Recent Blog Posts

Bill modifies penalties for animal cruelty, with focus on companion animals

Months before the current controversy of alleged animal cruelty by employees of Conklin Dairy Farms, Rep. Williams and Combs introduced H.B. 55 to revise portions of Ohio's animal cruelty law.  Yesterday, the Ohio House passed the animal cruelty bill, which had been introduced last March.

H.B. 55 focuses largely on cruelty to "companion animals," which includes dogs, cats, and any animal kept inside a residential dwelling.  Changes to the companion animals provisions include authority to order child offenders to undergo counseling and psychological treatment, inclusion of companion animals in court protection orders, and requirements for the State to approve continuing education courses on animal abuse counseling for medical and social work professions. 

In regards to cruelty to animals other than companion animals, H.B. 55 adds a new penalty provision.  The penalty remains a second degree misdemeanor for first offenses, but increases to a first degree misdemeanor for subsequent violations of the law.  Current law addresses each offense as a second degree misdemeanor.   Under Ohio law, a first degree misdemeanor can result in a maximum penalty of 180 days in jail and a $1,000 fine, while a second degree misdemeanor violation carries a maximum of 90 days in jail and a $750 fine. 

What is cruelty to animals?  Ohio's animal cruelty law is Ohio Revised Code section 951.13, which states that "no person shall:

  • (1) Torture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal without supplying it during such confinement with a sufficient quantity of good wholesome food and water;
  • (2) Impound or confine an animal without affording it, during such confinement, access to shelter from wind, rain, snow, or excessive direct sunlight if it can reasonably be expected that the animals would otherwise become sick or in some other way suffer.  Division (A)(2) of this section does not apply to animals impounded or confined prior to slaughter. For the purpose of this section, shelter means a man-made enclosure, windbreak, sunshade, or natural windbreak or sunshade that is developed from the earth’s contour, tree development, or vegetation;
  • (3) Carry or convey an animal in a cruel or inhumane manner;
  • (4) Keep animals other than cattle, poultry or fowl, swine, sheep, or goats in an enclosure without wholesome exercise and change of air, nor or feed cows on food that produces impure or unwholesome milk;
  • (5) Detain livestock in railroad cars or compartments longer than twenty-eight hours after they are so placed without supplying them with necessary food, water, and attention, nor permit such stock to be so crowded as to overlie, crush, wound, or kill each other."

Before passing H.B. 55 yesterday, the House included floor amendments that make minor revisions to the dangerous and vicious dog provisions in Ohio Revised Code 955.11. 

The Ohio Senate has not introduced a similar animal cruelty bill, and has only a few more sessions until its summer recess begins in early June.  If the Senate doesn't pass the animal cruelty legislation before the end of the year, the bill will expire and must be reintroduced after January, in the next session of the Ohio General Assembly.

Animal rights groups have advocated around the country for stiffer penalties on animal cruelty offenses.   Most state animal cruelty laws contain both misdemeanor and felony penalties, with the more severe felony charges typically applying to acts that are intentional, heinous or involve mutilation.  Under Ohio law, felony charges apply to certain offenses against companion animals and some dog-fighting offenses.   For an overview of state animal cruelty laws, visit this publication by the Michigan Animal Legal and Historical Center.  View the entire chapter of Ohio law on offenses to domestic animals, which includes the animal cruelty law and various penalty provisions, here.

See Ohio H.B. 55 here.  The floor amendments to H.B. 55 are in the House Journal for May 27, 2010.

Posted In: Animals
Tags: Animals, Farm animal welfare
Comments: 0

Bill introduced in Ohio House of Representatives to clarify liability standards

A recurring problem around Ohio may be resolved if H.B. 503 progresses through the General Assembly before the end of the year.  Representatives Bubp (R-88th Dist.) and Garrison (D-93rd Dist.) recently introduced the bill to revise Ohio's animals at large law.  The proposal clarifies the standards for civil and criminal liability under the law.

