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By: Ellen Essman, Wednesday, November 20th, 2019

You’re never going to make everyone happy.  This is especially true when it comes to the federal definition of “waters of the United States,” or WOTUS, under the Clean Water Act (CWA).  The definition of WOTUS has changed over the years in order to adapt to numerous court decisions.  The Obama administration’s 2015 rule has been litigated so much that a patchwork of enforcement has been created across the country, with some states falling under the 2015 rule and others falling under the previous iterations of the rule from 1986 and 1988.  In fact, in New Mexico, parts of the state follow one rule and other parts follow the other.  You can see the current state breakdown here.  

To add even more chaos to all of this confusion, the Trump administration decided to repeal and replace Obama’s 2015 rule.  In September, a rule was announced that would repeal the 2015 WOTUS rule and replace it with the 1986 and 1988 rule.  This reversion would not be permanent; the 1986/1988 rule is simply a placeholder until the EPA and Army Corps of Engineers finalize a new WOTUS rule to replace it. The repeal is set to become effective in December.  You can read our blog post on the repeal here

Of course, there are those who are unhappy with the 1986/1988 rule being reinstated, even if only for a time.  In October, two lawsuits were filed against the EPA and Army Corps of Engineers in federal district courts.  In South Carolina, environmental groups sued because they feel that the 1986/1988 rules do not go far enough to protect waters.  On the other hand, in the New Mexico Cattle Growers’ Association sued because they feel that returning to the 1986/1988 rules goes too far in regulating water.  Below, we will briefly break down the arguments in each of these lawsuits. 

South Carolina lawsuit

Following the October repeal announcement, environmental groups, including the South Carolina Coastal Conservation League and the Natural Resources Defense Council, sued the EPA and U.S. Army Corps of Engineers in the U.S. District Court for the District of South Carolina, Charleston Division, claiming that the repeal rulemaking was unlawful.  In their complaint, the environmental groups make several arguments.  They allege that the repeal rulemaking violates the Due Process Clause, Administrative Procedure Act (APA), and Supreme Court precedent.  They say that the Due Process Clause has been violated because the rulemaking was not undertaken with an open mind, instead it was already pre-judged or all but decided before the process even started.  They cite many violations of the APA—including failing to provide a “reasoned explanation” for the repeal, failing to discuss alternatives to repealing the rule, and failing to provide a meaningful opportunity for public comment on the rulemaking.  Additionally, the environmental groups claim that the repeal “illegally departs from Justice Kennedy’s” opinion in the Rapanos case. Ultimately, Kennedy’s opinion in Rapanos is what led the EPA and Corps to scrap the 1986/1988 rule and create the 2015 rule to be more consistent with that opinion.  Therefore, the environmental groups argue that going back to the 1986/1988 version would violate Kennedy’s “significant nexus” test for WOTUS, which invalidated the old version of the rule.  In other words, the environmental groups believe that going back to the 1980s rules will result in less waters being protected.

New Mexico lawsuit

The New Mexico Cattle Growers’ Association (NMCGA) sued the EPA and the U.S. Army Corps of Engineers in the U.S. District Court for the District of New Mexico.  In the complaint, NMCGA asks the court to enjoin, or stop the enforcement of the repeal rule, claiming that the rule violates the CWA, the Congressional Review Act, the Commerce Clause, the Due Process Clause, the Non-delegation Doctrine, and the Tenth Amendment.  The NMCGA’s argument hinges on the definition of “navigable waters.” Under the CWA, “navigable waters” are the same as WOTUS.  Like the environmental groups in South Carolina, NMCGA interprets the Rapanos decision as invalidating provisions of the 1986/1988 WOTUS rule.  NMCGA, however, reads Rapanos as limiting “navigable waters” to only the waters that are actually navigable, or “navigable-in-fact.” Thus, unlike the environmental groups, NMCGA believes that both the 1986/1988 rule and the 2015 rule result in more waters being regulated than is allowed under the CWA and Supreme Court decisions. 

Will the tide turn on WOTUS in the future?

Despite the Trump EPA’s repeal and upcoming replacement of the 2015 rule, the future of WOTUS is anything but certain.  The lawsuits in South Carolina and New Mexico are just the latest proof of that. What is more, the lawsuits to enjoin the 2015 rule are still ongoing, and it is unclear whether they will be wiped out when the repeal rule becomes effective in December.  When the replacement rule is finally published, there is no doubt even more lawsuits will follow. It’s also important to remember that we have an election next year, so if there’s a new administration, they’ll probably put their own stamp on WOTUS. 

