EPA

What is the key to resolving disagreements over water quality issues in Lake Erie?  Cooperation, according to the federal court judge overseeing a legal battle over Lake Erie. The judge, U.S. District Judge James G. Carr, recently approved a plan that is the result of cooperation between the U.S. EPA, State of Ohio, Lucas County Commissioners, and the Environmental Law & Policy Center.  For almost six years, the parties have been in a legal battle over how to deal with water quality in Western Lake Erie.  But at the encouragement of the court, the parties developed and agreed to a Consent Decree to settle the case.  Judge Carr approved the Consent Decree on May 4, 2023.  Time will soon tell if the cooperation approach will satisfy the parties holding interests in Lake Erie’s water quality.

What led to the Consent Decree?

In the midst of growing concerns about harmful algal blooms and water quality in Western Lake Erie, the Environmental Law & Policy Center and Lucas County Commissioners filed a lawsuit against the U.S. EPA, claiming that the federal agency had failed its obligations to oversee Ohio’s duties to meet water quality standards under the Clean Water Act (CWA).  The CWA requires states to identify waters that do not meet water quality standards and designate them as “impaired waters.”  Once it lists a water as impaired, the state must also rank which waters have the highest need for determining Total Maximum Daily Loads (TMDLs) that set maximum amounts of pollutants that may enter the water.  TMDLs provide a framework for future decisions that affect water quality in the impaired water.

Following a separate lawsuit that challenged Ohio EPA’s designation of some but not all waters in Western Lake Erie as impaired, Ohio EPA assigned impaired water status to all Western Lake Erie waters by 2018.  But Ohio identified the waters as a “low” TMDL priority and stated that it would address water quality the western basin through “alternative measures” rather than preparation of a TMDL. The U.S. EPA, charged with reviewing state actions for compliance with the CWA, approved Ohio’s designation.  The Environmental Law & Policy Center and the Lucas County Board of Commissioners each filed lawsuits against the U.S. EPA for approving Ohio’s approach, and the two lawsuits were consolidated into the current case.  The State of Ohio, not an original party to the litigation, received the court’s permission to intervene as a defendant in the lawsuit.

Several years and many motions and hearings later, Judge Carr admonished both sides of the lawsuit for dragging the matter out in court and leaving Lake Erie’s water quality problem “largely unattended.”  In 2021, before considering separate summary judgment motions the parties had made, the Judge pointed out that no matter his decision, the other party would appeal it and continue the litigation and that “nothing is going to get done.”  Resolving the problems in Lake Erie would only happen if the U.S. EPA, the plaintiffs, and the State of Ohio would “work cooperatively towards accomplishing a meaningful outcome and resolution,” Judge Carr stated.  His resolution on the summary judgment motions would only “kick the can down the road for another two years, at least...” A better solution, said Judge Carr, would be for the parties to resolve the matter through settlement.

With the court’s oversight, the parties engaged in settlement negotiations for nearly two years.  They reached an agreement in 2022.  As required by law, the U.S. EPA filed the proposed agreement, or Consent Decree, in the Federal Register last November and sought public comments to the proposal.  The parties then filed a joint motion to the court, asking Judge Carr to approve the proposed Consent Decree. 

The Consent Decree

The Consent Decree outlines a timeline Ohio EPA must follow to create a TMDL designed to address nutrient and algae impairments for drinking water, aquatic life, and recreational uses by establishing pollutant limits for all Western Lake Erie waters. The agreement requires the plaintiffs to allow additional time for the U.S. EPA to step in and prepare a TMDL if Ohio fails in its efforts to do so.  The Consent Decree also sets up a status report schedule and a dispute resolution process and awards attorney fees and costs to the Plaintiffs.  The agreement does not address the legal sufficiency of the TMDL, and the plaintiffs still hold the right to challenge the legal sufficiency or adequacy of the TMDL. The Consent Decree will end upon performance of all obligations by all parties.

The following summarizes the steps of the agreed upon TMDL schedule.

Approval of the Consent Decree

Judge Carr’s role in reviewing the proposed agreement was to determine if it is “fair, adequate, and reasonable, as well as consistent with the public interest.”  The parties’ submitted a joint motion in support of the Consent Decree that laid out their arguments as follows:

1. The proposed agreement is fair because it was negotiated at length, in good faith, and in recognition of the strengths and weaknesses of each side.
2. Because the proposed agreement addresses Defendant’s alleged violations by providing a schedule for developing a TMDL for Western Lake Erie, it is adequate and reasonable.
3. The Consent Decree is in the public interest and furthers the goals of the Clean Water Act by providing for the timely development of a TMDL that will help “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” as intended by the Act. It also allows continued citizen rights to participate in the TMDL, does not alter existing regulations for TMDLs, and avoids significant time and expenses associated with ongoing litigation.

