Recent Blog Posts
A claim that the Ohio Department of Agriculture’s (ODA) anhydrous ammonia regulations are unreasonable and fail to protect public health and safety has again been rejected by the courts. A recent decision by Ohio’s Fifth District Court of Appeals concluded that the challenge by Sharon Township’s Board of Trustees in Medina County failed to establish a valid legal claim.
The case raised considerable controversy in Sharon Township, where the owner of South Spring Farms requested ODA approval to install a 12,000 gallon anhydrous ammonia storage tank. Ohio law grants ODA the authority to adopt rules concerning the handling and storage of anhydrous ammonia and other fertilizers and also prohibits any local regulation of fertilizers. ODA created anhydrous regulations in the late 1970s; those regulations require ODA approval of the location and design of a stationary ammonia system.
ODA approved South Spring Farms’ application in 2010 and granted a permit for installation of the tanks. Sharon Township filed a lawsuit against ODA, asking the trial court to grant an injunction prohibiting the ODA from permitting the installation of anhydrous storage tanks “until the ODA established regulations which would reasonably protect the health, safety, and welfare of people and property which can be reasonably foreseen to be exposed to the toxic and deadly effect of an uncontrolled release of this dangerous material, anhydrous ammonia.”
The legal basis for the denial of Sharon Township’s request for an injunction by both the trial and appeals courts concerns the issue of whether there is a “real and substantial controversy” that necessitates injunctive relief by the court, rather than “an opinion advising what the law would be upon a hypothetical state of facts.” The Court of Appeals could not find any support for Sharon Township’s claim that the ODA regulations are unreasonable or fail to protect public health and safety. Without such support, the court concluded that there was no controversy it could resolve. Granting the township’s request for an injunction would thus amount to “judicial legislation,” said the court.
The case is one that raises questions about the relationships between agriculture and its surrounding communities. Are communities becoming less willing to tolerate agricultural activities, even though Ohio laws are often set up to support and encourage agriculture?
The use of anhydrous ammonia is a routine practice farmers have engaged in for several decades, yet it upset a surprising number of local leaders and residents in this instance. The large size of the tank may have been a factor, as well as the extent of non-farm residents in the area. In addition to the possibility of a leak or spill, concerns raised by the community included proximity to many residents, fear of tampering by methamphetamine producers, an earlier chemical spill by the farm and lack of requirements for fencing. Whether these are real or perceived threats, the fact that they were raised so strongly and taken to the court of appeals gives us cause for concern.
The case is Bd. of Twp. Trustees Sharon Twp. v. Zehringer, 2011-Ohio-6885 (Dec. 28, 2011).
ODA agrees to rescind rule that prohibits "hormone free" claims on dairy products
The Ohio Department of Agriculture (ODA) has agreed to withdraw the controversial dairy labeling rule that restricts the use of "hormone free" language on dairy labels. The agreement by ODA is in settlement of a federal lawsuit initiated against the state of Ohio over three years ago by the International Dairy Foods Association and Organic Trade Association. A federal appeals court ruled in favor of the associations in 2010, agreeing that Ohio's dairy product labeling rule violated milk producers' constitutional rights to conduct truthful commercial speech. After the win on appeal, the associations filed a claim seeking reimbursement from Ohio for the $1.3 million in legal fees required to challenge the rule. Apparently, the associations have agreed to drop that claim in exchange for Ohio's withdrawal of the rule. The ODA has not yet issued a formal statement on the settlement or officially rescinded the rule.
A retraction of the rule by ODA will impact labeling practices in the dairy industry in several ways. The current rule prohibits milk composition claims such as “No Hormones”, “Hormone Free”, “rbST Free”, “rbGH Free” or “No Artificial Hormones" but allows statements that the dairy product derives from cows who did not receive artificial hormones. Absent the rule, companies will be able to make "hormone free" milk composition claims without the risk of an ODA enforcement action. Also, a company will not be required to state that the FDA has not confirmed a difference between "hormone free" products and other dairy products where the company permissibly states that the milk is from cows not receiving artificial hormones. Additionally, withdrawing the rule removes provisions requiring those who claim that a dairy product is "hormone free" to be prepared to verify the claim via producer signed affidavits, farm weight tickets and plant audit trails.
The Ohio dairy product labeling rule is contained in Ohio Admininstrative Code § 901:11-8-01. For an explanation of the court of appeals decision on Ohio's dairy labeling rule, see our earlier post.
