ODA

Hippopotamus in water.
By: Jeffrey K. Lewis, Esq., Friday, October 29th, 2021

Did you know that Hippopotamuses cannot swim?  It’s true.  When hippos submerge themselves underwater, they don’t swim back up to the surface, instead they walk along the bottom until they reach shallow water.  That is unless the hippo decides to chase you out of its territory, then it will gladly run, jump, and charge right at you. 

Like the hippo, this week’s Ag Law Harvest is a little territorial.  We bring you recent Ohio court decisions, a federal order allowing Colombian hippos to take the testimony of Ohio residents, and the Ohio Department of Agriculture’s directives as it ramps up its fight against Ohio’s newest pest.

Well, well, well.  A recent Ohio case demonstrated the complex issues a landowner can run into when dealing with an oil and gas lease.  The Plaintiff in this case owns land in Hebron, Ohio and brought suit against his neighbors and the Ohio Department of Taxation claiming that he was not the owner of a gas well located on his property or that he was responsible for paying taxes and maintaining the well under Ohio law.  The Hebron, Ohio property at issue in this case passed through many hands before becoming the property of the Plaintiff.  One of the prior owners was a man named William Taggart (“Taggart”).  As mentioned earlier, the property also has a gas well which was subject to an oil and gas lease.  The oil and gas lease passed to multiple parties and ended up with Taggart while he owned the Hebron property.  After having both the property and the oil and gas lease, Taggart deeded the property to Plaintiff’s parents which eventually passed onto Plaintiff.  Plaintiff argued that he is not the rightful owner of the well because the last person that was assigned the oil and gas lease was Taggart, making him the owner of the well.  The Fifth District Court of Appeals disagreed.  The court found that Plaintiff’s parents registered as owners of the well under Ohio Revised Code § 1509.31 which requires a person to register a well before they can operate it.  Further, the court determined that when the oil and gas lease was assigned to Taggart the rights of the landowner and the lessee merged, essentially making Taggart the only individual with any property interest in the well.  Relying on § 1509.31, the court found that when the entire interest of an oil and gas lease is assigned to the landowner, the landowner then becomes responsible for compliance with Chapter 1509 of the Ohio Revised Code.   Therefore, when the property passed to Plaintiff’s parents, they became the owners of the well and were responsible for making sure the well was in compliance with Chapter 1509.  Because this responsibility passed onto Plaintiff, the court found Plaintiff to be liable for the taxes and ensuring that the well is compliant with Ohio law.  The court also denied Plaintiff’s attempt to argue that Taggart was the responsible party because the oil and gas lease was still in effect due to the fact that Plaintiff’s neighbors use the gas well for domestic purposes.  The court found that the oil and gas lease had expired by its own terms, pursuant to the habendum clause contained within the lease.  A habendum clause essentially defines the property interests and rights that a lessee has.  The specific habendum clause in this case stated that the lease would terminate either within three years or when the well no longer produced oil and gas for commercial purposes.  The lease at issue was well beyond the three-year term and, as the court found, the lease expired under Taggart because the well no longer produced oil or gas for commercial purposes.  The use of the well for domestic purposes did not matter.  The Fifth District ultimately held that because Plaintiff could not produce any evidence to show that another party had an interest in the well, Plaintiff is ultimately responsible for the well.   

Amending a contract doesn’t always erase the past.  Two companies (“Plaintiffs”) recently filed suit against a former managing member (“Defendant”) for allegedly using business funds and assets for personal use during his time as managing member.  The primary issue in this case was whether or not an arbitration clause in the original operating agreement is enforceable after the operating agreement was amended to remove the arbitration clause.  Defendant’s alleged misconduct occurred while the original operating agreement was in effect.  The original operating agreement would require the parties to settle any disputes through the arbitration process and not through the court system.  However, shortly before filing suit, the original operating agreement was amended to remove the arbitration provision.  Plaintiffs filed suit against the Defendant arguing that the arbitration provision no longer applied because the operating agreement had been amended.  Defendant, however, argued that his alleged misconduct occurred while the original operating agreement was in effect and that the amended operating agreement could not apply retroactively forcing him to settle the dispute in a court rather than through arbitration.  The trial court, however, sided with the Plaintiffs and allowed the case to move forward.  Defendant appealed the trial court’s decision and the Ninth District Court of Appeals agreed with him.  The District Court found that the amended operating agreement did not expressly state any intention for the terms and conditions of the amended operating agreement to apply retroactively.  Further, the court held that Ohio law favors enforcing arbitration provisions within contracts and any doubts as to whether an arbitration clause applies should be resolved in favor of enforcing the arbitration clause.  The Ninth District reversed the trial court and found that the dispute of Defendant’s alleged misconduct should be resolved through arbitration.  

