Did you know that the loudest land animal is the howler monkey? The howler monkey can produce sounds that reach 140 decibels. For reference, that is about as loud as a jet engine at take-off, which can rupture your eardrums.
Like the howler monkey, we are here to make some noise about recent agricultural and resource law updates from across the country. This edition of the Ag Law Harvest brings you court cases dealing with zoning ordinances, food labeling issues, and even the criminal prosecution of a dairy farm. We then look at a couple states proposing, or disposing, of legislation related to agriculture.
A zoning ordinance has Michigan landowners hogtied. The Michigan Supreme Court recently ruled that Michigan’s 6-year statute of limitations does not prevent a township from suing a landowner for alleged ongoing zoning violations, even if the start of landowner’s alleged wrongdoing occurred outside the statute of limitations period.
Harvey and Ruth Ann Haney (“Defendants”) own property in a Michigan township that is zoned for commercial use. Defendants began raising hogs on their property in 2006. Defendants started with one hog and allegedly grew their herd to about 20 hogs in 2016. In 2016, Fraser Township (“Plaintiff”) filed suit against Defendants seeking a permanent injunction to enforce its zoning ordinance and to prevent Defendants from raising hogs and other animals that would violate the zoning ordinance on their commercially zoned property. Defendants filed a motion to dismiss and argued that Plaintiff’s claims were barred because of Michigan’s 6-year statute of limitations. A statute of limitations is a law that prevents certain lawsuits from being filed against individuals after a certain amount of time has passed. In Ohio, for example, if someone were to be injured in a car accident, they would only have 2 years to bring a personal injury claim against the person who caused the accident. That’s because Ohio has passed a law that mandates most personal injury claims to be brought within 2 years of the date of injury.
In the Michigan case, Defendants argued that because their first alleged wrongdoing occurred in 2006, Plaintiff could not file their lawsuit against the Defendants in 2016. A trial court disagreed with Defendants and denied their motion to dismiss. Defendants took the motion up to the Michigan Court of Appeals, and the Court of Appeals found that Plaintiff’s claim was barred because of the 6-year statute of limitations. Plaintiff appealed to the Michigan Supreme Court, which overturned the Court of Appeals’ decision and held that Plaintiff’s claim was not barred. The Michigan Supreme Court reasoned that the presence of the hogs constitutes the alleged unlawful conduct of the Defendants, and that unlawful conduct occurred in 2006 and has occurred almost every day thereafter. The court concluded that because Defendants unlawful conduct was ongoing after 2006, Plaintiff’s claims were not barred by the statute of limitations. The case now goes back to the trial court to be tried on the merits of Plaintiff’s claims against Defendants.
Where there’s smoke, there’s fire. Family Dollar Stores, Inc. (“Family Dollar”) has found itself in a bit of nutty situation. Plaintiff, Heather Rudy, has filed a class action lawsuit against Family Dollar, alleging that Family Dollar has misled her and other consumers by marketing its Eatz brand Smoked Almonds as “smoked.” Plaintiff asserts that Family Dollar is being deceptive because its Smoked Almonds are not smoked over an open fire, but instead flavored with a natural smoke flavoring. Plaintiff’s claims against Family Dollar include violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”); breaches of express warranty and implied warranty of merchantability; violation of the Magnuson-Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.
Family Dollar filed an early motion to dismiss, arguing that Plaintiff has not stated a claim for which relief can be granted. A federal district court in Illinois dismissed some of Plaintiff’s claims but ruled that some claims against Family Dollar should be allowed to continue. Plaintiff’s claims for breaches of warranty, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, and fraud were all dismissed by the court. The court did decide that Plaintiff’s claims under ICFA unjust enrichment should stay. The court reasoned that Plaintiff’s interpretation that Family Dollar’s almonds would be smoked over an open fire are not unreasonable. Moreover, the court recognized that nothing on the front label of Family Dollar’s Smoked Almonds would suggest, to consumers, that the term “smoked” refers to a flavoring rather than the process by which the almonds are produced. The court even pointed out that competitors’ products contain the word “flavored” on the front of similar “smoked” products. Therefore, the court concluded that Plaintiff’s interpretation of Family Dollar’s Smoked Almonds was not irrational and her claims for violating the ICFA should continue into the discovery phase of litigation, and possibly to trial.
Undercover investigation leads to criminal prosecution of Pennsylvania dairy farm. A Pennsylvania Court of Appeals (“Court of Appeals”) recently decided on Animal Outlook’s (“AO”) appeal from a Pennsylvania trial court’s order dismissing AO’s petition to review the decision of the Franklin County District Attorney’s Office (“DA”) to not prosecute a Pennsylvania dairy farm (the “Dairy Farm”) for animal cruelty and neglect. An undercover agent for AO held employment at the Dairy Farm and captured video of the condition and treatment of animals on the farm, which AO claims constitutes criminal activity under Pennsylvania’s animal cruelty laws.