Tags: milk label regulations, ohio dairy labeling rules, rbST free labeling regulations
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Ohio attorneys involved in AALA's 32nd annual conference
The American Agricultural Law Association (AALA) has hosted another excellent educational event, recently concluded on October 22 in Austin, TX. Approximately 250 attorneys, law students and professionals across the United States attended the conference. Ohio attendees were visible on the program in several ways, including:
- Paul L. Wright of Wright Law Co., LPA presented on “Estate Planning in a Climate of Change.”
- Robert Moore of Wright Law Co., LPA presented on “Partnerships: the Neglected, the Disaster and the Desirable Plan.”
- Peggy Hall of The Ohio State University presented on “Animal Welfare Litigation Impacting Livestock Producers: Emerging Issues.”
- Larry Gearhardt of Ohio Farm Bureau Federation received an AALA Excellence in Agricultural Law award.
- Peggy Hall of The Ohio State University was inducted as the AALA’s President Elect.
Nashville, Tennessee is the site of the AALA’s 2012 conference, which will take place October 19-20. For more information on the AALA, visit http://aglaw-assn.org.
Do you need a CDL for your farm operations?
Like many other areas of law, driver’s license regulations for agricultural situations have unique provisions and exemptions. Recent rumors had the agricultural community concerned about possible changes in the Commercial Driver’s License (CDL) requirements for agriculture. While the U.S. Department of Transportation has clarified that CDL provisions for agriculture will not change at the federal level, the rumors had many asking questions about when an agricultural operator needs a CDL.
Federal Authority over CDLs
The Federal Commercial Motor Vehicle Safety Act (FCMVSA) addresses driver’s licensing for commercial vehicle operators, and aims to protect public safety by establishing qualifications for those who drive large trucks and buses on public roads and highways. The federal law delegates the actual authority over CDL licensing to each individual state, but first establishes minimum federal standards that a state must meet when issuing CDLs. In regards to agriculture, the law specifically allows a state to create CDL exemptions for “operators of a farm vehicle which is controlled and operated by a farmer, including operation by employees or family members.” The recent statement from the federal government about CDLs clarified that there would not be any new minimum federal standards for agriculture or any changes to the federal delegation of agricultural exemption authority to the states. Therefore, an agricultural operator must look to the CDL laws of the state in which he or she operates.
Ohio’s CDL Exemption for Agriculture
Ohio law establishes a “farm truck operator exemption” in Ohio Revised Code 4506.03(B)(1). This provision states that Ohio’s CDL requirements do not apply “to any qualified person when engaged in the operation of a farm truck.” The farm truck exemption is designed to address the situation where a farmer trucks goods back and forth from the farm, but not for long distances. Important to the exemption is the definition of “farm truck,” which is:
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A truck controlled and operated by a farmer that is used to transport:
- Products of the farm either to or from the farm, for a distance of not more than 150 miles, including livestock, livestock products, poultry, poultry products and floricultural and horticultural products,
- Supplies to the farm, from a distance of not more than 150 miles, including tile, fence, and every other thing or commodity used in agricultural, floricultural,horticultural, livestock, and poultry production, and livestock, poultry, and other animals and things used for breeding, feeding, or other purposes connected with the operation of the farm,
- As long as the truck is not used in the operation of a motor transportation company or a private motor carrier. ORC 4506.01(O).
Note that the farm truck exemption refers specifically to a truck controlled and operated by a “farmer.” The law does not provide a definition for “farmer,” however. This raises questions about who the law covers: are farm family members and employees included? To date, there are not any published court opinions that lend clarity to the issue. Farm operators should be aware that a citation could be possible if an officer believes a truck operator is not a “farmer.”
The Restricted CDL for Farm-Related Service Industries
Ohio law also provides a restricted CDL for operators who service the agricultural sector on a seasonal basis. The restricted CDL applies to eligible “seasonal” operators, which includes farm retail outlets and suppliers, agri-chemical businesses, custom harvesters and livestock feeders. The law waives the requirements for CDL written and skills tests for eligible seasonal operators. The seasonal operator my operate a Class B or Class C vehicle, subject to restrictions: travel must be within 150 miles of the place of business, the seasonal period must be no more than 180 days in any twelve month period, and hazardous material transport is limited to 1,000 gallons of diesel fuel; 3,000 gallons for liquid fertilizer; and solid fertilizer only if without accompanying organic substances. To receive a restricted CDL for farm-related service, the operator must file an application and meet eligibility requirements, such as one year of driving experience, no motor vehicle violations or offenses and no license suspensions, revocations or cancellations. ORC 4506.24.