By: Ellen Essman, Thursday, November 14th, 2019

We haven’t done a legislative update in a while—so what’s been going on in the Ohio General Assembly? Without further ado, here is an update on some notable ag-related bills that have recently passed one of the houses, been discussed in committee, or been introduced. 

  • House Bill 7, “Create water quality protection and preservation”

This bill passed the House in June, but the Senate Finance Committee had a hearing on it just last month.  HB 7 would create both the H2Ohio Trust Fund and the H2Ohio Advisory Council.  To explain these entities in the simplest terms, the H2Ohio Advisory Council would decide how to spend the money in the H2Ohio Trust Fund.  The money could be used for grants, loans, and remediation projects to address water quality priorities in the state, to fund research concerning water quality, to encourage cooperation in addressing water quality problems among various groups, and for priorities identified by the Ohio Lake Erie commission.  The Council would be made up of the following: the directors of the Ohio Department of Agriculture (ODA), the Ohio Environmental Protection Agency (OEPA), and the Ohio Department of Natural Resources (ODNR) the executive director of the Ohio Lake Erie commission, one state senator from each party appointed by the President of the Senate, one state representative from each party appointed by the Speaker of the House, and appointees from the Governor to represent counties, municipal corporations, public health, business or tourism, agriculture, statewide environmental advocacy organizations, and institutions of higher education. Under HB 7, the ODA, OEPA, and ODNR would have to submit an annual plan to be accepted or rejected by the Council, which would detail how the agencies planned to use their money from the Fund. You can find the bill in its current form here

  • House Bill 24, “Revise Humane Society law”

HB 24 passed the House unanimously on October 30, and has since been referred to the Senate Committee on Agriculture & Natural Resources.  The bill would revise procedures for humane society operations and require humane society agents to successfully complete training in order to serve.  Importantly, HB 24 would allow law enforcement officers to seize and impound any animal the officer has probable cause to believe is the subject of an animal cruelty offense.  Currently, the ability to seize and impound only applies to companion animals such as dogs and cats.  You can read HB 24 here

  • House Bill 160, “Revise alcoholic ice cream law”

Since our last legislative update, HB 160 has passed the House and is currently in Agriculture & Natural Resources Committee in the Senate.  At present, those wishing to sell ice cream containing alcohol must in Ohio obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol.  This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers who are authorized to sell alcohol. To read the bill, click here.

  • House Bill 168, “Establish affirmative defense-certain hazardous substance release”

This bill was passed in the House back in May, but there have been several committee hearings on it this fall.  HB 168 would provide a bona fide prospective purchaser of a facility that was contaminated with hazardous substances before the purchase with immunity from liability to the state in a civil action.  In other words, the bona fide prospective purchaser would not have the responsibility of paying the state of Ohio for their investigations and remediation of the facility. In order to claim this immunity, the purchaser would have to show that they fall under the definition of a bona fide prospective purchaser, that the state’s cause of action rests upon the person’s status as an owner or operator of the facility, and that the person does not impede a response action or natural resource restoration at the facility. You can find the bill and related information here.

  • House Bill 183, “Allow tax credits to assist beginning farmers”

House Bill 183 was discussed in the House Agriculture & Rural Development Committee on November 12.  This bill would authorize a nonrefundable income tax credit for beginning farmers who attend a financial management program.  Another nonrefundable tax credit would be available for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers.  ODA would be in charge of certifying individuals as “beginning farmers” and approving eligible financial management programs. HB 183 is available here. A companion bill (SB 159) has been introduced in the Senate and referred to the Ways & Means Committee, but no committee hearings have taken place.    

  • House Bill 373, “Eliminate apprentice/special auctioneer licenses/other changes”

HB 373 was introduced on October 22, and the House Agriculture & Rural Development Committee held a hearing on it on November 12. This bill would make numerous changes to laws applicable to auctioneers.  For instance, it would eliminate the requirement that a person must serve as an apprentice auctioneer prior to becoming an auctioneer; instead, it would require applicants for an auctioneers’ license to pass a course. The bill would also require licensed auctioneers to complete eight continuing education hours prior to renewing their license.  HB 373 would give ODA the authority to regulate online auctions conducted by  a human licensed auctioneer, and would require people auctioning real or personal property on the internet to be licensed as an auctioneer. To read the bill in its entirety and see all the changes it would make, click here.

