Ohio department of agriculture

Baby chick in a laboratory flask.
By: Jeffrey K. Lewis, Esq., Friday, June 30th, 2023

Happy last day of June! We close out the month with another Ag Law Harvest, which brings you two interesting court cases, one about an Ohio man asserting his right to give away free gravel, and another which could decide the constitutionality of “Ag-Gag” laws once and for all. We also provide a few federal policy updates and announcements. 

Ohio Department of Agriculture Prohibited from Fining a Landowner for Charging to Load Free Gravel.  In May of 2020, Paul Gross began selling gravel and topsoil (collectively “gravel”) that he had accumulated from excavating a pond on his property. Gross charged $5 per ton of gravel, which was weighed at a scale three miles from his property. After receiving a complaint of the gravel sales, the Madison County Auditor sent a Weights and Measures Inspector to investigate Gross’s gravel sales. The Inspector informed Gross that the gravel sales violated Ohio Administrative Code 901:6-7-03(BB) (the “Rule”) because the gravel was not being weighed at the loading site. Under the Rule, “[s]and, rock, gravel, stone, paving stone, and similar materials kept, offered, or exposed for sale in bulk must be sold . . . by cubic meter or cubic yard or by weight.” As explained by the Inspector, Gross’s problem was that he was selling gravel by inaccurate weight measurements because the trucks hauling the gravel lose fuel weight when traveling the three miles to the scale. 

Instead of installing scales on his property, Gross decided to start giving away the gravel for free. However, Gross did charge a flat rate fee of $50 to any customer that requested Gross’s help in loading the gravel. According to Gross, this $50 fee was to cover the cost of his equipment, employees, and other resources used to help customers load the gravel. Unsatisfied with the structure of this transaction, the Ohio Department of Agriculture (“ODA”) decided to investigate further and eventually determined that even though Gross was giving away the gravel for free, the flat fee for Gross’s services represented a commercial sale of the gravel and, therefore, Gross was in continued violation of the Rule. 

For the alleged violation, the ODA intended to impose a $500 civil penalty on Gross, who requested an administrative hearing. The hearing officer recommended imposing the penalty and the Franklin County Court of Common Pleas agreed. Gross appealed the decision to the Tenth District Court of Appeals, which found that Gross was not in violation of the Rule

The Tenth District reasoned that customers were paying for the service of moving the gravel, not for the gravel itself. The court explained that the purpose of the Rule is to protect consumers by ensuring transparent pricing of materials like gravel. Since Gross was not in the business of selling gravel and the transaction was primarily for services, the court concluded that the ODA’s fine was impermissible. 

North Carolina Asks U.S. Supreme Court to Review “Ag-Gag Law.”  In 2015, the North Carolina Legislature passed the North Carolina Property Protection Act, allowing employers to sue any employee who “without authorization records images or sound occurring within” nonpublic areas of the employer’s property “and uses the recording to breach the [employee’s] duty of loyalty to the employer.” After the act’s passage several food-safety and animal-welfare groups, including the People for the Ethical Treatment of Animals (“PETA”), challenged the Property Protection Act in an effort to prevent North Carolina from enforcing the law. 

A federal district court in North Carolina struck down the law, finding it to be a content-based restriction on speech in violation of the First Amendment of the United States Constitution. The 4th Circuit Court of Appeals upheld the district court’s ruling also reasoning that the law’s broad prohibitions restrict speech in a manner inconsistent with the First Amendment. Now, the North Carolina Attorney General, Josh Stein, has petitioned the Supreme Court of the United States (“SCOTUS”), asking the Court to reverse the 4th Circuit’s decision. If SCOTUS decides to hear the case, the justices will be tasked with determining “[w]hether the First Amendment prohibits applying state tort law against double-agent employees who gather information, including by secretly recording, in the nonpublic areas of an employer’s property and who use that information to breach their duty of loyalty to the employer.” 

We have reported on several Ag-Gag laws and the court challenges that have followed. If SCOTUS decides to take up the case, we may finally have a definitive answer as to whether Ag-Gag laws are constitutional or not. 

