ag law harvest

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

Written by: Evin Bachelor, Law Fellow

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

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

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

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

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

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

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

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


Ohio Case Law Update

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

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

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

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

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

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

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

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

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

Ohio Case Law Update

  • Signing a mortgage is enough to bind signatory despite not being named in the mortgage if the signature demonstrates an intent to be bound by the mortgage.  The Bankruptcy Appellate Panel for the United States Sixth Circuit Court of Appeals asked the Ohio Supreme Court to clarify “whether a mortgage is invalid and unenforceable against the interest of a person who has initialed, signed, and acknowledged the mortgage agreement but who is not identified by name in the body of the agreement.”  In this case, Vodrick and Marcy Perry filed for bankruptcy.  At issue was a piece of property subject to a promissory note and mortgage.  The bank held the promissory note, which was signed and initialed by Mr. Perry only, while the mortgage was signed by both Mr. and Mrs. Perry.  The Ohio Supreme Court held that “the failure to identify a signatory by name in the body of a mortgage agreement does not render the agreement unenforceable as a matter of law against that signatory.”  The focus is on the signor’s intent to be bound by the mortgage, even if the mortgage itself does not mention the signor by name.  The case is cited as Bank of New York Mellon v. Rhiel, Slip Opinion No. 2018-Ohio-5087, and the Ohio Supreme Court’s opinion is available here.
  • Specific reference in a deed to a mineral interest preserves the interest despite Marketable Title Act when the reference includes the type of interest created and to whom the interest was granted.  Generally, Ohio’s Marketable Title Act allows a landowner with an unbroken chain of title for forty years or more to take an interest in the land free and clear of other claims that arose before the “root of title.”  However, there is an exception where prior interests will still apply if there is a specific identification of a recorded title transaction, rather than a general reference to an interest.  In this case, Nick and Flora Kuhn conveyed a 60-acre tract of land in 1915, but retained an interest in royalties from any oil and gas extracted from the parcel, specifically naming Nick and Flora Kuhn and their heirs and assigns.  Then in 1969, the Blackstone family purchased the 60-acre parcel, and received a deed that included language “[e]xcepting the one-half interest in oil and gas royalty previously excepted by Nick Kuhn, their [sic] heirs and assigns in the above described sixty acres.”  The Blackstone family sought to quiet title and have the Kuhn heirs’ interest extinguished or deemed abandoned in 2012.  The Ohio Supreme Court interpreted the language in the deed as sufficient to survive Ohio’s Marketable Title Act, which preserves the Kuhn heirs’ oil and gas interest that dates back to 1915.  The case is cited as Blackstone v. Moore, Slip Opinion No. 2018-Ohio-4959, and the Ohio Supreme Court’s opinion is available here.
By: Evin Bachelor, Wednesday, December 19th, 2018

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

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

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

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

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

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

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


Ohio legislation on the move:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ohio legislation on the move:

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

  • Ohio Senate Agriculture Committee held first hearing on multi-parcel auction bill.  State senators heard testimony on House Bill 480 last Tuesday, November 13th.  The bill would authorize the Ohio Department of Agriculture to regulate multi-parcel auctions, which are currently not specifically addressed in the Ohio Revised Code.  The bill also defines “multi-parcel auction,” saying such an auction is one involving real or personal property in which multiple parcels or lots are offered for sale in part or in whole.  The bill would also establish certain advertising requirements.  The bill’s primary sponsor, Representative Brian Hill of Zanesville, says that he introduced the bill in an effort to recognize by statute what auctioneers are already doing, and to do so without interrupting the industry.  The bill passed the Ohio House of Representatives 93-0 in June.  For more information on the legislation, visit the House Bill 480 page on Ohio General Assembly’s website or view this bill analysis prepared by the Ohio Legislative Service Commission.
By: Evin Bachelor, Friday, November 02nd, 2018

