amount of the settlement will be between 8.8 and 9.6 billion dollars. Some of that money will be saved for future Roundup claims. Although many are involved in this settlement, there are still thousands of claims against Bayer for litigants who did not want to join the settlement.
Updated WOTUS still not perfect. As always, there is an update on the continuing saga of the waters of the United States (WOTUS) rule. If you recall, back in April, the Trump administration’s “final” WOTUS rule was published. Next, of course, came challenges of the rule from both sides, as we discussed in a previous Harvest post. Well, the rule officially took effect (in most places, we’ll get to that) June 22, despite the efforts of a group of attorneys general from Democratically-controlled states attempting to halt the implementation of the rule. The attorneys general asked the U.S. District Court for the Northern District of California a nationwide preliminary injunction, or pause on implementation of the rule until it could be sorted out in the courts. The district court judge denied that injunction on June 19. On the very same day, a federal judge in Colorado granted the state’s request to pause the implementation of the rule within the state’s territory. Remember that the 2015 rule was implemented in some states and not others for similar reasons. The same trend seemingly continues with Trump’s replacement rule. In fact, numerous lawsuits challenging the rule are ongoing across the country. A number of the suits argue that rule does not go far enough to protect waters. For instance, just this week environmental groups asked for an injunction against the rule in the U.S. District Court for the District of Columbia. Environmental organizations have also challenged the rule in Maryland, Massachusetts, and South Carolina district courts. On the other hand, agricultural groups like the New Mexico Cattle Growers Association have filed lawsuits arguing that the rule is too strict.
No more ag-gag in NC? We have mentioned a few times before on the blog that North Carolina’s ag-gag law has been embroiled in a lawsuit for several years (posts are available here). North Carolina’s version of “ag-gag” was somewhat different from other states, because the statute applied to other property owners, not just those involved in agriculture. The basic gist of the law was that an unauthorized person entering into the nonpublic area of a business was liable to the owner or operator if any damages occurred. This included entering recording or surveilling conditions in the nonpublic area, which is a tool the plaintiffs use to further their cause. In a ruling, the U.S. District Court for the Middle District of North Carolina was decided largely in the plaintiffs’ (PETA, Animal Legal Defense Fund, etc.) favor. In order to not get into the nitty gritty details of the 73-page ruling, suffice it to say that the judge found that that law did violate the plaintiffs’ freedom of speech rights under the First Amendment to the U.S. Constitution. Another ag-gag law bites the dust.
Carbon markets for farmers? And, now for something completely different. In the beginning of June, a bipartisan group of four U.S. senators introduced the “Growing Climate Solutions Act.” On June 24, the Senate Committee on Agriculture, Nutrition, and Forestry held its first hearing on the new bill, numbered 3894. The text of SB 3894 is not currently available online, but it would create “a certification program at USDA to help solve technical entry barriers that prevent farmer and forest landowner participation in carbon credit markets.” The barriers “include access to reliable information about markets and access to qualified technical assistance providers and credit protocol verifiers” and “have limited both landowner participation and the adoption of practices that help reduce the costs of developing carbon credits.” You can read the Committee’s full press release about the bill here. It is backed by several notable businesses and groups, including the American Farm Bureau Federation, the National Corn Growers Association, the Environmental Defense Fund, and McDonalds and Microsoft.
There’s been a lot of action in the Ohio General Assembly over the last few weeks ahead of the body’s summer break. Specifically, the House of Representatives has considered bills involving a student debt forgiveness program for veterinarians, animal abuse, road safety in Amish country, immunity for apiary owners for bee stings, and a bill meant to support county fairs during the COVID pandemic. Finally, both the Ohio House and Senate have passed bills that would limit liability involving the transfer of COVID-19.
Animal-drawn vehicle lighting. House Bill 501, concerning slow-moving, animal drawn vehicles, was introduced in February of 2020 and was first heard in the House Transportation & Public Safety committee on June 2. The purpose of HB 501 is to “clarify the law governing slow-moving vehicles and to revise the lighting and reflective material requirements applicable to animal-drawn vehicles.” The bill would require animal-drawn vehicles, like the buggies typically driven by the Amish, to have the following: (1) at least one white lamp in the front visible from 1,000 feet or more; (2) two red lamps in the rear visible from 1000 or more; (3) one yellow flashing lamp mounted on the top most portion of the rear of the vehicle; (4) a slow moving vehicle (SMV) emblem; and (5) micro-prism reflective tape that is visible from at least 500 feet to the rear when illuminated by low beams on a vehicle. In the committee hearing, HB 501 had mostly positive feedback, and was touted as a solution to crashes involving animal-drawn vehicles in poor visibility.
When the bee stings. HB 496, which would grant apiary owners immunity for bee stings, passed the Ohio House on June 9, 2020. The bill would protect the owner of a registered apiary from liability in the case of a personal injury or property damage from a sting if they do the following: (1) implement and comply with the beekeeping industry best management practices (BMPs) as established by the department of agriculture; (2) keep correct and complete records of their implementation and compliance with BMPs and make the records available in a legal proceeding; (3) comply with local zoning ordinances pertaining to apiaries; (4) operate the apiary in compliance with the Ohio Revised Code. Notably, the bill would not protect apiarists from harming a person intentionally or through gross negligence. The bill now moves on to the Ohio Senate for consideration.