Lab-grown Chicken Given the Green Light by the USDA. The United States Department of Agriculture’s (“USDA”) Food Safety and Inspection Service granted its first approvals to produce and sell lab-grown chicken to consumers. Upside Foods and Good Meat, the two entities given the green light by the USDA, plan on initially providing their “cell-cultivated” or “cultured” chicken to patrons of restaurants in the San Francisco and Washington D.C. areas. However, the timeline for such products showing up in your local grocery store has yet to be determined.  

USDA Suspends Livestock Risk Protection 60-Day Ownership Requirement. The USDA’s Risk Management Agency issued a bulletin suspending the 60-day ownership requirement for the Livestock Risk Protection (“LRP”) program. Normally under the LRP, covered livestock must be owned by the producer within the last 60 days of the specified coverage endorsement period for coverage to apply. According to the bulletin, “[d]ue to the continuing severe drought conditions impacting many parts of the nation, producers are struggling to find adequate supplies of feed or forage, causing them to market their livestock sooner than anticipated.” In response, the USDA is allowing producers to apply to waive the 60-day ownership requirement, subject to verification of proof of ownership of the livestock. The USDA hopes this waiver will allow producers to market their livestock as necessary while dealing with the current drought effects. Producers will be able to apply for the waiver until December 31, 2024. 

USDA Announces Tool to Help Small Businesses and Individuals Identify Contracting Opportunities. Earlier this month, the USDA announced a new tool “to assist industry and small disadvantaged entities in identifying potential opportunities for selling their products and services to USDA.” USDA’s Procurement Forecast tool lists potential contracting or subcontracting opportunities with the USDA. Until now, businesses could only access procurement opportunities through the federal-wide System for Award Management (“SAM”). The USDA hopes the Procurement Forecast tool will provide greater transparency and maximize opportunity for small and underserved businesses. 

 

Brain Baldridge speaking in the Ohio legislature
By: Peggy Kirk Hall, Wednesday, February 01st, 2023

A new year always brings new leadership appointments.  Sometimes those appointments result in a change, but sometimes they bring back previous leaders.  As we settle into 2023, we’re following what has changed and what remains the same and considering how leadership will impact agriculture in the coming year.  Here’s a summary of what we’re seeing in the leadership landscape.

Ohio ODA and EPA.  Here in Ohio, two of the agencies we commonly deal with will have new leaders.  Governor DeWine has nominated Brian Baldridge to head the Ohio Department of Agriculture and Anne Vogel as director of the Ohio EPA.  Baldridge is from a livestock and crop operation in Adams County, and previously served as a Representative, county commissioner, and township trustee.  Vogel was previously DeWine’s Policy Director and Energy Advisor.  She has a background in the energy industry and helped the governor establish the H2Ohio program.

Ohio General Assembly.  A few leadership changes are also in place at the Ohio legislature.  The House Speaker position has shifted to Rep. Jason Stephens (R-Kitt Hill) following a divisive race against Rep. Derek Merrin (R-Monclova Township) determined by Democrat support for Rep. Stephens. Rep.  Allison Russo (D-Upper Arlington) is the new minority leader, replacing Emilia Sykes, recently elected to the U.S. House of Representatives.  Sen. Matt Huffman (R-Lima) returns as the Senate President, joined by Sen. Nickie J. Antonia (D-Lakewood) in her new role as minority leader.

Ohio legislative committees.  Most important to agriculture is the leadership of the House and Senate agriculture committees.  On the House side, Rep. Rodney Creech (R-West Alexandria) will now chair the House Agriculture Committee after serving as the Vice Chair last session.  The new Vice Chair is newly elected Rep. Roy Klopfenstein (R-Haviland).  Both representatives have agricultural backgrounds; Rep. Creech resides on his family farm in Preble County and Rep. Klopfenstein farms with his family in Paulding County.  Rep. Juanita Brent (D-Cleveland) returns for her second term on the committee and will be the minority leader.  We await other committee member appointments.

