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In an ongoing attempt to carry out Governor Kasich's executive order to establish nutrient management requirements for agricultural nutrients within "watersheds in distress," the Ohio Department of Agriculture (ODA) has made a second revision to its proposed rule package.  According to ODA, the proposed watersheds in distress rules "create a uniform, state-wide standard that governs the application of manure and fertilizer on frozen, snow-covered and rain-soaked ground" within areas designated as "watersheds in distress." pursuant to Ohio Admin. Code 1501:15-5-20.  Those proposed standards include the following:

• Manure and nutrient application restrictions.   Owners, operators and applicators shall not surface apply manure and nutrients (nitrogen and phosphorus) on more than 50 acres of land used for agricultural production on snow covered, frozen and saturated soil or when there's a greater than 50% chance that precipitation would exceed one-half inch in 24 hours, unless the manure or nutrients are  injected, incorporated with 24 hours or applied to a growing crop.
• Compliance with 590 standards.  Owners, operators and applicators must follow the conservation practices in USDA's “Field Office Technical Guide,” also known as the “590 standards.” 
• Nutrient management plan (NMP) requirements.  Owners and operators within watersheds in distress must develop and comply with NMPs if applying nutrients on more than 50 acres or producing, applying, or received more than 350 tons or 100,000 gallons of manure annually by deadlines established by ODA, must submit an attestation of NMP completion to ODA, and must produce a copy of the plan within five days of a demand by ODA.  The rule outlines the requirements and standards for NMPs.
• Ongoing compliance.  Owners and operators must update NMPs and attestations once every three years or when conditions change.
• Enforcement.  The rule includes penalities for failure to comply with rule provisions.

ODA proposed the first rule package in July, accepted public comments on the rule, and published a revised rule package for public comments.   In response to the second round of comments, ODA has made another revision to the rule.  The agency states that it is now amending the rule "to require the Department to conduct an audit of at least 5% of the attestations submitted to determine compliance regarding completion of nutrient management plans."  Explaining the purpose of the revision, ODA states that "support was voiced from certain stakeholders regarding the flexibility of farmers to apply manure and nutrients during the winter months when conditions were favorable and safe to apply. In contrast, other stakeholders raised concerns that agricultural operations would no longer have any restrictions on the application of manure and nutrients. Stakeholders also raised concerns regarding the Department’s ability to enforce the new proposals." 

The proposed watersheds in distress rule package is here and the business impact analysis for the rules is here.   The public may submit comments on the proposal to ODA at AGReComments@agri.ohio.gov until October 5, 2018. 

 A question we often hear from landowners is "will I be liable if a hunter is injured on my property?"  Ohio's Recreational User's Statute is an excellent risk management tool for farmers who so often have hunters stopping by and asking for permission to hunt on the farm.  The law provides immunity for landowners of non-residential land who allow people to engage in recreational activities on the land without charging a fee for the activity.  The law states that by granting permission, the landowner is not extending any assurance to a recreational user that the premises are safe for entry or use. 

To receive the law's liability protection, it's important for a landowner to meet the following requirements:

1.   Grant permission to a person to engage in a recreational activity such as hunting, fishing, hiking, snowmobiling, four-wheeling, or other recreational activities.
2.   Don't charge a fee or benefit for the use, except that the law does allow a lease payment fee.

Read more about the law in our new bulletin,  Okay to Play:  Ohio's Recreational User Statute Limits Liability for Hunters, Snowmobilers and More.   The bulletin is available here.

All is quiet at the statehouse as the Ohio legislature continues on its summer recess, but here’s our gathering of other agricultural law news you may want to know:

Does Roundup cause cancer?  A jury in California has determined that it’s possible.  The jury awarded $289 million last Friday against Monsanto in the first of thousands of cases alleging that Monsanto should have warned users about Roundup’s cancer risk.  The plaintiff argued that Monsanto has known for decades that the Roundup product could cause cancer but failed to warn consumers, while Monsanto claimed that more than 800 studies and reviews conclude that glyphosate itself does not cause cancer.   Monsanto plans to appeal the award.

