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By: Ellen Essman, Thursday, April 25th, 2019

A case out of the Fourth Appellate District in Gallia County serves as a lesson for farmers in Ohio who have roadside stands and sell products using the honor system.  This case involves a honey stand owned by Frederick Burdell.  He kept cash in the freezer at his stand so customers could make change for their purchases. The case, State v. Montgomery, was an appeal from the Gallipolis Municipal Court’s conviction of first-degree misdemeanor theft of honey and money from a “self-service honey stand.”

On appeal, the person convicted of theft claimed that the State of Ohio did not have enough evidence to convict her, and that her conviction was against the manifest weight of the evidence.  In other words, she argued that the State did not have enough evidence to prove, beyond a reasonable doubt, that she committed the crime.  The appellate court did not agree with the defendant’s argument; her conviction was upheld.  For owners of roadside stands, the most relevant part of this case may not be the legal arguments, but instead, the evidence that was provided by the owner of the honey stand.  Mr. Burdell’s surveillance setup around the honey stand helped the jury find the defendant to be guilty of theft.  Owners of roadside stands for honey and other agricultural products should take note of the tools Mr. Burdell had in place to surveil his stand, as well as what he might have done to better protect his business from theft. 

The appellate court’s opinion reveals that Mr. Burdell had multiple cameras set up around the honey stand, which were able to capture footage of a car driving down the driveway and a passenger exiting the car.  From another viewpoint, a camera was able to record the defendant taking two items out of the refrigerator and all the cash from the freezer.  Another shot provided a close-up, “head to toe” view of the woman walking away.  What is more, the video captured the actions in color—so the jury was able to see the color of the car and the hair color of the thief.  The appellate court found that the video evidence was sufficient enough for the trial court to reach the decision that the defendant was the perpetrator.

 Owners of roadside stands can learn from Mr. Burdell’s set-up if they want to protect themselves from theft.  Multiple color cameras placed at multiple angles around the area helped Mr. Burdell recover some of his loss from the theft.  Owners may want to test cameras to make sure they are set up at good angles.  In addition, although it is not clear from this opinion whether or not Mr. Burdell had security lights and other lighting around his stand, owners of roadside stands may want to consider the lighting around their premises—inadequate lighting might be detrimental to seeing what is happening in surveillance footage.

 The trial court ultimately awarded Mr. Burdell $20 in restitution for the theft, which was the value of the honey stolen.  Mr. Burdell was not reimbursed for the money that was stolen, apparently because he could “not state…with certainty” how much money was taken from the freezer, instead he guessed it could have been up to $50.  There are certainly numerous tools roadside stand owners can use to keep track of money in their stands more accurately.  Owners can keep detailed records of what products are in their stand at any given time and their prices, so they know exactly how much money should be in the cash box at all times, even after customers make change.  Roadside stand owners can also make sure they or an employee or family member monitors the area around the stand from time to time, counts the cash, and possibly take away excess cash not needed at the site and store it in a safer place.  Essentially, any actions an owner can take to keep track of how much cash is in a stand with more accuracy could prove helpful in recovering stolen cash if they ever find themselves in a situation like Mr. Burdell. 

While the theft from Mr. Burdell’s self-service honey stand was unfortunate, it may serve as a helpful reminder to farmers who own similar honey, produce, or other stands of what they can do to protect their businesses.  It is also timely information as farmers prepare for spring and summer sales from roadside stands.  For those interested in more information on the case, the full opinion is available here

By: Evin Bachelor, Wednesday, April 24th, 2019

Since our last legislative update in March, Ohio’s legislators and staffers have been busy introducing more legislation.  As of this morning, there are 332 bills that have been introduced by members of the Ohio General Assembly since January.  Some have already passed both the Ohio House and Senate, but most are still pending.  While we cannot write about every pending bill, the following bills relate to agricultural, local government, or natural resource law.  In addition to these bills that we have not yet covered, see the end of this post for an update about bills we mentioned in our last blog post.

Tax

  • Senate Bill 183, titled “Allow tax credits to assist beginning farmers.”  Many agricultural news outlets quickly picked up on this bill.  The bill would authorize two nonrefundable tax credits.  One is for beginning farmers who attend a financial management program, while the other is for individuals or businesses that sell or rent farmland, livestock, buildings, or equipment to beginning farmers.  The Ohio Department of Agriculture would be responsible for certifying individuals as beginning farmers and for approving eligible financial management programs.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • House Bill 109, titled “Grant tax exemption for land used for commercial maple syruping.”  The bill would exempt “maple forest land” from having to pay property taxes.  The landowner would have to apply for the designation with the Ohio Department of Taxation.  Eligible lands are those lands bearing a stand of maple trees where 1) an average of at least thirty taps are drilled each year into at least fifteen different maple trees per acre of land, 2) the harvested sap is incorporated into a maple product for commercial sale, 3) the land is managed under a forest land maintenance plan, and 4) the property has ten or more acres or the sap harvest produces an average yearly gross income of more than $2,500.  Note that all four requirements must be met in order to qualify as an exempt maple forest land.  Click HERE for more information about the bill.

