Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program
Toledo’s Lake Erie Bill of Rights (LEBOR) has been in the headlines a lot lately, and certainly on the minds of farmers in the Lake Erie watershed. So far, the Ag Law Blog has focused attention on what LEBOR is, why it was on the ballot, and what types of defenses agricultural producers can raise if sued. Because voters approved the ballot measure, the focus now shifts to how LEBOR will be treated in the courts.
On February 26th, Toledo held a special election, with one of the ballot questions being whether to amend the City of Toledo’s charter to adopt LEBOR. While less than 9 percent of Toledo’s registered voters cast a ballot, the majority of those who did voted in favor of amending the city’s charter to include LEBOR.
On February 27th, the Drewes Farm Partnership filed a complaint and initiated a lawsuit in federal court against the City of Toledo. Family owned and operated, this Wood County based grain farm operates wholly within the Lake Erie watershed. Drewes Farm utilizes both manure and commercial fertilizers, and states in its complaint that it follows industry best practices, scientific recommendations, and all legal requirements such as keeping records and not applying fertilizer on snow covered ground. Two of the family members obtained Fertilizer Applicator Certificates, and the Ohio Department of Agriculture certified the farm under its Ohio Agricultural Stewardship Verification Program.
The complaint specifically alleges violations of Drewes Farm’s rights under the First Amendment, Equal Protection Clause, and Due Process Clauses of both the Fifth and Fourteenth Amendments. Further, the complaint argues that LEBOR exceeds the City of Toledo’s authority by intruding on state and federal powers by attempting to meddle with international relations, invalidate state and federal permits, invalidate state law, alter the rights of corporations, and create new causes of action in state courts. Drewes Farm requests that the court 1) grant it a preliminary and permanent injunction to prevent LEBOR’s enforcement, 2) invalidate LEBOR, and 3) grant the plaintiff an award for costs and fees.
The following day, Drewes Farm filed a motion for a preliminary injunction. Parties use preliminary injunctions as a way to enforce the status quo and prevent the other parties from acting in a way that would cause further harm. If granted, the preliminary injunction would prevent the enforcement of LEBOR against the Drewes Farm Partnership during the course of the litigation. At the end of the case, there would be a determination of whether Drewes Farm should receive a permanent injunction, which would prevent LEBOR from being enforced against it after the case has ended.
The party who brings the motion must argue and prove four elements in order for the court to grant the motion for a preliminary injunction:
First, that the movant has a likelihood of success on the merits, meaning that it is likely that the movant will win the underlying case. Drewes Farm’s motion examines each of the grounds that it believes violates its constitutional rights and state and federal law. Drewes Farm argues that it can win on each of the dozen grounds it examines, and that it need only show a likelihood of success on one ground to satisfy this element.
Second, that the movant could suffer irreparable harm without a preliminary injunction, meaning that without a preliminary injunction, the other party may take action to harm the movant in a way that it will not be able to recover. Here, Drewes Farm cites court cases explaining that the loss of one’s constitutional rights for any amount of time constitutes irreparable harm, and that a likelihood of success also demonstrates irreparable harm.
Third, that the issuance of an injunction will not cause greater harm. This element balances the previous element to see whether the injunction is fair. Where the second element looks at the harm to the movant, the third element looks at whether a preliminary injunction will harm others. Here, Drewes Farm argues that others will not be harmed by the granting of a preliminary injunction because it will merely allow the farm to continue operating as required under the law and its permits using best practices. Further, Drewes Farm mentions that the other farms in the watershed will actually experience a benefit from the prevention of LEBOR’s enforcement.
Fourth, that the issuance of a preliminary injunction would serve the public interest. Here, Drewes Farm cites additional court cases explaining that the enforcement of constitutional rights is inherently in the public interest. Further, it argues that the State of Ohio holds its portion of Lake Erie in trust “for all Ohio citizens, not just those residing in a single municipality.”
If the court is satisfied that Drewes Farm has established each of the four elements, it may grant a preliminary injunction.
At this time, the City of Toledo has not filed any responses to the complaint or motion; however, procedural rules require it to respond in a timely manner. Because it has not filed anything with the court, it is unclear how the City of Toledo intends to defend or respond. However, since enforcement of LEBOR had not been commenced against the Drewes Farm Partnership, it is possible that Toledo will challenge the plaintiff’s standing to sue at the present time.
The case is cited in court records as Drewes Farm Partnership v. City of Toledo, Ohio, 3:19-cv-00343 (N.D. Ohio). Stay tuned to the Ag Law Blog for updates about the case.
Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts. Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers. The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming. A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.
In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture. The laws afford legal protections based on the type of activity and the type of resulting harm. For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area. Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices. It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.
To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.
Written by Ellen Essman, Sr. Research Associate
Over the last several months, three nuisance cases have been decided against Smithfield Foods in federal court in North Carolina. The juries in the cases have found Smithfield’s large farms, with thousands of hogs, and the odor, traffic, and flies that come along with them, to be a nuisance to neighboring landowners. Smithfield has been ordered to pay hefty damages to the neighbors, and more cases against the company remain to be decided. Given the outcomes of the cases that have been decided thus far, farmers and landowners in Ohio might be wondering how Ohio law compares to North Carolina law as pertains to agricultural nuisances.
Ohio’s Right-to-Farm law
Many states, including both Ohio and North Carolina, have “right-to-farm” legislation, which in part is meant to protect agriculture from nuisance lawsuits such as those filed against Smithfield. While nearly every state has a right-to-farm statute, they do differ in language and how they go about protecting agriculture.