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

We’re back from the American Agricultural Law Association’s 2018 symposium, which was held in Portland, Oregon this year.  We had the chance to hear from lawyers and experts from across the nation on various legal issues facing agriculture.  Stay tuned to the Ag Law Blog for an update on what we learned at the symposium, but first, here’s the latest in agricultural law news:

Vote to designate watersheds in distress tabled by Ohio Soil and Water Conservation Commission.  As recently reported in the Ag Law Blog, the Ohio Soil and Water Conservation Commission held a meeting this week to discuss whether to designate certain sub-watersheds in the Western Lake Erie Basin as “in distress.”  Such designation would trigger additional management and reporting requirements on farmers in affected watersheds.  The Commission voted 4-3 to table the discussion and wait for the Joint Committee on Agency Rule Review (JCARR) to examine the Ohio Department of Agriculture’s proposed rule changes next month.  This week’s vote maintains the status quo without extending the “in distress” designation to other watersheds.

FDA releases two FSMA draft guidance documents.  The Food and Drug Administration recently released draft guidance documents explaining how to follow rules under the Food Safety Modernization Act (FSMA).  One document, titled “Guide to Minimize Food Safety Hazards of Fresh-cut Produce,” provides guidance on how to follow the Preventive Controls Rule under FSMA.  “Fresh-cut produce,” is defined as “any fresh fruit or vegetable or combination thereof that has been physically altered from its whole state after being harvested from the field without additional processing.”  The guidance would affect manufacturers, processors, packers, and holders of fresh-cut produce.  The document covers current good manufacturing practices, as well as “new requirements for hazard analysis and risk-based preventive controls.”  The draft guidance document, in addition to information on how to submit a comment on the guidance, is available here

The second draft guidance document is titled “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry.”  This document provides guidance on how to follow FSMA’s Produce Safety Rule.  The guidance would affect produce farms.  The guidance covers personnel qualifications and training, health and hygiene practices, biological soil amendments, contamination from domesticated and wild animals, suggestions for practices during the growing, harvesting, packing, and holding of produce, sanitation of equipment, recordkeeping on produce farms, and other topics.  According to a press release about the two guidance documents, FDA will be holding a series of four public meetings at various places around the U.S. to discuss the second draft guidance document with those affected.  FDA will be announcing the details about the meetings in the Federal Register soon.

It is important to remember that these are draft guidance documents.  Furthermore, guidance documents are just that—guidance.  In other words, the documents are there as suggestions on how to follow rules, and “do not establish legally enforceable responsibilities.”

EPA renews dicamba registration for cotton and soybeans, and updates labels.  On October 31, 2018, the United States Environmental Protection Agency (EPA) shared its decision on changes to applying dicamba, the much discussed herbicide.  EPA renewed the herbicide’s registration until December 20, 2020 for application to growing (what EPA terms “over-the-top”) dicamba-resistant cotton and soybean plants. 

Below is EPA’s list of label alterations to dicamba products for the 2019-2020 growing season:

  • Two-year registration (until December 20, 2020)
  • Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications) 
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 OTT applications)
  • Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Clarify training period for 2019 and beyond, ensuring consistency across all three products (Xtendimax with Vapor Grip Technology, Engenia Herbicide, DuPont FeXapan Herbicide)
  • Enhanced tank clean out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

EPA’s press release is available here.  More information on dicamba registration for resistant cotton and soybeans is available here

Judge reduces jury verdict against Bayer’s Monsanto.  As we predicted in a previous edition of The Harvest, Bayer’s Monsanto quickly challenged a quarter billion dollar verdict granted by a San Francisco jury to a plaintiff who alleged that Monsanto’s Roundup weed killer caused his cancer.  Monsanto asked the judge to reconsider the jury’s verdict, and on Monday, October 22nd, the judge reduced the punitive damages portion of the jury verdict from $250 million to $39.25 million.  The judge accepted the jury’s finding that Monsanto acted with malice, but said that the evidence did not justify a quarter billion dollar award.  The judge did uphold the $39.25 million compensatory damages verdict.  In total, the plaintiff would receive a $78.5 million award.  Just this week, the plaintiff accepted the reduction in the award, saying that he will not ask the judge to reconsider the decision on damages.  However, the litigation seems likely to continue, so stay tuned to the Ag Law Blog for more updates about the glyphosate and Roundup lawsuits.