AO compiled a report containing evidence and expert reports documenting the Dairy Farm’s alleged animal cruelty and neglect. AO submitted its report to the Pennsylvania State Police (“PSP”) in 2019. The PSP conducted its own investigation which lasted for over a year, and in March 2020, issued a press release indicating that the DA would not prosecute the Dairy Farm.
In response, AO drafted private criminal complaints against the Dairy Farm and submitted those to the local Magisterial District Judge. The local Magisterial Judge disapproved all of AO’s complaints and concluded that the complaints “lacked merit.” AO then filed a petition in a Pennsylvania trial court to review the Magisterial Judge’s decision. The trial court dismissed AO’s petition and concluded that the DA correctly determined “that there was not enough evidence, based upon the law, to initiate prosecution against any of the Defendants alleged in the private criminal complaints.” AO appealed the trial court’s decision to the Court of Appeals which ended up reversing the trial court’s decision.
The Court of Appeals concluded that the trial court failed to view the presented evidence through a lens that is favorable to moving forward with prosecution and the trial court failed to consider all reasonable inferences that could be made on the evidence. The Court of Appeals observed that the trial court made credibility determinations of the evidence by favoring the evidence gathered by PSP over the evidence presented by AO. The Court of Appeals noted that a trial court’s duty is to determine “whether there was evidence proffered to satisfy each element of an offense, not to make credibility determinations and conduct fact-finding.” Additionally, the Court of Appeals found that the trial court did not do a complete review of all the evidence and favored the evidenced obtained by PSP over the evidence presented by AO. The Court of Appeals determined that had the trial court reviewed all the evidence, it would have found that AO provided sufficient evidence to establish prima facie cases of neglect and animal cruelty, which would have provided the legal basis for the DA’s office to prosecute the claims.
Lastly, the DA argued that no legal basis for prosecution exists because the Dairy Farm is protected by the normal agricultural operations exemption to Pennsylvania’s animal cruelty laws. However, the Court of Appeals found that the conduct of the Dairy Farm, as alleged, would fall outside the normal agricultural operations exemption because AO’s report demonstrates that the Dairy Farm’s practices were not the dairy industry norm.
Ultimately the Court of Appeals found that AO’s private criminal complaints did have merit and that the DA had enough evidence and a legal basis to prosecute AO's claims. The Court of Appeals remanded the trial court’s decision and ordered that the DA to go ahead and prosecute the Dairy Farm on its alleged animal cruelty violations.
Wyoming fails to pass legislation limiting what can be considered agricultural land. The Wyoming House of Representatives struck down a recent piece of legislation looking to increase the threshold requirement to allow landowners the ability to classify their land as agricultural, have their land appraised at an agricultural value, and receive the lower tax rate for agricultural land. Current Wyoming law classifies land as agricultural if: (1) the land is currently being used for an agricultural purpose; (2) the land is not part of a patted subdivision; and (3) the owner of the land derived annual gross revenue of $500 or more from the marketing of agricultural products, or if the land is leased, the lessee derived annual gross revenues of $1,000 or more from the marketing of agricultural products.
Wyoming House Bill 23 sought to increase the threshold amount of gross revenues derived from the marketing of agricultural products to $5,000 for all producers. The Wyoming Farm Bureau Federation and Wyoming Stock Growers associations supported the bill. Proponents of the bill argued that the intent of agricultural land appraisals is to support commercial agriculture, not wealthy landowners taking advantage of Wyoming’s tax laws. Opponents of the bill argued that House Bill 23 hurt small agricultural landowners and that the benefits of the bill did not outweigh the harms. House Bill 23 died with a vote of 34-25, failing to reach the 2/3 approval for bills to advance.
Oregon introduces legislation relating to overtime for agricultural workers. Oregon House Bill 4002 proposes to require agricultural employers to pay all agricultural employees an overtime wage for time worked over 40-hours in a workweek. House Bill 4002 does propose a gradual phase-in of the overtime pay requirements for agricultural employees. For the years 2023 and 2024, agricultural employees would be entitled to overtime pay for any time worked over 55 hours in a workweek. For 2025 and 2026, the overtime pay requirement kicks in after 48 hours. Then in 2027, and beyond, agricultural employers would be required to pay an overtime pay rate to employees that work more than 40 hours in a workweek.
As planting season draws to a close, new agricultural issues are sprouting up across the country. This edition of the Ag Law Harvest brings you federal court cases, international commodity news, and new program benefits affecting the agriculture industry.
