Recent Blog Posts

By: Robert Moore, Tuesday, December 05th, 2023

Legal Groundwork

Second marriages present unique challenges for farm transition planning. This is especially true when the second marriage occurs later in life and the spouses have accrued significant assets and/or have children from prior marriages. The spouses in a second marriage obviously want to help provide for each other but may have a competing interest of providing for their children but not necessarily stepchildren. Without good planning, it is possible that farm assets will end up with a spouse or stepchildren who were not involved in the farming operation.

Farm Transition Planning Strategies for Second Marriages, a new bulletin available at farmoffice.osu.edu, addresses the two most common sources of risk to farming operations when a second marriage is involved – death and divorce. While these risks cannot be eliminated, there are strategies to help minimize the risks to ensure, as best we can, that farm assets stay with the farm family. The bulletin discusses the strategies and how they can be integrated into a farm transition plan.

Strategies to protect farms from the death of a second spouse mostly involves incorporating a trust in the farm transition plan.  A trust can hold assets for the surviving spouse without giving legal ownership to the spouse.  The trust serves the dual purpose of providing  income and other resources for the surviving spouse while also protecting those assets to ultimately be inherited by the deceased spouse’s heirs.  Trusts are an excellent tool to both provide for spouses and protect assets for future generations.

Prenuptial and postnuptial agreements can be used to reduce the risks of divorce.  These agreements between spouses specifically identify which assets are considered joint, marital assets and which assets are to be considered outside of the marriage.  These designations can help safeguard farm assets by keeping them immune from a division of assets in a divorce.   A recent change in the law allows spouses to enter into such an agreement even after the marriage has occurred.

Any farmers who are in a second marriage should consider including a trust and/or pre/postnuptial agreement into their farm transition plan.  An attorney experienced in farm transition planning can assist with deciding if a trust or marriage agreement is needed and how best to integrate into a farm transition plan.  The Farm Transition Planning Strategies for Second Marriages bulletin provides a detailed discussion of trusts and marriage agreements and their potential impact on farm transition planning.

Combine in a field.
By: Jeffrey K. Lewis, Esq., Friday, December 01st, 2023

Farmer and Farmland Owner Income Tax Webinar
Barry Ward & Jeff Lewis, OSU Income Tax Schools

Are you a farmer or farmland owner wanting to learn more about the recent tax law issues? If so, join us for this webinar on Friday, December 15th, 2023 from 10am to noon. This webinar is a part of our Farm Office Live Series and serves as our Farm Office Live! Webinar for December. To register for this webinar go to: https://go.osu.edu/register4fol

This webinar will focus on issues related to farmer and farmland owner income tax returns as well as the latest news on CAUV and property taxes in Ohio and the big changes to the Ohio Commercial Activity Tax (CAT). This two-hour program will be presented in a live webinar format via Zoom by OSU Extension Educators Barry Ward, David Marrison and Jeff Lewis along with Purdue faculty member Dr. Michael Langemeier. Individuals who operate farms, own property, or are involved with renting farmland should participate.

Topics to be discussed during this webinar include (subject to change based on tax law change):

  • Economic Outlook 

  • Depreciation Update 

  • Employee vs. Independent Contractor 

  • Corporate Transparency Act/Beneficial Owners Information Reporting

  • 1099-K Changes 

  • Charitable Remainder Trusts 

  • Basis Allocation Land Acquisition – Allocating Basis to Residual Fertility for Future Deductions 

  • Defining Farm Income to Avoid Paying Estimated Tax 

  • Keeping an Eye Forward on Estate/Gift Tax Limitation 

  • Reminder – Keeping an Eye on Tax Cuts and Jobs Act Provisions Sunsetting After 2025 Tax Year

  • Ohio Tax Update (CAUV/Property Tax Update, CAT Changes, Beginning Farmer Tax Credit, Ohio Tax Law Interpretation – Ohio Supreme Court Issues New Ruling)

  • Indiana Tax Update

To register: https://go.osu.edu/register4fol

For more information, contact Barry Ward at ward.8@osu.edu or Jeff Lewis at lewis.1459@osu.edu

Posted In: Tax
Tags: Farm Tax, Ag Tax, Income Tax
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Pile of tree limbs burning in open farm field
By: Peggy Kirk Hall, Thursday, November 30th, 2023

With the warm, dry, and windy months of October and November behind us, Ohio farmers will soon have legal clearance to conduct open burning during the daylight hours.  Ohio law prohibits all open burning from 6 a.m. to 6 p.m. during October and November.  That’s because ground cover and weather conditions create high fire risk and volunteer firefighters with daytime jobs aren’t readily available to fight the fires. 