Real property

  • House Bill 103, titled “Change law relating to land installment contracts.”  Ohio’s Land Installment Contract Law, which applies to contracts involving properties with a residence but not contracts involving only open farmland, would see some significant changes under this proposed legislation.  The bill would shift the burden of paying property taxes and homeowner’s insurance from the buyer to the seller.  The seller would also be prohibited from holding a mortgage on the property.  The contract would have to include provisions stating that the seller is responsible for all repairs and maintenance on the property.  Interest rates would also be capped so that the rate cannot exceed the Treasury bill rate for loans of the same length of time by 2%.  For example, if a 5-year land installment contract is entered into on September 7th and the 5-year Treasury bill rate on that day is 2.64%, the interest rate for the land installment contract would not be able to exceed 4.64% under this bill.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

Estate planning

  • House Bill 209, titled “Abolish estate by dower.”  Dower provides a surviving spouse with rights in any real property owned by a decedent spouse.  This bill would end dower estates moving forward, but any interests that vest before the change would take effect would still be valid.  Click HERE for more information about the bill.

Local government

  • Senate Bill 114, titled “Expand township authority-regulate noise in unincorporated area.”  A board of township trustees is currently limited to regulate noise coming from either areas zoned as residential or premises where a D liquor permit has been issued.  The bill would expand the township’s authority to regulate noise anywhere within the unincorporated territory of the township.  However, the bill does not affect another section of the law that exempts agriculture from noise ordinances, so agricultural activities would not be subject to any new noise ordinances, should this law pass.  Click HERE for more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 12, titled “Change laws governing traffic law enforcement.”  Notably for townships, this bill would prohibit township law enforcement officers or representatives from using a traffic camera on an interstate highway.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

Regulation of Alcohol

  • House Bill 181, titled “Promote use of Ohio agricultural goods in alcoholic beverages.”  The bill would authorize the Ohio Department of Agriculture to create promotional logos that producers of Ohio craft beer and spirits may display on their products.  Specifically, the bill would authorize an “Ohio Proud Craft Beer” and an “Ohio Proud Craft Spirits promotion.  Click HERE for more information about the bill.
  • House Bill 160, titled “Revised alcoholic ice cream law.”  Under current Ohio law, those wishing to sell ice cream containing alcohol must obtain an A-5 liquor permit and can only sell the ice cream at the site of manufacture, and that site must be in an election precinct that allows for on- and off-premises consumption of alcohol.  This bill would allow the ice cream maker to sell to consumers for off-premises enjoyment and to retailers that are authorized to sell alcohol.  Click HERE for more information about the bill.
  • House Bill 179, titled “Exempt small wineries from retail food establishment licensing.”  The bill would exempt small wineries that produce less than 10,000 gallons of wine annually from having to obtain a retail food establishment license in order to sell commercially prepackaged foods.  The sales of the prepackaged foods cannot exceed more than 5% of the winery’s gross annual receipts.  The winery would have to notify the permitting authority that it is exempt, and also notify its customers about its exemption.  Click HERE for more information about the bill.

Energy

  • House Bill 20, titled “Prohibit homeowner associations placing limits on solar panels.”  The bill would prohibit homeowners and neighborhood associations, along with civic and other associations, from imposing unreasonable restrictions on the installation of solar collector systems on roofs or exterior walls under the ownership or exclusive use of a property owner.  Condominium properties would similar be prohibited from imposing unreasonable restrictions where there are no competing uses for the roof or wall space where a solar collector system would be located.  According to the bill analysis, an unreasonable limitation is one that significantly increases the cost or significantly decreases the efficiency of a solar collector system.  Individual unit owners would also have the right to negotiate a solar access easement.  Click HERE or more information about the bill, and HERE for the current official bill analysis.
  • Senate Bill 119, titled “Exempt Ohio from daylight savings time.”  The bill would require Ohio to observe Daylight Savings Time on a permanent basis effective March 8, 2020.  The state’s clocks would spring forward in March, but there would be no falling back in the fall.  Click HERE for more information about the bill, and HERE for the current official bill analysis.