  • Senate Bill 2, “Create watershed planning structure”

Since our last legislative post, SB 2 has passed the Senate and is now in the House Energy and Natural Resources Committee. If passed, this bill would do four main things. First, it would create the Statewide Watershed Planning and Management Program, which would be tasked with improving and protecting the watersheds in the state, and would be administered by the ODA director.  Under this program, the director of ODA would have to categorize watersheds in Ohio and appoint watershed planning and management coordinators in each watershed region.  The coordinators would work with soil and water conservation districts to identify water quality impairment, and to gather information on conservation practices.  Second, the bill states the General Assembly’s intent to work with agricultural, conservation, and environmental organizations and universities to create a certification program for farmers, where the farmers would use practices meant to minimize negative water quality impacts. Third, SB 2 charges ODA, with help from the Lake Erie Commission and the Ohio Soil and Water Conservation Commission, to start a watershed pilot program that would help farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorus.  Finally, the bill would allow regional water and sewer districts to make loans and grants and to enter into cooperative agreements with any person or corporation, and would allow districts to offer discounted rentals or charges to people with low or moderate incomes, as well as to people who qualify for the homestead exemption. The text of SB 2 is available here.

  • Senate Bill 234, “Regards regulation of wind farms and wind turbine setbacks”

Senate Bill 234 was just introduced on November 6, 2019.  The bill would give voters in the unincorporated areas of townships the power to have a referendum vote on certificates or amendments to economically significant and large wind farms issued by the Ohio Power and Siting Board. The voters could approve or reject the certificate for a new wind farm or an amendment to an existing certificate by majority vote.  The bill would also change minimum setback distances for wind farms might be measured.  SB 234 is available here.  A companion bill was also recently introduced in the House.  HB 401 can be found here

By: Ellen Essman, Monday, November 04th, 2019

If you’ve been keeping up with the ag news lately, chances are you’ve heard a lot about the Renewable Fuel Standard (RFS).  As a refresher, the RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel.” Renewable fuels include biofuels made from crops such as corn and soybeans. Lately, you may have heard discussion about a controversial new rule regarding the volumes of biofuels that are required to be mixed with oil.  While all that talk has been going on, there has also been a lawsuit against the EPA for RFS exemptions given to certain oil refineries.  Congress has been examining the exemptions as well. Having trouble keeping all of this RFS information straight? We’ll help you sort it out. 

EPA proposes new RFS rule

As we explained in our last Ag Law Harvest post, available here, the Environmental Protection Agency (EPA) recently released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the RFS program in 2020 and 2021.  Agricultural and biofuels groups are not pleased with the proposed blending rules, arguing that the way EPA proposes to calculate biofuel volumes would result in much lower volumes than they were originally promised by President Trump. (The original promise was made in part to make up for waivers the Trump EPA had given to oil refineries.) Conversely, EPA and the Trump administration contend that the proposed rule does meet the previously agreed upon biofuel volumes.  A hearing on the proposed rule was held on October 30, where many agriculture and biofuels groups expressed their concerns.  The oil industry was also represented at the hearing.  Members of the oil industry feel that the cost of mixing in biofuels is too high.  It is unlikely any deal was struck at the hearing, but there is still an opportunity to comment on the proposed rule if you wish.  Comments are due on November 29, 2019.  You can click here for commenting instructions, as well as for a link to submit your comment online. 

Ag and biofuels groups sue the EPA

In the midst of the argument over how the volumes of biodiesel under the RFS will be calculated, another related quarrel has emerged. At the center of this dispute are exemptions EPA has given to “small refineries” in the oil industry. The number of exemptions given has increased drastically under the Trump administration, which in turn has lessened the demand for biofuels made from crops like corn and soybeans.  On October 23, 2019, agriculture and biofuel groups filed a petition against the EPA in the U.S. Court of Appeals for the D.C. Circuit. In the petition, the groups ask the court to review a decision made in August 2019 which retroactively exempted over 31 small refineries from meeting their 2018 biofuels requirements.  The petitioning groups include Renewable Fuels Association, American Coalition for Ethanol, Growth Energy, National Biodiesel Board, National Corn Growers Association, and National Farmers Union. 