December 1 marks the end of the daytime burn restriction, but other open burning laws remain in effect. Farmers can burn “agricultural waste,” but must follow conditions in the open burning laws.  Burning wastes that aren't agricultural waste might require prior permission or notification, and it is illegal to burn some wastes due to the environmental harms they cause. Don't get burned by failing to know and follow the open burning laws.  Here’s a summary of important provisions that affect farmers and farmland owners.

What you can burn.  Ohio law allows the burning of “agricultural wastes” under certain conditions.  Ohio law defines what is and is not “agricultural waste” as follows:

  • Agricultural waste is any waste material generated by crop, horticultural, or livestock production practices, and includes such items as woody debris and plant matter from stream flooding, bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities.
  • Agricultural waste does not include buildings; dismantled or fallen barns; garbage; dead animals; animal waste; motor vehicles and parts thereof; or "economic poisons and containers," unless the manufacturer has identified open burning as a safe disposal procedure.
  • Agricultural waste does not include"land clearing waste," which is debris resulting from the clearing of land for new development for agricultural, residential, commercial or industrial purposes.  Burning of “land clearing waste” requires prior written notification to Ohio EPA.
  • If an agricultural waste pile is greater than 20 ft. wide x 10 ft. high (4,000 cubic feet), permission from Ohio EPA is necessary.

Where you can burn.  Laws that affect the burning location relate to where the waste is generated and whether the burn is in or near a village, city, or buildings:

  • It is legal to burn agricultural waste only if it is generated on the property where the burn occurs.  It is illegal to take agricultural waste to a different property for burning and to receive and burn agricultural waste from another property.
  • Burning inside a “restricted area” requires providing a ten day written notice to Ohio EPA.  A restricted area is any area inside city or village limits, within 1,000-feet of a city or village with a population of 1,000 to 10,000, or within one-mile of a city or village with a population of more than 10,000. 
  • A burn must be located more than 1,000 feet from any neighboring inhabited building.

How to manage the burn.  Ohio laws impose practices a person must follow when conducting open burning, which includes:

  • Remove all leaves, grass, wood, and inflammable materials around the burn to a safe distance.
  • Stack waste to provide the best practicable condition for efficient burning.
  • Don’t burn in weather conditions that prevent dispersion of smoke and emissions.
  • Take reasonable precautions to keep the fire under control. 
  • Extinguish or safely cover an open fire before leaving the area.

Local laws matter too. A local government can also have laws that regulate burning activities, so it’s important to check with the local fire department to know whether any additional regulations apply to a burn.

A bad burn can burn you.   Violation of state and local open burning laws creates several risks for farmers and farmland owners. First is the risk of enforcement by the Ohio EPA, which has the authority to issue fines of up to $1,000 per day per offense for an illegal burn.  According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes,” such as tires and plastics, failing to meet the 1,000 foot setback requirement, and burning waste from another property. EPA enforcement officers regularly patrol their districts, investigate fires they see, and investigate complaints from neighbors or others who report burning activities, so “getting caught” is quite possible.

An illegal burn might also bring in the Ohio Division of Forestry or local law enforcement.  Beyond the environmental provisions, other violations of the open burning laws can result in third degree misdemeanor charges.  Penalties of up to $500 and 60 days of jail time per violation could result.  

A final risk to consider is liability for harm to yourself, other people, or other property if a burn goes wrong.  It’s possible for a fire to escape and burn unintended property, to reduce roadway visibility and cause an accident, or to interfere with people, animals, crops, or buildings.  These situations can cause personal injuries, property harm, and could result in insurance claims or a negligence or nuisance lawsuit.  Using common sense and taking reasonable safety precautions when conducting a burn can go a long way toward reducing the risk of harm and resulting liability for harm.

