Recent Blog Posts

New law establishes clear standards for liability, adds alpacas, llamas and bison

Livestock owners and keepers in Ohio will soon have less risk of automatic liability when their animals escape enclosures and run loose on public roadways or the property of others.   The Ohio legislature has revised the "animals running at large" law to clarify two different standards for criminal and civil liability under the law.  

Criminal liability will occur only when proven that a livestock operator behaved "recklessly" in allowing the animals to run loose.  Under Ohio law, a person behaves recklessly when he or she perversely disregards a known risk of his or her conduct, with heedless indifference to the consequences of that conduct.   For example, a livestock owner who sees but intentionally ignores a downed fence where cattle graze near a roadway could be deemed "reckless."  

The new law establishes a different standard of liability for a civil situation.  A person may recover damages against a livestock owner if harm resulted because the livestock owner's "negligence" caused the animals to escape.  Under Ohio law, negligence is a substantial lapse of "due care" that results in a failure to perceive or avoid a risk.  For example, a livestock owner who has not checked the line fences in a grazing area for several years could be deemed "negligent."

Additionally, the revised law states that an animal being at large creates an initial presumption of negligence by the owner.  The animal owner must then rebut the presumption by proving that he or she exercised due care.

The revised law should address a growing problem in Ohio, where livestock owners have been held automatically liable when their animals are found running at large--regardless of  the reason for the animals' escape or any actions taken or not taken by the owner.  This problem has occurred most frequently with criminal prosecutions.  Owners of escaped animals have been assessed automatic criminal penalties, without having an opportunity to explain their management practices or present facts about the animals' escape.  The new law remedies this problem by clarifying that criminal liability is not "automatic" simply because livestock are loose; there must be proof that the owner was reckless.

In addition to addressing the standards for liability, the revised animals at large law also:

• Adds llamas, alpacas and bison to the list of animals addressed in the liability provisions, which already included horses, mules, cattle, sheep, goats, swine and geese.
• Also adds llamas, alpacas and bison to the law's provisions for taking, confinement and care of animals running at large.
• Removes a separate liability provision for male breeding animals; male breeding animals will now fall under the same liability section of the law as other animals.
• Revises a similar civil liability provision for livestock in Ohio's line fence law to clarify that negligence is the requisite standard of liability under that law.

The governor signed H.B. 22 on June 21, 2011; the law takes effect on September 20, 2011.  View H.B. 22 here.

With shale development hitting Ohio at a rapid pace, OSU's Agricultural & Resource Law Program will host our first Ohio Oil and Gas Law Symposium on Thursday, June 16, 2011.  "The New Ohio Oil and Gas Boom:  Drilling into Legal Issues," will take place at the Longaberger Golf Club near Newark, Ohio.  The day-long educational program for attorneys will address many of the initial legal issues related to development of Ohio's Marcellus and Utica shale resources, including these topics and speakers:

• "An Overview of the Shale Resource" with Tom Murphy of Penn State's Marcellus Center for Outreach and Research.
• "Mandatory Pooling and Current Regulatory Issues," by Sandra Ramos, Legal Counself for Ohio Department of Natural Resources Division of Mineral Resources Management
• "Dealing with Dormant Minerals and Old Leases," by Eric Johnson of Johnson and Johnson Law Firm, Canfield
• "Ohio Oil and Gas Leases:  A Primer," with Gregory Russell of Vorys, Sater, Seymour and Pease, LLP, Columbus
• Landowner Leasing Issues Panel Discussion
• "Representing Landowner Groups in Oil and Gas Leasing," with Chris Finney of Logee, Hostetler, Stutzman and Lehman, LLC, Wooster

For more information on our Ohio Oil and Gas Law Symposium, visit https://www.regonline.com/OilandGasLaw.

Board nears completion of standards for farm animal care

The Ohio Livestock Care Standards Board accepted an enormous task nearly a year ago when charged with the responsibility of developing rules for the care and well-being of livestock in Ohio.  Since that time, the board has proposed numerous standards on topics ranging from euthanasia to housing.  To date, two sets of the board's standards have completed the rulemaking process and are now effective.  Several others await either final approval by the board or review by the Ohio legislature's Joint Committee on Agency Rule Review (JCARR).  The following summarizes the board's progress.