Pork processing plants told to hold their horses. The USDA’s Food Safety and Inspection Service (“FSIS”) is not going to appeal a federal court’s ruling that requires the nation’s hog processing facilities to operate at slower line speeds. On March 31, 2021, a federal judge in Minnesota vacated a portion of the USDA’s 2019 “New Swine Slaughter Inspection System” that eliminated evisceration line speed limits. The court held that the USDA had violated the Administrative Procedure Act when it failed to take into consideration the impact the new rule would have on the health and safety of plant workers. The court, however, only vacated the provisions of the new rule relating to line speeds, all other provisions of the rule were not affected. Proponents of the new rule claim that the rule was well researched and was years in the making. Further, proponents argue that worker safety was taken into consideration before adopting the rule and that the court’s decision will cost the pork industry millions. The federal court stayed the order for 90 days to give the USDA and impacted plants time to adjust to the ruling. All affected entities should prepare to revert to a maximum line speed of 1,106 head per hour starting June 30, 2021.
Beef under (cyber)attack. Over the Memorial Day weekend, JBS SA, the largest meat producer globally, was forced to shut down all of its U.S. beef plants which is responsible for nearly 25% of the American beef market. JBS plants in Australia and Canada were also affected. The reason for the shut down? Over the weekend, JBS’ computer networks were infiltrated by unknown ransomware. The USDA released a statement showing its commitment to working with JBS, the White House, Department of Homeland Security, and others to monitor the situation. The ransomware attack comes on the heels of the Colonial Pipeline cyber-attack, leading many to wonder who is next. As part of its effort, the USDA has been in touch with meat processors across the country to ensure they are aware of the situation and asking them to accommodate additional capacity, if possible. The impact of the cyber-attack may include a supply chain shortage in the United States, a hike in beef prices at the grocery store, and a renewed push to regulate other U.S. industries to prevent future cyber-attacks.
Texas has a new tool to help combat feral hogs. Texas Agriculture Commissioner, Sid Miller, announced a new tool in their war against feral hogs within the state. HogStop, a new hog contraceptive bait enters the market this week. HogStop is being released in hopes of curbing the growth of the feral hog population. According to recent reports, the feral hog population in Texas has grown to over 2.6 million. It is estimated that the feral hogs in Texas have been responsible for $52 million in damage. HogStop is an all-natural contraceptive bait that targets the male hog’s ability to reproduce. HogStop is considered a 25(b) pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), which allows Texas to use it without registering the product. Commissioner Miller thinks HogStop is a more humane way to curb the feral hog population in Texas and hopes that it is the answer to controlling the impact that feral hogs have on farmers and ranchers. More information about HogStop can be found at their website at www.hogstop.com.
USDA announces premium benefit for cover crops. Most farmers who have coverage under a crop insurance policy are eligible for a premium benefit from the USDA if they planted cover crops this spring. The USDA’s Risk Management Agency (“RMA”) announced that producers who insured their spring crop and planted a qualifying cover crop during the 2021 crop year are eligible for a $5 per acre premium benefit. However, farmers cannot receive more than the amount of their insurance premium owed. Certain policies are not eligible for the benefit because those policies have underlying coverage that already receive the benefit or are not designed to be reported in a manner consistent with the Report of Acreage form (FSA-578). All cover crops reportable to the Farm Service Agency (“FSA”) including, cereals and other grasses, legumes, brassicas and other non-legume broadleaves, and mixtures of two or more cover crop species planted at the same time, are eligible for the benefit. To receive the benefit, farmers must file a Report of Acreage form (FSA-578) for cover crops with the FSA by June 15, 2021. To file the form, farmers must contact and make an appointment with their local USDA Service Center. More information can be found at https://www.farmers.gov/pandemic-assistance/cover-crops.
Federal court vacates prior administration’s small refinery exemptions. The Tenth Circuit Court of Appeals issued an order vacating the EPA’s January 2021 small refinery exemptions issued under the Trump administration and sent the case back to the EPA for further proceedings that are consistent with the Tenth Circuit’s holding in Renewable Fuels Association v. EPA. The Tenth Circuit held that the EPA may only grant a small refinery exemption if “disproportionate economic hardship” is caused by complying with Renewable Fuel Standards. The EPA admitted that such economic hardship may not have existed with a few of the exemptions granted and asked the court to send the case back to them for further review. The order granted by the Tenth Circuit acknowledged the agency’s concession and noted that the EPA’s motion to vacate was unopposed by the plaintiff refineries.
Michigan dairy farm penalized for National Pollutant Discharge Elimination System violations. A federal district court in Michigan issued a decision affirming a consent decree between a Michigan dairy farm and the EPA. According to the complaint, the dairy farm failed to comply with two National Pollutant Discharge Elimination System (“NPDES”) permits issued under Section 402 of the Clean Water Act. The violations include improper discharges, deficient maintenance and operation of waste storage facilities, failing to report discharges, failing to abide by its NPDES land application requirements, and incomplete recordkeeping. The farm is required to pay a penalty of $33,750, assess and remedy its waste storage facilities, and implement proper land application and reporting procedures. The farm also faces potential penalties for failing to implement any remedial measures in a timely fashion.
