Recent Blog Posts
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:
- Alternative Landowner Agreements Under Ohio’s Line Fence Law
- Ohio Partition Fence Law: A Procedural Guide for Townships
- Notice of Rights and Responsibilities for Townships
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.
Tags: line fence law, partition fence law, boundary fence law, tree law, neighbor law
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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.
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.
Tags: National Agricultural Law Center, continuing legal education, CLE, conferences
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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.
Farmers markets in Ohio continue to grow in number, and the types of vendors and products offered by those vendors have greatly diversified over the years. Along with this growth come new questions about vendor’s licenses and the collection of sales taxes.
Many market vendors may know that traditional market items like fresh fruits and vegetables do not require a vendor’s license or the collection of sales tax. But what about beverages, cottage foods, plants and flowers, ready to eat foods, soaps, crafts, and similar items that contribute to the success of today’s farmers markets? Fortunately, learning about Ohio’s vendor’s license and sales tax requirements doesn’t have to be a taxing experience.
In our fresh off the press law bulletin, titled “Vendor’s Licenses and Sales Taxes at Ohio Farmers Markets,” we dive into a number of questions that farmers market vendors frequently ask us. Specifically, we address questions such as:
- Do vendors at a farmers market need a vendor’s license?
- What items do not require the collection of sales tax?
- What items do require the collection of sales tax?
- How do I obtain a vendor’s license in Ohio?
- Is a vendor’s license the same as a retail food establishment license?
- What if I want to sell products in other states?
- Can vendors include sales tax in the price of the product?
While this law bulletin covers vendor’s licenses and sales taxes fairly in depth, there is always more to learn. The law bulletin also provides a number of links to helpful resources from the Ohio Department of Taxation and neighboring states, along with a number of references to Ohio law.
Click HERE to view our latest law bulletin.
Tags: farmers markets, farm market, vendor's license, vendors license, sales tax, use tax, selling produce, Ohio Department of Tax, Ohio ag law, Ohio farm law, Ohio farmers market
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The media storm that surrounded the controversial Lake Erie Bill of Rights (LEBOR) has quieted, but the federal lawsuit over LEBOR has heated up. Just a month ago, Toledo residents voted to approve LEBOR. The measure establishes rights within the City’s charter for the Lake Erie Ecosystem to “exist, flourish, and naturally evolve” as well as rights to self-government and a clean and healthy environment for the citizens of Toledo. LEBOR states that corporations or governments that violate these rights can be liable for harm caused and also cannot use existing federal and state laws or permits in defense of the violations. Drewes Farm Partnership filed a lawsuit in federal court the day after LEBOR passed. The farm’s complaint asks a federal court to declare LEBOR unconstitutional on several grounds and also claims that LEBOR violates state laws. Recent developments in the past week prompted us to provide this quick update on the lawsuit:
City of Toledo agrees to a preliminary injunction. The court announced on March 18 that the City of Toledo agreed to the entry of a Preliminary Injunction Order. Drewes Farm requested the injunction when it filed the lawsuit. The court stated that the purpose of a preliminary injunction “is merely to preserve the relative positions of the parties until a trial on the merits can be held” and noted that the City of Toledo has not “commenced or initiated any action against Drewes Farms or others pursuant to LEBOR.” Toledo therefore agreed to the injunction and to maintain its current position of not taking any action to enforce LEBOR.
Lake Erie Ecosystem and Toledoans for Safe Water ask to join the lawsuit. Also on March 18, two attorneys filed a motion asking the court to allow the Lake Erie Ecosystem and the Toledoans for Safe Water to “intervene” in the case as defendants. Federal rules allow a party to file a motion to intervene and become a party to ongoing litigation as either a matter of right or with permission of the court. The attorneys argue that the parties should be allowed to intervene as of right because they have significant legal interests that will be impaired by the case and that the City of Toledo can’t adequately represent those interests. They also ask the court to allow permissive intervention because the parties have a claim or defense that share a common question of law or fact with the main action. The court has asked Drewes Farm and Toledo to file briefs in response to the motion to intervene. Note that the two attorneys representing the Lake Erie Ecosystem and the Toledoans for Safe Water have worked with the Community Environmental Legal Defense Fund, the organization that assisted with the petition initiative that resulted in the adoption of LEBOR.
