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The holiday season isn't distracting the Senate Agriculture and Natural Resources Committee from considering three legislative proposals concerning scenic rivers, small beer brewers, and state agriculture day designations.  On December 12, the committee will hear testimony on all three bills.  Here’s a summary of the proposals.

S.B. 156 - Designation of wild, scenic, and recreational rivers.  Senators Bill Reineke (R-Tiffin) and Bob Hackett (R-London) introduced this legislation to revise portions of the Ohio Scenic Rivers Program that were raising concerns from private property owners.  The committee will hold its fourth hearing on the bill on December 12.  The proposal makes the following changes to the Ohio Scenic River Law:

• Clarifies that the designation of a Wild, Scenic or Recreational River does not grant authority to oversee private activities on private property or enter private land within the river area to the Ohio Department of Natural Resources (ODNR), which administers the program. 
• States that the agency has management and oversight of lands along a designated river only for those lands the state owns.
• Requires ODNR to adopt rules to govern the use, visitation, and protection of scenic river lands and to establish facilities and improvements within the areas necessary for visitation, use, restoration, and protection of the lands.
• Clarifies that certain public entities must obtain approval from the ODNR Director to perform certain construction activities within 1,000 feet of a wild, scenic, or recreational river. 
• Extends the public comment period following the announcement of intent to designate a new river from 30 days to 60 days.

S.B. 138 – Alcohol Franchise Law exemption for small brewers.  This bill introduced by Senator Andrew Brenner (R-Delaware) aims to help small brewers who annually manufacture less than 250,000 barrels (7.75 million gallons) of beer.  The bill exempts small brewers from Ohio’s Alcohol Franchise Law, which requires a beer or wine manufacturer to enter into a franchise agreement with a distributor and lays out requirements for the franchise agreement.  The exemption would allow small brewers to establish agreements with distributors under their own negotiated terms rather than the state-required terms.  S.B. 138 will see its second committee hearing on December 12.

H.B. 162 – Agriculture Appreciation Act.  The House of Representatives passed H.B. 162 in October, and it will have its  second hearing on December 12.  Proposed by Reps. Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville), the bill designates the following federal agriculture days as state days in Ohio:

• March 21 of each year as “Agriculture day”;
• The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as "FFA Week";
• October 12 of each year as “Farmer’s Day”;
• The week ending with the second Saturday of March as “4-H Week.”

Keep up with the Senate Agriculture and Natural Resources Committee’s activity on the Ohio Senate’s website at https://ohiosenate.gov/committees/agriculture-and-natural-resources. 

Second marriages present unique challenges for farm transition planning. This is especially true when the second marriage occurs later in life and the spouses have accrued significant assets and/or have children from prior marriages. The spouses in a second marriage obviously want to help provide for each other but may have a competing interest of providing for their children but not necessarily stepchildren. Without good planning, it is possible that farm assets will end up with a spouse or stepchildren who were not involved in the farming operation.

Farm Transition Planning Strategies for Second Marriages, a new bulletin available at farmoffice.osu.edu, addresses the two most common sources of risk to farming operations when a second marriage is involved – death and divorce. While these risks cannot be eliminated, there are strategies to help minimize the risks to ensure, as best we can, that farm assets stay with the farm family. The bulletin discusses the strategies and how they can be integrated into a farm transition plan.

Strategies to protect farms from the death of a second spouse mostly involves incorporating a trust in the farm transition plan.  A trust can hold assets for the surviving spouse without giving legal ownership to the spouse.  The trust serves the dual purpose of providing  income and other resources for the surviving spouse while also protecting those assets to ultimately be inherited by the deceased spouse’s heirs.  Trusts are an excellent tool to both provide for spouses and protect assets for future generations.

Prenuptial and postnuptial agreements can be used to reduce the risks of divorce.  These agreements between spouses specifically identify which assets are considered joint, marital assets and which assets are to be considered outside of the marriage.  These designations can help safeguard farm assets by keeping them immune from a division of assets in a divorce.   A recent change in the law allows spouses to enter into such an agreement even after the marriage has occurred.

Any farmers who are in a second marriage should consider including a trust and/or pre/postnuptial agreement into their farm transition plan.  An attorney experienced in farm transition planning can assist with deciding if a trust or marriage agreement is needed and how best to integrate into a farm transition plan.  The Farm Transition Planning Strategies for Second Marriages bulletin provides a detailed discussion of trusts and marriage agreements and their potential impact on farm transition planning.

With the warm, dry, and windy months of October and November behind us, Ohio farmers will soon have legal clearance to conduct open burning during the daylight hours.  Ohio law prohibits all open burning from 6 a.m. to 6 p.m. during October and November, and then again in March, April, and May.  That’s because ground cover and weather conditions create high fire risk and volunteer firefighters with daytime jobs aren’t readily available to fight the fires. 