There’s been a lot of action in the Ohio General Assembly over the last few weeks ahead of the body’s summer break. Specifically, the House of Representatives has considered bills involving a student debt forgiveness program for veterinarians, animal abuse, road safety in Amish country, immunity for apiary owners for bee stings, and a bill meant to support county fairs during the COVID pandemic. Finally, both the Ohio House and Senate have passed bills that would limit liability involving the transfer of COVID-19.
Animal-drawn vehicle lighting. House Bill 501, concerning slow-moving, animal drawn vehicles, was introduced in February of 2020 and was first heard in the House Transportation & Public Safety committee on June 2. The purpose of HB 501 is to “clarify the law governing slow-moving vehicles and to revise the lighting and reflective material requirements applicable to animal-drawn vehicles.” The bill would require animal-drawn vehicles, like the buggies typically driven by the Amish, to have the following: (1) at least one white lamp in the front visible from 1,000 feet or more; (2) two red lamps in the rear visible from 1000 or more; (3) one yellow flashing lamp mounted on the top most portion of the rear of the vehicle; (4) a slow moving vehicle (SMV) emblem; and (5) micro-prism reflective tape that is visible from at least 500 feet to the rear when illuminated by low beams on a vehicle. In the committee hearing, HB 501 had mostly positive feedback, and was touted as a solution to crashes involving animal-drawn vehicles in poor visibility.
When the bee stings. HB 496, which would grant apiary owners immunity for bee stings, passed the Ohio House on June 9, 2020. The bill would protect the owner of a registered apiary from liability in the case of a personal injury or property damage from a sting if they do the following: (1) implement and comply with the beekeeping industry best management practices (BMPs) as established by the department of agriculture; (2) keep correct and complete records of their implementation and compliance with BMPs and make the records available in a legal proceeding; (3) comply with local zoning ordinances pertaining to apiaries; (4) operate the apiary in compliance with the Ohio Revised Code. Notably, the bill would not protect apiarists from harming a person intentionally or through gross negligence. The bill now moves on to the Ohio Senate for consideration.
Debt forgiveness for veterinarians. The House also passed HB 67 on June 10, 2020. This bill would create the “veterinarian student debt assistance program,” which would determine which veterinarians would receive student debt assistance, and how much each person would receive. The amount awarded must be between $5,000 and $10,000. Essentially, if the new veterinarian agrees to live in Ohio for a certain amount of time, and to participate in “charitable veterinarian services” like spaying and neutering for a nonprofit organization, humane society, law enforcement agency, or state, local, or federal government, student debt could be forgiven. The details, including how many hours a veterinarian would need to work for charity, the types of charities that qualify, the amount of time a person must live in Ohio, and others would be determined by State Veterinary Medical Licenses Board.
Animal abuse. HB 33 passed the lower chamber on June 11, 2020. This bill would require veterinarians, social service professionals (people who work at the county Job and Family Services, Children’s Services), counselors, social workers, and other similar professions to report violations against “companion animals” (dogs, cats, other animals kept in a residential dwelling), to law enforcement and/or the county humane agent or animal control officer. People in these professions would have to report when they have “knowledge or reasonable cause to suspect” that violations to companion animals are happening, and they know or suspect that a child or older adult (60 years and older) lives in the residence, and they know or suspect that the violation is having an impact on the child or older adult. Violations include animal abandonment, injury, poisoning, cruelty, fighting, dog fighting, or sexual conduct with an animal.
Assistance for county fairs. If you’ve heard about any Ohio legislation recently, it was likely this bill. HB 665 was passed by the House after much debate on June 11, 2020. The 61 page bill makes a lot of changes to the statutory language. Importantly, the bill would make it a misdemeanor for patrons not to follow written warnings and directions on amusement rides. The bill also makes a number of changes to how county agricultural societies operate. First of all, members of a county agricultural society would have to be residents of the county. Members would have to pay a fee to retain membership, and the societies would have to issue a printed membership certificate to members. In counties with an ag society, the county treasurer must transfer $1600 to the society each year as long as the society holds its annual exhibition, reports to the Ohio Department of Agriculture (ODA), and the director of ODA presents the society with a certificate showing it has followed applicable laws and regulations. The bill also addresses independent agricultural societies, to which similar rules apply. The county board of commissioners would also be required to appropriate at least $100 to the ag society’s junior club. The bill would require ag societies to create a report of its proceedings during the year, file a financial report and send it to the ODA director, and publish an announcement in the county newspaper or the society’s website a statement about the filing of the financial report, and contact information for people who want to obtain a copy of the report. The bill also outlines the circumstances under which an ag society can sell fairgrounds or parts of fairgrounds. Finally, an amendment to the bill was adopted that would allow rescheduling of horse races.
So what was so controversial about this bill? A suggested amendment to the bill led to a heated argument in the House. The amendment would have banned sales and displays of confederate flags and other memorabilia at county fairs. This ban is already in place at the Ohio State Fair, but not county fairs. Ultimately, the bill passed in the house, but this amendment did not. The vote to table the amendment was largely along party lines, with every Republican except one voting against the amendment, and all Democrats voting for.