As for the bills that we previously covered in our March legislative update, the following chart explains where those bills stand.  Those that have passed at least one chamber have their passage status underlined in the column on the right.  Those that have had at least one committee hearing list the number of hearings, while those that have not had any activity in committee state only the committee that the bill has been referred to from the floor.

Category

Bill No.

Bill Title

Status

Hemp

SB 57

Decriminalize hemp and license hemp cultivation

- Passed Senate

- Completed first committee hearing in House

Watershed Planning

SB 2

Create state watershed planning structure

- Referred to Senate Agriculture and Natural Resources Committee

Animals

HB 24

Revise humane society law

- Completed third committee hearing in House

Animals

HB 124

Allow small livestock on residential property

- Referred to House Agriculture and Rural Development Committee

Oil and Gas

HB 55

Require oil and gas royalty statements

- Completed first committee hearing in House

Oil and Gas

HB 94

Ban taking oil or natural gas from bed of Lake Erie

- Referred to House Energy and Natural Resources Committee

Oil and Gas

HB 95

Revise oil and gas law about brine and well conversions

- Referred to House Energy and Natural Resources Committee

Mineral Rights

HB 100

Revise requirements governing abandoned mineral rights

- Referred to House Energy and Natural Resources Committee

Regulations

SB 1

Reduce number of regulatory restrictions

- Completed three committee hearings in Senate

Business Law

SB 21

Allow corporation to become benefit corporation

- Passed Senate

- Completed first hearings in two separate House committees

Animals

SB 33

Establish animal abuse reporting requirements

- Completed fifth committee hearing in Senate

Local Gov’t

HB 48

Create local government road improvement fund

- Referred to House Finance Committee

Local Gov’t

HB 54

Increase tax revenue allocated to the local government fund

- Referred to House Ways and Means Committee

Property

HB 74

Prohibit leaving junk watercraft or motor uncovered on property

- Completed first committee hearing in House

By: Peggy Kirk Hall, Monday, April 22nd, 2019

Disagreements over how to improve the health of Lake Erie have led to yet another federal lawsuit in Ohio.   This time the plaintiff is the Board of Lucas County Commissioners, who filed a lawsuit in federal court last Thursday against the U.S. EPA.  The lawsuit accuses the U.S. EPA of failing to enforce the federal Clean Water Act, which the county believes has led to an "alarming" decline in the water quality of western Lake Erie.

The Clean Water Act requires states to monitor and evaluate water quality and establish water quality criteria, and also to designate a water body as “impaired” if it does not meet the criteria.   Once a water body is on the impaired waters list, the state must create Total Maximum Daily Loads (TMDLs) for the water body.  TMDLs determine the maximum amounts of each pollutant that can enter a water body and still allow the water to meet the established water quality criteria.  Plans for reducing a pollutant would be necessary if the pollutant exceeds the TMDLs.  The state’s efforts to establish the water quality criteria, designate impaired waters and develop TMDLs are subject to review and approval by the U.S. EPA, who must ensure that the states are taking adequate action pursuant to the Clean Water Act.

Lucas County alleges that the U.S. EPA has failed in its Clean Water Act obligations by allowing Ohio to refuse to prepare TMDLs for the western basin of Lake Erie.  Even after another court battle forced the designation of the western basin as “impaired,” the county explains, Ohio’s EPA declared the western basin to be a low priority for TMDL development and has not yet proposed either TMDLs or an alternative plan for addressing the basin’s impaired water status.   Lucas County argues that since Ohio has not established TMDLs for the impaired waters of Lake Erie, the U.S. EPA must step in and do so.

The county also contends that the lack of state and federal action on the impaired waters status of the western basin has forced Lucas County to expend significant resources to maintain and monitor Lake Erie water quality for its residents.  According to Lucas County, such actions and costs would be unnecessary or substantially reduced if the U.S. EPA had fulfilled its legal obligations to ensure the preparation of TMDLs for the western basin.

Agricultural pollution is an explicit concern in the county’s complaint.  The development of TMDLs for the western basin would focus needed attention and remedial measures on pollution from agricultural operations, Lucas County states.  The county asserts that TMDLs would establish a phosphorous cap for the western basin and methods of ensuring compliance with the cap, which would in turn address the harm and costs of continued harmful algal bloom problems in Lake Erie.

The remedy Lucas County requests is for the federal court to order the U.S. EPA to either prepare or order the Ohio EPA to prepare TMDLs for all harmful nutrients in the western basin, including phosphorous.  The county also asks the court to retain its jurisdiction over the case for continued monitoring to ensure the establishment of an effective basin-wide TMDL.  