December 1 marks the end of the daytime burn restriction, but other open burning laws remain in effect. Farmers can burn “agricultural waste,” but must follow conditions in the open burning laws.  Burning wastes that aren't agricultural waste might require prior permission or notification, and it is illegal to burn some wastes due to the environmental harms they cause. Don't get burned by failing to know and follow the open burning laws.  Here’s a summary of important provisions that affect farmers and farmland owners.

What you can burn.  Ohio law allows the burning of “agricultural wastes” under certain conditions.  Ohio law defines what is and is not “agricultural waste” as follows:

• Agricultural waste is any waste material generated by crop, horticultural, or livestock production practices, and includes such items as woody debris and plant matter from stream flooding, bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities.
• Agricultural waste does not include buildings; dismantled or fallen barns; garbage; dead animals; animal waste; motor vehicles and parts thereof; or "economic poisons and containers," unless the manufacturer has identified open burning as a safe disposal procedure.
• Agricultural waste does not include"land clearing waste," which is debris resulting from the clearing of land for new development for agricultural, residential, commercial or industrial purposes.  Burning of “land clearing waste” requires prior written notification to Ohio EPA.
• If an agricultural waste pile is greater than 20 ft. wide x 10 ft. high (4,000 cubic feet), permission from Ohio EPA is necessary.

Where you can burn.  Laws that affect the burning location relate to where the waste is generated and whether the burn is in or near a village, city, or buildings:

• It is legal to burn agricultural waste only if it is generated on the property where the burn occurs.  It is illegal to take agricultural waste to a different property for burning and to receive and burn agricultural waste from another property.
• Burning inside a “restricted area” requires providing a ten day written notice to Ohio EPA.  A restricted area is any area inside city or village limits, within 1,000-feet of a city or village with a population of 1,000 to 10,000, or within one-mile of a city or village with a population of more than 10,000. 
• A burn must be located more than 1,000 feet from any neighboring inhabited building.

How to manage the burn.  Ohio laws impose practices a person must follow when conducting open burning, which includes:

• Remove all leaves, grass, wood, and inflammable materials around the burn to a safe distance.
• Stack waste to provide the best practicable condition for efficient burning.
• Don’t burn in weather conditions that prevent dispersion of smoke and emissions.
• Take reasonable precautions to keep the fire under control. 
• Extinguish or safely cover an open fire before leaving the area.

Local laws matter too. A local government can also have laws that regulate burning activities, so it’s important to check with the local fire department to know whether any additional regulations apply to a burn.

A bad burn can burn you.   Violation of state and local open burning laws creates several risks for farmers and farmland owners. First is the risk of enforcement by the Ohio EPA, which has the authority to issue fines of up to $1,000 per day per offense for an illegal burn.  According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes,” such as tires and plastics, failing to meet the 1,000 foot setback requirement, and burning waste from another property. EPA enforcement officers regularly patrol their districts, investigate fires they see, and investigate complaints from neighbors or others who report burning activities, so “getting caught” is quite possible.

An illegal burn might also bring in the Ohio Division of Forestry or local law enforcement.  Beyond the environmental provisions, other violations of the open burning laws can result in third degree misdemeanor charges.  Penalties of up to $500 and 60 days of jail time per violation could result.  

A final risk to consider is liability for harm to yourself, other people, or other property if a burn goes wrong.  It’s possible for a fire to escape and burn unintended property, to reduce roadway visibility and cause an accident, or to interfere with people, animals, crops, or buildings.  These situations can cause personal injuries, property harm, and could result in insurance claims or a negligence or nuisance lawsuit.  Using common sense and taking reasonable safety precautions when conducting a burn can go a long way toward reducing the risk of harm and resulting liability for harm.

To learn more about Ohio’s open burning laws, visit the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/air-pollution-control/permitting/open-burning.

The fall hunting season is upon us, and landowners across Ohio are being asked to give permission to allow hunting on their land. That means now is a good time for a refresher on the laws that affect Ohio landowners and hunting.  Here are ten legal tips for landowners considering hunting activities on their land.