Lake Erie Ecosystem and Toledoans for Safe Water file a motion to dismiss the lawsuit. On the same day as filing a motion to intervene, the attorneys also filed a motion to dismiss the case on behalf of the Lake Erie Ecosystem and Toledoans for Safe Water. The motion argues that Drewes Farm does not have legal “standing” to bring the case, which is based upon federal constitutional law that states that a federal court cannot have jurisdiction over a case unless the plaintiff demonstrates that he or she has suffered concrete and particularized “injury in fact” that is fairly traceable to the defendant’s conduct and that the requested remedies will redress the alleged injuries. Lake Erie and the Toledoans for Safe Water argue that Drewes Farm has not stated a concrete injury or actual or imminent harm due to LEBOR and therefore cannot meet the standing requirement.
City of Toledo files its answer to the complaint. Yesterday, the City of Toledo filed its answer to the complaint filed against it by Drewes Farm. Toledo presents sixteen defenses to the farm’s allegations, which include a general denial of the complaint and other defenses based upon arguments that: the farm does not have legal standing, has not stated a claim or stated actual or imminent harm and has based its harm on premature speculation; that the City itself is immune and has acted properly, in good faith, and as authorized or required by law to act; that the relief requested by the farm would violate the rights of the citizens of Toledo; that the farm has a duty to mitigate its damages; and that the farm failed to join necessary parties and has not stated a basis for the relief requested. Toledo asks the court to dismiss the case and award all costs of the lawsuit to the City of Toledo.
What’s next? Now the parties must wait for the court to act on the motion to intervene, motion to dismiss, and/or the City of Toledo’s request to dismiss the case. We’ll keep watching the case and will let you know when the court makes a ruling on any of these requests.
Tags: Lake Erie, Lake Erie Bill of Rights, western Lake Erie basin, community rights, Drewes Farm
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Sometimes you happen upon a question that you want an answer to, and the answer you find raises more questions. That’s exactly what happened when we started examining Limited Liability Company (LLC) statutes from across the Midwest.
Originally, we wanted to determine whether there are any significant legal differences between the LLC statutes of different states. While we may be based in Ohio, we find projects that examine how different states compare to one another on the same legal topic fascinating. The comparisons allow us to see trends and different ideas, and we had the chance to do this in our recently completed projects on CAUV and agritourism.
Ultimately we found the Midwestern states to have functionally similar LLC statutes, with about half of the Midwest having adopted a uniform statute. When a state adopts a uniform statute, it intends for its law on a given topic to match those of other states with the same uniform statute. There are other examples of these like the Uniform Commercial Code, Uniform Probate Code, and more. Uniform codes are designed to make it easier for people to do business and live their lives across state lines. For Midwestern LLC statutes, even in states that have not adopted a uniform statute, the key elements are still very similar. The statutes have filing procedures for creating the entity, default rules for operating agreements, and rules that govern LLCs in general.
When we answered our questions about the state statutes, we became curious about some of the benefits offered by using an LLC instead of some other business form. We found that LLCs offer great liability protection, with some specific limitations such as the application of piercing the veil from corporate law. Further, pass through taxation can provide great tax benefits and avoid double taxation. Since states allow operating agreements to be highly customizable, LLCs also provide a flexible entity structure that may be adapted to suit the needs of a business or family.
That last word led us to another question: what benefits does the LLC structure offer a family farm in its estate and business transition plan? The previous three benefits are well known and thoroughly discussed; however, this last one, while done a lot in practice, is not commonly mentioned in academic writing. Ultimately, the benefits in estate and transition planning come from the flexible nature of the operating agreement.
How can LLCs be helpful in an estate and business transition plan for a farm? Here’s a few ways:
- Restrict the transfer of an ownership interest through rights of first refusal and buy-out provisions
- Restrict membership and voting power of non-family members
- Transition equity ownership more easily than in a corporation
- Transition the business in relative privacy
Once we learned about these benefits, the question arose of how common farming LLCs now are. Using data from the USDA’s Census of Agriculture, we found that by 2012, there were almost as many farms organized as LLCs as there were farms organized as corporations, while the vast majority of farms remained owned outright by individuals with no formal legal entity. We are waiting for the next Census of Agriculture to spot any trends, because 2012 was the first year that farms were asked to identify whether they were organized as LLCs.