Ohio farmers have right-to-farm protection in two parts of the Revised Code. ORC Chapter 929 establishes “agricultural districts.” Generally, in order to place land in an agricultural district, the owner of the land must file an application with the county auditor. Certain requirements must be met in order for an application to be accepted. Slightly different rules apply if the land in question is within a municipal corporation or is being annexed by a municipality. If the application is accepted, the land is placed in an agricultural district for five years. The owner may submit a renewal application after that time is up.
Being part of an agricultural district in Ohio can help farmers and landowners to defend against civil lawsuits. ORC 929.04 reads:
In a civil action for nuisances involving agricultural activities, it is a complete defense if:
- The agricultural activities were conducted within an agricultural district;
- Agricultural activities were established within the agricultural district prior to the plaintiff’s activities or interest on which the action is based;
- The plaintiff was not involved in agricultural production; and
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The ORC’s chapter on nuisances provides additional protection for those “engaged in agriculture-related activities.” Under ORC 3767.13, people who are practicing agricultural activities “outside a municipal corporation, in accordance with generally accepted agricultural practices, and in such a manner so as not to have a substantial, adverse effect on public health, safety, or welfare” are typically exempt from claims of nuisance due to farm noise, smells, etc.
North Carolina’s Right-to-Farm law
Much like Ohio, North Carolina farm land can be part of an “agricultural district.” North Carolina’s preservation of farmland law is available here. This program is meant to protect agricultural land—land that is part of an agricultural district is must be used for agriculture for at least 10 years. However, unlike Ohio’s law, North Carolina does not specifically spell out that land in agricultural districts will be protected from nuisance suits when the landowner follows the rules of the agricultural district. North Carolina’s law does state that one of the purposes of agricultural districts is to “increase protection from nuisance suits and other negative impacts on properly managed farms,” but unlike Ohio, it does not explicitly state that being part of an agricultural district is a defense to a nuisance lawsuit.
North Carolina also has a statute which specifically spells out the right-to-farm. In response to the recent jury decisions, however, North Carolina has changed its right-to-farm law. The original law read:
- No agricultural or forestry operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality outside of the operation after the operation has been in operation for more than one year, when such an operation was not a nuisance at the time the operation began.
(a1) The provisions of subsection (a) of this section shall not apply when the plaintiff demonstrates that the agricultural or forestry operation has undergone a fundamental change. A fundamental change does not include any of the following:
- A change in ownership or size.
- An interruption of farming for a period of no more than three years.
- Participation in a government-sponsored agricultural program.
- Employment of new technology.
- A change in the type of agricultural or forestry product produced.
The original law did not protect agricultural operations if their actions were negligent or improper. The original law is available here.
Following the first decision against Smithfield, the North Carolina legislature overrode the Governor’s veto to implement amendments to the state’s right-to-farm law. In the amendments, available here (sections 106-701 and 106-702), the legislature substantially changed the language of the law, making what constitutes a nuisance much more explicit and dependent on certain factors. What is more, the new version of the law places limits on when plaintiffs can recover punitive damages for a private nuisance action.
A comparison of the Ohio and North Carolina’s sections of legislation promoting the “right-to-farm” shows how different the two states are. Ohio’s legislative language makes it obvious that the meaning of the law is to protect agriculture from nuisance suits—by specifically stating that being in an agricultural district is a complete defense to nuisance, and that otherwise, agriculture is generally exempt from nuisance suits. North Carolina’s law concerning agricultural districts does not specifically state that being in such a district is a defense to nuisance, instead, it simply expresses the hope that districts will “increase protection from nuisance suits.” Furthermore, while North Carolina’s original right-to-farm law stated that agricultural operations do not “become a nuisance” due to changed conditions in the community, that language is not very specific. Ohio’s agricultural district language lays out exactly what must be done to have a complete defense against a nuisance lawsuit; North Carolina’s language in multiple parts of the General Statutes does not have the same degree of specificity.
Permit as a defense to nuisance
In addition to the right-to-farm law, under ORC 903.13, those owning, operating, or responsible for concentrated animal feeding facilities in Ohio have an affirmative defense to a private civil action for nuisance against them if the CAFO is in compliance with best management practices established in the installation permit or permit to operate and the agricultural activities do not violate federal, state, and local laws governing nuisances. North Carolina does not appear to have similar language protecting permitted farms in its General Statutes.
Other factors that may come into play
In the lawsuits against Smithfield farms, the lawyers for the plaintiffs (neighboring landowners) have continuously asserted that Smithfield has “means and ability” to “reduce the nuisance from existing facilities” by ending the use of “lagoon and sprayfield” systems at their farms. Plaintiffs stress that not only is Smithfield Foods, Inc. a large, wealthy, multinational company, but that they have also changed their lagoon and sprayfield practices outside of North Carolina. In lagoon and sprayfield systems, all waste is collected in an open-air lagoon and then sprayed on fields as fertilizer. The practice was first banned for new construction in North Carolina in 1997, and in 2007, the state permanently banned the practice for newly constructed swine facilities. Although many of the facilities in question were opened before any ban on the construction of lagoon and sprayfield facilities, the plaintiffs contend that changes made in other states mean Smithfield can afford to change in North Carolina. The ban on new lagoon and sprayfield systems in North Carolina, and evidence that Smithfield has used different practices to reduce the smell from the farms in other states, likely helped the juries in the cases that have been tried to date find that the farms are a nuisance to their neighbors. The above argument is something operators of livestock facilities in Ohio should be aware of. Although Ohio has not specifically banned lagoon and sprayfield systems like North Carolina has, the ability to change the system could still potentially be used to argue nuisance. Ohio operators are supposed to follow best management practices and the Natural Resources Conservation Service’s Field Office Technical guide when applying and storing manure, which include ways to reduce odor from manure and other applications, as well as reducing other types of nutrient pollution. Following such guidelines would likely help operators in any argument against nuisance.
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.
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 licenses. S.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.