Judge Carr agreed with the parties’ arguments and approved the Consent Decree.  In doing so, he praised the work of U.S. District Judge Polster, who oversaw the settlement negotiations, the lawyers for each party, and the State of Ohio.  “Though the work that today’s agreement brings is but a first step, it is a step that has to be taken.  How many more steps lie ahead, and how long they will take, is beyond even guessing,” he stated.  “But there’s reason to hope that, in time, the Maumee River will no longer display, as it has for countless summers, a loathsome foul and slimy green surface as it flows through Toledo on its constant and irresistible course on to Lake Erie’s Western Basin.”

What’s next?

Implementation of the Consent Decree schedule is already underway.  The Ohio EPA issued a draft TMDL or “Nutrient Water Quality Improvement Plan for the Maumee River Watershed” on December 30, 2022, and is currently reviewing comments made during the public comment period that ended on March 8, 2023.  The agency appears to be on schedule for meeting the June 30 deadline for submitting the TMDL to the U.S. EPA for its review. Information on the Draft TMDL is available at https://epa.ohio.gov/divisions-and-offices/surface-water/reports-data/maumee-river-watershed.

But is continued cooperation on the TMDL for Western Lake Erie possible?  Both the plaintiffs in this case submitted comments on the draft TMDL, and both raised concerns about its “shortcomings.”  

“The TMDL just proposes to keep doing the same things that have already failed, focused on voluntary measures and incentive payments to producers,” stated the Environmental Law & Policy Center in its comments, available at https://elpc.org/wp-content/uploads/2023/03/ELPC-Maumee-TMDL-comments-FINAL.pdf. 

“It is critical that the draft TMDL not lack the necessary steps to reduce agriculture phosphorous runoff into Lake Erie and place limits on dissolved reactive phosphorous,” said Lucas County Commissioner Wozniak in comments summarized at https://co.lucas.oh.us/CivicAlerts.aspx?AID=1750.  “We shouldn’t be fooled into settling for half measures and voluntary practices any longer. We are talking about the health of our most valuable resource, and we must have a meaningful TMDL to protect it.”

While the spirit of cooperation encouraged by Judge James G. Carr is at play in the development of a TMDL for Western Lake Erie, whether that spirit will thrive in the debate over the content and future implementation of the TMDL is a critical question. In the words of Judge Carr, how many more steps lie ahead, and how long they will take, is beyond even guessing.  Let’s hope that more litigation isn’t one of those steps.

The Consent Decree is available through this link.

Judge Carr's Order on the Consent Decree is at this link.

The Environmental Protection Agency (EPA) made a big splash when it released its final rule for defining “waters of the United States” (WOTUS) on December 30. Immediate criticism and support for the new rule surfaced as many undertook the unenviable task of interpreting the rule’s 514 pages of text.  Perhaps some enjoyed the challenge of deciphering the latest development in WOTUS.  But how many responded with a bit of weariness, asking what this “new” rule really means for agriculture and, more importantly, does it really matter?

What does the new final WOTUS rule mean for ag?

There are several answers to this question.  The first and most practical answer is that the rule changes which waters are subject to federal jurisdiction under the Clean Water Act (CWA).  Through its permit programs, the CWA aims to protect water quality by preventing discharges of pollutants, dredge, or fill into a water that fits within the rule’s definition of “waters of the United States.”  A water that falls into any of five categories now laid out in the new WOTUS rule is a “water of the United States” that will be subject to CWA permit requirements and regulations, once the rule is effective.  But the rule also contains exceptions and exclusions to CWA jurisdiction, and waters that fall into these categories won’t be subject to CWA regulation.

The categories, exceptions, and exclusions all attempt to draw lines around waterways that are at risk for pollution and dredge and fill activities and thus should be protected under the CWA.  It is the less “obvious” waterways, like wetlands and ephemeral streams, that create consternation and raise the eternal question:  when is a water sufficiently connected to an “obvious” water body, and thus at risk for harm, to warrant CWA regulation?  The new rule tries, once again, to answer this difficult question.  As it does so, it repeats many of the categories, exceptions, and exclusions that we’ve seen in previous WOTUS rules, but there are some changes and attempts at clarification.  For an explanation of the new rule’s categories, exceptions, and exclusions, see this summary of the rule by our partner, the National Agricultural Law Center.  Agricultural interests have reacted to the changes in the rule; see this article for those reactions.