Blockchain: the future of information sharing?  We keep hearing about Blockchain technology, but what is it?  Blockchain is a digital system that allows users to securely transfer information and money without an intermediary to facilitate the transfer.  The transfers are recorded and timestamped, and the information contained in the “blocks” cannot be modified without the agreement of a majority of network users.  The system is decentralized in nature, meaning that the information is not stored in one location but is rather is stored on servers across the globe.  This makes the system more secure and less prone to modification because no single user can control the blockchain.  Its early uses were for digital cryptocurrencies like Bitcoin, but its uses have expanded into information.  The system has a potential in almost every sector of the economy, agriculture included.  For example, Walmart announced plans to utilize blockchain to quickly track products like produce all the way from the ground to the consumer.  By tracking information on foods like produce, companies like Walmart hope to be able to quickly determine sources of contamination in its food supply.  This would not only be a way to save lives, but to also not have to waste produce that was not contaminated.  For more information on Blockchain, here is a webinar from the National Agricultural Law Center that goes more in depth on what blockchain is, how it works, and how it can be utilized to help agriculture.

By: Evin Bachelor, Friday, October 12th, 2018

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

Here's a gathering of recent agricultural law news from OSU's Agricultural & Resource Law Program:

FDA seeks comments, asking “what is milk?”  The Food and Drug Administration recently posted a request for public comment in the Federal Register regarding the labeling of plant-based products that use terms associated with dairy in their names.  The FDA explains that it wants to know how consumers use products like soy milk and whether such labels provide enough clarity to consumers.  The press releases can be viewed here.  The public may submit comments here until November 27th, 2018.

Sixth Circuit says Clean Water Act does not cover discharges into ground water.  The U.S. Court of Appeals for the Sixth Circuit, which includes Ohio, published an opinion on September 24th that seems to limit the extent of the Clean Water Act.  At issue in Tennessee Clean Water Network v. Tennessee Valley Authority was whether the TVA violated the Clean Water Act by dumping coal ash into a pond that was leaking into ground water that eventually would reach the Cumberland River.  The Fourth and Ninth Circuits previously published opinions saying that an underground “hydrological connection” between protected navigable Waters of the United States and unprotected ground water was enough to require a Clean Water Act permit.  In rejecting this approach, the Sixth Circuit creates a split that may send this question to the Supreme Court.  For now, the law in the Sixth Circuit, and therefore Ohio, is that a discharge into an underground water source that has a hydrological connection to a federal navigable water is not a discharge from a point source that triggers Clean Water Act protections.  The Sixth Circuit’s opinion is available online here.

Water Infrastructure Bill Headed to the President’s Desk.  After a bipartisan effort, Congress passed “America’s Water Infrastructure Act of 2018” on Wednesday with a 99-1 vote in the Senate.  The House had approved the bill by a voice vote in mid-September.  If signed by the President, the law would authorize the Army Corps of Engineer to carry out a variety of river and harbor improvements across the country, along with other conservation and water resource development projects.  The bill did not specifically earmark projects for Ohio, but it did authorize a Coastal Resiliency Study for the Great Lakes.  Also included in the bill was a reauthorization for the Safe Drinking Water Act, which authorizes the U.S. EPA to set drinking water standards and work toward reaching those standards.  Visit Congress’s website for the full text of the Senate Bill 3021.

States wait to decide on whether to end joint Ohio River standards.  Currently, the Ohio River Valley Water Sanitation Commission (ORSANCO) sets water quality standards and performs assessments for the Ohio River Basin.  Formed in 1948, ORSANCO includes representatives from Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Virginia, West Virginia, and the federal government.  The members of the commission were set last week to vote on whether to decentralize the setting of water quality standards, and instead have the individual states along the Ohio River set their own standards.  The vote was postponed in order to provide commissioners with more time to consider the proposal.  According to WCPO Cincinnati and Politico, opponents of the proposal say that this could harm water quality by allowing conflicting standards, while proponents argue that the commission’s role is redundant in light of the U.S. EPA’s jurisdiction over the Ohio River and its major tributaries.  Learn more about ORSANCO by visiting their website.

