Recent Blog Posts

Not surprisingly, a group called Ohioans for Humane Farms has requested a petition initiative certification from the Ohio Attorney General that could place a second proposed consititutional amendment on farm animal care before Ohio voters this fall.  Ohioans approved "Issue 2" last fall, a constitutional amendment that created the Ohio Livestock Care Standards Board  to create standards for the care and well-being of farm animals (see earlier posts.) 

The current petition certification request for a new initiative, submitted January 27 and signed by over 1,000 Ohio electors, requests approval to circulate a petition that proposes amending the Constitution to require the newly created Ohio Livestock Care Standards Board "to adopt certain minimum standards that will prevent the cruel and inhumane treatment of farm animals, enhance food safety, and strengthen Ohio farms." 

The  petition's proposed constitutional amendment goes beyond the expected prohibitions on confinement of pregnant pigs, laying hens and veal calves that farm animal welfare advocates have advanced in other states, but it does not conflict with the language enacted by Ohio's Issue 2.  According to the proposed ballot initiative, the minimum requirements the Ohio Livestock Care Standards Board would be required to adopt include:

• Prohibition of the confinement of veal calves, pregnant pigs and egg-laying hens on a farm, for all or the majority of any day, in a way that prevents the animal from lying down, standing up, fully extending his or her limbs, or turning around freely.  There are exceptions for scientific or agricultural research; veterinary treatments; rodeo, fair, or other exhibitions; 4-H and similar programs; during slaughter; or for pregnant pigs, in the seven days prior to giving birth.  A "farm" is land, buildings and equipment used for the commercial production of animals for food an fiber.
• Requirements that all killings of cows and pigs be performed in a humane manner using methods deemed "acceptable" by the American Veterinary Medical Association, and prohibition of any killing of cows and pigs by strangulation.
• Prohibitions against the sale, transport or receipt for use in the human  food supply of  any "downer" cow or calf that is too sick to stand or walk.
• Misdemeanor charges for any violation of the standards developed by the Livestock Care Standards Board, punishable by up to one year of jail and/or $1,000.

If passed by Ohio voters, the proposed constitutional amendment would take effect within six years of the date of its adoption.

The Ohio Attorney General must act on the initiative petition by February 5, 2010.  If the Attorney General certifies that the petition's summary  contains a fair and truthful statement of the proposed amendment, the petition goes to the Ohio Ballot Board, who must ensure within ten days that the proposal contains only one constitutional amendment.  If approved, the Attorney General files the petition with the Secretary of State, and the proponents may then begin collecting signatures on the petition.  The number of valid signatures required to place the initiative on the ballot is at least 10% of the number of votes cast for governor in the last election (total votes for governor in 2006 were 4,022,928).  At least 44 of Ohio's 88 counties must be represented with signatures from at least 5% of each county's votes cast for governor in the last election.  The proponent must file the petitions by June 30, which is 125 days before the date of the general election date of November 2, and the proponent will have ten days to correct the insufficiency of signatures after a determination by the Secretary of State.

According to a press release issued by the Humane Society of the United States, the ballot proposal by Ohioans for Humane Farms is supported by The Humane Society of the United States, Farm Sanctuary, Ohio Society for the Prevention of Cruelty to Animals, Toledo Area Humane Society, Geauga Humane Society, Ohio League of Humane Voters, Center for Food Safety, United Farm Workers, Consumer Federation of America and Center for Science in the Public Interest.

View the initiative petition for the Livestock Board Amendment on the Ohio Attorney General's website at http://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives.

