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UPDATE: The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015. Read the Court's decision here.
Hunting laws don't often reach our highest court, but the Ohio Supreme Court has agreed to review one man's challenge to an unlawful hunting action by the Ohio Department of Natural Resources (ODNR). The case resulted in a fine of $27,851 against Huron County hunter Arlie Risner for the unlawful taking of an antlered white-tailed deer.
The case began in 2011, when ODNR charged Risner with “taking a white-tailed deer from the lands of another without first obtaining written permission from the landowner or an authorized agent in violation of R.C. 1533.17.” The Norwalk Municipal Court fined Risner $200 plus court costs and ordered forfeiture of the meat, which ODNR had seized from a processor. Risner also had to reimburse ODNR $90 for meat processing costs. The court later ordered Risner to turn over the deer's antler rack also, which he had taken to a taxidermist.
A few months following the court hearing, ODNR advised Risner that he also owed the state $27,851.33 as restitution for the value of the deer and that his hunting license was suspended until he paid the amount. ODNR based its claim on Ohio Revised Code section 1531.201, which states:
“(B) The chief of the division of wildlife or the chief's authorized representative may bring a civil action to recover possession of or the restitution value of any wild animal held, taken, bought, sold, or possessed in violation of this chapter or Chapter 1533 of the Revised Code or any division rule against any person who held, took, bought, sold, or possessed the wild animal.”
$27,851 for killing a deer?
ODNR's claim for $27,851 in restitution derived from ORC 1531.201, which contains a formula for calculating the minimum restitution value of an illegally taken antlered white-tailed deer. The formula determines the deer's value based on its the size. The law also includes additionall provisions for exceptionally large deer, stating that a convicted violator who takes a deer with a gross score of more than 125 inches "shall pay an additional restitution value that is calculated using the following formula: Additional restitution value = ((gross score - 100)2 x $1.65)."
The deer Risner killed exceeded the 125 gross score limit, with a 20-point rack and a gross score of 228 inches. ODNR thus used the additional formula to determine Risner's restitution, which escalated the demanded payment to over $27,000.
Challenges by both parties
Risner refused to pay ODNR’s restitution order and the agency began enforcement proceedings in court. Risner argued that the fee violated his constitutional rights and that ODNR could not seek restitution because the agency had already chosen its remedy of seizing the deer meat and antlers. The Huron County Court of Common Pleas avoided the constitutional issues but agreed with Risner that the plain language of ORC 1531.201 prevented further restitution because ODNR had already been awarded possession of the deer and antlers in prior court proceedings. Both Risner and the Huron County court focused on the “or” in the statute’s language, which states that ODNR “may bring a civil action to recover possession of or the restitution value of…” an animal. The "or" set up a choice either one remedy or the other, according Risner and to the common pleas court.
ODNR appealed the decision to Ohio’s Sixth District Court of Appeals. The appeals court disagreed with the lower court. The court unanimously concluded that ODNR did in fact have authority to recover the restitution value for the deer. “The statute, on its face, does not restrict ODNR from bringing a civil action to recover the restitution value if wildlife officers have already seized parts of the wild animal,” said the court. “Since Risner had no title to or ownership interest in the seized wild animal parts,” the court explained, “ it is illogical to construe ORC 1531.201 to require ODNR to choose between possession of the unlawfully taken parts or restitution for the unlawfully taken deer.”
Additionally, the appellate court noted that ORC 1531.201 contained “additional” provisions for restitution assessments for deer in excess of 125 points, explaining that "[w]e must presume that in enacting a statute, the General Assembly intended for the entire statute to be effective. * * * Thus, all words should have effect and no part should be disregarded." The court also stated, however, that nothing in its decision would prevent Risner from arguing for a deduction of the restitution value based on the monetary value the seized deer provided the state.