To learn more about Ohio’s open burning laws, visit the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/air-pollution-control/permitting/open-burning.

By: Robert Moore, Tuesday, November 28th, 2023

Legal Groundwork

Special thanks to AnnaMarie Poole, Law Fellow, National Agricultural Law Center, for research and writing contributions to this post.

Gifting can be an important part of a farm transition plan but it is important to understand the tax implications of gifting.  Taxable gifts refer to the total value of gifts given to others during a calendar year, which may be subject to gift tax under the U.S. tax code.  These gifts can include various types of property, money, or assets.  The determination of taxable gifts considers the fair market value of the transferred assets and any applicable exclusions or deductions provided by the tax code.  Currently, an individual may gift up to $17,000 each year to an unlimited number of people.  These annual exclusion gifts are not subject to gift tax.  Gifts made in excess of $17,000 are either subject to gift tax or reduce the lifetime gift exclusion by the amount of the excess gift.  For a detailed discussion of gifting, see the Gifting Assets Prior to Death bulletin at farmoffice.osu.edu. 

In addition to direct gifts, the payment of a bill or expense on behalf of someone else is usually considered a gift.  However, there are two specific exceptions.  The IRS allows education expenses and medical expenses to be paid for someone without being considered a gift.  These exemptions may present opportunities for those who are limited by the $17,000 annual gift limit.

Education Expenses

Paying tuition directly to a school is not considered a taxable gift.  There are two important points to remember regarding tuition payment.  The tuition must be paid directly to the institution, the payment cannot go directly to the student.  Second, the exclusion applies only to tuition payments.  Other school-related expenses like books, supplies, and room and board costs are not eligible for this exclusion.

Consider the following example:  

Dale has a grandchild who attends Harvard.  The tuition at Harvard is very expensive and Dale would like to help his grandchild.  Dale sends a check to Harvard for $50,000 to be applied to tuition.  The $50,000 that Dale paid for his grandchild's tuition is not considered a gift and therefore does not count toward the $17,000 annual exclusion gift.  Dale could still gift up to $17,000 directly to the grandchild and still not exceed the annual gift exclusion.   

Medical Care

Payments that qualify for the medical exclusion are those made directly to a healthcare provider, medical institution, or medical insurance company for someone's benefit.  Transportation and lodging costs related to the person's medical care can also be covered, but there are specific rules, so it is best to consult with a tax professional.  The payments must go directly to the care provider or insurance company, not to the individual receiving care, to avoid it being considered a taxable gift above the annual exclusion amount. 

Consider the following example:  

Waylon and his neighbor Tom are lifelong friends.  Tom is at Waylon’s house for dinner when he begins to have extreme stomach pain and nausea.  Waylon calls 911 and an ambulance takes Tom to the hospital.  Once at the hospital, Tom is rushed into surgery to have his appendix removed.  A few weeks later, Tom receives a bill from the hospital for $25,000.  Waylon knows Tom has been down on his luck financially and he does not want Tom stressed about the cost of the life-saving surgery.  Waylon pays the full $25,000 directly to the hospital for Tom’s surgery.  Additionally, Waylon gifted Tom $10,000 to help cover his lost wages while he recovered.  By using a combination of the medical expense exemption and the annual gift exclusion, Waylon was able to help out Tom with $35,000 without having to pay gift taxes or adversely affecting the lifetime gift exemption.

Estate Planning Implications

Farmers who may wish to transfer wealth to others during their life should keep in mind the annual gift exclusion and the education and medical payment exclusion.  These strategies allow money or other assets to be transferred without negative gift or estate tax implications.  Using these exclusions can help farmers plan their estates by passing on assets, supporting education, and managing healthcare expenses with fewer tax issues. 

 

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Fall trees in background of field with a wooden hunting stand in forefrant.
By: Peggy Kirk Hall, Wednesday, November 22nd, 2023

The fall hunting season is upon us, and landowners across Ohio are being asked to give permission to allow hunting on their land. That means now is a good time for a refresher on the laws that affect Ohio landowners and hunting.  Here are ten legal tips for landowners considering hunting activities on their land.