Animal advocates claim victory in pursuit of recognizing animals as legal persons.  A recent order issued by a federal district court in Ohio allows an attorney for Colombian Hippopotamuses to take the testimony of two expert witnesses residing in Ohio.  According to U.S. law, a witness may be compelled to give testimony in a foreign lawsuit if an “interested person” applies to a U.S. court asking that the testimony be taken.  The Animal Legal Defense Fund (“ALDF”) applied to the federal court on behalf of the plaintiffs, roughly 100 hippopotamuses, from a lawsuit currently pending in Colombia.  According to the ALDF, the lawsuit seeks to prevent the Colombian government from killing the hippos.  The interesting thing about this case is that hippos are not native to Colombia and were illegally imported into the country by drug kingpin Pablo Escobar.  After Escobar’s death the hippos escaped his property and relocated to Colombia’s Magdalena River and have reproduced at a rate that some say is unsustainable.  In Colombia, animals are able to sue to protect their rights and because the plaintiffs in the Colombian lawsuit are the hippos themselves, the ALDF argued that the hippos qualify as an “interested person” under U.S. law.  After applying for the authorization, the federal court signed off on ALDF’s application and issued an order authorizing the attorney for the hippos to issue subpoenas for the testimony of the Ohio experts.  After the federal court’s order, the ALDF issued a press release titled “Animals Recognized as Legal Persons for the First Time in U.S. Court.”  The ALDF claims the federal court ruling is a “critical milestone in the broader animal status fight to recognize that animals have enforceable rights.”  However, critics of ALDF’s assertions point out that ALDF’s claims are a bit embellished.  According to critics, the order is a result of an ex parte application to the court, meaning only one side petitioned the court for the subpoenas and the other side was not present to argue against the subpoenas.  Further, critics claim that all the federal court did was sign an order allowing the attorney for the hippos to take expert testimony, the court did not hold that hippos are “legal persons” under the law.  

Ohio Department of Agriculture announces quarantine to combat the spread of the Spotted Lanternfly.  According to the Ohio Department of Agriculture (“ODA”) the Spotted Lanternfly (“SLF”) has taken hold in Jefferson and Cuyahoga counties.  The ODA announced that the SLF is now designated as a destructive plant pest under Ohio law and that the ODA was issuing quarantine procedures and restricting the movement of certain items from infested counties into non-infested areas of Ohio.  The ODA warns that the SLF can travel across county lines in items like tree branches, nursery stock, firewood, logs, and other outdoor items.  The ODA has created a checklist of things to look for before traveling within or out of infested counties.   Nurseries, arborists, loggers, and other businesses within those infested counties should contact the ODA to see what their obligations and rights are under the ODA's new quarantine instructions.  Under Ohio law, those individuals or businesses that fail to follow the ODA’s quarantine instructions could be found guilty of a misdemeanor of the third degree on their first offense and a misdemeanor of the second degree for each subsequent offense.  For more information visit the ODA’s website about the SLF.

Ferris wheel under blue sky.
By: Jeffrey K. Lewis, Esq., Monday, July 12th, 2021

Fair season is in full swing, and after a year off, fair goers are eager to indulge in fair food, games, and rides.  Additionally, thanks to a new law, Ohio is hoping to make this the safest fair season yet.  This comes after the tragic death of Tyler Jarrell at the 2017 Ohio State Fair.  The 18-year-old fair goer passed away when the Fire Ball ride broke apart.  Tyler and seven others were injured in the accident, which was later blamed on excessive corrosion.  To help prevent another tragedy, Governor DeWine signed House Bill 189, also known as “Tyler’s Law”, into action last November.  Tyler’s Law, which is enforced by the Ohio Department of Agriculture (“ODA”), strengthens Ohio’s existing laws on amusement rides, adds additional safety inspection standards, defines specific qualifications for ride inspectors, and outlines additional owner responsibilities.

Tyler’s Legacy on Ohio’s Amusement Ride Laws

It may come as a surprise, but the ODA is not only responsible for safe food, meat, dairy, and protecting Ohio’s livestock, crops, and plants; it is also responsible for ensuring the safety and wellbeing of Ohioans and visitors from across the world when they visit Ohio’s fairs, festivals, and amusement parks.  Specifically, the ODA is responsible for ensuring that all amusement rides are safe for ride enthusiasts.  Below is a brief overview of Ohio’s current amusement ride laws and the ODA’s new requirements enacted by Tyler’s Law. 