Ohio’s CDL Laws and Other States
Ohio’s CDL provisions for agriculture are valid only within the State of Ohio. The federal government allows a state to make reciprocal agreements for CDL licensing with other states, but no such agreements regarding agriculture exists between Ohio and another state. Without a reciprocal agreement on agricultural exemptions, an operator who crosses state lines is engaging in "interstate" travel, which requires a CDL and raises additional federal requirements.
For information on Ohio’s CDL laws, visit the Ohio Department of Public Safety.
The agenda is in place for the fourth annual Ohio Agricultural Law Symposium, a program for attorneys and others working in the agricultural arena. The Symposium takes place on Friday, November 18 at The Ohio State University's Ohio Union and features state and national experts on the most current legal and policy issues facing Ohio agriculture.
Nine topics are packed into the day-long program, including presentations by Ohio Senator Cliff Hite, Washington D.C. agricultural policy consultant Dale Moore and American Farm Bureau attorney Danielle Quist. Ohio attorneys and experts will speak on Livestock Care Standards, agri-environmental law, USDA audits, CAUV, oil and gas development and estate planning. Here is the complete agenda for the day:
Welcome – Peggy Hall, Director, OSU Agricultural & Resource Law Program
Chesapeake TMDL: EPA’s New Framework for Watershed Regulation
Danielle Quist, Senior Counsel for Public Policy, American Farm Bureau Federation, Washington, D.C.
Nutrient-Enriched Lakes, Livestock Emissions, and Other Hot Environmental Topics for Ohio Agriculture
Jack Van Kley, Van Kley and Walker LLC, Columbus
Enforcing Ohio’s New Livestock Care Standards
James Patterson, Assistant Attorney General, State of Ohio
The Office of Inspector General Audit: Preventing and Detecting Waste, Fraud and Abuse
Diana Blust, Senior Auditor, U.S. Department of Agriculture, Office of the Inspector General
Current Issues in Current Agricultural Use Valuation
Larry Gearhardt, Ohio Farm Bureau Federation, Columbus
Representing Landowners in Oil and Gas Leases and Mineral Disputes (Concurrent 1)
Richard A. Yoss, Yoss Law Office, Woodsfield
Estate Planning for Farmers in an Era of New Laws and New Wealth (Concurrent 2)
Beatrice Wolper, Emens & Wolper Law Firm, Columbus Paul L. Wright, Wright Law Co., LPA, Dublin
Fighting for Agriculture in Washington: The Farm Bill and other Farm Policy Issues
Dale W. Moore, Vice President, Policy Directions, Inc, Washington, D.C.
Legislative Outlook for Ohio Agriculture
Senator Cliff Hite, Chair, Ohio Senate Agriculture, Environment and Natural Resources Committee
The Ohio Agricultural Law Symposium is a partnership project of OSU's Agricultural & Resource Law Program and the Ohio State Bar Association and its Agricultural Law Committee. The goal of the Symposium is to provide a forum for education, discussion and interaction on legal issues for Ohio agriculture. As in the past, OSU offers scholarships for law students to attend the Symposium at no cost through the support of the Paul L. Wright Agricultural Law endowment fund.
The Symposium brochure provides additional information about the program.
Tags: Ohio Agricultural Law CLE, Ohio Agricultural Law Symposium
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We've heard a number of questions and rumors about the federal government planning to require that operators of farm equipment obtain a CDL (Commercial Driver's License). Brownfield has just reported on a statement issued at the Ohio State Fair today by a U.S. Department of Transportation official. According to the news source, US DOT Deputy Secretary John Porcari clarified that the federal agency is not considering any such requirement for farm equipment operators.
“Let me say this as bluntly as I can to the agricultural community, there is no new regulation coming down the pike requiring commercial driver’s licenses for operators of farm equipment,” said Porcari.
Court rules in favor of Myrddin Winery
The Ohio Supreme Court has clarified how the "agricultural exemption" contained in Ohio zoning law applies to wineries. The Court agreed with appellant Myrddin Winery in ruling today that Ohio law does not grant a township or county zoning authority over buildings or structures used for the vinting and selling of wine if they are on property used for viticulture, which is the growing of grapes.
The case before the Court, Terry v Sperry, involved a Milton Township property in northeast Ohio located in a district zoned as residential. Prior to establishing the winery on the property, the Sperrys asked the township whether a winery was a permissible use of the property. The township zoning inspector advised that the winery was an agricultral use that did not require a zoning permit pursuant to Ohio's "agricultural exemption" from zoning. The Sperrys proceeded to establish and operate Myrddin Winery, making wine from a small number of grape vines grown on the property and from grape concentrate purchased from other sources. The Sperrys sold the wine, as well as food items, to customers who visited the winery.