1.  Livestock care standards developed by the board that became effective on January 20, 2011 include:

• Euthanasia.  The standard outlines acceptable euthanasia methods for each species of livestock, and provides guidelines for use of each method of euthanasia.  See the final regulation in the Ohio Administrative Code, Section 901:12-1.
• Civil penalties.  The rule establishes penalties and a notification procedure for violations of the livestock care standards.  Violations range from minor--punishable by a penalty of up to $500 for a first offense and $1,000 for subsequent offenses within 60 months of the first--to major--punished by a civil penalty of $1,000 to $5,000 for a first offense, and $5,000 to $10,000 for each subsequent offense within 60 months of the first.  A major violation is one that imperils the animal’s life or causes protracted “disfigurement,” “health impairment,” or “loss or impairment of the function of a limb or bodily organ.”  See the final rule at OAC Section 901:12-2.

2.  Livestock care standards submitted by the board and awaiting final review by JCARR:

• General considerations for the care and welfare of livestock.  Establishes general management requirements for all livestock, including  feed and water, management, health and transportation.  Key provisions in this standard:
  • Housing, equipment and handling facilities must minimize bruises and injuries.
  • Restraints must be minimal. 
  • Handling devices must be humane.  Electric prods are permissible if hand held, battery powered and 50 volts or less, but may not be used on poultry, equine, alpacas, llamas, calves weighing less than 200 pounds, pigs weighing less than 35 pounds, on sensitive areas or on non-ambulatory disabled animals.    
  • Malicious or reckless throwing, dragging or dropping of an animal is prohibited, but minimal dragging  of a disabled animal may occur in certain circumstances. 
  • Picking up or carrying an animal by its ears or tail is prohibited, as is pulling an animal's legs in positions or directions that cause distress to the animal.
  • Animals must be monitored regularly and steps must be taken when evidence of disease, injury, or parasites is present. 
  • A “Veterinary-Client-Patient-Relationship” is necessary to obtain and administer prescriptive drugs to livestock. 
  • Health and medical practices must be performed humanely. 
• Disabled and Distressed Livestock.  The proposed rule sets forth standards of care for distressed and disabled livestock, including disabled "downer" livestock, which the rule refers to as "non-ambulatory disabled" animals.  Action must be taken to address an animal's situation, either by caring for, monitoring, treating, transporting, slaughtering or euthanizing the animal.  The rule prohibits loading a disabled, non-ambulatory animal for transport to a non-terminal market or collection facility.  If a disabled or distressed animal is at a non-terminal market or collection facility and there is no option for immediate sale, standards of care must be provided or the animal must be released or euthanized.  The owner must keep records of treatments, medications and withdrawal times. 

3.  Standards in draft form and currently open to public comment include:

• Standards for Individual Species.   In addition to the general consideration standards for all livestock, the board has proposed individual standards for goats, sheep, turkeys, poultry, swine, beef, dairy, veal, equine, alpacas and llamas.  The individual standards address unique needs and issues regarding feed and water, management and transportation for each specie.  Key issues addressed in the individual standards include:
  • Providing newborns with colustrum or colustrum replacement within the first 24 hours.
  • Standards for pen sizes, housing materials, lighting, air circulation, breeding and birthing pens and outdoor pens.  Of interest in these standards:
    • Restrictions on the use of gestation crates for swine after December 31, 2025.
    • For new farms not in existence on the rule's effective date, prohibition of conventional poultry battery cages that do not provide areas for nesting, scratching, perching or bathing.
  • Management of groups of animals.
  • Standards for tethering, dehorning, castrating, shearing, induced molting, tail docking and treatment of tusks, beaks, teeth, hooves and toes.  Of particular interest in these standards:
    • Restrictions on tethering and requirements for group housing of veal calves after December 31, 2017.
    • Beginning January 1, 2018, tail docking of dairy cattle may occur only if medically necessary and performed by a licensed veterinarian.