The Senate Agriculture and Natural Resources Committee continues this session under the leadership of Tim Schaffer (R-Lancaster).  The committee will have a new Vice Chair, Sen. Al Landis (R-Dover), serving in his first term as a senator after four terms in the House.  Both have served on the Senate and House agriculture committees previously, but neither are from farm backgrounds.  Paula Hicks-Hudson (D-Toledo) returns as the minority ranking member on the committee. Only two additional Senators have been appointed to the committee, Sen. Sandra O-Brien (R-Ashtabula), who was on the committee last session, and  Sen. Shane Wilkin (R-Hillsboro), serving in his first term as a Senator after two terms in the House.

Congress.  As with Ohio, the U.S. House of Representatives endured a divisive race for leadership.  Rep. Kevin McCarthy (R-Calif.) eventually won the role of Speaker.  Less controversial was the election of Rep. Hakeem Jeffries (D-NY) to the Democrat leadership position that Rep. Nancy Pelosi stepped away from after 20 years in that role.  No changes occurred in the Senate, with Sen. Charles Schumer (D-NY) remaining as the Majority Leader and Sen. Mitch McConnell (R-KY) as the Minority Leader.

Congressional committees.  Sen. Debbie Stabenow (D-MI) is the returning Chair of the Senate Agriculture, Nutrition & Forestry Committee and Rep. Glenn Thompson (R-PA), is the new Chair of the House Committee on Agriculture.  Sen. John Boozman (R-AR) remains Ranking Member on the Senate side, and Rep. David Scott (D-GA) moves from Chair to Ranking Member on the House side.  Ohioans that will serve on those committees include Sen. Sherrod Brown on the Senate committee and Representatives Max Miller and Shontel Brown on the House committee.

What to watch for?

A new Farm Bill will be the heavy lift for the agriculture committees in Congress.  Major conflicts the committee leaders will have to navigate are expected to be debt reduction, climate programs, and the SNAP nutrition program.  Despite the upcoming challenges, both committee leaders have promised to wrap up a Farm Bill by September.

Here in Ohio, the budget bill will take priority right away and will involve the new agency directors and legislature.  One new ag-related budget item we might see is a proposal by Governor DeWine to increase the H2Ohio program with a “Rivers Initiative” that would address water quality in Ohio rivers. 

In the legislature, we expect to see an eminent domain bill much like House Bill 698 that was introduced late last session.  One of that bill’s sponsors was the newly appointed Chair of the House Agriculture Committee, Rep. Creech.  The bill proposed streamlining the process for landowners who challenge compensation for land taken by eminent domain, increasing the burden of proof on an agency proposing a taking, expansion of attorney fee and expense rewards for landowners, and a prohibition on takings of land for recreational trails.  There was also talk of the return of a “community solar” bill (H.B. 450) in the House, but both sponsors of that bill no longer serve in the House of Representatives.

What other changes might the new leadership bring?  That’s always a tough question, but we’ll keep an eye out and let you know what we see as we continue into 2023.

By: Evin Bachelor, Wednesday, January 16th, 2019

Less than a week into the administration of Ohio Governor Mike DeWine, a new approach to watersheds in distress has emerged.  Director Dorothy Pelanda assumed the helm of the Ohio Department of Agriculture (“ODA”) earlier this week.  (Read more about the new director below).  By Tuesday, ODA had changed the status of the proposed watersheds in distress rules in the Register of Ohio to “To Be Refiled.”

Watersheds in Distress Proposed Rules “To Be Refiled”

The change in status of the proposed rules signals that ODA plans to change its earlier proposal.  The Register of Ohio, which is where state agencies post rules and proposed rules, defines a proposed rule with a “To Be Refiled” status as one “that has been temporarily removed from JCARR consideration by the rule-filing agency.”  Until a sponsoring agency acts, the proposed rule remains in the “To Be Refiled” status and off of the agenda of the Joint Committee on Agency Rule Review (“JCARR”).  As we mentioned in a previous blog post, JCARR was set to consider the controversial proposal at its January 22, 2019 meeting.  However, the change in status of the proposed rules means that JCARR will not consider them until ODA takes further action.  ODA may revise the proposal, refile as-is, take no action, or withdraw the proposal.