  1. Ohio law requires permission in writing--but landowners should review the permission form and know who they’ve permitted.   Ohio law requires a hunter to obtain a hunting license and written permission from a landowner or the landowner’s agent before hunting on private lands or waters.  Landowners should expect to be asked to sign the permission form provided by ODNR, which is available on ODNR’s website.  The permission form allows a landowner to designate a permission period—either the entire hunting season or specific dates.  If a hunter uses a different permission form, it might contain additional provisions beyond the permission to hunt, such as the right to install a tree stand or a blind on the property.  Landowners should have an attorney review a form if unsure of its meaning and should document names and contact information for hunters granted permission to hunt on the property.  Contact information will be helpful if there is a hunting incident or a need to contact the hunter.
  2. Know the laws for family members and tenants.  A landowner who is a resident of Ohio, the landowner’s spouse, all children of any age, and all grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowner’s land.  All other family members must obtain a hunting license and follow the written permission requirement.  When a landowner is not an Ohio resident, only the landowner, spouse, and children living with the landowner may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state.  In a rental situation where a tenant resides on the land, the tenant and the tenant’s children who live on the land may hunt on the property without a hunting license and written permission.
  3. The hunting license exemption also applies to certain entities.  If the owner of land is a limited liability company or a limited liability partnership with three or fewer individual members or partners, a member or partner who is a resident of Ohio may hunt on the land without a hunting license, as can the member or partner's children of any age and grandchildren under the age of 18. If a trust owns the land and has a total of three or fewer trustees and beneficiaries, a trustee or beneficiary who is an Ohio resident and their children of any age and grandchildren under the age of 18 may hunt on the land without a hunting license.
  4. A hunter must also have written permission to pursue or retrieve an injured animal.  Hunters often mistakenly believe they have the right to pursue an injured animal onto another property, but Ohio law says otherwise.  Written permission of a landowner is required for each of these hunting activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild animal or bird.  Contrary to popular belief, the law does not require a landowner to give a hunter permission to pursue an injured animal—it’s a choice a landowner can make.
  5. Two Ohio laws can protect landowners from liability for hunting injuries.  The first is Ohio’s Recreational User Statute, which states that a landowner has no legal duty to keep the premises safe for a hunter and other recreational users who have permission to be on the land.  This means the law will protect a landowner from liability if a hunter is harmed while on the property, but it won’t protect a landowner who caused the harm through intentional or reckless conduct.   Note that the liability protection does not apply if a landowner charges a hunter a fee for hunting, unless the fee is a payment made under a hunting lease.   Read more about the Recreational User’s Statute in our law bulletin on farmoffice.osu.edu.    A second  Ohio law addresses liability for someone who is hunting on land without permission.  In that case, Ohio law states a landowner is not liable for “injury, death, or loss to person or property” that arises from a violation of the requirement to have a landowner’s permission to hunt on the land.
  6. Be mindful of the number of hunters who could be on the land.   For safety purposes, a landowner should be careful about allowing multiple hunters onto the land at the same timeStrategies for managing multiple hunters include designating a specific parking area so hunters know if another hunter is present and setting specific hunting periods for different hunters.  Taking reasonable steps to manage multiple hunters will help ensure that someone isn’t harmed, and it can also protect a landowner from a potential claim that the Recreational User’s Statute shouldn’t apply because the landowner behaved recklessly by not managing multiple hunters allowed on the land.  While such a claim might not be legally successful, it would require landowners and their insurance providers to prove that the Recreational User’s Statute protects the landowner from liability.
  7. Consider a hunting lease.  Many hunters and hunting groups prefer to secure hunting rights through a hunting lease.  A lease can provide a landowner with additional income and is one situation where the liability protection of Ohio’s Recreational User Statute applies even if a payment is made to the landowner.  A lease can also address other rights and responsibilities, such as number and gender of animals to be taken, placement of tree stands and blinds, use of feeders and bait, where animals may be cleaned, and property maintenance activities by hunters.  See our law bulletin on hunting lease considerations in the property law library on farmoffice.osu.edu at https://farmoffice.osu.edu/our-library/property-law.
  8. Ohio laws address harm to property caused by hunters.  What if a landowner gives permission to a hunter, but then that hunter causes property damage?  Ohio’s hunting law is one law that can help.  It prohibits a hunter from acting in a “negligent, careless or reckless manner so as to injure persons or property.”  A hunter who violates this law can face first degree misdemeanor charges and revocation of the hunting license and must also pay compensation to the harmed landowner.  Ohio’s reckless destruction of vegetation law is a second helpful law.  It allows a landowner to seek compensation for “reckless” destruction of vegetation, trees, and crops and would address a situation where a hunter acted intentionally and without regard for the consequences.  Intentionally cutting down a tree without permission or running an ATV through a planted crop are behaviors that could be deemed reckless.  Under this law, a landowner could receive triple the amount of the harm caused to the property by a hunter’s reckless behavior.
  9. It’s a good time to mark property boundaries.   Many of the old fences that marked a farm’s property boundaries in Ohio are long gone, and it’s not as easy today for hunters to know where one farm begins and another ends.  Especially for landowners who don’t want hunting on their land, be sure boundary lines are clear to hunters.  Use corner posts, fences, and “no trespassing signs.”  In woodlots, marking the trees on the boundary with paint is also helpful. For an overview of woodlot boundary marking, refer to this video from OSU Extension at https://www.youtube.com/watch?v=zSYYn_onE80.
  10. Ohio has a process for dealing with poachers and trespassers.   Ohio’s “Turn in a Poacher” program (TIP) establishes mechanisms for reporting a violation of wildlife laws, such as hunting without permission or a license and taking animals out of season.  A person can report a violation using an online reporting form on ODNR’s website or by calling the TIP hotline at 1-800-POACHER (762-2437).  Incident reporters are encouraged to share details such as what happened, the location, vehicle description and license plate, and descriptions of suspects.  All information submitted to TIP is confidential, and reporters may choose whether or not they are willing to speak with a wildlife officer about the incident.  
Posted In: Property
Tags: hunting, recreational users statute
Comments: 0
By: Robert Moore, Thursday, November 16th, 2023