The animals running at large law, found in Ohio Revised Code Chapter 951, states that no owner or keeper of  horses, mules, cattle, sheep, goats, swine, or geese "shall permit" the animals to run at large on public roads or outside of their enclosures.   Many law officers, prosecutors and judges have interpreted the word "shall" as a trigger for automatic liability--if an animal is out, the owner is liable.    But in a case before the Ohio Supreme Court, the court stated that the law does not establish automatic liability.  The court explained that the law creates the duty to exercise ordinary care to keep animals from running at large and sets up a "rebuttable presumption" of liability.   An animal owner whose animals are found running at large has the opportunity to rebut the presumption of liability and prove that he or she exercised ordinary care to contain the animals.  Despite the Supreme Court opinion, animal owners have continued to be subject to prosecution under an automatic liability standard.

H.B. 503 removes the possibility of interpreting the animals at large law as a strict liability law and lays out two different standards for civil and criminal liability.  An owner or keeper of animals who "negligently" permits animals to run at large is liable for all damages caused by the animal, and an owner or keeper who "recklessly" permits animals to run at large is guilty of a fourth degree criminal misdemeanor.  Under Ohio law, "negligence" is the failure to exercise ordinary care, while "recklessness" is acting with indifference to consequences and with disregard to a known risk.

H.B. 503 would alleviate the problems many animal owners in Ohio have faced--potential criminal liability when natural disasters, vandals, pranksters or neighbor disputes, rather than the owner's action or inaction, caused the release of the animals.   A disturbing increase in such incidents led the Ohio State Bar Association and its Agricultural Law Committee to work with H.B. 503 sponsors to develop the revisions.  View H.B. 503 here.

Appellate Court decides that a livestock trailer is "farm machinery"  under Ohio law

Why does it matter?  A "motor vehicle" must display a license plate according to Ohio Revised Code Section 4503.21(A), but "farm machinery" is exempt from the requirement.  

When a farmer pulling a trailer loaded with cattle in Wayne County did not have a license plate on the trailer, a state trooper cited him for violating ORC 4503.21(A).  The farmer argued that the trailer did not require a license plate because it was  exempt as "farm machinery."   The municipal court judge disagreed because the trailer fits within the definition of "motor vehicle."  The court found the farmer guilty of a minor misdemeanor.   But a later opinion issued by the Ninth Circuit Court of Appeals overturned the judge's decision and held that the livestock trailer is "farm machinery" that is exempt from Ohio's license plate requirements.

Confusing?  As with many Ohio laws relating to agriculture, the statute itself is likely responsible for the confusion. The license plate law states in Ohio Revised Code Section 4503.21 that:

  • "(A) No person who is the owner or operator of a motor vehicle shall fail to display in plain view on the front and rear of the motor vehicle the distinctive number and registration mark . . . except that . . . the owner or operator of a motorcycle, motorized bicycle, manufactured home, mobile home, trailer, or semitrailer shall display on the rear only. . ." [emphasis added]

In conclusion, a "trailer" must have a rear license plate.  The law defines a "trailer" in Ohio Revised Code Section 4501(M), which includes, among other things:

  • " . . . a vehicle used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm when drawn or towed on a public road or highway at a speed greater than twenty-five miles per hour . . ."

And so it appears that a trailer transporting livestock to a sale in Wayne County should have displayed a rear license plate.    Not so, said the court, because the law also states in the definition of "motor vehicle" that the definition does not include "farm machinery."  If a trailer transporting livestock fits within the definition of "farm machinery," then it is not a motor vehicle that requires a license plate, the court reasoned.  Which brings us to the definition of "farm machinery" in ORC 4503.01(U); that definition begins:

  • “ 'Farm machinery' means all machines and tools that are used in the production, harvesting, and care of farm products, and includes trailers that are used to transport agricultural produce or agricultural production materials between a local place of storage or supply and the farm . . . [emphasis added] 

Hence, the confusion--two similar references to trailers used for agricultural purposes, but with different outcomes.   The appellate focused on the "farm machinery" definition to determine the outcome of the case, and stated:

  • "We conclude that the cattle Mr. Besancon was hauling were "agricultural produce" under Section 4501.01(U) because they were the progeny of livestock animals. We further conclude that the auction house is a “place of . . . supply” under that section because it is a location at which goods are offered for sale at various prices. A magistrate found that Mr. Besancon was using the livestock trailer to transport cattle to an auction house. Mr. Besancon, therefore, was using it to transport agricultural produce between a local place of supply and his farm. Accordingly, it was farm machinery under Section 4501.01(U)."