Multi-year and lifetime hunting and fishing licenses become available in Ohio.  As we reported in a Harvest post earlier this year, Governor Kasich signed a bill into law that created multi-year and lifetime hunting and fishing licenses for residents of Ohio, and that allows the Division of Wildlife to offer licensure “packages” for any combination of licenses, permits, or stamps.  The new license categories are codified in Ohio Revised Code section 1533.321.  On Tuesday, October 9, 2018, the Ohio Department of Natural Resources announced that the new multi-year and lifetime hunting and fishing licenses were available for purchase.  The options include 3, 5, 10-year, and lifetime licenses for three age categories—Youth (17 and younger), Adult (18-65), and Senior (66 and older).  More information on hunting and fishing licenses can be found here, including pricing, and where and how licenses can be purchased.

NAFTA 2.0 is now USMCA.  The Office of the U.S. Trade Representative has released the text of the proposed United States-Mexico-Canada Agreement (USMCA), which President Trump intends to use as a replacement for the North American Free Trade Agreement (NAFTA).  NAFTA is currently a federal statute, and replacing it will require an act of Congress.  The U.S. Trade Representative’s webpage contains official summaries and fact sheets regarding the agreement, along with the current text of the agreement.

Posted In:
Tags: ag law harvest
Comments: 0
By: Peggy Kirk Hall, Thursday, September 27th, 2018

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

We’re back from another successful Farm Science Review!  Thank you to everyone who stopped by our booth to ask us questions and pick up law bulletins.  We received some great suggestions on new topics affecting agricultural law, so stay tuned as we post more to our Ag Law Blog and Law Library in the near future.

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

ODA reviews meat inspection rules.  Ohio’s meat inspection rules are up for review under the state’s Five-Year Review requirement.  The Ohio Department of Agriculture (ODA) recently posted the proposed changes to Ohio Administrative Code 901:2-1; 901:2-3; 901:2-6; and 901:2-7 for stakeholder comment on its website.  The primary changes to the substance of the rules are meant to bring them into compliance with new federal requirements that took effect earlier this year.  ODA also proposes to merge the interstate and intrastate regulations, which could change some rule numbers, but not necessarily their substance.  ODA will be accepting comments until Monday, October 1, 2018, which stakeholders may submit to AGReComments@agri.ohio.gov.

OSU explains tariff relief program and impacts.   Our good friend and economist Ben Brown and other policy experts in OSU's College of Food, Agricultural, and Environmental Sciences recently published information that explains and analyzes the USDA’s response to the tariffs.  View a brief brochure that explains the Market Facilitation Program here.  View a longer report on the Market Facilitation Program and the impacts on farm income in Ohio here .

U.S. EPA petitions for new hearing on Chlorpyrifos registrations.  A panel of three judges on the U.S. Court of Appeals for the Ninth Circuit in San Francisco ordered the U.S. Environmental Protection Agency (EPA) to cancel chlorpyrifos registrations in August.  The judges cited scientific evidence that the chemical insecticide causes developmental defects in children.  The U.S. Department of Justice (DOJ), on behalf of the U.S. EPA, filed a petition on Monday, September 24th, requesting an en banc hearing on the decision.  If granted, an en banc hearing would involve all the judges who serve on the Ninth Circuit, rather than only the three judges who initially ordered the cancellation of the registrations.  The U.S. DOJ argues that the August decision was incorrect and that the court should allow the U.S. EPA to reconsider the insecticide’s registration.  For more details, check out The Progressive Farmer’s post here.