How does the small refinery exemption work?

Typically, an oil refinery would have to mix a set volume of renewable fuels, like biofuels, into their gasoline or diesel fuel. The volumes are set annually. Small refineries, which are defined as refineries where “the average aggregate daily crude oil throughput does not exceed 75,000 barrels,” can petition the EPA for an exemption from meeting their renewable fuel obligations. Exemptions are typically given temporarily if the refinery can show they would suffer economic hardship if they were made to blend their fuel with biofuel.  A refinery seeking an exemption has to include a number of records showing their economic hardship in their petition, such as tax filings and financial statements.  EPA’s website explaining the small refinery exemption is available here.

Why are ag and biofuel groups asking for judicial review?

Why are the groups we mentioned above upset about this particular set of small refinery exemptions?  Well, first of all, the groups point to the brevity of the EPA’s decision. (The decision document can be found in the link to the petition, listed above.)  The EPA’s decision document uses only two pages to explain their decision on 36 small refinery petitions.  Because the decision was so short, the groups feel that EPA did not include the analysis of economic hardship for each refinery that they believe is required by the Clean Air Act and RFS regulations.  Essentially, the groups argue that the EPA has not provided enough evidence or explanation for awarding the exemptions.  You can read the groups’ press release explaining their reasoning here

Underlying all of this is the fact that more small refinery exemptions means lower demand for biofuels.  In fact, the ag and biofuel groups claim that due to the 31 exemptions made in August alone, 1.5 billion gallons of renewable fuel were not used.  In addition, the 31 exemptions are just a few of many awarded by Trump’s EPA.  By all accounts, since Trump took office, there has been a sharp increase in exemptions granted.  EPA has data on the number of exemptions available here.  The first year the Trump administration made exemptions is 2016. 

Congress gets in on the action

It seems as though the House Subcommittee on Environment and Climate Change (part of the Committee on Energy and Commerce) is also worried about EPA’s exemptions, or waivers, for small oil refineries.  On October 29, 2019, the Subcommittee held an oversight hearing entitled “Protecting the RFS: The Trump Administration’s Abuse of Secret Waivers.”  In fact, in their memo about the hearing, the Subcommittee cited some of the same issues in the lawsuit we discussed above; namely the increase in waivers and the consequent effect on biofuel demand. Testimony was heard from both ag/biofuels and oil representatives.    

In the hearing, the Subcommittee also considered the proposed “Renewable Fuel Standard Integrity Act of 2019.”  The text of the bill is available here.  The bill would require small refineries to submit petitions for exemptions from RFS requirements annually by June 1.  Additionally, it would require information in the waiver petitions to be available to the American public.  For information and documents related to the hearing, as well as a video stream of the hearing, click here

What happens next?

As you can see, we’re playing a waiting game on three separate fronts.  For the RFS rule, we’ll have to wait and see what kind of comments are submitted, and whether or not the EPA takes those comments into account when it writes the final rule.  As for the lawsuit, all eyes are on the Court of Appeals for the D.C. Circuit.  The court could determine that the law does indeed require EPA to include more information and analysis to explain their reasons for exemption. On the other hand, the court could find that EPA’s decision document is sufficient under the law.  In Congress, we’ll have to wait and see whether the proposed bill gets out of the Committee on Energy and Commerce and onto the House floor.  We will be keeping track of the RFS developments on all fronts and keep you updated on what happens!  

Evin Bachelor at OSU Farm Science Review
By: Peggy Kirk Hall, Friday, October 18th, 2019

Mentoring is a rewarding part of my position with OSU, but it is often a bittersweet experience to see young people come and go.  Such is the case with our law fellow Evin Bachelor, whom I’ve had the privilege of mentoring for the past two years.  Evin left the Farm Office on September 30 to pursue private practice. 

While I’m happy to send Evin off to serve farmers with his brilliant legal mind, I’m sad to see him go.  I will miss his passion, his cleverness, his analytical gifts, and his hearty laugh.  But it’s been a joy to help Evin evolve from a law student curious about agricultural law to an attorney prepared to impact the world of agricultural law.  He has deftly exceeded every challenge I’ve given him.