1. Ohio law requires permission in writing--but landowners should review the permission form and know who they’ve permitted.   Ohio law requires a hunter to obtain a hunting license and written permission from a landowner or the landowner’s agent before hunting on private lands or waters.  Landowners should expect to be asked to sign the permission form provided by ODNR, which is available on ODNR’s website.  The permission form allows a landowner to designate a permission period—either the entire hunting season or specific dates.  If a hunter uses a different permission form, it might contain additional provisions beyond the permission to hunt, such as the right to install a tree stand or a blind on the property.  Landowners should have an attorney review a form if unsure of its meaning and should document names and contact information for hunters granted permission to hunt on the property.  Contact information will be helpful if there is a hunting incident or a need to contact the hunter.
2. Know the laws for family members and tenants.  A landowner who is a resident of Ohio, the landowner’s spouse, all children of any age, and all grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowner’s land.  All other family members must obtain a hunting license and follow the written permission requirement.  When a landowner is not an Ohio resident, only the landowner, spouse, and children living with the landowner may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state.  In a rental situation where a tenant resides on the land, the tenant and the tenant’s children who live on the land may hunt on the property without a hunting license and written permission.
3. The hunting license exemption also applies to certain entities.  If the owner of land is a limited liability company or a limited liability partnership with three or fewer individual members or partners, a member or partner who is a resident of Ohio may hunt on the land without a hunting license, as can the member or partner's children of any age and grandchildren under the age of 18. If a trust owns the land and has a total of three or fewer trustees and beneficiaries, a trustee or beneficiary who is an Ohio resident and their children of any age and grandchildren under the age of 18 may hunt on the land without a hunting license.
4. A hunter must also have written permission to pursue or retrieve an injured animal.  Hunters often mistakenly believe they have the right to pursue an injured animal onto another property, but Ohio law says otherwise.  Written permission of a landowner is required for each of these hunting activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild animal or bird.  Contrary to popular belief, the law does not require a landowner to give a hunter permission to pursue an injured animal—it’s a choice a landowner can make.
5. Two Ohio laws can protect landowners from liability for hunting injuries.  The first is Ohio’s Recreational User Statute, which states that a landowner has no legal duty to keep the premises safe for a hunter and other recreational users who have permission to be on the land.  This means the law will protect a landowner from liability if a hunter is harmed while on the property, but it won’t protect a landowner who caused the harm through intentional or reckless conduct.   Note that the liability protection does not apply if a landowner charges a hunter a fee for hunting, unless the fee is a payment made under a hunting lease.   Read more about the Recreational User’s Statute in our law bulletin on farmoffice.osu.edu.    A second  Ohio law addresses liability for someone who is hunting on land without permission.  In that case, Ohio law states a landowner is not liable for “injury, death, or loss to person or property” that arises from a violation of the requirement to have a landowner’s permission to hunt on the land.
6. Be mindful of the number of hunters who could be on the land.   For safety purposes, a landowner should be careful about allowing multiple hunters onto the land at the same time.  Strategies for managing multiple hunters include designating a specific parking area so hunters know if another hunter is present and setting specific hunting periods for different hunters.  Taking reasonable steps to manage multiple hunters will help ensure that someone isn’t harmed, and it can also protect a landowner from a potential claim that the Recreational User’s Statute shouldn’t apply because the landowner behaved recklessly by not managing multiple hunters allowed on the land.  While such a claim might not be legally successful, it would require landowners and their insurance providers to prove that the Recreational User’s Statute protects the landowner from liability.
7. Consider a hunting lease.  Many hunters and hunting groups prefer to secure hunting rights through a hunting lease.  A lease can provide a landowner with additional income and is one situation where the liability protection of Ohio’s Recreational User Statute applies even if a payment is made to the landowner.  A lease can also address other rights and responsibilities, such as number and gender of animals to be taken, placement of tree stands and blinds, use of feeders and bait, where animals may be cleaned, and property maintenance activities by hunters.  See our law bulletin on hunting lease considerations in the property law library on farmoffice.osu.edu at https://farmoffice.osu.edu/our-library/property-law.
8. Ohio laws address harm to property caused by hunters.  What if a landowner gives permission to a hunter, but then that hunter causes property damage?  Ohio’s hunting law is one law that can help.  It prohibits a hunter from acting in a “negligent, careless or reckless manner so as to injure persons or property.”  A hunter who violates this law can face first degree misdemeanor charges and revocation of the hunting license and must also pay compensation to the harmed landowner.  Ohio’s reckless destruction of vegetation law is a second helpful law.  It allows a landowner to seek compensation for “reckless” destruction of vegetation, trees, and crops and would address a situation where a hunter acted intentionally and without regard for the consequences.  Intentionally cutting down a tree without permission or running an ATV through a planted crop are behaviors that could be deemed reckless.  Under this law, a landowner could receive triple the amount of the harm caused to the property by a hunter’s reckless behavior.
9. It’s a good time to mark property boundaries.   Many of the old fences that marked a farm’s property boundaries in Ohio are long gone, and it’s not as easy today for hunters to know where one farm begins and another ends.  Especially for landowners who don’t want hunting on their land, be sure boundary lines are clear to hunters.  Use corner posts, fences, and “no trespassing signs.”  In woodlots, marking the trees on the boundary with paint is also helpful. For an overview of woodlot boundary marking, refer to this video from OSU Extension at https://www.youtube.com/watch?v=zSYYn_onE80.
10. Ohio has a process for dealing with poachers and trespassers.   Ohio’s “Turn in a Poacher” program (TIP) establishes mechanisms for reporting a violation of wildlife laws, such as hunting without permission or a license and taking animals out of season.  A person can report a violation using an online reporting form on ODNR’s website or by calling the TIP hotline at 1-800-POACHER (762-2437).  Incident reporters are encouraged to share details such as what happened, the location, vehicle description and license plate, and descriptions of suspects.  All information submitted to TIP is confidential, and reporters may choose whether or not they are willing to speak with a wildlife officer about the incident.