License needed to broker oil and gas leases in Ohio.  On Tuesday, September 25th, the Ohio Supreme Court decided that oil and gas leases fall within the statutory definition of “real estate.”  As such, a person who offers and negotiates an oil and gas lease must have a real estate broker’s license under Ohio Revised Code § 4735.01(A) and § 4735.02(A).  Check out Court News Ohio’s webpage for more details.

No "bill of rights" vote for Lake Erie.  The group Toledoans for Safe Water sought to put a “Lake Erie Bill of Rights” on the ballot this November as an amendment to the Toledo City Charter.  The amendment would have stated that Lake Erie and its watershed “possess the right to exist, flourish, and naturally evolve,” and that the citizens of Toledo have a right to a clean and healthy environment.  Enforcement would have been through a mix of revoking corporate licenses and privileges or criminal penalties if violated.  Despite having enough signatures, the Lucas County Board of Elections refused to place the issue on the ballot, saying that the amendment contained provisions beyond the City of Toledo’s authority.  The dispute made it up to the Ohio Supreme Court, which on Friday, September 21st, decided that Toledoans for Safe Water failed to prove that the Lucas County Board of Elections improperly denied their petition to place the issue on the ballot.  The court’s decision is here.

Iowa court makes owner liable for corporate liabilities.  An Iowa Court of Appeals decision recently allowed a plaintiff who was suing a biosolids management corporation to “pierce the corporate veil” and collect directly from the sole owner of the corporation.  The plaintiff obtained a judgment of $410,067 against the corporation for breach of contract after the corporation stopped performing its work.  However, the plaintiff could not collect against the corporation, and an Iowa Court of Appeals decided that the sole owner must pay the judgement.  The court said that the owner did not conduct the business or maintain its finances in a manner that demonstrates the existence of a separate legal entity from himself or his other businesses.  The owner co-mingled corporate and personal assets and accounts, failed to keep records, and had no bylaws or meeting records.  For more on the case, visit the Iowa State University’s Center for Agricultural Law and Taxation website here, or view the case opinion here.

California passes "home cooked food" law.  California's governor signed a bill into law last Friday that allows cities and counties to authorize and permit residents to operate “microenterprise home kitchens.”  Assembly Bill 626 exempts qualifying businesses from some food service facility regulations to allow residents to sell prepared food from their home, while also recognizing the differences between a home kitchen and a commercial kitchen.  To qualify, among other things, the operation can have no more than one full-time non-family employee, the food must be sold direct to the customer, and no more than 60 individual meals can be prepared per week.  The bill’s full text and legislative analysis are here.

Barn wedding popularity continues to grow.  Fifteen percent of weddings in the United States took place in a barn last year, according to a survey published by the wedding planning site The Knot.  In comparison, only two percent of weddings took place in a barn as recently as 2009.  The popularity of wedding barns has become a point of contention in many states, including Ohio, because statutory zoning exemptions for agriculture have been used to exempt wedding barns from zoning requirements.  We explain Ohio's zoning exemption for "agritourism" in this law bulletin.

Ohio legislation on the move:

  • Ohio Senate refers township bill to committee.  The Ohio House of Representatives passed House Bill 500 earlier this summer, and the bill has recently been referred to the Ohio Senate’s Local Government, Public Safety, and Veterans Affairs Committee.  House Bill 500 proposes to make a number of changes to Ohio’s township statutes, including a change to agricultural zoning regulations.  If passed as-is, the bill would allow a township to use zoning to regulate agricultural activities within any platted subdivision.  Under current law, townships are limited to a specified list of platted subdivisions that townships may regulate; however, the new law clarifies that the specified list is not intended to be exclusive.  For more information on the bill, view the bill analysis produced by the Ohio Legislative Service Commission, or visit the Ohio General Assembly’s website here.
By: Peggy Kirk Hall, Thursday, August 23rd, 2018

All is quiet at the statehouse as the Ohio legislature continues on its summer recess, but here’s our gathering of other agricultural law news you may want to know:

Does Roundup cause cancer?  A jury in California has determined that it’s possible.  The jury awarded $289 million last Friday against Monsanto in the first of thousands of cases alleging that Monsanto should have warned users about Roundup’s cancer risk.  The plaintiff argued that Monsanto has known for decades that the Roundup product could cause cancer but failed to warn consumers, while Monsanto claimed that more than 800 studies and reviews conclude that glyphosate itself does not cause cancer.   Monsanto plans to appeal the award.

