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Vintage picture of cowgirl on a horse with a lasso.
By: Peggy Kirk Hall, Friday, February 25th, 2022

It’s time to round up a sampling of legal questions we’ve received the past month or so. The questions effectively illustrate the breadth of “agricultural law,” and we’re happy to help Ohioans understand its many parts.  Here’s a look at the inquiries that have come our way,

I’m considering a carbon credit agreement.  What should I look for?   Several types of carbon credit agreements are now available to Ohio farmers, and they differ from one another so it’s good to review them closely and with the assistance of an attorney and an agronomist.  For starters, take time to understand the terminology, make sure you can meet the initial eligibility criteria, review payment and penalty terms, know what types of practices are acceptable, determine “additionality” requirements for creating completing new carbon reductions, know the required length of participation and how long the carbon reductions must remain in place, understand how carbon reductions will be verified and certified, be aware of data ownership rights, and review legal remedy provisions.  That’s a lot!  Read more about each of these recommendations in our blog post on “Considering Carbon Farming?”

I want to replace an old line fence.  Can I remove trees along the fence when I build the new fence?   No, unless they are completely on your side of the boundary line.  Both you and your neighbor co-own the boundary trees, so you’ll need the neighbor’s permission to remove them.  You could be liable to the neighbor for the value of the trees if you remove them without the neighbor’s approval, and Ohio law allows triple that value if you remove them against the neighbor’s wishes or recklessly harm the trees in the process of building the fence.  You can, however, trim back the neighbor’s tree branches to the property line as long as you don’t harm the tree.  Also, Ohio’s line fence law in ORC 971.08 allows you to access up to 10 feet of the neighbor’s property to build the fence, although you can be liable if you damage the property in doing so.

I want to sell grow annuals and sell the cut flowers.  Do I need a nursery license?  No.  Ohio’s nursery dealer license requirement applies to those who sell or distribute “nursery stock,” which the law defines as any “hardy” tree, shrub, plant, bulb, cutting, graft, or bud, excluding turf grass.  A “hardy” plant is one that is capable of surviving winter temperatures. Note that the definition of nursery stock also includes some non-hardy plants sold out of the state.  Because annual flowers and cuttings from those flowers don’t fall into the definition of “nursery stock,” a seller need not obtain the nursery dealer license.

Must I collect sales tax on cut flowers that I sell?  Yes.  In agriculture, we’re accustomed to many items being exempt from Ohio’s sales tax.  That’s not the case when selling flowers and plants directly to customers, which is a retail sale that is subject to the sales tax.  The seller must obtain a vendor’s license from the Ohio Department of Taxation, then collect and submit the taxes regularly.  Read more about vendor’s licenses and sales taxes in our law bulletin at this link.

I’m an absentee landowner who rents my farmland to a tenant operator.  Should I have liability insurance on the land?  Yes.  A general liability policy with a farm insurer should be affordable and worth the liability risk reduction.  But a few other steps can further minimize risk.  Require your tenant operator to have liability insurance that adequately covers the tenant’s operations, and include indemnification provisions in your farm lease that shift liability to the tenant during the lease period.  Also consider requiring your tenant or hiring someone to do routine property inspections, monitor trespass issues, and ensure that the property is in a safe condition. 

My neighbor and I both own up to the shoreline on either side of a small lake--do I have the right to use the whole lake?  It depends on where the property lines lay and whether the lake is connected to other waters. If the lake is completely surrounded by private property and not connected to other “navigable” waters, such as a stream that feeds into it, the lake is most likely a private water body.  Both of you could limit access to your side of the property line as it runs through the lake.  You also have the legal right to make a “reasonable use” of the water in the lake from your land, referred to as “riparian rights.”  You could withdraw it to water your livestock, for example; but you cannot “unreasonably” interfere with your neighbor’s right to reasonably use the water.   The law changes if the lake is part of a “navigable” waterway.  It is then a “water of the state” that is subject to the public right of navigation.  Others could float on and otherwise navigate the water, and you could navigate over to your neighbor’s side.  Public users would not have the riparian rights that would allow them to withdraw and use the water, however, and would be trespassing if they go onto the private land along the shore.