The impact of the Ninth District court's decision could extend beyond the license plate law.  Many other highway and traffic laws include mention of "farm machinery" and utilize the same definition for "farm machinery" found in ORC 4501.01(U).  The Besancon case provides other courts, especially those in northeast Ohio's ninth appellate district, a basis for sorting through the muddled treatment of agriculture in Ohio roadway laws.

See State v. Besancon, 2010-Ohio-2147, here.

Proposal would ensure that on-farm bioenergy activities qualify for CAUV and are exempt from zoning regulation.

A legislative proposal in the Ohio House of Representatives would include on-farm bioenergy production activities in two key provisions of Ohio law:  qualification for differential tax assessment under the Current Agricultural Use Valuation program and exemption from local zoning authority.  Representatives Pryor and Domenick introduced  House Bill 485 in mid-April with assistance from the Ohio Department of Agriculture.  The bill was referred to the House Agriculture and Natural Resources Committee, but no other action on the bill has taken place.

The proposal addresses "biodiesel production, biomass energy production, electric or heat energy production and biologically derived methane gas production"  where at least 50% of the starting material or feedstocks are from the same tract, lot or parcel on which the energy production takes place.  This 50% requirement targets on-farm energy production, where a farm is producing and processing the energy inputs, as long as no more than 50% of the supplementary inputs derive from other properties.

The bioenergy production activities that meet the 50% rule would be included in the CAUV' program's definition of "land devoted exclusively to agricultural use" in ORC 5713.30, thus guaranteeing eligibility for the CAUV property tax rate.  The bioenergy production activities would also become part of the definition of "agriculture" for purposes of county and township zoning, ORC 303.01 and ORC 519.01.  Because counties and townships have  limited zoning authority over "agriculture," the proposal would ensure that a county or township could not use zoning authority to prohibit the qualifying bioenergy production activities. 

H.B. 485 is available online, here.

Court says winery must grow more grapes to be defined as "agriculture."

In a split decision, the Seventh Distict Court of Appeals has ruled in favor of a township in Mahoning County that wants to close down a small winery.  Milton Township claims that the winery violates township zoning regulations because it is located in a residential zoning district and does not qualify for the "agricultural exemption" from local zoning.  The court of common pleas and the majority on the appeals court agreed with the township, but a strong dissent by Court of Appeals Judge DeGenaro challenges the courts' rulings and illustrates the need for clarity in Ohio's rural zoning laws.

Myrddin Winery is a family owned business located on Lake Milton in Milton Township, on property that also contains a residence.  A free standing addition serves as the winery, and the property also has a vineyard containing 20 grape vines, with 12 vines producing grapes for harvest.   The Sperry family uses their grapes for wine, and must also import grapes and grape juices for their wine production--5% of their wine derives from their grape vines.  They make and bottle the wine on the premises.  Customers visit the winery to taste and purchase the wine and food items.

Before opening in 2005, the Sperry family asked the township zoning inspector if the township required any permits for the winery.  The zoning inspector advised that the family could begin operations immediately because the township did not require any permits.  In 2008, however, the township changed its opinion and notified the Sperrys that they were in violation of the township zoning resolution.  The township filed a complaint and requested the court to issue an injunction that would prohibit continued operation of the winery.

Two issues were before the Mahoning County trial court upon hearing the Myrddin Winery case:  1) whether a winery is "agriculture" for purposes of the agricultural exemption in Ohio zoning law, and 2) whether Ohio zoning law exempts wineries from local zoning regulation.  The trial court answered both questions in the negative.  The Sperry family appealed the decision to the Court of Appeals.