Pursuing a Bill of Rights for Lake Erie.  The Toledoans for Safe Water submitted over 10,500 signatures last week on a petition proposing to amend the city’s charter to establish a bill of rights for Lake Erie.  The proposed bill of rights would state that Lake Erie and its watershed possesses a right to exist, flourish and naturally evolve; that the people of Toledo have a right to a clean and healthy Lake Erie, a collective and individual right to self-government in their local community and a right to a system of government that protects their rights; and that any corporation or government that violates the rights of Lake Erie could be prosecuted by the city and held legally liable for fines and all harm caused.  The effort is backed by the Community Environmental Legal Defense Fund.  If successful, the initiative would appear on the November ballot for Toledo residents.

EPA ordered to ban the sale of chlorpyrifos.  The U.S. Ninth Circuit  Court of Appeals late last week ordered the U.S. EPA within 60 days to cancel all registrations for chlorpyrifos, a pesticide first introduced by Dow and commonly used on crops and animals.  The court held that there was no justification for a decision by previous EPA Administrator Scott Pruitt refusing to grant a petition to ban chlorpyrifos in the face of scientific evidence that the pesticide can cause neurodevelopmental damage in children.  The court also discarded the agency’s argument that it could refuse to ban chlorpyrifos so based on a possible contradiction of evidence in the future.  Both actions, said the court, placed the agency in direct violation of the Federal Food, Drug, and Cosmetic Act and the Federal Insecticide, Fungicide and Rodenticide Act.  The highest uses of chlorpyrifos are on cotton and corn crops and almond and fruit trees.

Highest award in Smithfield nuisance litigation raises responses.   The third and largest jury award in a series of nuisance lawsuits in North Carolina yielded a $473.5 million award for plaintiffs claiming harm from hog farms owned by Smithfield.  The verdict will reduce to $94 million due to a state law that caps punitive damages.  Agricultural interests are claiming that the lawsuits circumvent state right to farm laws and are seeking state legislative responses.  Opponents are also hoping to reverse a gag order issued by the court to impose communication restrictions on potential witnesses, parties and lawyers in the cases.   The federal judge in the case, Hon. Earl Britt from the Eastern District of North Carolina, is stepping down due to health issues.  Hon. David Faber of the Southern District of West Virginia will replace Judge Britt and will soon hear a fourth trial that targets a 7,100 head hog farm in Sampson County, North Carolina.

It’s official: no reporting of air emissions from animal waste.   The U.S. EPA has posted a final rule clarifying that air emissions from animal waste at farms are exempt from federal regulations that require the reporting of air releases from hazardous wastes.  The rule implements an order by the U.S. Court of Appeals for the District of Columbia and revisions in the Fair Agricultural Reporting Method Act enacted by Congress earlier this year.  We reported on the court case and legislation earlier this year.

When you think of “agritourism,” corn mazes and hay rides may first come to mind.  While those activities can fall under Ohio's definition of agritourism, you may be surprised to find that farm markets, you-pick operations, farm tours, wineries and other types of farm-based activities can also fit into the legal definition of “agritourism” in Ohio.  This definition is important for purposes of Ohio’s agritourism immunity law, which can protect agritourism providers from liability for harm incurred during agritourism activities.  The law shifts the risk of liability from agritourism operators to the participants who willingly choose to engage in agritourism activities on a farm.

It's important to understand that in order to receive the law’s liability protection, each of the following conditions must exist:

Conditions for immunity from liability

1.  Qualify as an “agritourism provider.”    The law specifically protects only those who are “agritourism providers,” which means someone “who owns, operates, provides, or sponsors an agritourism activity, or an employee of such a person who engages in or provides agritourism activities, whether or not for a fee.   An important term within this definition is “agritourism,” which means “an agriculturally related educational, entertainment, historical, cultural or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in, or enjoy that activity.”  This definition can include a broad range of activities, such as wine tastings, educational classes, corn mazes and other recreational activities, farm tours, and farm festivals.  Note, however, that the agritourism definition requires that the activity be on a “farm,” which the law further defines as:

• At least ten acres of land (composed of tracts, lots, or parcels), that is used for “agricultural production,”  which means the land is used for “commercial aquaculture, algaculture, apiculture, animal husbandry, poultry husbandry; the production for a commercial purpose of timber, field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, or sod; the growth of timber for a noncommercial purpose if the land on which the timber is grown is contiguous to or part of a parcel of land under common ownership that is otherwise devoted exclusively to agricultural use; or any combination of such husbandry, production, or growth; and includes the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with such husbandry, production, or growth”  
• Or, less than ten acres of land if there is an average yearly gross income of at least $2,500 from “agricultural production” on the land. 

2.  Post required signs.  Every “agritourism provider” must “post and maintain” warning signs in order to receive the law’s liability protection.  The purpose of this provision is to inform participants that they are voluntarily assuming the risks of many of the harms that are inherent to being on a farm.  The warning signs or sign templates are available through OSU Extension South Centers and Ohio Farm Bureau.  Each sign must:

• Be placed in a clearly visible location at or near each entrance to the agritourism location or at the site of each agritourism activity;
• Contain the following statement, in black letters measuring at least one inch high:

WARNING: Under Ohio law, there is no liability for an injury to or death of a participant in an agritourism activity conducted at this agritourism location if that injury or death results from the inherent risks of that agritourism activity.  Inherent risks of agritourism activities include, but are not limited to, the risk of injury inherent to land, equipment, and animals as well as the potential for you as a participant to act in a negligent manner that may contribute to your injury or death.  You are assuming the risk of participating in this agritourism activity.

Immunity from what?

The agritourism immunity law states that an agritourism provider is immune, or protected from liability, in any civil action for an injury to a person participating in the agritourism activity as long as that person was injured due to a “risk inherent in an agritourism activity.”  An “inherent risk” is a “danger or condition that is an integral part of an agritourism activity,” that would be difficult for an agritourism provider to completely minimize.  According to the law, “inherent risks” include:

• The surface and subsurface conditions of the land;
• The behavior or actions of wild animals not kept by or under the control of an agritourism provider;
• The behavior or actions of domestic animals other than vicious or dangerous dogs;
• The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
• The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
• The possibility that a participant may act in a negligent manner, including by failing to follow instructions given by the agritourism provider or by failing to exercise reasonable caution while engaging in the agritourism activity that may contribute to injury to that participant or another participant. 

If a participant in an agritourism activity is harmed and sues the agritourism provider for injuries caused by any of the above situations, the law protects the provider from any liability or monetary responsibility for those injuries.  In addition, the law specifically states that an agritourism provider is not required to eliminate such inherent risks on the property. 

Exceptions to immunity

Although the agritourism immunity law provides civil immunity under certain circumstances, the immunity is not absolute.  The law also states that an agritourism provider could be legally responsible for injury to a participant if the agritourism provider:

• Fails to post and maintain signs (discussed above)
• Acts with a willful or wanton disregard for the safety of the participant,
• Purposefully causes harm to the participant,
• Acts or fails to act in a way that constitutes criminal conduct that causes harm to the participant,
• Has or should have actual knowledge of an existing dangerous condition that is not an inherent risk, and does not make the dangerous condition known to the participant. 

Use the agritourism law to your advantage

Agritourism activities can provide many benefits, such as additional income and diversification opportunities for farmers, unique cultural and recreational experiences for farm visitors and education about agriculture.  But there are always liability risks to having people on the farm, which can impact a farmer’s risk exposure.  Take advantage of the agritourism immunity law by ensuring that the operation qualifies for its provisions and does not fall within any of the exceptions from immunity protection.  Even with this liability protection, however, operators should continuously assess the property for safety risks to minimize the possibility of visitor injuries. 

The agritourism immunity law is in Ohio Revised Code section 901.80.  For further information, see our Agritourism Law Bulletin and a previous post, which also explain the agritourism law’s protections from county and township zoning for agritourism operations.