Pursuing a Bill of Rights for Lake Erie.  The Toledoans for Safe Water submitted over 10,500 signatures last week on a petition proposing to amend the city’s charter to establish a bill of rights for Lake Erie.  The proposed bill of rights would state that Lake Erie and its watershed possesses a right to exist, flourish and naturally evolve; that the people of Toledo have a right to a clean and healthy Lake Erie, a collective and individual right to self-government in their local community and a right to a system of government that protects their rights; and that any corporation or government that violates the rights of Lake Erie could be prosecuted by the city and held legally liable for fines and all harm caused.  The effort is backed by the Community Environmental Legal Defense Fund.  If successful, the initiative would appear on the November ballot for Toledo residents.

EPA ordered to ban the sale of chlorpyrifos.  The U.S. Ninth Circuit  Court of Appeals late last week ordered the U.S. EPA within 60 days to cancel all registrations for chlorpyrifos, a pesticide first introduced by Dow and commonly used on crops and animals.  The court held that there was no justification for a decision by previous EPA Administrator Scott Pruitt refusing to grant a petition to ban chlorpyrifos in the face of scientific evidence that the pesticide can cause neurodevelopmental damage in children.  The court also discarded the agency’s argument that it could refuse to ban chlorpyrifos so based on a possible contradiction of evidence in the future.  Both actions, said the court, placed the agency in direct violation of the Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungicide and Rodenticide Act.  The highest uses of chlorpyrifos are on cotton and corn crops and almond and fruit trees.

Highest award in Smithfield nuisance litigation raises responses.   The third and largest jury award in a series of nuisance lawsuits in North Carolina yielded a $473.5 million award for plaintiffs claiming harm from hog farms owned by Smithfield.  The verdict will reduce to $94 million due to a state law that caps punitive damages.  Agricultural interests are claiming that the lawsuits circumvent state right to farm laws and are seeking state legislative responses.  Opponents are also hoping to reverse a gag order issued by the court to impose communication restrictions on potential witnesses, parties and lawyers in the cases.   The federal judge in the case, Hon. Earl Britt from the Eastern District of North Carolina, is stepping down due to health issues.  Hon. David Faber of the Southern District of West Virginia will replace Judge Britt and will soon hear a fourth trial that targets a 7,100 head hog farm in Sampson County, North Carolina.

It’s official: no reporting of air emissions from animal waste.   The U.S. EPA has posted a final rule clarifying that air emissions from animal waste at farms are exempt from federal regulations that require the reporting of air releases from hazardous wastes.  The rule implements an order by the U.S. Court of Appeals for the District of Columbia and revisions in the Fair Agricultural Reporting Method Act enacted by Congress earlier this year.  We reported on the court case and legislation earlier this year.

Written by Ellen Essman, Sr. Research Associate

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

Kasich’s Executive Order delayed.  As we previously wrote about, Governor John Kasich signed an executive order earlier this month which directed ODA to “consider whether it is appropriate to seek the consent of the Ohio Soil and Water Commission (OSWC) to designate” certain watersheds “as watersheds in distress due to increased nutrient levels resulting from phosphorous attached to soil sediment.”  The OSWC voted on July 19 to delay Kasich’s executive order, which means that the eight watersheds will not be labeled “watersheds in distress” at this time.  Instead, a subcommittee of the OSWC is tasked with researching and determining if each of the watersheds should be listed as “watersheds in distress.”  More information on this delay is available in Ohio’s Country Journal

ODA to submit “Watersheds in Distress” rule package.  In more news regarding “watersheds in distress,” ODA is expected to propose a new rule package.  While rules concerning watersheds in distress already limit the land application of manure on farms, the new rules would also limit the application of “nutrients,” which are defined as “nitrogen, phosphorus, or a combination of both.”  Stay tuned to the Ag Law Blog for any updates on this rule package!