The court of appeals examined the Ohio Revised Code's agricultural exemption from township zoning authority, but focused its decision on the statute's definition of "agriculture" in O.R.C. 519.01, which states:

  • "As used in section 519.02 to 519.25 of the Revised Code, 'agriculture' includes farming; ranching; aquaculture; apiculture; horticulture; viticulture; animal husbandry, * * *; poultry husbandry * * *; 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.)

As Judge DeGenaro points out in the dissent, the court should have relied on the actual agricultural exemption language contained in R.C. 519.21(A), which provides:

  • "Except as otherwise provided in division (B) of this section, sections 519.02 to 519.25 of the Revised Code confer no power on any township zoning commission, board of township trustees, or board of zoning appeals 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.)

I agree with the dissent's interpretation of the statute, which is that a township may not prohibit the use of buildings or structures that are used primarily for vinting and selling wine and that are located on land used for viticulture, which is the growing of grapes for wine.   Under this interpretation, Myrddin Winery could not be prohibited by way of zoning regulation.  However, the majority chose to read R.C. 519.21(A) to require that "any buildings or structures used primarily for vinting and selling wine" must also fit within the definition of "agriculture" in R.C. 519.01.  That definition includes "viticulture" and the processing and marketing of agricultural products, but only if processing and marketing of products is "secondary to" production.  Because Myrddin Winery was importing more grapes and grape juice for its wine than it was growing on the property, the court concluded that the processing and marketing of the wine was not secondary to production, but was the primary use of the property.  Thus, the agricultural exemption from zoning regulation would not apply and the township could prohibit the winery. 

In short, the court's ruling requires a winery to ensure that production of  grapes is the primary use of the property and any processing and marketing of wine is the secondary use of the property.  Otherwise, local zoning can prohibit a winery.  This outcome is especially problematic for beginning  operations, because grape vines require many years of cultivation prior to successful harvest for wine production.  It also raises challenges for the winery landowner who must prove whether the grapes or the wine are the "primary" use of the property.  The specific exemption for wineries in 519.21(A) avoids these complications.

The Myrddin Winery case is one example of the confusion surrounding Ohio's agricultural exemption from township and county zoning authority, and the court's ruling strays too far from the intent of the law--to ensure that agricultural activities can persist outside of municpal areas.   The Sperry family has a strong basis for appealing the decision to the Ohio Supreme Court and seeking final clarification of the winery provision in the agricultural exemption.  But the Ohio legislature could alleviate the problem for landowners like the Sperry family, as well as townships and counties, by providing statutory clarification to the agricultural exemption.  Cases like the Myrddin winery case pervade the state and continuously raise the issue of which agricultural activities can and cannot be regulated by zoning.  With growing interests in agriculture and with state and federal policies that promote new types of agricultural production, direct marketing, and on-site processing by agricultural producers, Ohio will continue to experience conflicts between agriculture and local zoning regulation.  It's time for the legislature to simplify and clarify the relationship between agricultural land uses and local zoning authority.

The Myrddin Winery case is Terry v. Sperry, 2010-Ohio-1299 (March 23, 2010), and is available here.

Posted In: Zoning
Tags: agricultural zoning, land use, townships, Zoning
Comments: 0

Now that the Ohio legislature has enacted an implementation bill and Governor Strickland has announced board appointments, the Ohio Livestock Care Standards Board could soon begin developing standards for farm animal care in Ohio.  Voters approved Issue 2, the constiututional amendment creating the Ohio Livestock Care Standards Board, in November of 2009.

Last week, the governor signed Issue 2's implementation bill (House Bill 414) after legislators wrangled with two different implementation proposals for more than two months.  A primary point of contention was funding--H.B. 414 originally proposed an increase of the commercial seed and feed inspection fee and allowed the transfer of at least $500,000 annually from the commercial seed and feed fund to the livestock care standards fund.  A Senate proposed bill, S.B. 233, would have provided the livestock care standards fund with $162, 280 transferred from the School Employees Health Care Board.  Neither provision survived in the final enacted law, which instead requires the director of the Ohio Department of Agriculture to rely on existing funds within the department until the legislature appropriates money for the livestock care standards fund.