If I start an agritourism activity on my farm, will I lose my CAUV status?  No, not if your activities fit within the legal definition of “agritourism.”  Ohio law states in ORC 5713.30(A)(5) that “agritourism” activities do not disqualify a parcel from Ohio’s Current Agricultural Use Valuation (CAUV) program. “Agritourism,” according to the definition in ORC 901.80, is any agriculturally related educational, entertainment, historical, cultural, or recreational activity on a “farm” that allows or invites members of the general public to observe, participate in, or enjoy that activity.  The definition of a “farm” is the same as the CAUV eligibility—a parcel devoted to commercial agricultural production that is either 10 acres or more or, if under 10 acres, grosses $2500 annually from agricultural production.  This means that land that is enrolled in the CAUV program qualifies as a “farm” and can add agritourism activities without becoming ineligible for CAUV.

Send your questions to aglaw@osu.edu and we’ll do our best to provide an answer.  Also be sure to check out our law bulletins and the Ag Law Library on https://farmoffice.osu.edu, which explain many of Ohio’s vast assortment of agricultural laws.

Picutre of Ohio Statehouse building against a blue sky in Columbus, Ohio
By: Peggy Kirk Hall, Tuesday, February 22nd, 2022

February is bringing renewed activity down at Ohio’s Statehouse as both the House and Senate return to their regular committee schedules.  The General Assembly began tending to several pieces of agricultural and resource legislation.  Here’s the latest summary of our state’s legislative developments.

Newly introduced Ohio legislation

H.C.R. 41 – Repeal individual income tax.  Rep. Tom Brinkman (R-Mt. Lookout) introduced a resolution on January 25, 2022 expressing an intent for the General Assembly to repeal the state personal income tax within ten years.  The resolution matches S.C.R. 13, introduced in the Senate last December, and both resolutions cite negative impacts on Ohio’s business climate as justification for the repeal.  The House Ways and Means Committee already held a first hearing on the resolution on February 15, 2022.

Legislation on the move

H.B. 30 –  Slow-moving vehicles.  One of the slowest moving bills on the move, a proposal to increase visibility of animal-drawn vehicles by changing marking and lighting requirements finally received a third hearing before the Senate Transportation Committee on February 16, 2022.  No opponents testified against the bill.  Readers may recall that the proposal passed the House on June 23, 2021.

H.B. 321– Auctioneers.  The bill that passed the House on December 9, 2021 had its second hearing before the Senate Agriculture and Natural Resources Committee on February 15, 2022, with the Ohio Auctioneers Association testifying in support of the bill. It replaces the auctioneer apprenticeship requirement and replaces it with a course of study in auctioneering at an approved institution.  The bill also eliminates the special auctioneer license, changes the auction firm license, removes the oral exam requirement, increases the number of written exams offered, allows auction firms to provide online or live auction services, and gives ODA authority over internet auctions. 

H.B. 365 – Safe Drinking Water Act.  Although introduced back in July, H.B. 365 just received its first hearing before House Agriculture & Conservation Committee House on February 15, 2022.  The proposal requires Ohio EPA to adopt rules to establish water quality standards and maximum allowable contaminant levels in drinking water for PFAS (the “forever chemicals”), chromium-6, and 1-4 dioxane, and to annually review the standards.  Sponsors Rep. Mary Lightbody and Rep. Allison Russo provided testimony at the hearing.  The many questions and concerns about costs and impacts of setting standards for the chemicals raise doubts about whether it will receive another hearing.

H.B. 397 – Agricultural leases.  The second hearing for H.B. 397 before the Senate Agriculture and Natural Resources Committee took place on February 15, 2022.  The proposal passed the House on December 8, 2021, and would require a landlord who wants to terminate a crop lease that doesn’t address termination to provide a written notice of termination by September 1.  The Ohio State Bar Association Agricultural Law Committee and Ohio Farm Bureau Federation testified in support of the bill.