ODA upgrades website.  The Ohio Department of Agriculture updated its website last month.  The update includes a section with frequently asked questions and answers for each of the separate Divisions. For example, the questions frequently asked about food safety, making and selling food are available here.  Head to www.agri.ohio.gov to check it out the new ODA website.  

Additional comments sought on WOTUS.  On July 12, 2018, the Army Corps of Engineers and the EPA published a supplemental notice of proposed rulemaking in the Federal Register.  The supplemental notice is meant to “clarify, supplement and seek additional comment on” last summer’s proposal to repeal the 2015 Waters of the United States (WOTUS) Rule.  As a reminder, the 2015 WOTUS rule expanded the meaning of “waters of the United States,” or those waters protected under the Clean Water Act, to include “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters and other waters that have a significant nexus to interstate waters.” If the 2015 WOTUS rule is repealed, then the pre-2015 regulations defining WOTUS will be recodified.  The agencies are seeking additional comments on the proposed rulemaking through this supplemental notice.  The comment period is open through August 13, 2018.  Comments can be left here

Ohio legislation on the move

  • Dogs on patios.  H.B. 263, which we have been following, was sent to the Governor on 7/24/2018.  Kasich’s signature would mean that food establishments and food service operations could permit customers to bring a dog into an outdoor dining area if the dog is vaccinated.  Each establishment must adopt a policy requiring customers to control their dogs and to keep their dogs out of indoor areas.  See our previous coverage of this legislation here and here
By: Peggy Kirk Hall, Friday, July 13th, 2018

Here's our gathering of recent agricultural law news you may want to know:

Case highlights value of Ohio’s Grain Indemnity Fund.  The recent prosecution and guilty plea of a grain handler who withheld $3.22 million in proceeds from grain he sold on behalf of 35 farmers in northern Ohio illustrates the value of Ohio’s Grain Indemnity Fund.  The farmers had received approximately $2.5 million in reimbursement from the fund, which protects farmers from grain handlers who become insolvent.  Though the fund, a farmer is reimbursed 100% for open storage grain in the elevator and 100% of the first $10,000 of a loss for future contracts, delayed price and basis transactions, with 80% reimbursement beyond the first $10,000 of loss.  The grain handler, Richard Schwan, must now reimburse the fund and pay additional amounts to the farmers and the state.  For more about the Grain Indemnity Fund, read our previous post.

More on North Carolina nuisance lawsuits against hog farms.  A jury decision on June 29, 2018 awarded $25.13 million to a couple living next door to a 4,700 head hog farm in North Carolina owned by a subsidiary of Smithfield Foods.  The award included $25 million in punitive damages.  The apparent reason for the jury’s significant punitive damage award is Smithfield’s failure to finance and utilize new technologies that could reduce the impacts of current anaerobic lagoon and spraying application technologies.  This is the second successful verdict in the second of many nuisance lawsuits filed by over 500 neighbors of hog farms owned by Smithfield.

North Carolina legislature reacts to nuisance wins.  In response to the first two jury awards against Smithfield, the North Carolina legislature adopted new restrictions on nuisance lawsuits against farm and forestry operations.  The legislation requires that a nuisance suit be filed within a year of the establishment of an agricultural or forestry operation or within a year of a “fundamental change” to the operation, which does not include changes in ownership, technology, product or size of the operation.  The bill also limits the awarding of punitive damages to operators with criminal convictions or those who’ve received regulatory notices of violation.  North Carolina Governor Roy Cooper vetoed the bill, but the legislature successfully overrode the veto.