COVID-19 liability. The House passed HB 606 back in May, and we discussed it in a blog post here. As a refresher, the bill is meant to protect businesses, schools, corporations, people, etc. from liability. It would accomplish this with the declaration: “orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency, do not create any new legal duties for purposes of tort liability.” In other words, as long as the person, school, or business did not expose or transfer the virus recklessly, intentionally, or with willful and wanton conduct, someone could not bring a civil action for injury, death, or loss to person or property if they contract COVID from the entity. Furthermore, the bill also provides temporary civil immunity for health care providers, grants immunity to the State for care of persons in its custody or if an officer or employee becomes infected with COVID-19 in the performance or nonperformance of governmental functions and public duties, and expands the definition of “governmental functions” for purposes of political subdivision immunity to include actions taken during the COVID-19 pandemic.
The Ohio Senate passed a similar bill, SB 308. Unlike the House bill, SB 308 provides immunity only in the health care context. The bill would provide immunity from civil liability for doctors, nurses, and others working in the health care arena during “disasters” like the current pandemic. It would also provide a qualified immunity from liability to services providers for “manufacturing” and any other service “that is part of or outside of a service provider's normal course of business conducted during the period of a disaster or emergency declared due to COVID-19 and ending on April 1, 2021.”
What’s next? The Ohio Senate is scheduled to meet next week on an “as needed” basis. During these tentatively scheduled sessions, the senate could consider the bills that have cleared the House—HBs 496, 67, 33, and 665. If passed by the Senate, the bills would then move on to Governor DeWine for approval. We will keep you updated on what the Senate and Governor decide. In the case of the COVID immunity bills, each bill moved to the opposite house, where they are currently being considered in committees. We’ll have to wait and see if one or both are sent on to DeWine, or if the two houses choose to somehow combine the bills into one document.
A new rule establishing general regulations for improving the traceability of U.S. livestock moving between states became final on December 20, 2012 and will become effective on March 11, 2013. The USDA has established the animal disease traceability rule to help target when and where animal disease occurs and to facilitate a rapid response that should reduce the number of animals involved in a disease investigation. According to USDA Secretary Tom Vilsack, “The United States now has a flexible, effective animal disease traceability system for livestock moving interstate, without undue burdens for ranchers and U.S. livestock businesses. The final rule meets the diverse needs of the countryside where states and tribes can develop systems for tracking animals that work best for them and their producers, while addressing any gaps in our overall disease response efforts.”
The animal disease traceability rule differs from the National Animal Identification System launched by the USDA in 2006 and later discontinued for lack of voluntary participation by producers. An important guiding principle for the new rule is that it is state-driven. The traceability framework will be owned, led and administered by the States and Tribal Nations with federal support. The rule proposes to provide maximum flexibility for the States, Tribal Nations and producers to work together to find identification solutions that meet their local needs and to maintain traceability data at their discretion. The intent of the rule is to address only those animals moving interstate and to encourage the use of low-cost technology.
We will take a closer look at the rule in the next few months, but for now will share a few important notes about the rule:
- Unless specifically exempted, livestock moved interstate must be officially identified and accompanied by an interstate certificate of veterinary inspection or other documentation, such as owner-shipper statements or brand certificates.
- The use of brands, tattoos and brand registration will be accepted as official identification when accepted by the shipping and receiving States or Tribes.
- Backtags remain an alternative to official eartags for cattle and bison moving directly to slaughter.
- All livestock moved interstate to a custom slaughter facility are exempt from the regulations.
- Chicks moved interstate from a hatchery are exempt from the official identification requirements.
- Unless moved interstate for shows, exhibitions, rodeos, or recreational events, beef cattle under 18 months of age are exempt from the official identification requirement (traceability requirements for this group will be addressed in separate rulemaking)
USDA will work with states to implement the rule in the coming months. For more information on the new rule, visit http://www.aphis.usda.gov/traceability/.
Bill establishes time limits for township and county infrastructure review
A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF). Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77). The bill now awaits action by Governor Kasich.
Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF. Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process. Information on anticipated traffic routes and number and weights of vehicles must accompany the notification. Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements. The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements. The CAFF must submit the county and township's final recommendations in its LEPP permit application.
Under the language agreed to by the legislature in H.B. 22, if the county or township fails to provide the written final recommendations in 75 days, the CAFF may proceed with the permit application by submiting an affidavit in lieu of the written final recommendations. The affidavit must state that the CAFF provided the required notification but did not receive written final recommendations from the county or township within 75 days of giving the notification.