Risner requests review by Ohio Supreme Court
Risner asked the Ohio Supreme Court to review the decision. “To allow the chief to bring a second action when a remedy has already been provided, chosen and carried out is nonsensical, frivolous, a violation of law and due process, and a waste of the Court's time and resources,” argued Risner. “A second action provides for multiple sanctions and double (if not more) remedies…”
ODNR argued that the Supreme Court should not accept the case for review because the appeals court made a correct interpretation of the statute and because Risner had not been doubly penalized, as he had claimed. “It is clear the General Assembly recognized the need to create R.C. 1531.201(B) as a separate civil mechanism to recoup the full economic loss of this valuable resource,” stated ODNR. “The return of evidence did not make the State whole, nor should it be construed as a satisfaction of restitution liability…”
The question before the Supreme Court
Challenges to hunting laws don’t often pique the interest of the Ohio Supreme Court, especially those that don’t revolve around constitutional issues. But this case does carry serious implications for both ODNR and Ohio hunters. Does ORC 1531.201 allow ODNR to recover the parts of an antlered white-tailed deer and also to seek payment from the violator for the value of the deer, with additional payment for large animals? If this is the correct interpretation, we can conclude that our legislature intended strong sanctions against violators in addition to ensuring that a violator would not be able to keep a poached animal. Is this outcome more severe a punishment for unlawful takings of deer than the legislature intended?
Or does the statute require ODNR to choose either possession or a restitution payment, but not both? If this is the case, then ODNR must strategically determine how to handle an illegal taking of an antlered white-tailed deer. Should ODNR claim the meat and antlers so that a violator does not benefit from breaking the law? Or should ODNR allow the violator to keep the animal so that it can seek payment from the violator? If the deer is quite large and the restitution payment high, should ODNR choose the higher payment and higher economic value over reclaiming the animal from the violator? Is the goal of the statute punishment or regaining the economic value of an animal?
The Ohio Supreme Court will answer these and other questions when it determines the correct interpretation of ORC 1531.302 later this year or next.
Read the Court of Appeals decision in Risner v. Ohio Dept. of Natural Resources, Div. of Wildlife.
UPDATE: The Ohio Supreme Court affirmed the decision of the Court of Appeals on September 17, 2015. Read the Court's decision here.
Tags: Ohio hunting law, ORC 1531.201, hunting law violations, unlawful taking of deer
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For most people, dogs are a very familiar part of the family. For farm families, dogs may even go beyond the family pet duties and help protect the assets of the farm – the livestock. However, when dogs get loose and go after the livestock of someone else, serious problems can arise. Any livestock that is killed or injured by someone else’s dog is a monetary loss, as well as an emotional loss for some. A question we frequently receive is what can someone do if their livestock is threatened or attacked by someone else's dog. In these cases, livestock owners do have a course of action they may follow.
Under what circumstances can you kill a dog threatening your livestock?
Under Ohio Revised Code Section 955.28, dogs committing certain acts against livestock, poultry, other domestic animals, and other animals that are the property of another person, may be killed at the time of the act. These acts include:
- Chasing
- Threatening
- Harassing
- Injuring
- Killing
If a dog belonging to someone else is in the act of chasing, threatening, harassing, injuring, or killing your livestock, poultry or other animals, then you may kill the dog while it is in the act. If you are attempting to kill the dog while it is engaged in such an act, but you only wound the dog, you will not be liable for animal cruelty.
What if the dog has just committed the act and is running away?
If the dog is no longer in the act of chasing, threatening, harassing, injuring, or killing your livestock, then you are not permitted to kill the dog. If you do, you may face animal cruelty charges. In State v. Cordle, the owner of domestic fowl was found guilty under Ohio Revised Code Section 959.02 of maliciously, or willfully, and without consent of the owner, killing a dog that was the property of another. In that case, the domestic fowl owner found his neighbor’s dog killing one of his fowl. The dog ran back to the neighbor’s property where the domestic fowl owner had followed it and proceeded to kill it while on the neighbor’s property. If you do not catch the dog in the act of chasing, threatening, harassing, injuring, or killing your livestock, even though you may not kill the dog, you still may be able to recover damages for your loss, as explained in the next section.
The Ohio House of Representatives gave final approval on May 21, 2014 to a bill initiated in the Senate that addresses invasive plants. As approved by both chambers, Senate Bill 192 grants regulatory authority over invasive plants to the Ohio Department of Agriculture (ODA). While ODA, Ohio EPA and Ohio's Division of Forestry already have programs in place to educate and assist in the identification and removal of invasive species, the new law clarifies that the director of ODA has "sole and exclusive authority to regulate invasive plant species in this state." This authority includes the identification of invasive plant species and the establishment of prohibited activities regarding invasive plants.