Meanwhile, Court upholds Iowa Right-to-Farm law.  The Iowa Supreme Court declined a request to declare the Iowa Right-to-Farm law facially unconstitutional for exceeding the state's police power.  The court concluded that the Right-to-Farm law, which protects animal feeding operations that are in compliance with applicable laws and utilizing generally acceptable agricultural practices from nuisance lawsuits, falls within the legislature’s police power but could be unconstitutional as applied to a particular situation.  However, such a determination requires application of a three part test and extensive fact finding by the court.  Read more on Honomichl v. Valley View Swine, LLC here from Iowa State’s Center for Agricultural Law and Taxation.

IRS reveals the new Form 1040.  It's not quite post card size, but the IRS claims that its draft of the revised Form 1040 is about half the size of the current form.  The agency unveiled the draft form, which it intends to be shorter, simpler and supplemented with applicable schedules, and is seeking comments from the tax community.  The new form, when complete, will replace the 1040, 1040A and 1040EZ.

Ohio legislation on the move.  A flurry of activity at the Statehouse followed the lengthy re-election of a new House speaker that had stalled legislation this spring.  Several bills have now been signed by Governor Kasich and a few bills have passed through one or both houses, as follows:

  • Plugging idle and orphan oil and gas wells.  A bill we reported on back in January, H.B. 225, was signed into law on June 29, 2018.  The new law provides an increase, from 14% to 30%, in funding for plugging unused oil and gas wells.   Landowners can report an idle or orphaned well to the Chief of the Division of Oil and Gas Resources, who must then inspect the well within 30 days and prioritize how soon the well should be plugged and the land surface be restored.  The Chief’s duty to find prior owners and legal interests in the well is limited to records less than 40 years old.  The law also includes procedural changes for entering into contracts for restoration or plugging of wells.
  • Tax appeals.  One provision in H.B. 292 allows a party to appeal a decision of the Board of Tax Appeals directly to the Supreme Court if it concerns a final determination of the Tax Commissioner or a municipal corporation's income tax review board.  This reverses a recent change that removed the Supreme Court option for such appeals.  The act also removes a provision that allowed a party to file a petition requesting that the Supreme Court take jurisdiction over an appeal from the Court of Appeals, which the Supreme Court was authorized to do if the appeal involved a substantial constitutional question or a question of great general or public interest.  Governor Kasich signed the legislation on June 14, 2018.
  • Hunting and fishing licensesS.B. 257 creates multi-year and lifetime hunting and fishing licenses for residents of Ohio and allows the Division of Wildlife to offer licensure “packages” for any combination of licenses, permits, or stamps.  The law also establishes the “Lake Erie sport fishing district,” consisting of the Ohio waters of Lake Erie and its tributaries.   Nonresidents must obtain a $10 special permit to fish in the Lake Erie sport fishing district from January 1 to April 30, with the fees earmarked specifically to benefit Lake Erie.  The legislation received the Governor’s signature on June 29, 2018.
  • High volume dog breeders.  New standards addressing sustenance, housing, veterinarian care, exercise and human interaction for dogs bred for sale in high volumes are in H.B. 506, signed by the Governor on June 29, 2018.
  • Dogs on patios.  H.B. 263, which we wrote about previously, has passed both the House and Senate.  The bill allows retail food establishments and food service operations to permit customers to bring a dog into an outdoor dining area if the dog is vaccinated.  The establishment must adopt a policy requiring customers to control their dogs and keep their dogs out of indoor areas.  The bill just needs a signature from Governor Kasich to become effective. 
  • Alfalfa products.  H.R. 298 was adopted by the House on June 7, 2018.  The resolution recognizes the existence of two alfalfa products, direct dehydrated alfalfa and sun-cured alfalfa, as defined by the Association of American Feed Control Officials. The resolution further calls on alfalfa processors and suppliers use the defined terms in their labeling.    A companion resolution in the Senate remains in committee.
  • Township laws.  A number of changes affecting township authority are in H.B. 500, which unanimously passed the House on June 27 and was introduced in the Senate on July 5.  Of most consequence to agriculture are proposals to broaden township zoning authority over agricultural activities in platted subdivisions and authority for townships to impose fees for zoning appeals.

Pages

Subscribe to RSS - ag law harvest