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Jan
06
2012

Tree Harvesting on Your Land: Legal Liability Issues and Precautions

By: Peggy Kirk Hall, Director of Agricultural Law, OSU Agricultural and Resource Law Program

Imagine that you have a number of dead and downed trees on your property and someone asks for permission to harvest the trees.  Typically, that person seeks an exchange:  removal of the trees at no cost in exchange for rights to the wood.  If you grant permission and the person suffers an injury while removing the trees, will you be liable for that person’s medical bills and other costs?   Are there any actions you could take to protect yourself from the potential of liability?  These are important questions a landowner should address before allowing someone to harvest dead and downed trees.  Click here to read the firewood liability factsheet.

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January 2012, Legal Issues
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Jan
05
2012

Ohio Court of Appeals Denies Township Challenge to ODA Anhydrous Regulations

A claim that the Ohio Department of Agriculture’s (ODA) anhydrous ammonia regulations are unreasonable and fail to protect public health and safety has again been rejected by the courts.  A recent decision by Ohio’s Fifth District Court of Appeals concluded that the challenge by Sharon Township’s Board of Trustees in Medina County failed to establish a valid legal claim. The case raised considerable controversy in Sharon Township, where the owner of South Spring Farms requested ODA approval to install a 12,000 gallon anhydrous ammonia storage tank.   Ohio law grants ODA the authority to adopt rules concerning the handling and storage of anhydrous ammonia and other fertilizers and also prohibits any local regulation of fertilizers.   ODA created anhydrous regulations in the late 1970s; those regulations require ODA approval of the location and design of a stationary ammonia system. ODA approved South Spring Farms’ application in 2010 and granted a permit for installation of the tanks.  Sharon Township filed a lawsuit against ODA, asking the trial court to grant an injunction prohibiting the ODA from permitting the installation of anhydrous storage tanks “until the ODA established regulations which would reasonably protect the health, safety, and welfare of people and property which can be reasonably foreseen to be exposed to the toxic and deadly effect of an uncontrolled release of this dangerous material, anhydrous ammonia.” The legal basis for the ...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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January 2012, Legal Issues
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Nov
07
2011

Ohio State creates new Center for Subsurface Energy

In response to the growing need for an educational and research source for issues related to Ohio’s developing shale energy industry, The Ohio State University announced today the creation of the Ohio State Subsurface Energy Resource Center (SERC). The center, with faculty experts in the areas of economics, law and policy; earth science; engineering; energy and environmental science; extension and community development; and public health, will conduct relevant research and serve as a resource to subsurface energy stakeholders. The center was established in response to recent technical advances that are leading to the expansion of horizontal drilling for hydrocarbon-bearing shale and other resources across Ohio. As one of the nation’s largest research universities and the state’s land-grant institution, Ohio State has a wealth of expertise to contribute to subsurface energy development and its associated environmental issues, as well as a responsibility to serve as a resource to policy makers. “The creation of the Subsurface Energy Resource Center leverages the considerable expertise of Ohio State to provide a solid foundation for energy research and partnerships throughout Ohio,” said President E. Gordon Gee. “It draws upon a strong base of both excellence in environmental and energy research and commitment to partnering for Ohio’s future. Together, we can develop as a comprehensive resource for policymakers, companies, and citizens.” SERC will ensure...
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Legal Issues, November 2011
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Nov
03
2011

Ohio will withdraw dairy labeling rule

ODA agrees to rescind rule that prohibits “hormone free” claims on dairy products The Ohio Department of Agriculture (ODA) has agreed to withdraw the controversial dairy labeling rule that restricts the use of “hormone free” language on dairy labels.  The agreement by ODA is in settlement of a federal lawsuit initiated against the state of Ohio over three years ago by the International Dairy Foods Association  and Organic Trade Association.  A federal appeals court ruled in favor of the associations in 2010, agreeing that Ohio’s dairy product labeling rule violated milk producers’ constitutional rights to conduct truthful commercial speech.  After the win on appeal, the associations filed a claim seeking reimbursement from Ohio for the $1.3 million in legal fees required to challenge the rule.  Apparently, the associations have agreed to drop that claim in exchange for Ohio’s withdrawal of the rule.  The ODA has not yet issued a formal statement on the settlement or officially rescinded the rule. A retraction of the rule by ODA will impact labeling practices in the dairy industry in several ways.  The current rule prohibits milk composition claims such as “No Hormones”, “Hormone Free”, “rbST Free”, “rbGH Free” or “No Artificial Hormones” but allows statements that the dairy product derives from cows who did not receive artificial hormones.    Absent the rule,  companies will be able to make “hormone free...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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Legal Issues, November 2011
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Oct
24
2011