A second and more skeptical answer to the question of what the rule really means for agriculture is that it modifies the landscape for legal challenges to WOTUS.  As history illustrates, the new WOTUS rule will be challenged as the agencies interpret and enforce the rule against agriculture and other regulated communities.  New rule, new arguments, new court decisions--it’s a cycle we’ve witnessed before.  And a legal challenge to the validity of the rule itself, not just to an application of the rule, is also likely. The court cases that arise from such challenges might help answer the question of what the rule really means for agriculture or might instead create more confusion and continued battles.

Does the new rule really matter?

If you’ve followed WOTUS recently, you may know that the United States Supreme Court (SCOTUS) heard an appeal in October by the Sacketts, landowners who were affected by an agency interpretation that subjected their property to CWA jurisdiction.  That challenge centered on whether the “significant nexus” test is an appropriate test for determining whether the wetlands on the Sackett property fall into the definition of “waters of the United States.” The new WOTUS rule contains a renewed EPA attempt to clarify the “significant nexus” test and also introduces a new “material influence” standard for smaller waters and wetlands.  As we await the SCOTUS decision, we must acknowledge that its outcome could require EPA to rewrite any parts of the rule, especially the significant nexus and material influence provisions, that conflict with the Court’s holding.

Due to the impending SCOTUS decision and potential legal challenges to the rule, the WOTUS rule might not even go into effect.  The rule cannot be effective until 60 days have passed from the date it is published in the Federal Register.  It has not yet been published in the Federal Register, so the 60-day time clock is not yet ticking.  There’s a slight possibility SCOTUS will rule before that effective date, and also a possibility that if the rule does become effective, immediate legal challenges will put the rule on hold.  In both situations, we have an answer to the question of what the rule means for ag:  possibly nothing.

WOTUS weariness

I have never experienced such exhaustion over a legal issue as I have with WOTUS.  That’s because we have yet to solve the problem despite a long, long, parade of court cases and revised rules.  We still await clarity to the definition of WOTUS and certainty on which waters should be subject to CWA.  Congress could take a shot at doing so, given that Congress enacted the CWA and established the very term, “waters of the United States.”  Yet Congress sits silent on the issue. 

For me, it is the overlooked questions, and the need to examine the big picture, that most contribute to WOTUS weariness.  Is the WOTUS battle effectively addressing water quality?  Is it time to admit that a fix to WOTUS might require a new approach?  Under the old adage of “check your premises,” perhaps we should examine the premise upon which WOTUS rests—waters that are “inside” the scope of the definition are similar, all under the same risks, and should all be regulated by CWA.  While the obvious and easily identifiable water bodies can benefit from WOTUS and CWA, should we quit trying to define those other waters and instead focus on different mechanisms that manage water quality risks to them?  Would we get further, faster, with a new approach?

The final question:  is there actual improvement in water quality that comes with yet another rule, another change, and more challenges to the scope of the definition of WOTUS?  The answer to that question, I fear, is no--but a focus on that question could be a way to overcome WOTUS weariness.

Read the new WOTUS rule from the EPA, and additional EPA resources about WOTUS.  More on the Sackett case is in this recent blog post.

Did you know that female turkeys can lay a fertilized egg without mating?  This process is called parthenogenesis, a type of asexual reproduction that can also occur in other types of animals including invertebrates, fish, and lizards.  In turkeys, this process always produces a male chick.  The likelihood of an embryo from parthenogenesis surviving to chick-hood is small, but possible.  

In this edition of the Ag Law Harvest and in the spirit of Thanksgiving, we are thankful for the opportunity to present to you the newly proposed definition of “waters of the United States”, Kansas’s battle to protect agricultural facilities, and food labeling cases from across the country.  