This is not the first TMDL lawsuit over the western basin.  In early February of this year, the Environmental Law and Policy Center (ELPC) and the Toledo-based Advocates for a Clean Lake Erie filed a lawsuit that similarly alleges that the U.S. EPA has failed to require Ohio to establish TMDLs for the western basin, which is still ongoing.  See our summary of that case here.  The case followed an earlier and successful push by the ELPC to order Ohio to declare the western basin as impaired, which the state had refused to do previously.  We explain that history here.

The newest round of litigation again highlights differences in opinion on how to remedy Lake Erie’s phosphorous pollution problem.   Like the TMDL lawsuits, a successful effort by the Toledoans for Safe Water to enact the Lake Erie Bill of Rights was also predicated on claims that Ohio and the federal government aren’t taking sufficient action to protect Lake Erie.  Lucas County made it clear that it isn’t satisfied with the state of Ohio’s approach of providing funding to promote voluntary practices by farmers to reduce phosphorous pollution, despite stating that the county isn’t “declaring war on agriculture.”  In its press conference announcing the current lawsuit, the county explained that the state’s voluntary approach won’t provide the “sweeping reforms we need.”  On the other hand, the Ohio Farm Bureau has argued that the TMDL process for Lake Erie can take years longer and be less comprehensive than the voluntary practices farmers are pursuing.  Still others believe that more research will help us fully understand the phosphorous problem and identify solutions.

As battles continue over the best approach to improving Lake Erie’s water quality, maybe all could at least agree that litigation is costly, in many ways.  An alternative but perhaps more challenging path would be appreciation of the concerns on both sides of the issue and cultivation of collaborative solutions.  Let’s hope we can find that path.  In the meantime, we’ll keep you up to date on the continuing legal battles over water quality in Lake Erie.

Read the complaint in Board  of Lucas County Commissioners vs. U.S. EPA here.

By: Evin Bachelor, Friday, April 19th, 2019

Last month a lawsuit about Ohio’s Current Agricultural Use Value (CAUV) calculation showed back up on our radar.  As we explain in another blog post, the state of Ohio uses CAUV to calculate how much tax owners of land devoted exclusively to an agricultural use must pay.  The plaintiffs sought reimbursements from the state by arguing that the state failed to properly calculate CAUV in accordance with Ohio law.  The case was dismissed by the Franklin County Court of Common Pleas, and the 10th District Court of Appeals affirmed that decision as appropriate.  However, that does not necessarily spell the end for these plaintiffs.

What started the lawsuit: good times meant higher taxes

Many farmland owners likely remember what happened around the middle of this decade to property tax assessments under Ohio’s CAUV formula as it was calculated at that time.  In part because Ohio’s CAUV assessment formula takes agricultural commodity prices into account, a couple of strong years for crop prices contributed to a drastic and generally unanticipated increase in property tax bills for farmers across the state.  Those assessment increases led to a successful effort to change the CAUV formula so that drastic fluctuations would be less likely to occur moving forward.  However, some property owners wanted a reimbursement for previous assessments, not just a new formula.

What the plaintiffs wanted: equitable restitution

The case began on June 26, 2015, when three parties filed a complaint in a county court of common pleas against the state tax commissioner.  The three plaintiffs sought a class action certification to act on behalf of all owners of Ohio lands devoted to agricultural production.  The complaint alleged that the state of Ohio illegally collected more than a billion dollars of property taxes from those owners.  Therefore, the landowners first sought repayment under the legal doctrine of unjust enrichment.

Over the next few months, the plaintiffs amended their complaint twice.  The first amended complaint added a claim for repayment under the doctrine of equitable restitution.  It also added more named plaintiffs, added then-Governor Kasich as a defendant, and asked for compensatory damages.  The second amended complaint removed the Governor and tax commissioner as defendants, added the state of Ohio as a defendant, and removed all claims except for equitable restitution and a declaratory judgment.  Lots of adjustments, but what is equitable restitution?

Equitable restitution is a type of recovery under the law that says one party has improperly benefitted at the expense of another, and therefore should return the benefit to its rightful owner.  Here, the plaintiffs argued that allegedly illegal CAUV collections meant that the state of Ohio had improperly benefitted at the expense of owners of CAUV lands.  Therefore, the state of Ohio should have to return that benefit, which would mean a return of the property tax overpayments.

However, there are two types of restitution under the law: legal and equitable.  Legal restitution is available when a plaintiff cannot assert a right of possession to a particular property but is nonetheless able to shows grounds for compensation from the defendant.  When money is involved, the distinction is largely based upon whether money clearly identifiable as belonging to the plaintiff can be traced to particular funds in the defendant’s possession.  If the money can be traced to particular funds, then equitable restitution is more likely to apply.