H.B. 484 – Fish designation.  Readers who like walleye will be happy to hear that H.B. 484’s proposal to name the Lake Erie Walleye as the state fish received its first hearing before the House Agriculture and Conservation Committee House on February 15, 2022.  Sponsors Rep. Michael Sheehy and Rep. Lisa Sobecki testified that Ohio is one of only three states without a designated state fish despite sport fishing’s annual $1 billion economy, and that the walleye beat out yellow perch and smallmouth bass for the nomination in an online poll on NBC4 news.

H.B. 507 – Poultry chicks.  This bill to reduce the minimum number for poultry chicks sold in lots from six to three received a first hearing before the House Agriculture and Conservation Committee on February 15.  Committee chair and bill sponsor Rep. Kyle Koehler testified that the bill would reduce costs and challenges for 4-H members who must buy six turkey chicks to show one turkey and later struggle to find processors for the birds.

H.B. 515 – Income tax.  Reps. James Hoops (R-Napoleon) and Craig Riedel (R-Defiance) are sponsors of this companion to S.B. 247, which appears stalled before the Senate Ways and Means Committee.  Both proposals would allow a sale of an ownership interest in a business to be considered business income for Ohio income tax purposes if federal income tax law treats the sale as a sale of assets or the seller materially participates in the business activities during the taxable year in which interest was sold or any of preceding five taxable years.  If passed, the legislation would apply to any audits, refund applications, petition for reassessments, and appeals pending on or after the bill’s 90-day effective date.  H.B. 515 received a second hearing before the House Ways and Means Committee on February 15, 2022.

S.B. 210 – Postnuptial agreements.  The proposal to allows spouses to modify pre-nuptial agreements and separation agreements had its first hearing before the House Civil Justice Committee on February 8, 2022.  Sponsor Sen. Theresa Gavarone testified that the bill would bring Ohio into line with other states by allowing married couples to address life changes with options other than divorce or separation.  The bill passed the Senate back in November of 2021.

S.B. 241 – Agricultural Linked Deposit Program.  The Senate version of revisions to Ohio’s Agricultural Linked Deposit Program passed the Senate on January 26, 2022 with emergency provisions that would make the bill effective immediately.  The proposal was referred to the House Financial Institutions Committee on February 15.  Meanwhile, it’s counterpart in the House, H.B. 440, which passed the House on December 9, 2021, awaits a hearing before the Senate Financial Institutions & Technology Committee. The proposals expand the availability of Agricultural Linked Deposit Program loans to agricultural cooperatives and replaces the current $150,000 loan limit to amounts as determined by the Treasurer.

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Picture of a black howler monkey.
By: Jeffrey K. Lewis, Esq., Friday, February 18th, 2022

Did you know that the loudest land animal is the howler monkey?  The howler monkey can produce sounds that reach 140 decibels.  For reference, that is about as loud as a jet engine at take-off, which can rupture your eardrums.  

Like the howler monkey, we are here to make some noise about recent agricultural and resource law updates from across the country.  This edition of the Ag Law Harvest brings you court cases dealing with zoning ordinances, food labeling issues, and even the criminal prosecution of a dairy farm.  We then look at a couple states proposing, or disposing, of legislation related to agriculture.  

A zoning ordinance has Michigan landowners hogtied.  The Michigan Supreme Court recently ruled that Michigan’s 6-year statute of limitations does not prevent a township from suing a landowner for alleged ongoing zoning violations, even if the start of landowner’s alleged wrongdoing occurred outside the statute of limitations period.  