The final approved bill also establishes board member terms and vacancies, allows board member travel reimbursements but does not allow compensation, and requires the board to meet at least three times per year.  The law requires the director of ODA to assist the board by hiring employees, submitting the board's proposed rules for approval, enforcing the rules and investigating potential rule violations.  According to the law, the director must obtain permission to enter premises for inspection purposes.

Two provisions in the law address animal identification and organic production--these provisions were in the Senate's version and were added to the final bill .   The new law states that the Ohio Livestock Care Standards Board may not establish a statewide animal identification system and clarifies that standards of the USDA's national organic program will prevail if there is a conflict between the organic certification standards and the Ohio livestock care standards.

Despite recommendations to do so, the new law does not define the term "family farmer," but only reiterates the constitutional amendment's requirement that three of the board members shall be "family farmers."  Nor does the legislature guide the board on the meaning of the "well-being" of livestock, which the board must address in its standards and rules.  We hoped the new law would clarify whether "well-being" includes both physical and emotional well-being, an issue that could bring legal challenges in the future (see our earlier post on "Lessons from New Jersey").   The implementation law does define "livestock" as equine raised for any purpose and the following animals if raised for human food and fiber purposes:  porcine (hogs), bovine (cattle, oxen, buffalo), caprine (goats), ovine (sheep), poultry, alpaca and llamas. 

Soon after Govenor Strickland signed H.B. 414, he announced his appointments to the Ohio Livestock Care Standards Board.  Information on the board appointments is available here.  Once the speaker of the house of representatives and president of the senate each make one of the two final board appointments, the board can begin its work of developing standards for the care and well-being of livestock in Ohio.

Meanwhile, proponents of a second ballot initiative on farm animal welfare are currently circulating around the state seeking signatures to place another proposal on the November general election ballot.  The proponents hope to tell the board, through a second constitutional amendment, a few standards that it must adopt, which includes prohibitions on certain types of confinement, requirements for humane killing of cows and pigs and restrictions against the sale or transport of downer cows.  See our earlier post on "Ohio may see a second constitutional amendment on farm animal welfare."

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.

Thanks go to my colleague Robert Moore for  submitting our first guest blog and sharing the following expertise on the issue of vomitoxin detection in corn.

by Robert Moore, Attorney, Wright Law Company, LPA

Ohio and other areas of the Corn Belt have seen unusually high levels of vomitoxin in corn.  Vomitoxin is a mycotoxin that can cause livestock to reduce feed intake and reduce weight gain.  Some elevators and ethanol plants have been rejecting corn that has tested too high for vomitoxin.  What legal standing do producers with rejected corn have?

Producers with a Contract                       

Producers who have a contract with a buyer must look to the contract to determine their rights.  All provisions, including any small print on the back of the contract, must be read entirely before assessing legal rights.  The language of the contract is what matters; any verbal agreements made outside the contract have very little effect in enforcing legal rights.  Even if the producer and buyer agree to certain terms, if the terms do not find their way onto the contract then the parties are probably not bound by the terms.

In regards to Vomitoxin, the key terms are those describing the quality of the corn required to be delivered.  Grain contracts will include at least the bare minimum “No.2 Yellow Corn” requirement.  No. 2 Yellow corn is a grade established by the USDA and may have up to 5% damaged kernels.  The USDA defines damaged kernels as “kernels and pieces of corn kernels that are badly ground-damaged, badly weather-damaged, diseased, frost-damaged, germ-damaged, heat-damaged, insectbored, mold-damaged, sprout-damaged, or otherwise materially damaged.”  Therefore, if the only grade standard in the contract is No. 2 Yellow Corn, a producer’s corn should not be rejected or discounted solely for Vomitoxin unless more than 5% of the kernels are diseased.  However, corn could likely be rejected if 3% of the kernels were diseased with Vomitoxin and another 3% were damaged in another manner.  The 5% threshold is the accumulation of all damaged kernels and not just a single type of damage.