Debt forgiveness for veterinarians. The House also passed HB 67 on June 10, 2020. This bill would create the “veterinarian student debt assistance program,” which would determine which veterinarians would receive student debt assistance, and how much each person would receive. The amount awarded must be between $5,000 and $10,000. Essentially, if the new veterinarian agrees to live in Ohio for a certain amount of time, and to participate in “charitable veterinarian services” like spaying and neutering for a nonprofit organization, humane society, law enforcement agency, or state, local, or federal government, student debt could be forgiven. The details, including how many hours a veterinarian would need to work for charity, the types of charities that qualify, the amount of time a person must live in Ohio, and others would be determined by State Veterinary Medical Licenses Board.
Animal abuse. HB 33 passed the lower chamber on June 11, 2020. This bill would require veterinarians, social service professionals (people who work at the county Job and Family Services, Children’s Services), counselors, social workers, and other similar professions to report violations against “companion animals” (dogs, cats, other animals kept in a residential dwelling), to law enforcement and/or the county humane agent or animal control officer. People in these professions would have to report when they have “knowledge or reasonable cause to suspect” that violations to companion animals are happening, and they know or suspect that a child or older adult (60 years and older) lives in the residence, and they know or suspect that the violation is having an impact on the child or older adult. Violations include animal abandonment, injury, poisoning, cruelty, fighting, dog fighting, or sexual conduct with an animal.
Assistance for county fairs. If you’ve heard about any Ohio legislation recently, it was likely this bill. HB 665 was passed by the House after much debate on June 11, 2020. The 61 page bill makes a lot of changes to the statutory language. Importantly, the bill would make it a misdemeanor for patrons not to follow written warnings and directions on amusement rides. The bill also makes a number of changes to how county agricultural societies operate. First of all, members of a county agricultural society would have to be residents of the county. Members would have to pay a fee to retain membership, and the societies would have to issue a printed membership certificate to members. In counties with an ag society, the county treasurer must transfer $1600 to the society each year as long as the society holds its annual exhibition, reports to the Ohio Department of Agriculture (ODA), and the director of ODA presents the society with a certificate showing it has followed applicable laws and regulations. The bill also addresses independent agricultural societies, to which similar rules apply. The county board of commissioners would also be required to appropriate at least $100 to the ag society’s junior club. The bill would require ag societies to create a report of its proceedings during the year, file a financial report and send it to the ODA director, and publish an announcement in the county newspaper or the society’s website a statement about the filing of the financial report, and contact information for people who want to obtain a copy of the report. The bill also outlines the circumstances under which an ag society can sell fairgrounds or parts of fairgrounds. Finally, an amendment to the bill was adopted that would allow rescheduling of horse races.
So what was so controversial about this bill? A suggested amendment to the bill led to a heated argument in the House. The amendment would have banned sales and displays of confederate flags and other memorabilia at county fairs. This ban is already in place at the Ohio State Fair, but not county fairs. Ultimately, the bill passed in the house, but this amendment did not. The vote to table the amendment was largely along party lines, with every Republican except one voting against the amendment, and all Democrats voting for.
COVID-19 liability. The House passed HB 606 back in May, and we discussed it in a blog post here. As a refresher, the bill is meant to protect businesses, schools, corporations, people, etc. from liability. It would accomplish this with the declaration: “orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability.” In other words, as long as the person, school, or business did not expose or transfer the virus recklessly, intentionally, or with willful and wanton conduct, someone could not bring a civil action for injury, death, or loss to person or property if they contract COVID from the entity. Furthermore, the bill also provides temporary civil immunity for health care providers, grants immunity to the State for care of persons in its custody or if an officer or employee becomes infected with COVID-19 in the performance or nonperformance of governmental functions and public duties, and expands the definition of “governmental functions” for purposes of political subdivision immunity to include actions taken during the COVID-19 pandemic.
The Ohio Senate passed a similar bill, SB 308. Unlike the House bill, SB 308 provides immunity only in the health care context. The bill would provide immunity from civil liability for doctors, nurses, and others working in the health care arena during “disasters” like the current pandemic. It would also provide a qualified immunity from liability to services providers for “manufacturing” and any other service “that is part of or outside of a service provider's normal course of business conducted during the period of a disaster or emergency declared due to COVID-19 and ending on April 1, 2021.”
What’s next? The Ohio Senate is scheduled to meet next week on an “as needed” basis. During these tentatively scheduled sessions, the senate could consider the bills that have cleared the House—HBs 496, 67, 33, and 665. If passed by the Senate, the bills would then move on to Governor DeWine for approval. We will keep you updated on what the Senate and Governor decide. In the case of the COVID immunity bills, each bill moved to the opposite house, where they are currently being considered in committees. We’ll have to wait and see if one or both are sent on to DeWine, or if the two houses choose to somehow combine the bills into one document.