The legislature's approval of H.B. 22 comes in the wake of a controversial denial of a LEPP permit application by Hi-Q for an egg laying facility in Union County. ODA Director Zehringer denied Hi-Q's application because it did not contain the required final infrastructure recommendations from county and township officials. Hi-Q and Union County had reached an impasse on infrastructure issues, and Hi-Q submitted the permit without any final recommendations by the county. (See our earlier post on the Director's decision.) Under H.B. 22's language, Hi-Q could have submitted an affidavit instead of the written final recommendations because more than 75 days had passed since Hi-Q's original notification to the county and township. The Director thus would not have had to deny the permit application for lack of county and township written final recommendations for infrastructure improvements.
H.B. 22 also proposes changing LEPP from a program to a Division of Livestock Environmental Permitting, and contains a number of other revisions to ODA programs and regulations. See the analysis of H.B. 22 on the Ohio Legislature's website.
Current bill in House would yield different outcome for Hi-Q CAFF permit
In a unique and controversial case, the Ohio Department of Agriculture (ODA) has denied an application under its Livestock Environmental Permitting Program for Hi-Q Egg Products, LLC to establish an egg laying facility in Union County. In denying the application, ODA Director Zehringer followed the recommendations made in April 2011 by the ODA hearing officer who reviewed the permit application (see our earlier post). The hearing officer had recommended denial on the basis of an incomplete application, because Hi-Q's application did not include a written statement from local officials certifying that final recommendations had been made for local infrastructure improvements and costs, as required by program regulations (OAC 901:10-1-02(A)(6)). Hi-Q claimed that the county and township failed to provide the recommendations, while the county and township argued that there were no final recommendations because Hi-Q refused to discuss an alternative transportation route. In agreeing that the recommendations were not included in the application, Director Zehringer stated that there was "no other viable option but to deny the [permit] due to an incomplete application."
Ohio's Livestock Environmental Permitting Program (LEPP) regulates the installation and operation of large Confined Animal Feeding Facilities (CAFFs). Critics have long complained that the program fails to consider the potential impacts of CAFF development upon the local community. Those concerned about local impacts have used the public hearing process to voice opposition to CAFF permits, but have never successfully prevented approval of a permit. Until now, the program's obscure requirement for county and township approval of infrastructure improvements has gone unnoticed as a prevention mechanism by such opponents.
While the Hi-Q denial is a first, opponents of large livestock operations won't have cause to celebrate the decision for long if a current legislative proposal meets with success. H.B. 229, introduced May 17, 2011 by Rep. Buchy, will place a time limit on the county and township officials who must consider local infrastructure improvements needed for a CAFF permit application. According to the proposal, local officials would have 75 days after receiving notice of the proposed facility to render a written statement on local infrastructure improvements and costs. After 75 days, the permit applicant may submit a notarized affidavit stating that it had provided local officials with notice but did not receive any written final recommendations from the local government within the required timeframe. Under the law as proposed by H.B. 229, ODA could not deny a permit application that lacks the written statement from local officials as long as 75 days have passed after giving notice and the permit applicant submits the notarized affidavit rather than the written statement from local officials.
In an attempt to satisfy the animal welfare agreement negotiated last year with the Humane Society of the United States and various agricultural interests, Governor Strickland yesterday authorized an emergency rule that restricts the possession, sale and transfer of certain wild animals in Ohio. The controversial animal welfare agreement, designed to prevent another Ohio ballot initiative on farm animal welfare, provided that "[t]he Ohio Department of Agriculture and the Ohio Department of Natural Resources will coordinate and take action on wild and dangerous animals including the prohibition of the sale and/or possession of big cates, bears, primates, large constricting and venomous snakes and alligators and crocodiles. Existing owners will be grandfathered in, but they could not breed or obtain new animals." The Governor's action, however, is a week shy of the December 31, 2010 deadline included in the agreement, which stated that failure to implement the wild and dangerous animals provision by such date could void the agreement.
"This action fulfills my responsibilities within the agreement that will keep Ohio's vital agriculture industry profitable while appropriately updating animal care standards," said Governor Strickland. The Governor also cited public safety reasons for the new regulation, stating that "[t]his rule will help protect Ohioans from deaths and serious injuries caused by attacks from dangerous wild animals held in private ownership."
The Governor's Executive Order suspended the regular rulemaking process and allowed the immediate adoption of Rule 1501:31-19-05 by the Department of Natural Resources Divison of Wildlife. The new rule, which became effective January 6, 2011, does the following:
- Prohibits the possession, sale and transport of "restricted species," which includes coyotes, timber and gray wolves, lions, tigers, jaguars, panthers, leopards, cheetahs, bobcats, lunx, cougars, pumas, mountain lions, bears, all primates except humans, alligators, crocodiles, caimans, gharials and numerous snake species, including pythons, cobras and rattlesnakes.