Throughout the paper, we made some observations and predictions for what we expect to see in the future. We are also history buffs, so of course there had to be a section on the origins of the LLC, and why Wyoming was the first state to adopt an LLC statute. It is an interesting and dramatic history that we had not heard about before.
Our project examining farm LLCs is available on our OSU Extension Farm Office website HERE, as well as the National Agricultural Law Center’s website HERE. This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
Not only have you read it in the almanac, but you also feel it when you walk outside. Spring is finally arriving, and your field awaits. As the weather improves, farm machinery and equipment will head back on the roads for planting season. We wanted to take a moment to look at Ohio’s roadway laws and how they apply to farm machinery.
State law includes both special requirements and special exceptions for farm machinery operating on Ohio roadways. “Farm machinery” broadly means all machines and tools used in agriculture, whether for planting, harvesting, or transporting agricultural products. The special rules that apply to farm machinery are primarily safety driven, and impose additional and different requirements on farmers when compared to other drivers.
Fortunately, we have a law bulletin, available HERE, that explains these special requirements and exceptions. The law bulletin, titled “Rules of the Road: Navigating Ohio Roadway Laws for Farm Machinery,” sifts through the statutes and regulations to boil down topics like:
- How does Ohio law define farm machinery?
- What are the marking requirements for farm machinery traveling on roads? Specifically, when are slow moving vehicle (SMV) emblems, speed identification symbols (SIS), lighting, and reflectors required?
- How do vehicle weight and dimension limits apply to farm machinery?
- When is it okay to operate left of center when the road’s lane is too narrow?
- When must traffic control devices like signs, signals, and flaggers be followed?
- When may farm machinery enter a freeway?
Additionally, you can also learn more about Ohio’s laws regarding Speed Identification Symbols HERE, and Ohio’s laws regarding All-Purpose Vehicles (APVs) HERE. It can be a lot of information to keep in mind, especially given how busy a farmer’s life gets this time of year. That is why we do our best to explain the law in simple, to-the-point law bulletins and blog posts.
Depending upon who you talk to and when you talk to them, Ohio is either blessed or cursed as a water rich state. Droughts certainly occur, but in the past couple of years Ohio farmers have experienced record breaking rainfall both by measures of inches and intensity. As spring showers bring about a transition from winter to spring, we wanted to take a moment to look at Ohio’s surface water drainage laws.
Ohio courts follow the “reasonable use” doctrine for surface water drainage. Under this doctrine, a landowner may drain surface water from his or her property in a reasonable manner. When a landowner’s attempts to drain surface water from his or her property seem to result in harm to the property of another, legal issues may arise.
Courts and juries generally determine whether a landowner acted reasonably by looking at a number of factors, such as: the utility of the drainage, the gravity of the harm, the practicality of avoiding the harm, and whether it is fair to relieve the landowner of liability. These factors are examined and balanced on a case-by-case basis to determine whether the landowner should be found liable for the harm experienced by another.
Certainly there are ways to resolve a dispute before resorting to a lawsuit. Landowners may talk with their neighbors to work out an agreeable solution. Landowners also have the option to work with the county Soil and Water Conservation District or county engineer’s office to file a petition for a drainage improvement project that would address the drainage need.
For more information, check out our law bulletin on Surface Water Drainage Rights in Ohio, which is available HERE. It explains the “reasonable use” doctrine, describes how reasonableness is determined, and discusses remedies for harm caused by drainage.
The Ohio Specialty Crop Registry connects producers of specialty crops, beekeepers, and pesticide applicators to one another through free online registries. Producers of specialty crops and beekeepers may voluntarily report the boundaries of their specialty crops and beehives. The registry then compiles this information in a mapping tool that also provides the contact information of the registrant. In doing so, pesticide applicators are better able to avoid these areas and minimize spray drift.