Representatives Sayre and Bolon introduced the implementation legislation for State Issue 2's Ohio Livestock Care Standards Board on Tuesday, January 19.  H.B. 414 does the following:

• Defines "livestock" as equine animals, regardless of the purpose for which the equine are raised; porcine, bovine, caprine and ovine animals; poultry; alpaca and llamas. 
• Requires the appointment of the Ohio Livestock Care Standards Board within 45 days of the bill's effective date and establishes board member provisions such as terms of office, vacancies, meetings and compensation.
• Reiterates Issue 2's language regarding the purpose of the board.
• Directs the board to adopt rules regarding civil penalties for violating care standards.
• Establishes duties of the director of the Ohio Department of Agriculture for assisting the board and grants authority to the director and his/her representative to enter property for inspection and investigation.
• Prohibits anyone from providing false information in response to the livestock care standard requirements, or otherwise violating the rules developed by the board.
• Creates an Ohio livestock care standards fund and authorizes the director of the Ohio Department of Agriculture to use the fund for program administration and enforcement.
• Increases the commercial feed and seed inspection fee in ORC 923.44 by 15 cents over the next three years, in five cent increments per year--to 30, 35 and 40 cents per ton--and increases the minimum fee from 25 to 50 dollars.
• Allows the director of ODA to request annual transfers of not less than $500,000 from the commercial feed and seed fund to the Ohio livestock care standards fund.
• States that the law does not affect the authority of county humane societies or officials.
• Clarifies that the law does not apply to food processing production activities regulated under ORC Chapter 1717.

View H.B. 414 here.

A four year battle over the construction of a garden center has ended with an appellate decision affirming that the retail building is exempt from zoning under Ohio's agricultural exemption provision in ORC 519.21.   The Second District Court of Appeals decided Siebenthaler Company v. Beavercreek Township on December 11, 2009.

The Siebenthaler Company constructed a building in 2006 on its 435 acre parcel in Beavercreek Township, Greene County.  Siebenthaler has grown trees, plants and flowers on the property since the 1950s.  The company planned the garden center for the sale and display of its nursery stock along with other products such as garden supplies and garden furniture.  The building would also contain a few offices, including one for providing landscaping services to its clients. 

The issue in this case is whether the garden center is exempt from township zoning authority pursuant to the  agricultural zoning exemption in ORC 519.   ORC 519.21(A) prevents township zoning officials from using their authority "to prohibit the use of any land for agricultural purposes or the construction or 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, and no zoning certificate shall be required for any such building or structure."  (emphasis added).  Chapter 519 defines "agriculture" as "farming; ranching; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production" (emphasis added).

It seems apparent that Siebenthaler's production activities fit within the definition of agriculture as the "production of nursery stock, trees and flowers," that its garden center also fits within that definition as the "marketing of agricultural products" conducted in conjunction with and secondary to such production, and that the building is "incident to an agricultural use of the land."   Nevertheless, Beavercreek Township determined that the building did not qualify for the agricultural zoning exemption.  After detailing to the township why the agricultural zoning exemption applied, Siebenthaler constructed the garden center.  Upon the building's completion, the zoning inspector issued a cease, desist and removal order based on Siebenthaler's failure to obtain permits for the building.  Siebenthaler appealed to the township's Board of Zoning Appeals, which upheld the zoning inspector's order.  An appeal to the Greene County Court of Common Pleas yielded different results.  The court concluded that the garden center is incident to the primary use of the property for agriculture and therefore exempt from zoning regulation.  The township appealed the case to the court of appeals.

The court of appeals agreed that the agricultural zoning exemption applied to the garden center.  Evidence had indicated that the primary function of the garden center was to serve as an outlet for the agricultural products grown on the property, said the court.   To the contrary, the township produced no evidence suggesting that other activities, such as selling other products and offering landscaping services, were the primary activities or occupied a greater amount of time than agricultural production.  

In response to the Board of Zoning Appeals' decision that the garden center "was not being used solely for a bonafide agricultural purpose,"  the court of appeals clarified that Ohio law does not require such.  Rather, the law requires that a structure only be "directly and immediately related"  and "usually or naturally and inseparably dependent upon" an agricultural use of the property.  Marketing activities may occur in conjunction with, and must be of lesser importance than, the agricultural production on the property, the court explained.

As of this date, there is no record of the township seeking review of the decision by the Ohio Supreme Court. 