For example, say that a plaintiff gave a defendant a five dollar bill, but something goes wrong and the plaintiff wants her money back.  The plaintiff may have an equitable remedy if she seeks the return of that specific five dollar bill.  However, she may only have a legal remedy if she simply wants five dollars back.  This distinction played an important role in the outcome of this case.

Why the case was dismissed: lack of jurisdiction

The lawsuit was ultimately dismissed because the common pleas court determined that it could not hear the case because of the nature of the remedy sought.  Instead, in ruling on the state’s motion to dismiss, the common pleas court decided, and the appellate court affirmed, that only the Ohio Court of Claims has jurisdiction for this type of case.

The Ohio Court of Claims is a special kind of state court that exists primarily to handle lawsuits against the state of Ohio.  Its existence stems from the idea in the U.S. Constitution’s Eleventh Amendment that states have immunity as sovereigns.  States may choose if and when to be sued; however, most have waived that immunity to some extent.  Ohio chose to partially waive its sovereign immunity in particular types of cases by allowing people to sue it in a special court instead of in a county court of common pleas.

When it created the Ohio Court of Claims, the Ohio General Assembly decided that people seeking relief at law must file their lawsuit with the Ohio Court of Claims, while those seeking equitable relief may file their lawsuit with a county court of common pleas.

Restitution happens to be a type of remedy that can be classified as either legal or equitable in nature.  The focus is not on what the parties call the restitution they seek, but what they actually want from it.  In this case, it was not enough that the plaintiffs called what they wanted “equitable restitution.”  The court only cared about what the plaintiffs actually sought.

In looking at the facts, the court determined that the plaintiffs sought the return of funds that could not be traceable into any state account, and therefore the remedy sought was legal in nature.  The court explained that Ohio’s property taxes are collected and held at the county level, and there was no evidence that the CAUV property tax collected by the counties ever made it to the state.  Absent this transfer, the specific tax dollars that the plaintiffs allege were wrongfully paid to the state were not traceable to any state accounts.  Without this traceable link, the plaintiffs could only seek a return of money in general, rather than the return of specific funds.  Because of this, only the Ohio Court of Claims could hear this case and award this remedy.

It was on the basis of this distinction that the Franklin County Court of Common Pleas dismissed the case, and that the Tenth District Court of Appeals affirmed the dismissal.

What are the plaintiffs’ next steps: Ohio Court of Claims or the end?

The trial court dismissed the case “without prejudice,” meaning that the parties are not barred from filing the case again in a proper court.  This can be common when the case is dismissed on a procedural basis where there could be a claim with some merit that has neither been decided on the merits nor settled.  At this time, it does not appear that the plaintiffs have refiled the case in the Ohio Court of Claims, and we cannot predict whether or not they will do so.

The case is cited as Vance v. State, 2019-Ohio-1027 (10th Dist.), and the opinion is available on the Ohio Supreme Court’s website HERE.

By: Evin Bachelor, Friday, April 12th, 2019

Here at the OSU Extension Farm Office, we get questions about all sorts of topics, but one topic in particular shows up in our inbox rather frequently.  Line fence laws regulate those fences, sometimes called partition fences, that are located on a property boundary between adjacent parcels of land.  Ohio has had laws on this topic for well over a hundred years, and these laws represent an important piece of history in the development of property rights in our state.  While one might hope that by now all the kinks and questions would be resolved, there are still some misunderstandings and gray areas about the law that we grapple with to this day.

In order to help landowners better understand their rights and responsibilities, the OSU Extension Farm Office team has complied a number of resources about Ohio’s line fence laws on our website at farmoffice.osu.edu/our-library/line-fence-law.  When the Ohio General Assembly significantly changed the line fence provisions in the Ohio Revised Code in 2008, our director, Peggy Kirk Hall, wrote a number of fact sheets that provide an overview of the changes, summaries of key elements of the law, and also guides for townships.

The Ohio Line Fence Law Fact Sheet provides an in depth look at the 2008 changes.  It explains what a line fence is, how costs are allocated, the different types of line fences addressed, special rules for line fences containing livestock, procedures for building a fence, procedures for disputes between neighbors, and more.  A shorter summary of that same information is available in the fact sheet titled, A Summary of Ohio’s Line Fence Law.