American Agricultural Law Association meets in Texas

Ohio attorneys involved in AALA’s 32nd annual conference The American Agricultural Law Association (AALA) has hosted another excellent educational event, recently concluded on October 22 in Austin, TX.  Approximately 250 attorneys, law students and professionals across the United States attended the conference.  Ohio attendees were visible on the program in several ways, including:
  • Paul L. Wright of Wright Law Co., LPA presented on “Estate Planning in a Climate of Change.”
  • Robert Moore of Wright Law Co., LPA presented on “Partnerships:  the Neglected, the Disaster and the Desirable Plan.”
  • Peggy Hall of The Ohio State University presented on “Animal Welfare Litigation Impacting Livestock Producers: Emerging Issues.”
  • Larry Gearhardt of Ohio Farm Bureau Federation received an AALA Excellence in Agricultural Law award.
  • Peggy Hall of The Ohio State University was inducted as the AALA’s President Elect.
Nashville, Tennessee is the site of the AALA’s 2012 conference, which will take place October 19-20.  For more information on the AALA, visit http://aglaw-assn.org.
This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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Legal Issues, November 2011
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Oct
10
2011

Ohio’s CDL Provisions for Agriculture

Do you need a Commercial Driver’s License? Like many other areas of law, driver’s license regulations for agricultural situations have unique provisions and exemptions. Recent rumors had the agricultural community concerned about possible changes in the Commercial Driver’s License (CDL) requirements for agriculture. While the U.S. Department of Transportation has clarified that CDL provisions for agriculture will not change at the federal level, the rumors had many asking questions about when an agricultural operator needs a CDL. Federal Authority over CDLs The Federal Commercial Motor Vehicle Safety Act (FCMVSA) addresses driver’s licensing for commercial vehicle operators, and aims to protect public safety by establishing qualifications for those who drive large trucks and buses on public roads and highways. The federal law delegates the actual authority over CDL licensing to each individual state, but first establishes minimum federal standards that a state must meet when issuing CDLs. In regards to agriculture, the law specifically allows a state to create CDL exemptions for “operators of a farm vehicle which is controlled and operated by a farmer, including operation by employees or family members.” The recent statement from the federal government about CDLs clarified that there would not be any new minimum federal standards for agriculture or any changes to the federal delegation of agricultural exemption authority to the states. Therefore, ...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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Legal Issues, October 2011
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Sep
30
2011

Ohio Agricultural Law Symposium set for November 18, 2011

The agenda is in place for the fourth annual Ohio Agricultural Law Symposium, a program for attorneys and others working in the agricultural arena.  The Symposium takes place on Friday, November 18 at The Ohio State University’s Ohio Union and features state and national experts on the most current legal and policy issues facing Ohio agriculture.

Nine topics are packed into the day-long program, including presentations by Ohio Senator Cliff Hite, Washington D.C. agricultural policy consultant Dale Moore and American Farm Bureau attorney Danielle Quist.  Ohio attorneys and experts will speak on Livestock Care Standards, agri-environmental law, USDA audits, CAUV, oil and gas development and estate planning.   Here is the complete agenda for the day:

Welcome – Peggy Hall, Director, OSU Agricultural & Resource Law Program

Chesapeake TMDL:  EPA’s New Framework for Watershed Regulation

    Danielle Quist, Senior Counsel for Public Policy, American Farm Bureau Federation, Washington, D.C.  