One of those challenges was to co-author a set of law bulletins on legal documents used in farm financing arrangements, his final project.  The Financing the Farm law bulletin series, which specifically targets new and beginning farmers, is now available.  The series includes explanations of mortgages, promissory notes, installment contracts, leasing arrangements and secured transactions, and how they’re used in farm financing.  Access the law bulletins in the Financing the Farm series here.

Evin will be practicing law with our good friends at Wright & Moore Law Co. LPA in Delaware, Ohio.  He's an excellent addition to an already outstanding agricultural law firm.  You’ll continue to see his work on the Farm Office, however, as I’ll be contracting with Evin on a few more finance and farm transition projects in the next year.  The mentorship and Evin’s time at OSU is over, but the relationship will continue.  A bittersweet ending, to be sure.

By: Ellen Essman, Wednesday, October 16th, 2019

In August, the Secretary of the Interior announced that the Trump Administration would be making revisions to the way the Endangered Species Act (ESA) is carried out under federal regulations.  The move was made in part to further the Administration’s goal to “ease the regulatory burden” on citizens.  The revised regulations apply to sections 4 and 7 of the ESA, which means they make changes to how species are listed as endangered, how critical habitat for species is determined, how threatened species are treated, and how the different federal agencies cooperate to carry out the ESA.

Revision of endangered, threatened, and critical habitat protections

The changes to how the ESA is carried out were made in three rulemakings published on August 27, 2019. One of the rules, available here, is meant to increase cooperation between federal agencies when carrying out the ESA (this rule is set to become effective on October 28).  Changes made by the other two rules, available here, and here, are much more controversial because they have a great impact on how endangered and threatened species and their habitats are treated under federal regulations. The new rules went into effect on September 26, 2019. We discuss some of the biggest modifications below.

 First, the rules change the term “physical or biological features” to “physical or biological features essential to the conservation of the species.” This change will likely diminish the number of natural features and areas that will be protected, since only those deemed essential to an endangered species will be protected. Similarly, the new rules give the federal government more leeway to determine when habitat is not critical habitat for species, which may result in less habitat being protected under the new iteration of the rules.

 In yet another change, the new rules separate the discussion of “threatened” and “endangered” species within the regulatory text.  Due to this uncoupling, some read the new version of the rule as stripping threatened species of protections they enjoyed when they were more closely related to endangered species. The new edition of the rules instead includes factors for determining whether a species can be listed as threatened, such as whether it is likely the species will become endangered in the “foreseeable future,” which will be determined on a case by case basis.  Critics of the new rules believe that this language will give the government the discretion to overlook the effects of climate change on a species, which could play out over a period of time longer than the “foreseeable future.” Along the same lines, the rules also make it harder to ban certain activities in order to protect threatened species.

 The rules weaken the ESA by allowing the federal government to take into account the actions of states, other nations, and local jurisdictions when listing and delisting species. In other words, if the species is being protected on another level of government or by another country, the U.S. government may be less inclined to protect the species; either by choosing not to list the species, or by removing its threatened or endangered status. Importantly, the new rules also allow “commercial information,” not just scientific information, to be considered when making a decision. Under the old rules, agencies were not allowed to consider the economic impacts of listing or delisting a species. On the whole, the rules seem to give the federal government a lot more discretion to determine that species or habitats should not be protected.

Lawsuits

On September 25, 2019, the day before the new rules became effective, the attorneys general from 17 states, including Ohio’s neighbors Michigan and Pennsylvania, sued the Trump Administration in federal court over the changes to the rules.  You can find the complaint here.  The states assert that the rulemaking violates several federal statutes, including the Administrative Procedure Act, which governs federal administrative agencies.  The states further claim that the weakening of protections for endangered and threatened species and their habitats will cause harm to their natural resources, harm to their citizens through environmental degradation, take away the current and future economic benefits of protected species, and increase costs for state governments.

Congressional action

 Amidst all the rule changes and lawsuits, members of Congress have been working on their own potential changes to the ESA.  Recently, the Congressional Western Caucus, a group of congress members from all around the country who are concerned with land use and resource rights, among other causes, introduced nineteen bills meant to “modernize” the ESA.  If you’re interested in the specifics of each bill, they are listed on the Caucus’ website, here.  Overall, the bills focus on fixing the ESA by implementing “defined recovery goals” for species, relying on “standardized…publically available” science, and allowing more involvement from states and stakeholders on endangered species decisions. 