Harvey and Ruth Ann Haney (“Defendants”) own property in a Michigan township that is zoned for commercial use.  Defendants began raising hogs on their property in 2006.  Defendants started with one hog and allegedly grew their herd to about 20 hogs in 2016.  In 2016, Fraser Township (“Plaintiff”) filed suit against Defendants seeking a permanent injunction to enforce its zoning ordinance and to prevent Defendants from raising hogs and other animals that would violate the zoning ordinance on their commercially zoned property.  Defendants filed a motion to dismiss and argued that Plaintiff’s claims were barred because of Michigan’s 6-year statute of limitations.  A statute of limitations is a law that prevents certain lawsuits from being filed against individuals after a certain amount of time has passed.  In Ohio, for example, if someone were to be injured in a car accident, they would only have 2 years to bring a personal injury claim against the person who caused the accident.  That’s because Ohio has passed a law that mandates most personal injury claims to be brought within 2 years of the date of injury.  

In the Michigan case, Defendants argued that because their first alleged wrongdoing occurred in 2006, Plaintiff could not file their lawsuit against the Defendants in 2016.  A trial court disagreed with Defendants and denied their motion to dismiss.  Defendants took the motion up to the Michigan Court of Appeals, and the Court of Appeals found that Plaintiff’s claim was barred because of the 6-year statute of limitations.  Plaintiff appealed to the Michigan Supreme Court, which overturned the Court of Appeals’ decision and held that Plaintiff’s claim was not barred.  The Michigan Supreme Court reasoned that the presence of the hogs constitutes the alleged unlawful conduct of the Defendants, and that unlawful conduct occurred in 2006 and has occurred almost every day thereafter.  The court concluded that because Defendants unlawful conduct was ongoing after 2006, Plaintiff’s claims were not barred by the statute of limitations.  The case now goes back to the trial court to be tried on the merits of Plaintiff’s claims against Defendants. 

Where there’s smoke, there’s fire.  Family Dollar Stores, Inc. (“Family Dollar”) has found itself in a bit of nutty situation.  Plaintiff, Heather Rudy, has filed a class action lawsuit against Family Dollar, alleging that Family Dollar has misled her and other consumers by marketing its Eatz brand Smoked Almonds as “smoked.”  Plaintiff asserts that Family Dollar is being deceptive because its Smoked Almonds are not smoked over an open fire, but instead flavored with a natural smoke flavoring.  Plaintiff’s claims against Family Dollar include violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”); breaches of express warranty and implied warranty of merchantability; violation of the Magnuson-Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.  

Family Dollar filed an early motion to dismiss, arguing that Plaintiff has not stated a claim for which relief can be granted.  A federal district court in Illinois dismissed some of Plaintiff’s claims but ruled that some claims against Family Dollar should be allowed to continue.  Plaintiff’s claims for breaches of warranty, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, and fraud were all dismissed by the court.  The court did decide that Plaintiff’s claims under ICFA unjust enrichment should stay.  The court reasoned that Plaintiff’s interpretation that Family Dollar’s almonds would be smoked over an open fire are not unreasonable.  Moreover, the court recognized that nothing on the front label of Family Dollar’s Smoked Almonds would suggest, to consumers, that the term “smoked” refers to a flavoring rather than the process by which the almonds are produced.  The court even pointed out that competitors’ products contain the word “flavored” on the front of similar “smoked” products.  Therefore, the court concluded that Plaintiff’s interpretation of Family Dollar’s Smoked Almonds was not irrational and her claims for violating the ICFA should continue into the discovery phase of litigation, and possibly to trial.  

Undercover investigation leads to criminal prosecution of Pennsylvania dairy farm.  A Pennsylvania Court of Appeals (“Court of Appeals”) recently decided on Animal Outlook’s (“AO”) appeal from a Pennsylvania trial court’s order dismissing AO’s petition to review the decision of the Franklin County District Attorney’s Office (“DA”) to not prosecute a Pennsylvania dairy farm (the “Dairy Farm”) for animal cruelty and neglect.  An undercover agent for AO held employment at the Dairy Farm and captured video of the condition and treatment of animals on the farm, which AO claims constitutes criminal activity under Pennsylvania’s animal cruelty laws.  