Creates an exception from the regulation for persons who possessed a restricted species prior to January 6, 2011, if the person meets all of the following criteria:
- Does not acquire any new restricted species through purchase, gift, trade, barter, donation or breeding;
- Has not been convicted of animal abuse or neglect;
- Has not had any type of animal license or permit revoked or suspended;
- Registers the animal by May 1, 2011 with the Ohio Department of Natural Resources and maintains the registration annually;
- Does not allow the public to come into physical contact with the animal;
- Does not sell or transfer the animal to anyone other than an accredited zoo or institution, a wildlife sanctuary, a family member approved by the division chief, or an out-of-state facility (until January 1, 2016) and notifies the division chief of the new recipient of the animal at least 72 hours prior to transfer.
- Maintains a permanent transponder implant on the animal.
Creates an exception from the rule for certain facilities and organizations:
- Institutions accredited by the association of zoos and aquariums and facilities under active contract for a species survival plan under the Endangered Species Act;
- Circuses licensed by the U.S. Department of Agriculture that are in the state less than 45 days per year and do not allow the public to come into physical contact with the restricted species;
- Institutions operating a mascot program licensed by the U.S. Department of Agriculture;
- Non-profit wildlife sanctuaries that do not use restricted species for commercial or entertainment purposes, do not allow the public to come into contacted with the species, and do not breed the species.
- Wildlife rehabilitation facilities engaged in the rehabilitation and reintroduction of native species and permitted by the division chief;
- Education, research and scientific institutions or projects permitted by the division chief;
- A person transporting a legally owned restricted animal through the state for less than 48 hours who does not exhibit the animal, keeps the animal enclosed and does not allow public contact with the animal.
- Requires a person who possesses a restricted species to notify the division of wildlife if the animal escapes, in addition to complying with other reporting requirements in ORC 2927.21.
Emergency rules remain in effect in Ohio for 90 days, which should provide the agency sufficient time to extend the life of the rule through the regular rulemaking process. Given the upcoming change of leadership in Ohio, it will be interesting to see if the new administration follows Governor Strickland's lead and makes the new regulation permanent.
The Ohio Livestock Care Standards Board has proposed civil penalty provisions for violations of the livestock care standards currently under development by the Board. The proposal addresses notification procedures for the Ohio Department of Agriculture (ODA), the agency responsible for enforcing the standards, and establishes two types of violations of the livestock care standards: minor violations and major violations.
A minor violation is one which violates the standards due to neglect or unintentional acts of substandard practices, but which does not place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function. For a minor violation, the ODA may fine the offender up to $500 for a first offense and up to $1,000 for a subsequent offense committed within 60 days of a previous offense.
A major violation is one which does place an animal’s life in imminent peril or cause protracted disfigurement, protracted impairment of health, or protracted loss or impairment of the function of a limb or bodily function, or a violation that results in unjustifiable infliction of pain due to reckless or intentional acts. The ODA may issue a penalty between $1,000 and $5,000 for a first major violation and between $5,000 and $10,000 for repeat violations committed within 60 days of a prior offense. For major violations, the department may assist with the provision of care services for the animals and may assess the violator for the costs of providing proper care to the animals.
For both minor and major violations, the department may also seek recovery costs for investigations that result in penalties, including salary costs for employees directly involved in the investigation. The rule also states that a violation affecting more than one animal may be considered one offense of the standards.
The Director of the Ohio Department of Agriculture has posted the proposed civil penalty provisions for public comment on ODA’s website. The comment period runs until November 2.
Proposed rule addresses standards for farm animal euthanasia
The Ohio Livestock Care Standards Board has developed its first set of proposed standards regarding farm animal welfare, pursuant to the constitutional amendment passed last year by Ohio voters as Issue 2 (see our earlier posts on Issue 2). The Livestock Care Standards Board unanimously approved standards regarding euthanasia of farm animals on October 5, 2010. The ODA will now carry the Board's proposed standards through the administrative rulemaking process.
The proposed standards define acceptable methods of euthanasia, which includes inhalant agents, injectable agents, captive bolt guns, blunt force, gunshot, cervical dislocation, decapitation, electrocution, foam hypoxia, maceration and exsanguination. The proposal establishes different acceptable methods and guidelines for different species, which includes equine, poultry, swine, cattle, goats, sheep, alpaca and llamas. Provisions also address general considerations for performing euthansia, such as euthanization of animals unlikely to recover from illness or injury, determination of death, unsuccessful euthanasia, disposal of animals and mass euthanasia. The rule references a civil penalty provision for violations, but the actual civil penalty provision is still under development by the Board.
Interesting to note is how the proposed euthanasia rule relates to the animal welfare agreement entered into last June by the State of Ohio, Humane Society of the United States, Ohio Farm Bureau and several other agricultural organizations. Regarding euthanasia, the animal welfare agreement states:
"Recommendations will be made to The Ohio Livestock Care Standards Board (OLCSB) to take action on issues related to downer cattle and humane euthanasia using language consistent with the proposed ballot initiative."