Legal Groundwork

One of the biggest risks to the continuation of family farms is potential Long-Term Care (LTC) costs.  On average, about two-thirds of us will need some type of LTC during our lives.  The average nursing home in Ohio costs around $100,000/year.  A few years in a nursing home can put severe strain on the finances of a farming operation.

There are several strategies that can be implemented to help reduce the threat of LTC costs on farming operations.  However, a risk assessment must be completed before it can be determined which strategy is best.  For example, a farming operation with significant income and financial resources may have low risk to LTC costs and thus may not need aggressive planning.  A farming operation with limited income and financial resources may need aggressive planning to help protect farm assets.

To help with the LTC risk assessment, the OSU Agricultural and Resource Law Program has developed a calculator to help determine LTC risks to farm assets.  The calculator determines the assets that will be depleted if LTC costs are incurred.  Income, LTC costs and the assets owned by a farmer are all factored into the analysis.

After using the calculator and analyzing the risk of LTC costs to farm assets, a decision can be made as to the appropriate LTC strategy to implement.  Deciding upon a strategy before assessing LTC risks can lead to overly aggressive planning or leaving farm assets unnecessarily exposed.  A risk analysis is the best way to ensure that the proper LTC strategy is implemented for each specific farming operation.

The Long-Term Care Risk Calculator is available at https://farmoffice.osu.edu/law-library/estate-transition-planning.  The calculator includes a video explaining how to use the calculator and how to interpret the results.  For information on LTC costs and their impact on farming operations, see the Long-Term Care and the Farm publication available at farmoffice.osu.edu.

Posted In: Estate and Transition Planning
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By: Peggy Kirk Hall, Wednesday, November 15th, 2023

The OSU Extension Farm Office Team returns for another Farm Office Live webinar on Friday, November 17 from 10:00 to 11:30 a.m.