AO compiled a report containing evidence and expert reports documenting the Dairy Farm’s alleged animal cruelty and neglect.  AO submitted its report to the Pennsylvania State Police (“PSP”) in 2019.  The PSP conducted its own investigation which lasted for over a year, and in March 2020, issued a press release indicating that the DA would not prosecute the Dairy Farm.  

In response, AO drafted private criminal complaints against the Dairy Farm and submitted those to the local Magisterial District Judge.  The local Magisterial Judge disapproved all of AO’s complaints and concluded that the complaints “lacked merit.”  AO then filed a petition in a Pennsylvania trial court to review the Magisterial Judge’s decision.  The trial court dismissed AO’s petition and concluded that the DA correctly determined “that there was not enough evidence, based upon the law, to initiate prosecution against any of the Defendants alleged in the private criminal complaints.”  AO appealed the trial court’s decision to the Court of Appeals which ended up reversing the trial court’s decision.    

The Court of Appeals concluded that the trial court failed to view the presented evidence through a lens that is favorable to moving forward with prosecution and the trial court failed to consider all reasonable inferences that could be made on the evidence.  The Court of Appeals observed that the trial court made credibility determinations of the evidence by favoring the evidence gathered by PSP over the evidence presented by AO.  The Court of Appeals noted that a trial court’s duty is to determine “whether there was evidence proffered to satisfy each element of an offense, not to make credibility determinations and conduct fact-finding.” Additionally, the Court of Appeals found that the trial court did not do a complete review of all the evidence and favored the evidenced obtained by PSP over the evidence presented by AO.  The Court of Appeals determined that had the trial court reviewed all the evidence, it would have found that AO provided sufficient evidence to establish prima facie cases of neglect and animal cruelty, which would have provided the legal basis for the DA’s office to prosecute the claims.  

Lastly, the DA argued that no legal basis for prosecution exists because the Dairy Farm is protected by the normal agricultural operations exemption to Pennsylvania’s animal cruelty laws.  However, the Court of Appeals found that the conduct of the Dairy Farm, as alleged, would fall outside the normal agricultural operations exemption because AO’s report demonstrates that the Dairy Farm’s practices were not the dairy industry norm.    

Ultimately the Court of Appeals found that AO’s private criminal complaints did have merit and that the DA had enough evidence and a legal basis to prosecute AO's claims.  The Court of Appeals remanded the trial court’s decision and ordered that the DA to go ahead and prosecute the Dairy Farm on its alleged animal cruelty violations.  

Wyoming fails to pass legislation limiting what can be considered agricultural land.  The Wyoming House of Representatives struck down a recent piece of legislation looking to increase the threshold requirement to allow landowners the ability to classify their land as agricultural, have their land appraised at an agricultural value, and receive the lower tax rate for agricultural land.  Current Wyoming law classifies land as agricultural if: (1) the land is currently being used for an agricultural purpose; (2) the land is not part of a patted subdivision; and (3) the owner of the land derived annual gross revenue of $500 or more from the marketing of agricultural products, or if the land is leased, the lessee derived annual gross revenues of $1,000 or more from the marketing of agricultural products.  

Wyoming House Bill 23 sought to increase the threshold amount of gross revenues derived from the marketing of agricultural products to $5,000 for all producers.  The Wyoming Farm Bureau Federation and Wyoming Stock Growers associations supported the bill.  Proponents of the bill argued that the intent of agricultural land appraisals is to support commercial agriculture, not wealthy landowners taking advantage of Wyoming’s tax laws.  Opponents of the bill argued that House Bill 23 hurt small agricultural landowners and that the benefits of the bill did not outweigh the harms.  House Bill 23 died with a vote of 34-25, failing to reach the 2/3 approval for bills to advance.  

Oregon introduces legislation relating to overtime for agricultural workers.  Oregon House Bill 4002 proposes to require agricultural employers to pay all agricultural employees an overtime wage for time worked over 40-hours in a workweek.  House Bill 4002 does propose a gradual phase-in of the overtime pay requirements for agricultural employees.  For the years 2023 and 2024, agricultural employees would be entitled to overtime pay for any time worked over 55 hours in a workweek.  For 2025 and 2026, the overtime pay requirement kicks in after 48 hours.  Then in 2027, and beyond, agricultural employers would be required to pay an overtime pay rate to employees that work more than 40 hours in a workweek.   