Some contracts will include more restrictive grade terms such as “must be suitable to be fed to livestock” or “must meet all FDA guidelines”.  The FDA has established a 5 part per million (ppm) threshold for hogs and 10 ppm threshold for cattle and poultry.  Therefore, an elevator that requires corn to meet FDA standards or to be safe for livestock consumption can reject corn if it has more than 5 ppm vomitoxin.  It is important to note that corn could have less than 5% damaged kernels but have more than  5 ppm vomitoxin.  That is, the USDA No.2 Yellow Corn grade is a completely different standard that the FDA’s ppm standard.  Ethanol plants must be extra concerned with vomitoxin becoming concentrated in the distillers grain by-product and may have even more restrictive terms than FDA.

Producers that have corn rejected can have the dual problem of having corn rejected and still being obligated to fulfill the contract.  A worse case scenario would see a producer not being able to sell his corn due to high vomitoxin levels while still being required to fulfill his contract obligations for untainted corn with the elevator.  Local reports indicate that elevators have been letting producers out of their contracts if their corn has been rejected for vomitoxin but this could change at any time.

Producers without Contracts

A producer who intends to sell a load of corn to the elevator without a contract has very little legal protection from the corn being rejected.  The elevator is under no obligation to buy the corn and can simply opt not to buy the corn for any reasonable reason.  Without a contract, the elevator is not bound to any predetermined grade standards.  Even the smallest amount of vomitoxin in the corn could cause it to be rejected.

Disputed Grain Samples

Producers have the right to appeal the grain grading determination performed by the elevator.  The Federal Grain Inspection Service (FGIS) oversees grain grading procedures and methods and also provides inspection and appeal services.  A producer who disputes the elevator’s grading can send a sample to FGIS and FGIS’ determination will be binding on both parties.  A FGIS office is located in Toledo.  For more details and information on grading appeals, contact FGIS at 419- 893-3076.

Crop Insurance

Some crop insurance policies cover Vomitoxin damage. It is best to have the corn checked by an adjuster while still in the field to avoid tainted corn from being mixed with untainted corn in bins.  Many producers have opted to not file a claim due to the significant impact on APH.  They would rather maintain a higher APH than to file a marginal crop insurance claim.  The deadline for any claims on vomitoxin was December 25, 2009.  In the future, a producer’s crop insurance agent should be contacted at the first sign of Vomitoxin to ensure that all claim procedures are property followed.

Future Implications

Will we see grain contracts move away from the USDA No.2 Yellow Corn standard and towards the FDA ppm standard for vomitoxin and other mycotoxins?  Elevators relying on the USDA standard could get stuck buying corn that exceeds the FDA’s ppm standards.  Unless blended with non-tainted grain, this grain would seemingly be unmarketable as it could not be used for human consumption, livestock consumption, and/or export. Producers should anticipate possible changes to grading standards in contracts offered by elevators and other buyers.  A careful reading of all new grain contracts should be a must for producers to make sure they fully understand the quality and grade of grain they are expected to deliver to the buyer.

Robert Moore is an attorney with Wright Law Co. LPA in Dublin, Ohio, www.wright-law.net.  E-mail:  rmoore@wright-law.net

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.

Monsanto Company must be thinking that determination sometimes yields intended results.  The U.S. Supreme Court announced on January 15 that it will grant Monsanto's request for review of a 2007 federal injunction that halted the planting and sale of Monsanto's Roundup Ready alfalfa seed pending completion of an Environmental Impact Statement.  The Court's announcement came as a surprise to many who've followed the case, which Monsanto has repeatedly lost in a protracted series of court decisions.   Since the 2007 injunction, the Animal and Plant Health Inspection Service (APHIS) has completed the court ordered draft EIS on the proposed deregulation of the Roundup Ready alfalfa seed, and the EIS comment period still remains open until February 16, 2010. 

The following is a compilation of summaries we've written in the past about the earlier decisions in Geertson Seed Farms v. Monsanto.

The 2007 decisions:  Geertson Seed Farms v. Johanns, 2007 WL 518624 (N.D. Cal. Feb. 13, 2007), amended by Geertson Farms, Inc. v. Johanns, 2007 U.S. Dist. LEXIS 21491 (N.D. Cal., Mar. 12, 2007).