In addition to the overviews of the law, there are also resources that explain particular aspects of the law more in depth, along with guides for township officials.  These include:

Over the course of the decade following the 2008 changes, a number of questions continued to be asked by landowners across the state, so we compiled a Frequently Asked Questions law bulletin.  Instead of only explaining what the law says, this law bulletin takes a question and answer approach that goes through questions associated with scenarios such as:

  • My neighbor wants to install a new fence on a never fenced boundary
  • My neighbor wants to permanently remove an existing fence
  • My neighbor wants to replace an old fence on our property boundary

The FAQ law bulletin also looks at the role of township trustees, and what the law says about fence construction and upkeep.

While these publications cover a lot of information, sometimes we get a new question that has yet to make it into one of our publications.  The following represent a few of those questions.

Right to access neighbor’s property applies to fence construction, not removal

Ohio Revised Code § 971.08 provides a landowner with a ten foot right to access his or her neighbor’s property in order to construct a new line fence or to maintain an existing fence.  If the landowner or the landowner’s contractor causes damage to his or her neighbor’s property, the landowner will be liable for that damage, including damage to crops.  However, as there is a separate statute for removing a line fence located at Ohio Revised Code § 971.17, the right of access to construct or maintain a fence does not clearly include a right to enter onto a neighbor’s property in order to remove a line fence.  Under this statute, a landowner who enters his or her neighbor’s land could be liable for trespass.

Written notice is required prior to removing a fence

Ohio Revised Code § 971.17 requires a property owner to give written notice to his or her neighbor at least 28 days in advance of removing a shared line fence.  If a landowner or the landowner’s contractor enters the neighbor’s property to remove a fence without sufficient notice, that could constitute a trespass under Ohio Revised Code § 971.17.  This notice requirement is intended to ensure that the landowner has a chance to protest the removal or at least discuss the terms of the removal.

Trees on the property line are the shared property of the neighboring landowners

One thing not specifically addressed in Ohio’s line fence laws is the issue of trees on the property line.  Ohio Revised Code § 971.33 requires landowners to keep all fence corners and a four foot strip along the entirety of a fence clear of brush, briers, thistles, and other noxious weeds.  However, this statute specifically says that it does not apply to the planting of vines or trees for use.  Because these are specifically excluded from this noxious weeds statute, the common law as made by courts will apply.

The common law provides that trees on the property line are owned by both landowners and do not have to be cleared from the fence row.  This means that if one landowner wants to remove a tree on the property line, that landowner must seek permission from his or her neighbor.  Even though the landowner owns half of the tree, the landowner cannot interfere with his or her neighbor’s property interest in the tree.  Without his or her neighbor’s permission, the landowner could be liable for removing the tree or even cutting it in a manner that causes the tree to die.  Because of Ohio’s reckless destruction of trees and crops statute in Ohio Revised Code § 901.51, a person who cuts, destroys, or injures a tree located on the land of another could be liable for up to three times the value of the tree.

If you have a question about Ohio’s line fence law, let us know, and we will try to find an answer.  Much like we tell students and those who attend our presentations, it is likely that someone else has the same question as you.  Stay tuned to the Ag Law Blog for more updates about questions we receive about Ohio’s line fence law.

By: Peggy Kirk Hall, Wednesday, April 10th, 2019

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

The United States Department of Agriculture (USDA) announced last week that farmers.gov will now feature two new tools.  One will help farmers navigate the application process for obtaining temporary agricultural workers under H-2A, and the second will help farmers understand and manage their USDA-backed farm loans.  The press release explained that the USDA values the experience of its customers, and that it developed these tools after hearing feedback on the need for simple, technology based resources to help farmers.  Unveiled in 2018, farmers.gov allows users to apply for USDA programs, process transactions, and manage their accounts.

Customized H-2A checklists based on the needs of an individual farmer

Many farmers need seasonal or temporary workers for planting, cultivating, and harvesting crops.  The seasonal nature of agriculture can make it difficult for farmers to find an adequate supply of domestic labor willing to fill the temporary positions.  To relieve this difficulty, the federal government created the H-2A temporary agricultural worker program to allow these farmers to hire workers from foreign countries to supplement the domestic labor market on a temporary or seasonal basis.  Farmers must demonstrate that there are not enough U.S. workers able, willing, qualified, and available for the temporary work, and that the H-2A workers will not result in reduced wages for other U.S. workers.

Understanding the H-2A process has long been complex and confusing, but a new tool focused on education for smaller producers includes a revamped website and an interactive checklist tool.  The new website explains the basics of the program, includes an interactive checklist tool to create custom checklists, and gives an estimate of the costs of hiring H-2A workers.

The interactive checklist tool is a helpful way for producers to learn about the steps they need to take to obtain the labor that they need.  In the past, websites would rely heavily on producers to sift through information and determine the requirements that they needed to follow.  Now, the interactive tool asks questions one at a time to generate a custom checklist. 