With action taking place on the administrative, legislative, and judicial levels of the federal government, the way the ESA is written and interpreted seems to be up in the air at present. We will be sure to update the Ag Law Blog with any developments. 

By: Ellen Essman, Friday, September 06th, 2019

These days, industrial hemp never seems to leave the news. Just this week, the U.S. Court of Appeals for the Ninth Circuit declined to decide a case involving the interstate shipment of hemp between Oregon and Colorado by way of Idaho.  Hemp is illegal in Idaho, where the product was seized and the driver was arrested, even though the 2018 Farm Bill allows for the interstate transportation of hemp.  The Ninth Circuit, reviewing the case, determined that the state court actions needed to be decided before federal courts could hear the case.  As you may be aware, Ohio also made news this summer when the state passed a bill legalizing hemp in the state. 

All of these developments involving industrial hemp may leave you with many questions. What is hemp? What did the 2018 Farm Bill do? What does Ohio’s new law do? Most importantly, can I grow and process hemp right now? To help farmers and others interested in the status of the hemp industry, we have recently added a law bulletin entitled “Legal or Not? Growing Industrial Hemp in Ohio” to our Ag Law Library.  There, we sort out the above questions and more.  We also discuss the anticipated development of federal and state hemp regulations.  The bulletin is available for you to read here

By: Ellen Essman, Friday, July 19th, 2019

It’s been a busy week in Columbus, with the Ohio General Assembly sending multiple bills to Governor Mike DeWine for his signature.  One of the bills is one we have been following very closely—Substitute Senate Bill 57, or the “hemp bill.”

Bill history

Ohio’s hemp bill was originally introduced in the Senate in February.  The bill was written in response to the 2018 federal Farm Bill, which gave states the option to create hemp programs so that citizens within the state could cultivate and sell hemp products.  For a breakdown of the Farm Bill, see our post here.  Ohio’s hemp bill passed the Senate in March, and was sent to the House, where numerous amendments were made. 

House amendments

The Ohio House made many changes to the Senate’s original hemp bill.  In June, we highlighted those changes in a post you can find here.  Most importantly, the House version, in addition to requiring a license to cultivate hemp, also requires a license to process hemp into different products. Additionally, the House’s substitute version of the bill created a Hemp Marketing Program, which would be similar to other grain and soybean marketing programs, added legally cultivated hemp to the list of agricultural uses permitted under CAUV, required setbacks between hemp and medical marijuana cultivation, and banned people from obtaining both hemp licenses and medical marijuana licenses, among other changes. 

This week’s developments

We were not expecting the hemp bill to pass the General Assembly this week, as House Speaker Larry Householder indicated in June that the House would not vote on the bill until September 2019.  However, on July 17, 2019, the bill passed in the House with emergency language, and the changes were quickly accepted by the Senate. During the July 17 afternoon legislative session, we were given some possible insight into why the bill passed so quickly and unexpectedly; State Representative Koehler spoke about the need to help Ohio’s farmers given all the struggles they currently face.  Representative Koehler viewed quick passage of the bill as an opportunity for Ohio farmers to potentially have a new commodity crop in the ground next spring.

 The emergency language in the final version of the bill means that once signed by the Governor, the law will go into immediate effect.  In other words, once the bill passes, hemp and hemp products will be decriminalized in Ohio and the Ohio Department of Agriculture (ODA) will be able to immediately begin the process of writing regulations to carry out the new hemp cultivation and processing programs. 

Great! Can I plant hemp right now?

No. Even with the emergency language in the bill, a few things still need to happen before farmers can plant hemp.  First and most obviously, Governor DeWine still needs to sign the bill into law.  Then, ODA must begin its hemp program rulemaking.  The rules will not become effective until the United States Department of Agriculture (USDA) approves of Ohio’s hemp program.  After USDA approves the program, then ODA will be able to approve licenses for those who want to cultivate and process hemp. The Ag Law Blog will keep you updated on the hemp rules and USDA’s decision—stay tuned!

Posted In: Crop Issues, Uncategorized
Tags: hemp, industrial hemp
Comments: 0
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.

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