Join us to hear from our agricultural law and farm management specialist.  This month's webinar will feature the following topics:

  • Ohio’s role in organic grain production – Eric Richer, OSU Extension Field Specialist, Farm Management  
  • Using Charitable Remainder Trusts – Robert Moore, Attorney and Research Specialist, OSU Agricultural and Resource Law Program
  • Agronomy and Farm Management Podcast – Josh Winters, OSU Extension Educator and Bruce Clevenger, OSU Extension Field Specialist, Farm Management 
  • Farm Business Analysis -- Clint Schroeder, Program Manager, OSU Extension Farm Business Analysis Program
  • Farmer Mental Health Concerns and Resources -- Bridget Britton, Behavioral Health Field Specialist, Agriculture and Natural Resources
  • Foreign Ownership of Farmland – Panel discussion -- Peggy Hall (Attorney and Director, OSU Agricultural & Resource Law Program) with Micah Brown (Attorney with National Agricultural Law Center)

To register for the webinar or to access replays of our previous programs, visit go.osu.edu/farmofficelive.

 

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Title page of Maumee Watershed TMDL Report
By: Peggy Kirk Hall, Tuesday, November 14th, 2023

Featuring the work of Carolyn C. Jolly, Law Fellow, National Agricultural Law Center

OSU’s Agricultural & Resource Law Program is fortunate to be a partner with the National Agricultural Law Center, which includes working with the Center’s Law Fellows—students currently studying law in different law schools across the country.  Carolyn C. Jolly is one of our current Law Fellows, and she has an interest in environmental laws that affect agriculture.  Carolyn is the author of today’s blog.  She has assembled a harvest of environmental updates affecting agriculture that include approval of Ohio EPA’s phosphorus TMDL, a practical ESA guide for producers, EPA’s commitment to adhering to its ESA requirements, and an update on participation by agricultural producers in voluntary carbon markets.

EPA Approves Ohio’s Maumee Watershed Nutrient Total Maximum Daily Load

In 2014, phosphorous runoff from farms in the western basin of Lake Erie caused an algal bloom. Harmful algal blooms produce toxins that impair drinking water, affect aquatic life, and hinder recreational use. Coming up with a solution to reduce the phosphorus runoff has been contentious. In 2019, Toledo voters passed a bill that would allow citizens to sue farmers on behalf of the lake. This measure was held to be unconstitutional, but it could have greatly impacted the ability of farmers and producers to continue their operations. To address specific pollutants, the Clean Water Act requires states to develop Total Maximum Dailey Loads (TMDL).  Environmental interests and local governments in Ohio legally challenged both the Ohio EPA and U.S. EPA to establish a TMDL for the western Lake Erie Basin.  In June of 2023, the Ohio EPA did submit a proposed TMDL for to the EPA and it was approved in September. The aim of the TMDL is to reduce phosphorus runoff in the Maumee Watershed.

Here are some of the approaches for agricultural areas the EPA included in the TMDL:

  Nutrient Management

  • Soil testing and nutrient management planning efforts (e.g., Voluntary Nutrient Management Plans via H2Ohio funding)
  • Variable rate fertilization and subsurface placement of fertilizer (e.g., following the ‘4 R’s’ of nutrient management: using the right nutrient at the right rate and right time in the right place)
  • Manure incorporation (mixing manure into soils or placing the manure below the soil surface)

Erosion Management

  • Conservation crop rotation and cover crops (e.g., improving soil health, increasing soil organic matter, improving soil moisture storage capacity, etc.)

Agricultural Water Quantity Management

  • Drainage water management (e.g., management of discharge from agricultural tile drainage lines to store water in the water table beneath fields and reduce discharge to surface waters) 
  • Edge-of-field buffers (e.g., planting in riparian areas to increase water storage and decrease nutrient and sediment inputs, Great Lakes Restoration Initiative)
  • Two-stage ditch deployment (e.g., modifying the profile of stream channel bottoms by constructing a bench/floodplain adjacent to the existing stream channel to slow water flow during high flow events and trap nutrients and sediment)
  • Wetland restoration and preservation (e.g., the restoration/protection of existing wetlands are beneficial for storing water and nutrients on the landscape, Environmental Quality Incentives Program; Western Lake Erie Basin Project - Ohio)

Read the Final TMDL on the Ohio EPA’s webpage for the Maumee Watershed.