The bill defines "invasive plant species" as:
"plant species that are not native to this state whose introduction causes or is likely to cause economic or environmental harm or harm to human health as determined by scientific studies."
A committee amendment to the bill clarifies that the definition of invasive plant species does not include "cultivated plants grown as food or livestock feed in accordance with generally accepted agricultural practices, including all plants authorized by the animal and plant health inspection service in the USDA." In committee hearings, the Ohio Invasive Plants Council expressed serious concerns about this exclusion for cultivated crops. The group's concern is that ODA would not have authority to evaluate plants with invasive properties if they are grown for livestock feed. Other groups have raised similar worries about plants with invasive characteristics grown for biofuel production. The Ohio Farm Bureau submitted testimony supporting the exemption, stating that the federal government already regulates plants grown for agricultural crops.
The bill contains one exception to ODA's authority over invasive plant regulation. The director of Ohio EPA may continue to consider invasive plant species when evaluating applications and permits for wetlands under Ohio's Water Pollution Control Act. Once ODA develops invasive plant regulations, however, the EPA must refer to ODA's list of invasive plant species when reviewing wetland applications and permits.
Read S.B. 192 here.
Tags: invasive plant regulations, invasive plants authority, ohio invasive plants
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A new bill in the Ohio Senate addresses several legal issues for Ohio agritourism operators. Senators Jones (R-Springboro) and Peterson (R-Sabina) introduced S.B. 334 on May 7. The bill would impact Ohio agritourism operators in regards to civil liability, property taxation, zoning regulation and amusement ride standards.
Civil Liability Protection
Following a similar trend in other states, the Ohio legislation would grant agritourism operators civil liability protection from claims for injuries that occur during agritourism activities. An operator would not be liable for harm that an observer or participant sustains during an agritourism activity if the harm is a result of the following conditions, which the law defines as "risks inherent in an agritourism activity":
(a) The surface and subsurface conditions of land;
(b) The behavior of wild or domestic animals;
(c) The ordinary dangers associated with structures or equipment ordinarily used in farming or ranching operations;
(d) The possibility of contracting illness resulting from physical contact with animals, animal feed, animal waste, or surfaces contaminated by animal waste;
(e) 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.
The law does not extend civil liability immunity if an agritourism operator purposefully causes harm or if the provider's willful or wanton disregard for the safety of an observer or participant proximately causes harm to the person.
Tags: agritourism liability; agritourism; agritourism zoning; agritourism taxation; agritourism rides
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Ohio State University Extension’s Agricultural & Resource Law Program will host the Sixth Annual Ohio Agricultural Law Conference on Friday May 16, 2014 at the Ohio 4-H Center. This year’s program features OSU’s Dr. Carl Zulauf discussing the new Farm Bill. Also on the schedule is a legislative update from Ohio Farm Bureau Federation’s Tony Seegers. Craig Vandervoort of Sitterly & Vandervoort Ltd. will present on Medicaid and nursing home planning for family farms. Robert Moore of Wright & Moore Law Co. will moderate a session featuring an OSU Extension Educator and an insurance agent on agri-tourism and direct marketing trends and liability. A roundtable discussion on guiding clients in today’s agricultural climate, moderated by Troy Callicoat of Barrett, Easterday, Cunningham and Eselgroth LLP, will wrap up the day.
A special highlight of this year’s conference is a bus tour of OSU’s Waterman Farm. The bus will then take conference attendees to the North Market in downtown Columbus for lunch and a discussion with North Market Farmers on legal issues and challenges they face. Law students interested in attending the conference may apply for student scholarships provided by the Paul L. Wright Agricultural Law Endowment Fund. Contact Caty Daniels at daniels.498@osu.edu for scholarship information. For more information and to register for the conference, visit www.regonline.com/OhioAgLaw.
The Ohio Legislature is one step closer to creating a unique fertilizer applicator certification program for Ohio agriculture. The Ohio House of Representatives recently approved the measure in S.B. 150, which had already passed the Senate in January (see our related post.) The legislation aims to reduce fertilizer runoff into Ohio's waters in response to recent problems with algae blooms in Lake Erie and Grand Lake St. Mary's. Other states with fertilizer applicator certification programs focus on professional, turf or urban applications of fertilizer, but Ohio's program would require farmers applying fertilizers on their own land to complete the knowledge-based certification program.