The Old System: the Ohio Sensitive Crop Registry
The Ohio Department of Agriculture (ODA) first launched a registry for sensitive crops in 2014 so that pesticide applicators could know the locations of sensitive crops before spraying in a given area. The registry came about at a time when widespread demand for organic foods required more farmers to closely monitor what came into contact with their crops. The original tool allowed commercial producers of at least a half-acre of a single type of sensitive crop to register. Sensitive crops included just about any non-row crop such as fruits, vegetables, and herbs. Apiaries, outdoor aquaculture, brambles, certified organic farms, nurseries, greenhouses, and orchards also could be registered.
The New System: the Ohio Specialty Crop Registry
Now, ODA partners with FieldWatch, Inc. to operate the Ohio Specialty Crop Registry. FieldWatch, Inc. is a non-profit organization that operates three registries: DriftWatch for producers of specialty crops, BeeCheck for beekeepers, and CropCheck for producers of row crops. FieldWatch creates maps based on the information from these registries, and makes those maps available to pesticide applicators in another program called FieldCheck. In summary, the three registries are for the producers and beekeepers, and FieldCheck is for the pesticide applicators.
Ohio currently only uses the DriftWatch and BeeCheck registries. According to ODA, the list of sensitive crops under the old program is virtually the same under the new system, meaning that producers of any non-row crop may utilize DriftWatch. While beekeepers may report the location of their beehives in DriftWatch, ODA recommends that beekeepers with no specialty crops use BeeCheck.
FieldWatch, Inc. continues to update its tools to add features and indicators, and CropCheck represents one such development. New for 2019, this registry allows producers of row crops like corn, soybeans, and wheat to register their crops. Its development comes on the heels of the introduction of dicamba-tolerant seeds. Only Arkansas, North Carolina, Illinois, and Indiana have adopted CropCheck for 2019. Ohio has not yet adopted it.
Connecting the Dots between the Registry and Liability
At this point you may be asking yourself, why is this in the ag law blog? That’s a fair question, and the answer is simple: risk management. As more farmers adopt organic practices, as pesticides and seeds change, and as weather patterns evolve, the risk increases that pesticide drift may come into contact with and negatively impact specialty crops and beehives.
The law expects people to act reasonably and to exercise due care at all times, and this default duty applies to pesticide applicators. Common claims for drift include negligence, nuisance, and trespass. Each of these claims examine whether the parties acted reasonably and with due care. Most often, when a court decides that a pesticide applicator acted unreasonably, it is because he or she failed to apply the pesticide in a manner consistent with the label. Following the label is certainly an expectation, but it is not the only thing a court will consider.
When a pesticide applicator does not use FieldCheck, a perceptive attorney representing beekeepers and producers of specialty crops would likely argue that the use of FieldCheck is an industry standard. If an attorney could establish this, then the failure to use FieldCheck would mean that a pesticide applicator failed to act in a reasonable manner and exercise due care. While we have not seen an Ohio court consider this issue yet, as use of the program continues to grow, this argument will come to hold more weight when a case does arise.
When a pesticide applicator does use FieldCheck, he or she has a stronger argument that he or she acted in a reasonable manner. FieldCheck provides pesticide applicators with a way to know exactly where registered sensitive crops and beehives are located, and allows the applicator to buffer accordingly. FieldCheck provides a quick, cheap, and easy way to manage legal risk, alongside following the label. Applicators who use the program may want to document when they used the program and also how the maps impacted their application plan.
These scenarios presume that the beekeeper or producer of specialty crops has registered the locations of their bees or crop with a FieldWatch registry. When sued by a beekeeper or producer of specialty crops who did not register their locations, a pesticide applicator could use similar arguments as noted above in order to defend against the lawsuit. However, the applicator’s focus would likely regard the lack of notice. Again, these arguments alone would not likely determine the outcome of the case, but they would help the court determine whether the parties acted reasonably.
What about hemp?
Another question that some of our readers will also be asking is: which registry is for hemp? We made a call and left a message with FieldWatch. If or when hemp production becomes legal in Ohio, we’ll be sure to provide an update on which registry is proper for hemp. Ohio’s hemp bill is on the move, and the Ohio Senate Agriculture & Natural Resources Committee completed its third hearing of the bill this week. However, we can’t forget that growing hemp is not legal in Ohio unless and until the bill is passed into law and the regulatory system is created.
Tags: ohio specialty crop registry, ohio sensitive crop registry, pesticide drift liability, FieldWatch, industrial hemp, hemp
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