The proposed ballot initiative referred to in the animal welfare agreement is the HSUS-led initiative that could have been on the upcoming November ballot, but was pulled as part of HSUS's compromise in the animal welfare agreement. The ballot initiative proposed amending the Ohio Constitution to include this language on euthanasia:
"Require a farm owner or operator to ensure that all on-farm killing of cows or pigs be performed in a humane manner using methods explicitly deemed “Acceptable” by the American Veterinary Medical Association. This standard shall also include a prohibition on strangulation of cows and pigs as a form of euthanasia."
Note that the animal welfare agreement does not require the adoption of the ballot initiative language in the euthanasia standards; it states only that "recommendations will be made" to the Board to take action using language consistent with the proposed ballot language. A review of the record available on the Board's website does not indicate whether any party to the animal welfare agreement made such recommendations to the Board. The Board had already begun working on the euthanasia standards prior to the announcement of the animal welfare agreement in June. A review of the Board's proposal, however, indicates that the euthanasia standards do not precisely duplicate the HSUS's proposed ballot language. The standards don't include a specific prohibition against strangulation of cows and pigs. Instead, the standards do not list strangulation as an acceptable method of euthanasia. Nor do the standards specifically reference the American Veterinary Medical Association (AVMA) acceptable standards; but many of the Board's acceptable standards are similar to AVMA acceptable standards. Whether or not recommendations were made to the Board as promised in the animal welfare agreement, the Board's proposed euthanasia standards do appear to be "consistent with" the ballot initiative language on euthanasia.
ODA announced the Board's proposed euthanasia standards today and will accept comments on the standards until October 20, 2010. Following review of comments, ODA will submit the package to the joint legislative committee that oversees the administrative rulemaking process. To view the proposed euthanasia standards, visit the ODA website, here.
Ohio livetock farms have been a target of animal welfare organizations, evidenced by recent releases of undercover videos taken at Buckeye Veal Services and Conklin Dairy Farm and the broadcast of the "Death on a Factory Farm" documentary. The strategy is to gain employment or access to the farm, videotape without the knowledge or permission of the farm owner, and later release video suggesting that the farm mistreats its livestock. This approach has heightened the visibility of farm animal welfare issues in Ohio, but the strategy and its impacts raise many legal issues. A presentation I recently prepared for the Ohio Agricultural Law Symposium highlights research we're conducting at OSU to identify the legal issues and implications of the undercover video approach. Below is synopsis of a few of the more controversial legal issues.
- Ohio's penalty structure for animal cruelty. At least one animal welfare organization claims that it has targeted Ohio for undercover investigations because Ohio is one of the few remaining states that limits animal cruelty punishment to misdemeanor penalties (with the exception of a repeated offense against "companion animals," which is a fifth degree felony). Most states have adopted a felony penalty structure for acts of animal cruelty, which results in more severe punishment. Ohio legislators have made nearly a dozen attempts to increase penalties for animal cruelty, most recently with H.B. 55 (see our earlier post). The proposals always fail, allegedly due to an effective lobbying effort from groups who argue that penalties for cruelty to animals in Ohio should not be higher than those for abuse of humans. While undercover video releases don't appear to be moving felony penalty legislation forward currently, they could be garnering public support for a future proposal. Should Ohio adopt a felony penalty, and if it does, will undercover investigations find a new state target?
- Duty to report animal abuse. The videographer of the Conklin Dairy Farm video witnessed acts of mistreatment against animals by an employee for approximately one month before the organization released the videos. Many argue that the videographer should have reported the abuse right away, but neither Ohio or any other state has a law requiring an ordinary person to report animal cruelty. Fifteen states have laws mandating that veterinarians report suspected animal cruelty: Ohio does not. Another 13 states have "voluntary" reporting laws for veterinarians, which grant a veterinarian immunity and a waiver of client confidentiality upon reporting abuse, but not Ohio. Ohio does have several mechanisms a person could use to initiate an investigation of suspected animal cruelty through local law enforcement or the county humane society. In a similar vein, should livestock farms have an employment policy requiring employees to report incidents of animal mismanagement and abuse by other employees?
- Who's committing the crime? The person committing the act against an animal is the obvious offender, but what about the videographer and the employer? Circumstances may exist such that the videographer was a legal "accomplice" to the crime. Under Ohio law, a person can be prosecuted as an accomplice if the person solicited another to commit a criminal offense; aided, abetted or conspired with another in committing the offense; or caused an innocent or irresponsible person to commit the offense, and also shared in the intent to commit the crime. Likewise, it may be possible to prove that a videographer acted with "recklessness" by observing and taping the crime or by encouraging and interacting with the offender; recklessness is the required mental state for an animal cruelty violation. As for the employer, Ohio's humane society law clarifies that a conviction of an employee for animal cruelty does not prevent the prosecution of the employer for "allowing a state of facts to exist which will induce cruelty to animals" by the employee.
These are only a few of the issues surfacing from the undercover video strategy. Given the current climate of continued attempts to "out" livestock farmers and push the farm animal welfare issue in Ohio, perhaps it's time we begin finding solutions to the issues.