EPA and Army Corps of Engineers propose rule to establish the definition of “waters of the United States.”  The EPA and Army Corps of Engineers announced a proposed rule to return the definition of “waters of the United States” (“WOTUS”) to the pre-2015 definition with a few updates to reflect Supreme Court decisions.  In 2020, the Navigable Waters Protection Rule went into effect and interpreted WOTUS to include: “(1) territorial seas and traditional navigable waters; (2) tributaries of such waters; (3) certain lakes, ponds, and impoundments of jurisdictional waters; and (4) wetlands adjacent to other jurisdictional waters (other than jurisdictional wetlands).”  On January 20, 2021, President Biden signed Executive Order 13990 directing all executive agencies to review and address any federal regulations that went into effect during the previous administration. After reviewing the Trump Administration’s Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.  The new rule proposed by the agencies seeks to interpret WOTUS to include: (1) traditional navigable waters; (2) interstate waters; (3) the territorial seas and their adjacent wetlands; (4) most impoundments of WOTUS; (5) tributaries to traditional navigable waters, interstate waters, the territorial seas, and impoundments, that meet either the relatively permanent standard of the significant nexus standard; (6) wetlands adjacent to impoundments and tributaries, that meet either the relatively permanent standard or the significant nexus standard; and (7) “other waters” that meet either the relatively permanent standard or the significant nexus standard.  The agencies will be taking comment on the proposed rule for 60 days once the rule is published in the Federal Register.  

Kansas Attorney General asks Supreme Court to review Kansas “Ag Gag” Law.  Derek Schmidt, Attorney General of Kansas, has asked the United States Supreme Court to review the Kansas Farm Animal and Field Crop and Research Facilities Protection Act (the “Act”) which criminalizes the unauthorized access to agricultural facilities without consent of the owner of the facility with the intent to damage the business of the facility.  Under the Act, consent is not effective if it is “[i]nduced by force, fraud, deception, duress or threat.”  Earlier this year, the 10^th Circuit Court of Appeals found the Kansas law to be unconstitutional by violating the free speech clause in the First Amendment of the United States Constitution and prohibited Kansas from enforcing the Act.  Now, Derek Schmidt has petitioned the Supreme Court to review the Kansas law arguing that the Act does not violate the First Amendment because the Act regulates conduct not speech.  The Attorney General goes on to argue that even if trespass by deception were to be considered a form of speech, it is a form of speech that is not protected by the First Amendment.  The Attorney General reasoned that the Act protects a private property owner’s right to exclude and that the First Amendment does not provide a license to violate a person’s property rights.   

Oklahoma’s meat labeling law on trial.  Earlier this month, the Plant Based Foods Association and the Tofurky Company (“Plaintiffs”) filed an amended complaint challenging Oklahoma’s Meat Consumer Protection Act (the “Act”) alleging that the Act violates the dormant commerce clause, the due process clause, and the supremacy clause of the United States Constitution.  Plaintiffs allege that the Oklahoma law “institutes a protectionist trade barrier” that is contrary to and preempted by federal law.  According to Plaintiffs, the Act “forbids plant-based meat producers from using meat terms unless they include a disclaimer on their product labels in the same type size and prominence to the ‘name of the product’ that their plant-based products are not actually meat derived from animals.”  Plaintiffs argue that the Oklahoma law would require plant-based meat producers to develop Oklahoma specific labels or abandon the Oklahoma market which is essentially interfering with interstate commerce and in violation of established federal law. This case is set for trial in 2022.  But, this is not the first time the Oklahoma law has been challenged on constitutional grounds.  Plant Based Foods Association and Upton’s Naturals Company also filed suit alleging the Oklahoma law violated the First and Fourteenth Amendments of the Constitution.  However, a Federal District Court in Oklahoma denied an injunction to prevent Oklahoma from enforcing the law.  The court found that the disclosure requirement in the Act is reasonably related to Oklahoma’s interest in preventing the confusion or deception of consumers.  The court reasoned that the commercial speech at issue could potentially be misleading to reasonable consumer.  The court argued that “the possibility of deception flowing from the use of meat-related terms for the plant-based products is self-evident from the natural inference a consumer would draw from the meat-related terms used.”  This not the end of the battle for the Oklahoma law, there will likely be appeals to higher courts to help settle the dispute. 

Pepperidge Farm sued over “Golden Butter” cracker label.  Hawa Kamara decided to file a lawsuit against Pepperidge Farm, Inc. after purchasing “Golden Butter” crackers at a local Target store in New York. According to the ingredients list attached to Kamara’s complaint, the crackers were made with butter but also included vegetable oils.  Kamara asserted that the presence of vegetable oils makes the “Golden Butter” packaging misleading and/or deceptive because a reasonable consumer would conclude the crackers were “all or predominantly made with butter.”  A Federal District Court in New York, however, did not find the packaging misleading or deceptive.  The court reasoned that “the packaging accurately indicated that the product contained butter, and the ingredients list confirmed that butter predominated over other oils and fats.”  Further, the court argued that a reasonable consumer could believe the “Golden Butter” labeling described the product’s flavor and not the ingredient proportions.  Ultimately, the court decided to dismiss the case against Pepperidge Farm because Kamara’s complaint did not plausibly allege that the “Golden Butter” packaging materially misrepresented the ingredients in the crackers.  