Amusement Ride Permits.  Owners of amusement rides must apply for a yearly permit through the ODA.  The ODA will only issue a permit if the owner has submitted a completed application with inspection fees, provided proof of insurance, provided an itinerary of where the amusement ride will be operating, and proof that the ride has undergone and passed an initial inspection.  

Initial inspection, midseason inspection, and additional safety inspections.  Ohio law requires that all amusement rides complete an initial inspection and requires certain amusement rides to undergo a midseason inspection.  All inspections must be completed by authorized inspectors and the ODA may require additional safety inspections of any amusement ride throughout the year.  

Fatigue and Corrosion Review.  One of the key changes implemented by Tyler’s law is an owner’s obligation to complete a fatigue and corrosion review. These reviews are additional safety inspections to help prevent another tragedy like the one in 2017.  A ride owner’s obligations are determined by how their ride is categorized.  Ohio has categorized amusement rides as follows: 

  • “Low Intensity Rides” – includes all kiddie rides, carousels, go karts, and inflatable devises.  A kiddie ride is a ride that is primarily designed for children 48 inches and under. 
  • “Intermediate Rides” – all rides that are not Low Intensity Rides, Towers, or Rollercoasters. 
  • “Towers” – any amusement ride, other than a roller coaster, whose main body components reach a height of twenty feet or more. 
  • “Roller Coasters” – any ride licensed under Ohio law and whose main body components reach a height of fifty feet or more.  

Owners of any type of amusement ride must ensure that that their ride meets the manufacturer’s minimum requirements for inspection and testing.  If there are no manufacturer specifications, then an owner must ensure that the ride conforms to generally accepted engineering standards and practices. 

In addition to meeting a manufacturer’s specifications or accepted engineering standards, owners of Intermediate Rides, Towers, and Roller Coasters must also conduct a visual inspection of their ride looking for signs of fatigue and corrosion.  If fatigue or corrosion are found, the owner must discuss the findings with the ride’s manufacturer or a registered engineer and implement any suggested mitigation strategies.  Once an owner has completed their visual fatigue and corrosion review, the owner must document the findings and provide the ODA with a copy.  All documents must be maintained for the life of the ride and provided to any subsequent owner.  If an owner fails to implement and follow the suggested mitigation strategies, the ODA can immediately shut down the ride.   

As it stands, owners of Low Intensity Rides and Intermediate Rides are the only category of owners obligated to follow the new fatigue and corrosion review rules.  Owners of Towers will be required to follow the new rules starting in April of 2022 and Owners of Roller Coasters will have to comply starting in April of 2023. 

Records of storage and/or out state operation.  Tyler’s law also requires owners of portable amusement rides to provide documentation providing all locations and dates where the ride was stored for 30 days or more.  Additionally, an owner is required to provide documentation identifying all locations and dates where the ride was operated, if it was operated outside of Ohio.  

Ride Inspections.  Ohio law also establishes the minimum number of times a ride must be inspected each year as well as the number of inspectors that must be at each inspectio

Ride Category

Number of Inspections

Number of Inspectors for Initial Inspection

Number of Inspectors for Additional Inspections

Low Intensity 

1

1

1

Intermediate 

2

2

1

Towers

2

2

2

Roller Coasters

2

2

2

Maintenance requirements.  Owners are required to maintain maintenance, repair, pre-opening inspection, and any additional inspection records for each amusement ride.  An owner is required to keep these records for at least two years.  Owners must also provide checklists and training to any person who is to be performing ride maintenance throughout the ride’s operational cycle.  

Valid decals.  Owners of amusement rides are required to display a decal issued by the ODA representing that the owner and ride have complied with Ohio’s laws and are allowed to operate within the state.  If no decal appears, a ride should be prevented from operating until a valid permit is furnished by the owner.  

Rider Obligations.  Owners are not the only party with responsibilities when it comes to amusement rides.  Riders are prohibited from engaging in certain conduct that create an increased risk of danger for a rider and others around them.  A rider must: 

  • Heed all warnings and directions of an amusement ride; and
  • Not behave in any way that might cause injury or contribute to injuring self or other riders while occupying an amusement ride.

Conclusion.  Although amusement parks like King’s Island and Cedar Point are already subject to some of the additional safety measures of Tyler’s Law, this will be the first fair season with the new regulations.  Fair has provided generations of Ohioans with fond memories, joy, and reasons to celebrate, and through Tyler’s legacy, Ohio seeks to take all the steps necessary to try and ensure that fair is nothing but a happy occasion for all. To learn more about Ohio’s laws regarding amusement rides visit the Ohio Revised Code and the Ohio Administrative Code.  

 

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