Agricultural Producers Now have a Practical Guide to the Endangered Species Act

The Endangered Species Act (ESA) is intended to protect endangered and threatened species and thus has an impact on agriculture and land use across the country. However, being such a wide-ranging piece of legislation, it can be difficult to understand the law and its full  impact on agriculture. Brigit Rollins, an attorney with our partner, the National Agricultural Law Center, set out to answer how and why the ESA affects agriculture and land use by creating the Endangered Species Act Manual: A Practical Guide to the ESA for Agricultural Producers. It is a concise guide that describes the history of the ESA, influential case law, regulatory changes, and specifics of the ESA’s impact on agriculture. Additionally, it is meant to be a living document that will be updated with current changes and issues.

EPA on Balancing ESA Requirements and Responsible Pesticide Use

When registering new uses for pesticides and reviewing already registered uses, the Environmental Protection Agency (EPA) is required to consult the Endangered Species Act (ESA) to ensure that the use follows ESA standards. This can be a lengthy process and the EPA has complied with the process in less than 5% of its actions. This noncompliance has resulted in substantial litigation. To address these issues, EPA issued its ESA Workplan.  EPA actions in the workplan include developing mitigation measures for particularly vulnerable species, developing and implementing strategies to identity mitigation measures for the different classes of pesticides, completion of ESA work for eight organophosphates and four rodenticides, and hosting a workshop with stakeholders to explore other methods of offsetting pesticide impacts. EPA also released its Draft Herbicide Strategy for comment and the Rodenticide, Insecticide, and Fungicide Strategies are under development. The EPA has also released its ESA guidance for future registrations.

Agricultural Producer Participation in Carbon Markets

To mitigate climate change, Congress passed the Growing Climate Solutions Act (GCSA) to improve access to carbon markets for agricultural producers. In accordance with the law’s requirements, the U.S Department of Agriculture (USDA) released A General Assessment of the Role of Agriculture and Forestry in the U.S. Carbon Markets on October 23, 2023.  The report addresses participation by agricultural producers in the carbon market, barriers to and concerns or participation, and ways to improve producer participation. The report notes that even though producers are aware of the carbon market, voluntary participation has been low.  According to the report, “Producers cite the concerns about the return on investment, upfront costs, data collection burdens, compensation for pre-existing practices, permanence requirements, issues of scale, and confusion about carbon markets and programs as key factors in their evaluation into whether to participate in a carbon project.” The USDA concludes that to reduce barriers to participation, strategies need to be implemented to “reduce transaction costs, minimize record-keeping burdens, address early-adopter and permanence requirement concerns, and address barriers related to project scale.” The report also details the USDA’s role in improving participation through outreach and education, offering grants and partnerships, supporting carbon market infrastructure, and investing in measurement, monitoring, reporting, and verification of carbon credit procedures.

 

Ohio farm fields in fall with sun setting in background
By: Peggy Kirk Hall, Thursday, November 09th, 2023

The State of Arkansas made history last month when it took steps to enforce its new law restricting foreign ownership of land in the state.  Arkansas ordered Northrup King Seed Co., a subsidiary of Syngenta held by China-owned company ChemChina, to give up 160 acres of Arkansas farmland it owned.  The State also assessed a $280,000 fine against Syngenta for failing to disclose the land ownership. The actions are the result of a new foreign ownership law enacted by the Arkansas legislature earlier this year. 

Joining Arkansas and ten other states, Ohio also passed a law restricting foreign ownership of land earlier in 2023.  Ohio’s new “Save our Farmland and Protect our National Security Act” quietly became effective last month.  The law limits who can own agricultural land in the state and requires persons or entities who cannot own Ohio farmland to forfeit title to the property, which the State will then sell.  The purpose of the law, according to the legislature, is “to recognize that Ohio has substantial and compelling interests in protecting its agricultural production.”