Snowy field underneath partly cloudy sky with overlay of Farm Office Live details.
By: Jeffrey K. Lewis, Esq., Saturday, February 12th, 2022

It's that time again, Farm Office Live is right around the corner! We have all the hottest legal, tax, and farm management information to help you continue to emerge from "the" winter event of the season, so far.  

Our program this month will feature Chris Bruynis, PhD, Associate Professor and Extension Educator, sharing information on the 2022 ARC/PLC Program decision.  The Farm Office Team of Dianne Shoemaker, David Marrison, Peggy Kirk Hall, and Barry Ward will follow with discussion and updates on: 

  • Fertilizer price and rental rates 
  • Financial standards 
  • The Federal Farm Program 
  • State and federal legislation 

We are offering Farm Office Live this Wednesday, February 16 from 7 - 8:30 pm, and again on Friday, February 18 from 10 - 11:30 am.  Register or catch the recorded version at https://farmoffice.osu.edu/farmofficelive

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Photograph of Robert Moore
By: Peggy Kirk Hall, Thursday, February 10th, 2022

OSU is happy to welcome attorney Robert Moore to the Agricultural & Resource Law Program and Farm Office team.  Many in Ohio know Robert from his years in private practice with Wright & Moore Co, LPA, the firm he joined with Paul Wright and then co-owned with his wife Kelly.  Robert and Kelly are transitioning the law firm to their colleague Ryan Conklin, who along with attorney Evin Bachelor will continue representing farm clients across Ohio.

Robert grew up on a dairy farm in Coshocton County, where his family now raises beef cattle and crops.  He’s a double OSU graduate, first receiving a B.S. in dairy science followed by a Master’s degree in agricultural economics. 

His new position is a return to OSU, as Robert previously spent four years as an Extension Educator in Fairfield County and five years running the production business management program for OSU Extension.  During that time, he began attending Capital University Law School and graduated Cum Laude with his law degree in 2005.  We’re thrilled that his enthusiasm for teaching drew Robert back to OSU.

At OSU, Robert will put his years of advising farm operations on business and estate planning to work as he assumes responsibility for those areas in the Agricultural & Resource Law Program.  Through our partnership with the National Agricultural Law Center, Robert will implement research projects on long-term care planning, keeping farmland in the family, and using LLCs for farm businesses.  You’ll see Robert teaching for events like Farm Office Live and our Planning for the Future and Farmland Leasing workshops.  Watch for articles in the Ohio Ag Law Blog and his publications on farmoffice.osu.edu.  He has a great deal of knowledge to share with us.

We’re fortunate to bring Robert’s expertise to the Agricultural & Resource Law Program and expand our capacity to provide legal research and outreach to Ohio’s agricultural community.   Please join us in welcoming Robert back to OSU!

 

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Ants and aphids on a plant stem.
By: Jeffrey K. Lewis, Esq., Friday, February 04th, 2022

Did you know that ants are the only creatures besides humans that will farm other creatures?  It’s true.  Just like we raise cows, sheep, pigs, and chickens in order to obtain a food source, ants will do the same with other insects.  This is particularly true with aphids.  Ants will protect aphids from natural predators and shelter them during heavy rain showers in order to gain a constant supply of honeydew.

Like an ant, we have done some heavy lifting to bring you the latest agricultural and resource law updates.  We start with some federal cases that deal with the definition of navigable waters under the Clean Water Act, mislabeling honey products, and indigenous hunting rights.  We then finish with some state law developments from across the country that include Georgia’s right to farm law and California’s Proposition 12.  