When the township later received complaints about the winery from neighbors, the township decided that the winery was no longer a permissible agricultural use. Rather, the township claimed that the use constituted a restaurant and retail business that was not permitted in the residential zoning district. The township sought an injunction to close down the winery. The Sperrys argued that the township could not exert zoning authority over the winery because of the agricultural exemption in Ohio zoning law.
Both the Mahoning Court of Common Pleas and the Seventh District Court of Appeals agreed with the township, and held that it could exert zoning authority over the winery. The courts examined the "agricultural exemption" contained in Ohio Revised Code Chapter 519, which limits township and county zoning authority over agricultural land uses. The courts concluded that the agricultural exemption did not apply to Myrddin Winery because the winery did not fit within the statute's definition of "agriculture." The definition includes "viticulture," but also states that the processing and marketing of agricultural products are included in the definition of agriculture only if those activities are secondary to agricultural production. Pointing to the small number of grape vines grown on the property, the township argued that the winery was not "agriculture" because the processing of grapes and marketing of wine were the primary uses of the property, and grape production itself was secondary to the processing and marketing activities.
The Ohio Supreme Court disagreed that the statute's definition of agriculture dictated the outcome of the case. The Court turned instead to additional language regarding wineries contained inORC 519.21(A), another part of the agricultural exemption. That provision states that a township has no power to prohibit the “use of buildings or structures incident to the use for agricultural purposes of the land on which such buildings or structures are located, including buildings or structures that are used primarily for vinting and selling wine and that are located on land any part of which is used for viticulture." (Emphasis added). That provision, stated the Court, is a "clear and unambiguous" exemption from zoning authority for winery buildings, as long as grapes are also grown on the property. Because of the unambiguous exemption, the township need not refer to the definition of "agriculture" or analyze the number of grapes or whether grape growing or processing and marketing are the primary uses of the property.
The Ohio Supreme Court's decision in Terry v Sperry brings much needed clarification to Ohio's agricultural zoning exemption, a complicated statute whose interpretation has long created headaches for local zoning officials. When Ohio legislators granted zoning authority to townships and counties years ago, agricultural interests expressed concern that agricultural land uses would be "zoned out" of many rural areas. The agricultural exemption addresses those concerns by limiting local zoning authority over agricultural land uses. The problem arises with the statute's attempt to determine what is or is not an agricultural land use. The distinction is often muddy, but today's decision provides some clarity: in regards to buildings used for making and selling wine on property where wine grapes are growing, the township or county has no zoning authority.
Read the Terry v Sperry opinion here.
The Ohio legislature has approved a repeal of the Ohio estate tax, but the tax will remain in effect for another 18 months. The new law removes the Ohio estate tax obligation for any person who dies on or after January 1, 2013. Governor Kasich signed the provision into law on June 30, 2011 as part of the state's budget package. The final version of the repeal differed from the language proposed earlier this year in H.B. 3, which proposed ending the estate tax as of January 1, 2011 (see our earlier post).
Tags: Estate Planning, Ohio estate tax
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Bill establishes time limits for township and county infrastructure review
A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF). Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77). The bill now awaits action by Governor Kasich.
Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF. Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process. Information on anticipated traffic routes and number and weights of vehicles must accompany the notification. Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements. The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements. The CAFF must submit the county and township's final recommendations in its LEPP permit application.
Under the language agreed to by the legislature in H.B. 22, if the county or township fails to provide the written final recommendations in 75 days, the CAFF may proceed with the permit application by submiting an affidavit in lieu of the written final recommendations. The affidavit must state that the CAFF provided the required notification but did not receive written final recommendations from the county or township within 75 days of giving the notification.
The legislature's approval of H.B. 22 comes in the wake of a controversial denial of a LEPP permit application by Hi-Q for an egg laying facility in Union County. ODA Director Zehringer denied Hi-Q's application because it did not contain the required final infrastructure recommendations from county and township officials. Hi-Q and Union County had reached an impasse on infrastructure issues, and Hi-Q submitted the permit without any final recommendations by the county. (See our earlier post on the Director's decision.) Under H.B. 22's language, Hi-Q could have submitted an affidavit instead of the written final recommendations because more than 75 days had passed since Hi-Q's original notification to the county and township. The Director thus would not have had to deny the permit application for lack of county and township written final recommendations for infrastructure improvements.
H.B. 22 also proposes changing LEPP from a program to a Division of Livestock Environmental Permitting, and contains a number of other revisions to ODA programs and regulations. See the analysis of H.B. 22 on the Ohio Legislature's website.
Tags: Animals, Ohio Livestock Environmental Permit Program
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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.