When using the tool, producers will first be asked whether this will be their first time hiring workers using the H-2A Visa Program.  If the producer answers yes, they will be asked when they need the labor.  If the producer answers no to the first question, they will be asked whether they are extending the contract of workers that they are currently employing.  Ultimately, the producer will be asked when they need the labor.  At the end of the questions, the tool will provide a checklist that the producer will use to determine what steps he or she needs to take to obtain H-2A labor.  The checklists are designed to be easy to understand and to make the process less confusing.

View information about your USDA-backed farm loan online

The USDA offers farm ownership and operating loans through the Farm Services Agency to family-size farmers and ranchers who cannot obtain commercial credit.  Farmers.gov now allows producers to view information about these USDA-backed farm loans through a secure online account.  Producers can view loan information, history, and payments from a desktop computer, tablet, or smartphone.  Producers will need to sign up for a USDA online account in order to create an account profile with a password.

At this time, the program only allows producers doing business on their own behalf as individuals to view this information through farmers.gov.  Other entities such as LLCs and trusts or producers acting on behalf of another cannot utilize this tool yet, although the USDA indicates that this is planned for in the future.

The USDA’s press release made clear that the addition of these tools represents a step toward providing better customer service and increased transparency.  As only a step, producers can expect more tools and features to be added to farmers.gov in the future.  As this happens, we will be sure to keep you up to date about the website’s new bells and whistles.

Posted In: Business and Financial, Labor
Tags: USDA, H-2A, labor law, USDA loans
Comments: 0
By: Peggy Kirk Hall, Tuesday, April 09th, 2019

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

As fans of Elvis and good barbeque, we can’t help but be excited that the National Agricultural Law Center (NALC) is hosting its sixth annual Mid-South Agricultural and Environmental Law Conference soon in Memphis, Tennessee.  Most exciting, however, is that the conference will provide timely legal information for attorneys, lenders, accountants, tax professionals, students and others with a passion for agriculture.  The NALC is the nation's leading source of agricultural and food law research and information, and we are honored to partner with NALC on a number of research projects and outreach efforts.

The 2019 conference will be on Friday, June 7th in downtown Memphis at the University of Memphis School of Law.  You won’t want to miss the welcome reception on Thursday, June 6th at The Rendezvous Restaurant, which is well known for its Memphis-style BBQ.  The schedule on Friday is packed with a diverse mix of speakers and topics that is intended to encourage dialog about the range of legal issues facing agriculture today.

Here’s a sneak peek at the sessions:

  • Keynote address by the USDA’s General Counsel Stephen Vaden
  • Agricultural Labor and Immigration: Do’s and Don’ts--Brandon Davis of Phelps Dunbar LLP
  • Updates from the senior attorneys from the U.S. House and Senate Ag Committees
  • Law and Lending in a Down Farm Economy: Recent Trends and Outlooks with Greg Cole of AgHeritage Farm Credit Services and Michael O’Neal of GreenStone Farm Credit Services
  • Navigating Environmental Law Issues for Attorneys, Lenders, and Landowners--Jim L. Noles, Jr., Partner, Barze Taylor Noles Lowther, LLC
  • The Ethics of Succession Planning for Lawyers--Shannon Ferrell, Oklahoma State University
  • Understanding Ag Bankruptcy--Stephen L. Gershner, Davidson Law Firm

In addition to the presentations, there will be time for discussion with conference attendees during the welcome reception on Thursday and a lunch and networking session on Friday.  For law practitioners, the conference has been approved for CLE credit in some states and NALC will assist with obtaining CLE credit in other states.  The American Society of Farm Managers and Rural Appraisers has also approved the program for 7 hours of CE credit. 

Register by May 14 and receive access to a two-hour bonus online program that will feature a one hour session on Divorce on the Farm with attorney Cari Rincker and agricultural and environmental law updates from around the country by Elizabeth Rumley of NALC, Ross Pifer of the Center for Agricultural & Shale Law at Penn State Law, Stephanie Showalter Otts of the National Sea Grant Law Center and our own Peggy Kirk Hall of the Agricultural & Resource Law Program at The Ohio State University.

For more information about the conference and to register, visit the NALC’s website HERE.