An amendment by the House extends the certification requirement to anyone applying fertilizer for agricultural production on more than 50 acres of land, rather than on more than 50 "contiguous" acres as approved by the Senate. The amendment will likely expand the program to more smaller-acreage farmers. Although urged to do so, neither the House of Representatives nor the Senate agreed to extend the proposal even further by including "manure" in the definition of "fertilizer."
The Senate must now approve the House-amended version when it reconvenes in early May. Upon Senate approval, the legislation would move to the Governor by mid-May. If enacted, the bill gives the Ohio Department of Agriculture three years to establish and implement the fertilizer applicator certification program. The bill also contains provisions for voluntary nutrient mangement plans, operation and management plans for animal feeding operations, and a few changes to Ohio's fertilizer license laws.
Watch for our final analysis of S.B. 150 as it continues the legislative process next month.
Tags: agricultural nutrient management, fertilizer applicator certification, Ohio senate bill 150
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The Ohio Department of Agriculture (ODA) has announced that pesticide applicators, commercial sensitive crop producers and apiaries may now use the online Ohio Sensitive Crop Registry (OSCR). ODA developed OSCR as a “voluntary informational tool designed to allow stakeholders an effective way to communicate and protect pesticide-sensitive crops and apiaries.” The registry will enable applicators to determine whether there are any sensitive crops in an area before applying pesticides.
How does the registry work?
ODA designed the tool for registered apiaries and "commercial" sensitive crop producers who produce at least one-half acre of a single type of sensitve crop. The ODA defines sensitive crops as follows:
Apiaries – any ODA-registered apiary
Aquaculture – a location with any fish and other aquatics grown outdoors
Brambles – aggregated total of fruit such as raspberries and blackberries of at least .5 acres
Certified Organic – an organic farm certified by a USDA-accredited agent; certified organic crops, forage, and livestock of at least .5 acres
Nurseries – nursery stock and flowers of at least .5 acres
Greenhouse/High Tunnels – must be for commercial use and produce at least .5 acre of any combination of crops annually
Orchards – fruit or nut-producing trees of at least .5 acres
Grapes – vineyards of at least .5 acres
Tomatoes – all tomato cultivars of at least .5 acres
Fruit (other) - non-tree simple, aggregate and multiple fruits of at least .5 acres, excluding tomatoes, grapes, and brambles
Herbs – herbs and plants for spices of at least .5 acres
Vegetables – root and leafy vegetables, legumes, and pumpkins of at least .5 acres
Registration on OSCR is completely voluntary; a sensitive crop producer may create an account on the OSCR website and map the locations of their crops. ODA will then verify the producer's information before it is available on the registry. Private and commercial pesticide applicators may also voluntarily register on the site. If approved by ODA, an applicator may search the registry to identify the locations of sensitive crops and apiaries. The registry includes a mapping tool with options to search by address, parcel number, township, county, city, village and other methods.
It is important to note that the information provided in the registry is not available to the general public. It is only available to those who have registered on OSCR and have been verified by ODA.
Implications for crop producers and pesticide applicators
The registry offers a good risk management tool to sensitive crop producers. By allowing producers to communicate the existence of sensitive crops, which are typically not as easily observed as other crops, the registry should reduce pesticide drift impacts. One possible implication for sensitive crop producers is the risk of sharing crop information through the registry, but the ODA verification process should minimize potential misuse of registry information.
Reduced drift impacts will also benefit pesticide applicators who use OSCR. However, the voluntary nature of the registry raises potential implications for pesticide applicators. What is the liability exposure for an applicator who knows the registry is available but chooses not to use the tool? Could a harmed party argue that an applicator "should have known" about a sensitive crop because it was registered? Does the availability of the information create a new legal duty for pesticide applicators--a duty to take the additional step to identify nearby sensitive crops? Could an insurer refuse to cover an applicator who failed to consult the registry? Until Ohio courts receive and answer these legal questions, we don't have clear answers.