Readers may recall from a previous blog post that the Kasich administration sought to expand the number of watersheds designated as “in distress,” which would impose additional regulations and restrictions on farmers who apply manure and nutrients to the land.  Further, the proposal would have required impacted farmers to submit a nutrient management plan to ODA, and ODA would have to audit at least 5 percent of those plans.  ODA’s Soil and Water Conversation Division held a hearing on November 21st, and a number of stakeholders attended to provide comments.  A summary report of the hearing is available here.  Currently, the Grand Lake St. Marys Watershed is the only watershed in Ohio subject to the additional requirements.

Dorothy Pelanda Assumes Directorship of Ohio Department of Agriculture

Director Pelanda steps into Governor Mike DeWine’s cabinet as the 39th Director of the Ohio Department of Agriculture.  She served in the Ohio House of Representatives from 2011 until the end of the previous General Assembly, and held leadership positions within the Republican caucus.  Prior to her appointment to the Ohio House, Director Pelanda practiced law in Union County.  She is a graduate of the University of Akron School of Law, Miami University, and Marysville High School.  Director Pelanda is the first woman to serve as the Director of the Ohio Department of Agriculture.  For more information about Director Pelanda, visit ODA’s website here.

By: Peggy Kirk Hall, Wednesday, April 11th, 2018

Wild carrot, Oxeye daisy, and wild mustard will no longer be prohibited noxious weeds in Ohio if the Ohio Department of Agriculture’s (ODA) revisions to the noxious weeds list become effective. ODA is proposing to remove the three plants after its five year review of plant species considered “noxious” for purposes of Ohio law. The agency is also proposing adding these 12 species to the noxious weeds list:

  • Yellow Groove Bamboo (Phyllostachys aureasculata), when the plant has spread from its original premise of planting and is not being maintained.
  • Field bindweed (Convolvulus arvensis)
  • Heart-podded hoary cress (Lepidium draba sub. draba). Hairy whitetop or ballcress (Lepidium appelianum)
  • Perennial sowthistle (Sonchus arvensis)
  • Russian knapweed (Acroptilon repens)
  • Leafy spurge (Euphorbia esula)
  • Hedge bindweed (Calystegia sepium)
  • Serrated tussock (Nassella trichotoma)
  • Columbus grass (Sorghum x almum)
  • Musk thistle (Carduus nutans)
  • Forage Kochia (Bassia prostrata)
  • Water Hemp (Amaranthus tuberculatus)

The director of ODA has the legal authority to designate noxious weeds. Several Ohio laws provide for control and removal of designated noxious weeds along public highways, toll roads, and railroads, and on private property.  The current noxious weeds list also contains the following plants, which will remain on the list:

  • Grapevines: (Vitis spp.), when growing in groups of one hundred or more and not pruned, sprayed, cultivated, or otherwise maintained for two consecutive years.
  • Canada thistle (Cirsium arvense L. (Scop.))
  • Poison hemlock (Conium maculatum)
  • Cressleaf groundsel (Senecio glabellus)
  • Musk thistle (Carduus nutans)
  • Purple loosestrife (Lythrum salicaria)
  • Mile-A-Minute Weed (Polygonum perfoliatum)
  • Giant Hogweed (Heracleum mantegazzianum).
  • Apple of Peru (Nicandra physalodes)
  • Marestail (Conyza canadensis)
  • Kochia (Bassia scoparia)
  • Palmer amaranth (Amaranthus palmeri)
  • Kudzu (Pueraria montana var. lobata)
  • Japanese knotweed (Polygonum cuspidatum)

ODA is requesting public comments on the revised list of noxious weeds through April 27, 2018.  E-mail comments to ecomments@agri.ohio.gov or mail them to Legal Section, Ohio Department of Agriculture, 8995 E. Main St., Reynoldsburg, Ohio 43068.  Learn more about noxious weed laws in our bulletin, here.

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