By: Peggy Kirk Hall, Friday, April 05th, 2019

Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Now that farmers are preparing to get back in the fields, our presentation season is winding down.  We wanted to take a moment and thank everyone who came to hear us speak at an event this year.  While it does make us a little sad that we don’t have as many presentations coming up, that just means we have more time to keep up with agricultural law news and to do some writing.  With that said, here’s our latest gathering of agricultural law news that you may want to know:

Hemp bill passes Ohio Senate, moves to the Ohio House.  A bill to decriminalize hemp and create a regulatory system for hemp cultivation continues to move through the Ohio General Assembly.  Last week, after the Ohio Senate Agriculture and Natural Resources Committee voted in favor of Senate Bill 57, the bill passed in the Senate by a vote of 30-0.  Now the bill moves on to the Ohio House of Representatives for further consideration.  We have talked about the bill in a previous blog post, but the version that passed the Senate did make some changes.  In addition to the Hemp Program Fund included in the original bill, the new version would also create a Hemp Marketing Program that would impose a .5% levy on hemp producers in order to promote the sale and use of hemp products.  The bill analysis explains that this would be similar to the existing marketing programs for grain and soybeans.  For more information on the bill as passed by the Senate, click HERE to visit the Ohio General Assembly’s website.

Ohio Attorney General Yost asks to join in the Lake Erie Bill of Rights lawsuit.  Last Friday, the Ohio Attorney General filed a motion in the Drewes Farm Partnership v. City of Toledo case seeking to intervene as a plaintiff alongside the Drewes Farm Partnership.  The motion, available HERE, argues that the state of Ohio has a significant interest in the protection of Lake Erie, along with a significant interest in supporting Ohio’s agricultural, environmental, and natural resources laws.  The motion further argues that Toledo’s LEBOR charter amendment contradicts Ohio’s “multi-faceted statutory, regulatory, and civil and criminal enforcement programs that control water pollution,” along with the Ohio Constitution’s limitations on municipal authority.  Prior to this motion to intervene, we had not seen an official statement or action by the State of Ohio regarding LEBOR, and this motion demonstrates that the state believes that LEBOR infringes on its rights.

Attorney Denise Martin assumes role of Chief Legal Counsel at the Ohio Department of Agriculture.  As Chief Legal Counsel, Ms. Martin will oversee the finalization and enforcement of rules created by the Ohio Department of Agriculture.  Her office is staffed by a number of in-house attorneys who work closely with the agency’s various divisions in the rulemaking process.  Additionally, Ms. Martin will be responsible for advising Director Pelanda and other agency officials on legal matters.  Prior to assuming this role, Ms. Martin served as the Court Administrator for the Delaware County Domestic Relations Court.  She also served as an Assistant Prosecutor in Marion County where she prosecuted a variety of felony crimes.  She obtained her law degree from Capital University Law School, went to the Ohio State University for undergrad, and graduated from Mt. Gilead High School.  Her official biography is available on the Ohio Department of Agriculture’s website HERE.

USDA and FDA meet in the middle on regulating cell cultured meat.  Whenever a new technology arrives in a regulated industry, the legal rules often take some time to catch up.  That is certainly true for the cell cultured meat industry, or whatever name you prefer for the new lab grown proteins.  Given the unique nature of the industry, there were questions about which agency should lead the federal regulatory effort, namely the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) or the U.S. Department of Health and Human Service’s Food and Drug Administration (FDA).  In March, the two agencies released a formal agreement that outlines a division of labor between the two.  The agreement lists a number of regulations that each agency will oversee, with the FDA largely overseeing the pre-“harvest” stages and FSIS taking over post-“harvest” when the cell-cultured meat is essentially ready to process.  Both agencies will be responsible for developing joint labeling standards, and both will have inspection authority.  The agencies expect to develop a more thorough joint framework or standard operating procedure in the future.  To view the formal agreement, click HERE.

USDA’s NRCS seeks public input on conservation programming.  As a result of the 2018 Farm Bill, the USDA’s Natural Resources Conservation Service (NRCS) is seeking comment about its existing national conservation practice standards in order to refine and enhance its programming.  According to a news release, NRCS offers over 150 conservation practices to farmers, ranchers, and forest landowners.  Many NRCS support programs offer cost sharing incentives, such as the Environmental Quality Incentives Program and Conservation Stewardship Program.  The public has until April 25, 2019 to submit comments, which can be submitted online in the Federal Register.

ODNR seeks public input on proposed rules regarding brine disposal fees.  The Ohio Department of Natural Resources Division of Oil and Gas Resources Management (DOGRM) is seeking comment regarding draft rules that would establish requirements and procedures for annual brine disposal fees.  The rules would require each owner of a Class II disposal well to submit an annual fee by a set date and using a standard form created by DOGRM.  As part of the rulemaking process, DOGRM will accept public comments about the draft rules until close of business on Friday, April 12, 2019.  For more information about the draft rule, or to submit a comment, visit DOGRM’s website HERE.