The caution to pesticide applicators, then, is to take the OSCR seriously. Don't overlook the registry because participation is "voluntary" rather than mandatory. The registry can provide important information that could reduce pesticide exposure to sensitive crops; a pesticide applicator who fails to utilize the information might be increasing his or her potential liability if pesticide drift occurs.
To learn more about the Ohio Sensitive Crop Registry, visit: http://www.agri.ohio.gov/scr/.
Tags: Ohio senstive crop registry, sensitive crop liability, pesticide drift liability
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The federal Occupational Safety & Health Administration (OSHA) generated controversy recently when several of its enforcement actions against farms with grain bin storage hit the news headlines. The enforcement actions are contrary to a general understanding in the agricultural community that OSHA does not have authority to enforce its regulations against farms with ten or fewer employees, referred to as the “small farms rider.” While claiming that it does not intend to enforce beyond its authority, OSHA justifies its actions in an internal agency memorandum that interprets the small farms rider. Is OSHA’s justification reasonable or contrary to law? Here’s the language of the small farms rider and OSHA’s explanation of its authority:
- The Small Farms Rider. The 2014 Consolidated Appropriations Act passed by Congress, like every previous appropriations bill since 1976, states that none of the funds appropriated by Congress to OSHA “shall be obligated or expended to prescribe, issue, administer, or enforce any standard, rule, regulation, or order under the Act which is applicable to any person who is engaged in a farming operation which does not maintain a temporary labor camp and employs 10 or fewer employees.” (emphasis added)
- OSHA's Memorandum. In its standard interpretation memorandum titled “Authority to Perform Enforcement Activities at Small Farms with Grain Storage Structures Involved in Postharvest Crop Activities” dated June 28, 2011, OSHA begins by acknowledging the small farms rider but then lays out several reasons why grain storage facilities, even if located on farms, do not fall under the rider and are not exempt from OSHA enforcement:
- The agency focuses on the small farm rider’s use of the term “farming operation” which, according to the agency’s prior interpretation, means “any operation involved in the growing or harvesting of crops, the raising of livestock or poultry, or related activities conducted by a farmer on sites such as farms, ranches, orchards, dairy farms or similar farming operations.”
- Not included in the definition of “farming operations,” according to the agency, are those establishments engaged in performing services on crops subsequent to their harvest with the intent of preparing them for market or further processing, including activities such as crop cleaning, sun drying, shelling, fumigating, curing, sorting, grading, packing and cooling, corn drying and shelling, grain drying, cleaning, and fumigating. Why are these not considered farming operations? Because the North American Industrial Classification System (NAICS) and Standard Industrial Codes (SIC) differentiate agricultural businesses that conduct crop and livestock production from those that conduct post-production activities. Small farms with grain storage structures where grain is fumigated, dried, or processed subsequent to harvest and sold into the market would fall under the post-harvest NAICS codes rather than the agricultural production codes and therefore are not “farming operations” exempted by the small farms rider, states OSHA.
- The agency also notes that grain handling operations are not “core agricultural operations” according to OSHA’s federal regulations. These regulations state that “core agricultural operations” include activities such as growing and harvesting crops, plants, vines, fruit trees, nut trees, ornamental plants, egg production, the raising of livestock, poultry, fish and livestock products.
Tags: OSHA grain inspections, small farms rider, OSHA authority
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Ohio farms that complement their agritourism activities with inflatable "bounce houses" and slides for kids to play on will soon be subject to new safety standards proposed by the Ohio Department of Agriculture (ODA). Based on its authority to inspect "amusement rides," ODA is proposing the regulations to ensure public safety through minimum standards for the operation and use of inflatable devices.
Inflatables haven't always been subject to ODA's "amusement ride" oversight. The Ohio legislature amended the definition of "amusement rides" in 2011 to include "inflatable devices," which gave ODA the added responsibility of inspecting and permitting the bounce houses. The regulations now proposed by ODA will provide safety standards that operators must meet before receiving a permit to operate an inflatable.
According to the proposal, owners or operators of inflatable amusement devices:
- Shall have the manufacturer's specifications on hand and available for ODA at the time of an inspection.
- Shall not inflate a device with flammable gases.
- May vary from the manufacturer's operating instructions or make alterations to the inflatable's design, only by doing the following:
1) Obtaining written permission for the variance or alteration from the manufacturer;
2) Submitting the written permission from the manufacturer to the department for approval; and
3) Being reinspected by ODA to ensure compliance with the revised manufacturing instructions or specifications.