To review the standards and the status of the work by the Ohio Livestock Care Standards Board, visit this website.

In an attempt to satisfy the animal welfare agreement negotiated last year with the Humane Society of the United States and various agricultural interests, Governor Strickland yesterday authorized an emergency rule that restricts the possession, sale and transfer of certain wild animals in Ohio.  The controversial animal welfare agreement, designed to prevent another Ohio ballot initiative on farm animal welfare,  provided that "[t]he Ohio Department of Agriculture and the Ohio Department of Natural Resources will coordinate and take action on wild and dangerous animals including the prohibition of the sale and/or possession of big cates, bears, primates, large constricting and venomous snakes and alligators and crocodiles.  Existing owners will be grandfathered in, but they could not breed or obtain new animals."  The Governor's action, however, is a week shy of the December 31, 2010 deadline included in the agreement, which stated that failure to implement the wild and dangerous animals provision by such date could void  the agreement. 

 "This action fulfills my responsibilities within the agreement that will keep Ohio's vital agriculture industry profitable while appropriately updating animal care standards," said Governor Strickland.  The Governor also cited public safety reasons for the new regulation, stating that "[t]his rule will help protect Ohioans from deaths and serious injuries caused by attacks from dangerous wild animals held in private ownership."

The Governor's Executive Order suspended the regular rulemaking process and allowed the immediate adoption of Rule 1501:31-19-05 by the Department of Natural Resources Divison of Wildlife.  The new rule, which became effective January 6, 2011, does the following:

• Prohibits the possession, sale and transport of "restricted species,"  which includes coyotes, timber and gray wolves, lions, tigers, jaguars, panthers, leopards, cheetahs, bobcats, lunx, cougars, pumas, mountain lions, bears, all primates except humans, alligators, crocodiles, caimans, gharials and numerous snake species, including pythons, cobras and rattlesnakes.
• Creates an exception from the regulation for persons who possessed a restricted species prior to January 6, 2011, if the person meets all of the following criteria:
  • Does not acquire any new restricted species through purchase, gift, trade, barter, donation or breeding;
  • Has not been convicted of animal abuse or neglect;
  • Has not had any type of animal license or permit revoked or suspended;
  • Registers the animal by May 1, 2011 with the Ohio Department of Natural Resources and maintains the registration annually;
  • Does not allow the public to come into physical contact with the animal;
  • Does not sell or transfer the animal to anyone other than an accredited zoo or institution, a wildlife sanctuary, a family member approved by the division chief, or an out-of-state facility (until January 1, 2016) and notifies the division chief of the new recipient of the animal at least 72 hours prior to transfer.
  • Maintains a permanent transponder implant on the animal.
• Creates an exception from the rule for certain facilities and organizations:
  • Institutions accredited by the association of zoos and aquariums and facilities under active contract for a species survival plan under the Endangered Species Act;
  • Circuses licensed by the U.S. Department of Agriculture that are in the state less than 45 days per year and do not allow the public to come into physical contact with the restricted species;
  • Institutions operating a mascot program licensed by the U.S. Department of Agriculture;
  • Non-profit wildlife sanctuaries that do not use restricted species for commercial or entertainment purposes, do not allow the public to come into contacted with the species, and do not breed the species.
  • Wildlife rehabilitation facilities engaged in the rehabilitation and reintroduction of native species and permitted by the division chief;
  • Education, research and scientific institutions or projects permitted by the division chief;
  • A person transporting a legally owned restricted animal through the state for less than 48 hours who does not exhibit the animal, keeps the animal enclosed and does not allow public contact with the animal.
• Requires a person who possesses a restricted species to notify the division of wildlife if the animal escapes, in addition to complying with other reporting requirements in ORC 2927.21.

Emergency rules remain in effect in Ohio for 90 days, which should provide the agency sufficient time to extend the life of the rule through the regular rulemaking process.  Given the upcoming change of leadership in Ohio,  it will be interesting to see if the new administration follows Governor Strickland's lead and makes the new regulation permanent.

View the Governor's Executive Order and the new rule.