Supreme Court to review navigable waters definition under the Clean Water Act.  The Supreme Court announced that it would hear the case of an Idaho couple who have been battling the federal government over plans to build their home.  Chantell and Mike Sackett (“Plaintiffs”) began construction on their new home near Priest Lake, Idaho but were halted by the Environmental Protection Agency (“EPA”).  The EPA issued an administrative compliance order alleging that Plaintiffs’ construction violates the Clean Water Act.  The EPA claims that the lot, on which the Plaintiffs are constructing their new home, contains wetlands that qualify as federally regulated “navigable waters.”  Plaintiffs are asking the Court to revisit its 2006 opinion in Rapanos v. United States and help clarify how to determine when a wetland should be classified as “navigable waters.”  In Rapanos, the Court found that the Clean Water Act regulates only certain wetlands, those that are determined to be “navigable waters.”  However, two different tests were laid out in the Court’s opinions.  The Court issued a plurality opinion which stated that the government can only regulate wetlands that have a continuous surface water connection to other regulated waters.  A concurring opinion, authored by Justice Kennedy, put forth a more relaxed test that allows for regulation of wetlands that bear a “significant nexus” with traditional navigable waters.  Justice Kennedy’s test did not take into consideration whether there was any surface water connection between the wetland and the traditional navigable waters.  In the lower appellate court, the Ninth Circuit Court of Appeals used Justice Kennedy’s “significant nexus” test to uphold the EPA’s authority to halt Plaintiffs’ construction.  Now, Plaintiffs hope the Supreme Court will adopt a clear rule that brings “fairness, consistency, and a respect for private property rights to the Clean Water Act’s administration.”  

SueBee sued for “bee”ing deceptive.  Sioux Honey Association Cooperative (“Defendant”) finds itself in a sticky situation after Jason Scholder (“Plaintiff”) brought a class action lawsuit against the honey maker for violating New York’s consumer protection laws by misrepresenting the company’s honey products marketed under the SueBee brand.  Plaintiff claims that the words “Pure” or “100% Pure” on the Defendant’s honey products are misleading and deceptive because the honey contains glyphosate.  Defendant filed a motion to dismiss the class action lawsuit and a federal district court in New York granted Defendant’s motion in part and denied it in part.  Defendant asked the court to find that its labels could not be misleading as a matter of law because any trace amounts of glyphosate in the honey is a result of the natural behavior of bees interacting with agriculture and not a result of Defendant’s production process.  However, the court declined to dismiss Plaintiff’s mislabeling claims.  The court concluded that a reasonable consumer might not actually understand that the terms “Pure” or “100% Pure” means that trace amounts of glyphosate could end up in honey from the bees’ foraging process.  The court also declined the Defendant’s request to dismiss Plaintiff’s unjust enrichment claim because of the alleged misrepresentations of the honey.  However, the court did dismiss Plaintiff’s breach of express warranty claim and request for injunctive relief.  The court dismissed Plaintiff’s breach of express warranty claim because Plaintiff failed to notify Defendant of its alleged breach of warranty, as required by New York law.  Plaintiff’s request for injunctive relief was also dismissed because the court could not find any imminent threat of continued injury to Plaintiff since he has now learned that the honey contains trace amounts of glyphosate.  The court ordered the parties to proceed with discovery on Plaintiff’s remaining claims, keeping the case abuzz.

Indigenous Hunting Rights.  Recently, two members of the Northwestern Band of the Shoshone Nation (“Northwestern Band”) were cited for hunting on Idaho lands without tags issued by the state.  The Northwestern Band filed suit against the state of Idaho declaring that its members possessed hunting rights pursuant to the Fort Bridger Treaty of 1868 (the “1868 Treaty”).  The 1868 Treaty provided that the Shoshone Nation agreed to permanently settle on either Fort Hall Reservation, located in Southeastern Idaho, or Wind River Reservation, located in Western Wyoming.  By agreeing to settle on one of the two reservations, the Shoshone Nation was granted hunting rights on unoccupied lands of the United states.  However, the Northwestern Band ended up settling in Northern Utah and not on one of the two named reservations.  After considering the 1868 Treaty, the Federal District Court of Idaho dismissed Northwestern Band’s lawsuit.  The court held that the hunting rights contained in the 1868 Treaty were tied to the promise to live on one of the reservations, and that a tribe cannot receive those hunting rights without living on one of the appropriate reservations.  Thus, the court found that because the Northwestern Band settled in Northern Utah and not on one of the reservations, the hunting rights of the 1868 Treaty did not extend to the Northwestern Band of the Shoshone Nation.  