Thank you for reading and we hope that everyone has a happy and safe Thanksgiving!! 

Did you know that the “wise old owl” saying is a myth?  Generally speaking, owls are no wiser than other birds of prey.  In fact, other bird species like crows and parrots have shown greater cognitive abilities than the owl.  An owl’s anatomy also helps dispel the myth because most of the space on an owl’s head is occupied by their large eyes, leaving little room for a brain. 

This week’s Ag Law Harvest brings you EPA bans, Ohio case law, USDA announcements, and federal case law which could make your head spin almost as far as an owl’s.  

EPA banning use of chlorpyrifos on food crops.  The EPA announced that it will stop the use of the pesticide chlorpyrifos on all food to better protect producers and consumers.  In its final rule released on Wednesday, the EPA is revoking all “tolerances” for chlorpyrifos.  Additionally, the EPA will issue a Notice of Intent to Cancel under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) to cancel all registered food uses of chlorpyrifos.  Chlorpyrifos is an insecticide used for a variety of agricultural uses, including soybeans, fruit and nut trees, broccoli, cauliflower, and other row crops, in addition to non-food uses.  The EPA’s announcement comes in response to the Ninth Circuit’s order directing the EPA to issue a final rule in response to a petition filed by opponents to the use of chlorpyrifos.  The petition requested that the EPA revoke all chlorpyrifos tolerances because those tolerances were not safe, particularly because of the potential negative effects the insecticide has on children.  For more information about chlorpyrifos and the EPA’s final rule, visit the EPA’s website.

Trusts aren’t to be used as shields.  An Ohio appeals court recently reinforced the concept that under Ohio law, trusts are not be used as a way to shield a person’s assets from creditors.  Recently, a plaintiff filed a lawsuit against a bank alleging breach of contract and conversion, among other things.  Plaintiff, an attorney and real estate developer, claimed that the bank removed money from his personal account and a trust account in violation of Ohio law and the terms of the loan agreement between the parties.  Prior to the lawsuit, plaintiff established a revocable trust for estate planning purposes and to acquire and develop real estate. This dispute arose from a $200,000 loan from the bank to the plaintiff to help establish a restaurant.  A provision of the loan agreement, known as the “Right to Setoff” provision, allowed the bank to “setoff” or effectively garnish all accounts the plaintiff had with the bank.  The setoff provision explicitly prohibited any setoff from any IRA or trust accounts “for which setoff would be prohibited by law.”  Plaintiff made all monthly payments but failed to make the final balloon payment on the loan.  Plaintiff argued that the bank broke the loan contract and violated Ohio law by taking funds from the trust account to pay off the remaining balance of the loan.  The court disagreed.  The court noted that under Ohio law, a settlor’s property in a revocable trust is subject to the claims of the settlor’s creditors.  A settlor is a person who creates or contributes property to a trust.  In this case, plaintiff was the creator, settlor, and sole beneficiary of the revocable trust.  Because of that, the court concluded the bank did not violate Ohio law when using the trust account to setoff the balance of the loan.  Additionally, the court found that the bank did not violate the terms of the loan agreement because a setoff from the trust account was not prohibited by law.  The court noted that Ohio law did not intend to allow a settlor who is also a beneficiary of the trust to use a trust as a “shield” against creditors.  Although trusts can be a useful estate planning tool, there are limits to what a trust can do, as evidenced by this case. 

Renewable fuel supporters file appeal on E15 summer sales. Corn farmers have joined forces with the biofuel industry (“Petitioners”) to ask the D.C. Circuit Court of Appeals for a new hearing on a ruling that struck down the EPA’s 2019 decision to allow year-round E15 sales.  Earlier this year, the same D.C. Circuit Court of Appeals issued an opinion that ruled the legislative text in the law supporting the biofuel mandate does not support the Trump administration’s regulatory waiver that allowed E15 to be sold during the summer months. In their petition, Petitioners argue that the D.C. Circuit Court made “significant legal errors.”  Petitioners contend that the court should rehear the case because the intent behind the nation’s biofuel mandate is better served by the sale of E15 through the summer months because it is less volatile, has less evaporative emissions, and is overall better for the environment than other fuel sources.  Petitioners also believe the court’s original decision deprives American drivers the choice of lower carbon emitting options at the gas pump.