The Siebenthaler case is one example of the tension that often exists between zoning officials and agricultural operations.  It's difficult to understand why the Siebenthaler case progessed as far as it did, but many factors likely contributed to the situation:  the lack of clarity in ORC 519.21, the need to redefine "agriculture" in ORC 519.01, non-farm growth and development in traditionally agricultural areas, diversification of agricultural businesses, concerns for safety,  inadequate resources for zoning officials, property rights expectations, and of course, complete misunderstandings of the law.  Agriculture and local zoning authority is a continuing problem Ohio should address, first by identifying when incompatible land uses may occur and public health and safety may be at issue, second by revising our zoning laws to reflect the changes in agriculture and the rural landscape and last, through education.  

Watch for a few more agricultural zoning cases currently under consideration by Ohio courts.  The Second District's opinion in Siebenthaler v. Beavercreek is available here.

Last week's Climate Change Conference in Copenhagen illustrates one certainty about climate change -- the topic generates controversy.  And like animal welfare, climate change forces a painful divide within the agricultural community.  Below I offer two contrasting viewpoints on climate change and agriculture.  The first is from Neil Hamilton, law professor at Drake University School of Law in Des Moines, Iowa and director of the Drake Agricultural Law Center.  Prof. Hamilton attended the Copenhagen conference.  Second is an article from American Farm Bureau that summarizes its current cap and trade campaign.  Taken together, the articles clarify how difficult and important the issue is for agriculture.  From Neil Hamilton:  Agriculture must engage in climate change

Next month, I travel to Copenhagen for the U.N. Climate Change Negotiations (COP 15) with two Drake agricultural law students. We are part of the Iowa U.N. Association delegation going to witness the international talks on possibly the most significant environmental, social and political issue shaping our futures.

My special interest is what the talks may mean for farmers in the United States and abroad. U.S. policy discussions show much of America's agricultural sector doesn't take climate change seriously.The reality is the impacts of climate change are being felt around the globe - whether or not U.S. farm groups and politicians believe it. Fortunately, most other nations recognize the obligation and opportunity to engage in deciding how best to respond.

The adverse impacts climate change has on food production and the critical role agriculture may play in addressing it means farmers have a major stake in the debate.

The magnitude of U.S. contributions to greenhouse gas emissions make Copenhagen a prime opportunity for America to help lead development of effective responses - leadership the world needs and expects. The negotiations are especially important to farmers, because American agriculture thrives on international rules supporting free trade and open markets. If we engage at Copenhagen, then ideas to protect the environment and increase farm income may emerge, but sitting on the sidelines while others craft the agenda is a recipe for conflict and lost opportunities. Lack of U.S. leadership won't just limit success of the negotiations and limit the willingness of other nations to act, but may signal erosion in U.S. prestige and national confidence. The Kyoto climate-change treaty created little role for agriculture, but proposals for COP 15 give farmers a large, even central role. Still many U.S. farm groups are ambivalent - not just to Copenhagen but to whether climate change is real or U.S. action is needed.

Some groups like the National Farmers Union and the renewable energy coalition 25X25 endorse cap-and-trade legislation as the basis for ambitious goals for Copenhagen.

Others like the American Farm Bureau Federation oppose cap and trade - and appear uninterested in what the world may do. Farm Bureau members are being encouraged to protest to Congress "don't cap our future," arguing agriculture will suffer increased energy costs with no corresponding economic benefits. Studies show the proposed legislation will have limited impacts on farm costs and Secretary of Agriculture Tom Vilsack argues the law will open new streams of farm income from offsets and carbon markets. He has spent months explaining to farmers why they should support the legislation. Last week, President Barack Obama announced he and Vilsack will go to Copenhagen to show U.S. resolve to address climate change, even though Congress has yet to act.

Agriculture's opposition to cap and trade is delaying progress on legislation to reform U.S. energy policy. The lack of progress has already led to scaling back expectations for what might happen in Copenhagen. But remember the saying, "If you aren't part of the solution you are part of the problem." We shouldn't delude ourselves the rest of the world won't act without us or that we are immune from either the natural effects of climate change or the political effects of policies developed in our absence.