The federal district court in California issued its opinion on the deregulation of “Roundup Ready” alfalfa pursuant to the Plant Protection Act on February 13, 2007.   Upon receiving Monsanto’s petition for deregulation of the alfalfa seed, APHIS conducted an Environmental Assessment and received over 500 comments in opposition to the deregulation.  The opposition’s primary concern was the potential of contamination.  APHIS, however, made a Finding of No Significant Impact (FONSI) and approved the deregulation petition, thereby allowing the seed to be sold without USDA oversight.  Geertson Seed Farms, joined by a number of growers and associations, filed claims under the National Environmental Policy Act (NEPA)  as well as the Endangered Species Act and Plant Protection Act.  In regards to NEPA, they argued that the agency should have prepared an EIS for the deregulation.

Addressing only the NEPA claims, the court agreed that APHIS should have conducted an EIS because of the significant environmental impact posed by deregulation of the alfalfa seed.  A realistic potential for contamination existed, said the court, but the agency had not fully inquired into the extent of this potential.  The court also determined that APHIS did not adequately examine the potential effects of Roundup Ready alfalfa on organic farming and the development of glyphosate-resistant weeds and that there were “substantial questions” raised by the deregulation petition that the agency should have addressed in an EIS.  Concluding that the question of whether the introduction of the genetically engineered alfalfa and its potential to affect non-genetic alfalfa posed a significant environmental impact necessitated further study, the court found that APHIS’s decision was “arbitrary and capricious” and ordered the agency to prepare an EIS.  The court later enjoined the planting of Roundup Ready alfalfa from March 30, 2007, until completion of the EIS and reconsideration of the deregulation petition, except for those farmers who had already purchased the seed.  In May of 2007, the court enjoined any future planting of the alfalfa.  An order by the court in June, 2007 required disclosure of all Roundup Ready planting sites.

The 2008 appeal:  Geertson Seed Farms v. Johanns, 2008 U.S. App. LEXIS 18752 (9th Cir. Sept. 2, 2008)

In continued litigation over the planting of genetically modified alfalfa, the Ninth Circuit Court of Appeals upheld a permanent injunction against further planting pending completion of an Environmental Impact Statement (EIS) by the U.S.  Animal and Plant Health Inspection Service (APHIS).  In Geertson I, the District Court for the Northern District of California ordered an injunction on a challenge of APHIS’s approval of the “Roundup Ready” seed brought by alfalfa seed farms, farm organizations and environmental groups.   The USDA, Monsanto and Forage Genetics appealed, arguing that the injunction was overly broad and the district court failed to hold an evidentiary hearing prior to the injunction order.  According to the appeals court, the district court correctly applied the traditional balancing test, and an evidentiary hearing after two earlier hearings was not required because the injunction had a limited purpose and duration—until completion of the EIS.  Judge Smith issued a dissent, citing serious concerns with the scope of the injunction and claiming the court created a new exception to the evidentiary hearing requirement.

The 2009 requests:  Geertson Seed Farms v. Johanns, 570 F. 3d 1130, 2009 U.S. App. LEXIS 13884 (9th Cir. Cal., 2009).

In the three year old Geertson Seed case, the Ninth Circuit refused a rehearing request on the injunction that halted planting of Monsanto’s Roundy Ready alfalfa.  Geertson Seed Farms v. Johanns, --- F.3d ---, 2009 WL 1782972 (9th Cir. 2009).  Monsanto had appealed the injunction issued by the trial court, which required completion of an Environmental Impact Statement by the USDA’s Animal and Plant Health Inspection Service (APHIS) before further planting of the alfalfa seed, but the court of appeals upheld the order last September in Geertson Seed Farms v. Johanns, 541 F.3d 938 (9th Cir. 2008).  Monsanto then sought panel rehearing and rehearing en banc.  In June, the majority denied the rehearing request and prohibited any further rehearing petitions, despite a sharp dissent on the appeal that had criticized the majority for creating a new exception to the need for a full evidentiary hearing prior to issuing an injunction.

Pages