Monsanto asks Supreme Court to review Ninth Circuit’s Roundup Decision.  In its petition to the Supreme Court of the United States Monsanto Company (“Monsanto”) asked the Supreme Court to review the $25 million decision rendered by the Ninth Circuit Court of Appeals.  In that decision, the Ninth Circuit held that the Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”) did not preempt, or otherwise prevent, the plaintiff from raising California failure-to-warn claims on Roundup products and allowed plaintiff to introduce expert testimony that glyphosate causes cancer in humans.  In trial, the plaintiff argued that Monsanto violated California’s labeling requirements by not including a warning on the Roundup label that glyphosate, which is found in Roundup, causes cancer.  Monsanto argues that FIFRA expressly preempts any state law that imposes a different labeling or packaging requirement.  Under FIFRA, Monsanto argues that the EPA did not require Monsanto to include a cancer warning on its Roundup label.  Therefore, Monsanto maintains, that because California law differed from FIFRA, Monsanto was not required to follow California law when it came to labeling its Roundup product.  Secondly, the Ninth Circuit allowed plaintiff to present expert evidence that glyphosate could cause non-Hodgkin’s lymphoma in the general public and that glyphosate caused the plaintiff’s lymphoma.  Monsanto contends that the lower courts have distorted established precedent by allowing the expert testimony because the testimony is not based on generally accepted scientific principles and the scientific community has consistently found that glyphosate does not cause cancer in humans.    

USDA working to protect nation’s dairy industry.  The USDA’s Agricultural Marketing Service (“AMS”) has struck a deal with the European Union (“EU”) to satisfy the EU’s new import requirements on U.S. dairy.  The EU will require new health certificates for U.S. dairy products exported to the EU to verify that the U.S. milk used for products exported to the EU is sourced from establishments regulated under the Grade “A” Pasteurized Milk Ordinance or the USDA AMS Milk for Manufacturing Purposes.  Officials representing the U.S. Dairy Export Council and International Dairy Foods Association claim that the deal will allow U.S. producers to comply with the EU’s mandates while also satisfying the concerns within the American dairy industry.  The deal pushes back the EU’s deadline for new health certificates to January 15, 2022, to allow U.S. producers and exporters enough time to bring their products into compliance.  The USDA also announcedthat it is providing around $350 million to compensate dairy producers who lost revenue because of market disruptions due to the COVID-19 pandemic and a change to the federal pricing formula under the 2018 farm bill.  Additional details are available at the AMS Dairy Program website.

Tale as old as time.  An Ohio appeals court recently decided a dispute between neighbors about a driveway easement.  The driveway in dispute is shared by both neighbors to access their detached garages. Defendants used the driveway to access their garage and then the driveway extends past the Defendants’ garage onto Plaintiff’s property and ends at Plaintiff’s garage.  The dispute arose after Defendants built a parking pad behind their garage and used parts of the driveway they never used before to access the parking pad.  The original easement to the driveway was granted by very broad and general language in a 1918 deed, when the property was divided into two separate parcels.  In 1997, a Perpetual Easement and Maintenance Agreement (“Agreement”) was entered into by the two previous property owners.  The Agreement was much more specific than the 1918 deed and specifically showed how far the easement ran and what portions of the driveway could be used by both parties.  The 1997 Agreement did not allow for Defendants to use the portion of the driveway necessary to access their parking pad.  Plaintiffs argue that the 1997 Agreement controls the extent of the easement, whereas Defendants argue that the broad general language in the 1918 deed grants them authority to use the whole length of the driveway.  The Court found the more specific 1997 Agreement to be controlling and ruled in favor of the Plaintiffs.   The Court reasoned that the 1918 deed creates an ambiguity as to the extent of the easement and there is no way of knowing what the original driveway looked like or how it was used.  The Court concluded that the 1997 Agreement does not contradict or invalidate the 1918 deed, rather the 1997 Agreement puts specific parameters on the existing easement and does not violate any Ohio law.  The Defendants were found liable for trespass onto the Plaintiffs’ property and is expected to pay $27,500 in damages.  The lesson to be learned from all of this?  Make sure your easements are as specific and detailed as possible to ensure that all parties are in compliance with the law.