Who the law restricts from owning agricultural land in Ohio

The law is not an absolute restriction on foreign ownership of land.  Instead, the law prohibits agricultural land ownership by any “person” listed on a registry compiled by Ohio’s Secretary of State.  A “person” can include an individual, firm, company, trust, business or commercial entity, organization, joint venture, non-profit, or non-U.S. government.  The prohibition applies not just to the person listed on the registry, but also to any agent, trustee, or fiduciary of the person.

The Ohio Secretary of State must compile the “registry” by identifying and including any person that constitutes a threat to the agricultural production of the state. To develop the registry, the Secretary of State must consult several federal sources, including the list of foreign adversaries, terrorist exclusion list, list of countries that have provided support for acts of international terrorism, and persons designated by two presidential Executive Orders.  In accordance with the law, Ohio’s Secretary of State has compiled the registry and published it online at https://www.ohiosos.gov/publicintegrity/save-our-farmland/.

Exceptions to the ownership restrictions

The ownership restriction does not apply to any agricultural land a person acquired before the act’s effective date of October 3, 2023.  There is also a limited exception that applies when a person on the registry recieves the land through inheritance, a gift, collection of a debt, a foreclosure, or enforcement of a lien on or after the law's effective date. In those cases, the person can recieve the land but must divest itself of the title and any interest in the land within two years of receiving it.  And while holding the land until divestiture, the person cannot use it for any purpose other than agriculture or lease it to any person on the registry.

Enforcement of the law

Enforcement involves both the Secretary of State and the Ohio Attorney General.  If the Secretary of State finds that a person listed on the registry has acquired title or an interest in land in violation of the law, the Secretary of State must report the violation to the Attorney General.  Others can report land ownership by a person on the registry via the Secretary of State’s web page for the registry, https://www.ohiosos.gov/publicintegrity/save-our-farmland/.

Upon learning of the violation, the Attorney General must initiate a legal action in the county where the land is located.  If the court agrees that the ownership violates the law, it shall file an order allowing the state to take ownership of the land and ordering the land to be sold at public auction, following required legal procedures.  Proceeds from the sale are to be applied first to any court costs and expenses, then to the registered person.  That amount is limited, however, to the actual cost paid by the registered person for the land.  If any sale proceeds remain, the funds are to be paid to the general fund of each county where the land is located, proportionate to the acreage in the county.

Learn more on our next Farm Office Live!

Join us on our next Farm Office Live webinar as we discuss Ohio’s new foreign ownership law and talk with Micah Brown, staff attorney with the National Agricultural Law Center, about foreign ownership restrictions in the U.S. and what they mean for agriculture.  The Farm Office team will also cover Using Charitable Remainder Trusts, Ohio’s Role in Organic Grain Production, Farm Business Analysis Update, and Farmer Mental Health Concerns and Resources. Farm Office Live takes place on November 17 at 10 a.m.-- registration is necessary at https://farmoffice.osu.edu/farmofficelive.

Read the primary provisions of Ohio’s Save Our Farmland and Protect Our National Security Act in Ohio Revised Code Section 5301.256. The Ohio Legislature enacted the law in House Bill 33, the biennial budget bill.

By: Robert Moore, Tuesday, November 07th, 2023

Legal Groundwork

A common question regarding farm transition planning is: “should I have a will or trust for my plan?”  Like most legal questions, the answer is “it depends”.  Sometimes a will is adequate for a plan while other plans should include a trust.  Knowing which you need requires an understanding of wills and trusts and the factors that should be considered when deciding which to implement.

A new publication, Is a Will or Trust Better for Your Farm Transition Plan?, discusses the differences between wills and trusts and provides nine factors to consider when deciding which to use for your plan.  The factors to consider are:

  1. Legal fees
  2. Complexity of the plan
  3. Probate
  4. Concerns about heirs
  5. Second marriages
  6. Transition of farming operation
  7. Taxes
  8. Privacy
  9. Control

The publication analyzes each factor and how it relates to a will and trust.  After reviewing the factors, an informed decision can be made regarding implementing a will or trust into a farm transition plan.  This publication is part of an extensive library of farm transition bulletins and publications available at farmoffice.osu.edu.

Posted In: Estate and Transition Planning
Tags: wills, trusts
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