ODA seeks comments on the proposed safety standards by February 18, 2014; learn more by visiting here.
The Ohio Senate has approved a bill directing the Ohio Department of Agriculture (ODA) to establish a fertilizer applicator certification program in Ohio. The sponsors of Senate Bill 150, Senator Cliff Hite and Senator Bob Peterson, designed the legislation to address agricultural nutrient runoff into Ohio waterways and the algae problems in Grand Lake St. Marys and Lake Erie. According to Senator Hite, the bill hinges on a new education and certification program that will give farmers additional information about fertilizer and nutrient use best practices.
Here are answers to a few basic questions farmers might have about the proposed program:
When would the program begin? If the bill is passed by the Ohio House of Representatives, the fertilizer application certification program would begin on September 30 on the third yearsfollowing the law’s effective date.
Who would have to be certified? Someone who applies “fertilizer” for agricultural production on land more than 50 acres in size would have to be certified by ODA as a fertilizer applicator, or would have to be acting under the instruction of a certified fertilizer applicator.
Would there be any exemptions from the program? Those who would make applications of fertilizer on land parcels of 50 acres or less would be exempt from the certification requirement. The bill would also allow the ODA director to establish additional exemptions for certain persons or certain “types of cultivation.”
What fertilizers would the program cover? Under the bill, “fertilizer” means any substance containing nitrogen, phosphorus, or potassium or any recognized plant nutrient element or compound that is used for its plant nutrient content or for compounding mixed fertilizers. The definition of fertilizer does not include lime, manure and residual farm products such as bedding, wash waters, waste feed, silage drainage and certain dead animal composts, unless those are mixed with fertilizer materials or distributed with a guaranteed analysis.
What would the certification program involve? The Senate’s bill directs that the program must educate applicants on the time, place, form, amount, handling, and application of fertilizer—commonly referred to as the "4-Rs" of nutrient stewardship (right fertilizer source at the right rate, at the right time and in the right place). The bill also states that the program must "serve as a component of a comprehensive state nutrient reduction strategy addressing all sources of relevant nutrients" and must "support generally practical and economically feasible best management practices."
Would there be a certification fee? The bill allows the ODA to establish a fee for applicants who seek certification, but the fee may not exceed the fee charged for the state’s pesticide applicator certification program. Additionally, the bill exempts persons who hold an Ohio commercial or private pesticide applicator’s license from paying an additional application fee if they also seek fertilizer application certification.
Other important provisions in Senate Bill 150 include:
Recordkeeping requirements. Certified applicators would have to maintain fertilizer application records for at least three years from the date of a fertilizer application. The records must include the date, place and rate of application, an analysis of the fertilizer and the name of the person applying the fertilizer. Applicators would not be required to submit the records to ODA on a regular basis, but would have to make the records available upon a request by the agency.
Emergency revocation and suspension powers. The bill would allow the ODA director to immediately deny, suspend, revoke, refuse to renew or modify a fertilizer applicator certificate if there is "substantial reason to believe the certificate holder recklessly applied fertilizer in such a manner that an emergency exists that presents a clear and present danger to human or animal health."
Voluntary Nutrient Management Plans. The bill would allow a person who owns or operates agricultural land to develop a voluntary nutrient management plan in collaboration with Ohio State University, the Soil and Water Conservation District or the Natural Resource Conservation Service or its certified providers and submit the plan for approval by the Soil and Water Conservation District. A voluntary nutrient management plan would be an important critieria for immunity from civil liability, discussed below.
Legal Defense against Civil Actions. Under the bill, a person sued in a claim involving liability for an application of fertilizer would have a legal defense that would prevent liability upon showing these three criteria:
- The person is a certified fertilizer applicator or under the control of a certified applicator;
- The person properly maintained fertilizer application records as required by the certification program;
- The fertilizer was applied according to and in substantial compliance with an approved voluntary nutrient management plan.
Watch now for the agricultural nutrient management bill to be introduced in the Ohio House of Representatives for final approval. More information about S.B. 150 is available here.
Tags: agricultural nutrient management, Ohio senate bill 150, fertilizer applicator certification
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