Tensions rise over Georgia’s Freedom to Farm Act.  A few days ago, Georgia lawmakers introduced legislation that seeks to further protect Georgia farmers from nusiance lawsuits.  House Bill 1150 (“HB 1150”) proposes to change current Georgia law to protect farmers and other agricultural operations from being sued for emitting smells, noises, and other activities that may be found offensive by neighboring landowners.  Georgia’s current law, which became effective in 1980, does provide some protection for Georgia farmers, but only from neighboring landowners that have moved near the farm or agricultural operation after the current law went into effect.  All neighboring landowners that lived near the farming operation prior to the current law going into effect have retained their right to sue.  HB 1150, on the other hand, will prevent these nuisance lawsuits by all neighboring landowners, as long as the farm or agricultural operation have been operating for a year or more.  Passing a right to farm law has proven to be difficult in Georgia.  In 2020, House Bill 545, also known as the “Right to Farm bill” failed to pass before the final day of the 2019-2020 legislative session. Private landowners, farmers, and their supporters, are divided on the issue and seek to protect their respective property rights. It doesn't look like HB 1150 will have the easiest of times in the Georgia legislature. 

Confining California's Proposition 12.  Meat processors and businesses that sell whole pork meat in California (collectively the “Petitioners”) have delayed the enforcement of California’s Proposition 12 (“Prop 12”), for now.  Prop 12 is California’s animal confinement law that has sent shockwaves across the nation as it pertains to raising and selling pork, eggs, and veal.  Last week, the Superior Court for Sacramento County granted Petitioners’ writ of mandate to delay the enforcement of Prop 12 on sales of whole pork meat.  Petitioners argue that Prop 12 cannot be enforced until California has implemented its final regulations on Prop 12.  To date, California has yet to implement those final regulations.  California, on the other hand, suggests that final regulations are not a precondition to enforcement of Prop 12 and the civil and criminal penalties that can be brought against any farmer or business that violates Prop 12.  The court disagreed.  The court found that the language of Prop 12, as voted on by California residents, explicitly states that California voters wanted regulations in place before the square-footage requirements of Prop 12 took effect.  Therefore, the court granted Petitioners’ writ of mandate to prevent the enforcement of Prop 12 until final regulations have been implemented.  The court’s writ will remain in effect until 180 days after final regulations go into effect.  This will allow producers and businesses to prepare themselves to comply with the final regulations.  Opponents of Prop 12 believe this is another reason why the Supreme Court of the United States should review California’s Proposition 12 for its constitutionality.  

Ohio Farmland Leasing Update photo with farm field
By: Peggy Kirk Hall, Tuesday, February 01st, 2022

Winter is a good time to review farm leases, for both economic and legal reasons.  We'll provide you current information to help with the farmland leasing process in our Ohio Farmland Leasing Update webinar on February 9, 2022 from 7 to 9 p.m.   Barry Ward, Leader of Production Business Management for OSU Extension, will address the economic issues and our legal team of Peggy Hall and Robert Moore will provide the legal information.  

Our agenda will include:

  • Current economic outlook for Ohio row crops
  • Research on cash rent markets for the Eastern Corn Belt
  • Rental market outlook fundamentals
  • Negotiating conservation practices
  • Using leases in farmland succession planning
  • Ohio's proposed law on providing notice of termination
  • Ensuring legal enforceability of a lease

There is no fee for the webinar, but registration is necessary.  Register at https://go.osu.edu/farmlandleasingupdate.