Our lack of engagement threatens to make U.S. agriculture the "problem" other nations address and risks development of an international agreement adverse to U.S. interests. Ironically the opposition may also jeopardize our ability to engage in international markets and the trade negotiations central to continued growth of American agriculture. The opposition to climate-change action is puzzling given agriculture's support for biofuels like corn ethanol as the "answer" to our energy needs. America's farmers have a successful history of innovating to meet new demands. But U.S. politics on cap and trade has become largely a question of "What is in it for me?" rather than focusing on how agricultural practices can help address climate change.

Our responding is not optional - the scientific and international political realities of climate change are real, as is the need to act. Yes, there is debate about whether the practices and policies being proposed will significantly reduce global temperatures, but disagreement about effectiveness shouldn't obscure the fact that doing nothing ensures no progress. From a legal perspective, something will happen. If Congress fails to act, the Environmental Protection Agency will regulate greenhouse gas emissions as required by a 2007 U.S. Supreme Court ruling. Legislation may raise concerns but it will be friendlier and more tailored to agriculture's needs than EPA regulations.

The world is going to address climate change, and farmers and agriculture in other nations will lead in developing responses - many have no choice if they are to protect their land and futures. The COP 15 negotiations are a stage on which the willingness of nations to act and lead will be measured. American agriculture is fond of congratulating itself for "feeding the world," even if the claim is far from true. The reality is most of the world tries to feed itself. The tragedy is that over 1 billion go hungry today, and climate change threatens even more. America may not feed the world, but we have long claimed a central role in leading it.

The climate-change debate is an opportunity for the United States - agriculture and farmers included - to live up to our self-image as leaders. Failing to do so risks America being seen as a self-serving nation in decline - a portrait our enemies and critics are happy to paint. My hope is we have the vision, courage and wisdom to rise to this occasion. That is why I am going to Copenhagen.

From the American Farm Bureau:  The Humble Farm Cap takes Center Stage

Across America, farmers and ranchers are gearing up to voice their concerns from the countryside about proposed climate change cap-and-trade legislation. United through a grassroots effort, food and fiber producers of all types will be using a familiar item – the humble farm cap – to capture the attention of lawmakers and make their views known.

Bob Stallman, president of the American Farm Bureau Federation, is encouraging members of local and state Farm Bureaus to sign, right across the bill, a new farm cap and hand-deliver it to a member of Congress with the message “Don’t CAP Our Future.”

The farm cap is an ever-present icon of American agriculture, and it seemed a natural fit as the symbol with which to send a message regarding congressional cap-and-trade schemes. Virtually everyone in farm country, including school-age boys and girls who pitch in with pride alongside their parents and grandparents, sports a farm cap as they go about producing food for our nation and the world. Even cowboys are known to occasionally put their hats aside in favor of an unassuming farm cap.

But the symbol is only as strong as its message, and in this case, the message is robust – “Don’t CAP Our Future.” The message refers to the fact that analyses from numerous sources show farmers and ranchers will pay more for fuel, fertilizer and energy if cap-and-trade becomes law. Over time, these higher expenses and a shift in land use would lead to a decrease in food production in the United States.

Already, the economic situation in some sectors of agriculture is dire. Many farmers, particularly dairy and pork producers, are keeping financially afloat on nothing more than bank lines of credit. For many, sheer determination is what keeps them in business. Those who are persevering are doing so with a brighter future in mind. They are also driven by the goal of being able to pass the farm or ranch on to the next generation when they retire or perhaps farming with their children as they grow into adulthood.

“I’m doing this for my kids,” is an oft-expressed and sincere sentiment among farmers. During the “Don’t CAP Our Future” effort, that truth will likely be repeated to members of Congress, as they hand their lawmakers a signed farm cap and explain how their ability to produce food and fiber for the U.S. and much of the rest of the world will be compromised if cap-and-trade becomes law.

Consumers also will be hit hard under cap-and trade. The Department of Energy estimates energy costs could grow by $1,870 per household. Combined with higher costs for food, the additional yearly hit on families would be about $2,300 per household. Said another way, the cap-and-trade law would impose costs of up to $200 billion a year on American households.  (Note that a  more detailed explanation of American Farm Bureau's position on climate change is available at http://fb.org/issues/docs/climatechange09.pdf)