Nutrient-Enriched Lakes, Livestock Emissions, and Other Hot Environmental Topics for Ohio Agriculture

    Jack Van Kley, Van Kley and Walker LLC, Columbus

Enforcing Ohio’s New Livestock Care Standards  

    James Patterson, Assistant Attorney General, State of Ohio

The Office of Inspector General Audit: Preventing and Detecting Waste, Fraud and Abuse

    Diana Blust, Seni...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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Legal Issues, October 2011
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Aug
04
2011

Deputy Secretary dispels rumor of CDL requirement for farm equipment

We’ve heard a number of questions and rumors about the federal government planning to require that operators of farm equipment obtain a CDL (Commercial Driver’s License).  Brownfield has just reported on a statement issued at the Ohio State Fair today by a U.S. Department of Transportation official.  According to the news source, US DOT Deputy Secretary John Porcari clarified that the federal agency is not considering any such requirement for farm equipment operators. 

“Let me say this as bluntly as I can to the agricultural community, there is no new regulation coming down the pike requiring commercial driver’s licenses for operators of farm equipment,” said Porcari.

 Go to Brownfield Ag News for the full story.

This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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Legal Issues, September 2011
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Jul
26
2011

Resolution to Discrimination Claims regarding USDA Program Delivery

By: Julia Nolan Woodruff, Extension Educator, Erie County

Several months ago a settlement was reached regarding the allegations against the USDA claiming discrimination toward Hispanic and women farmers and ranchers when seeking USDA farm loans. The USDA is working to get the word out to these individuals who might have been part of this group that was discriminated against.

The program provides up to $50,000 for each Hispanic or woman farmers who can show that the USDA denied them a loan or loan servicing for discriminatory reasons for certain time periods between 1981 and 2000. Successful claimants are also eligible for funds to pay the taxes on their awards and for forgiveness of certain existing USDA loans. There are no filing fees or other costs to claimants to participate in the program. However, the USDA cannot provide legal advice, so those who would like to seek legal advice will have to do so, on their own.

Individuals who would like to participant in the claims process or have questions will need to contact the USDA to receive a claims packet. You may do this by calling in to the Farmer and Rancher Call Center at 1-888-508-4429 or visiting the website: http://www.farmerclaims.gov.

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August 2011, Legal Issues, Newsletters
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Jul
12
2011

Ohio Supreme Court decides agricultural zoning case

Court rules in favor of Myrddin Winery The Ohio Supreme Court has clarified how the “agricultural exemption” contained in Ohio zoning law applies to wineries.  The Court agreed with appellant Myrddin Winery in ruling today that Ohio law does not grant a township or county zoning authority over buildings or structures used for the vinting and selling of wine if they are on property used for viticulture, which is the growing of grapes.  The case before the Court, Terry v Sperry, involved a Milton Township property  in northeast Ohio located in a district zoned as residential.  Prior to establishing the winery on the property, the Sperrys asked the township whether a winery was a permissible use of the property.  The township zoning inspector advised that the winery was an agricultral use that did not require a zoning permit pursuant to Ohio’s “agricultural exemption” from zoning.  The Sperrys proceeded to establish and operate Myrddin Winery, making wine from a small number of grape vines grown on the property and from grape concentrate purchased from other sources.  The Sperrys sold the wine, as well as food items, to customers who visited the winery.  When the township later received complaints about the winery from neighbors, the township decided that the winery was no longer a permissible agricultural use.  Rather, the township claimed that the use constituted a restaurant and retail business that was not permitted in the reside...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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August 2011, Legal Issues
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Jul
08
2011

Ohio Estate Tax Repealed

By: Peggy Kirk Hall

The Ohio legislature has approved a repeal of the Ohio estate tax, but the tax will remain in effect for another 18 months. The new law removes the Ohio estate tax obligation for any person who dies on or after January 1, 2013. Governor Kasich signed the provision into law on June 30, 2011 as part of the state’s budget package. The final version of the repeal differed from the language proposed earlier this year in H.B. 3, which proposed ending the estate tax as of January 1, 2011 (click here to view earlier post).

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July 2011, Legal Issues
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Jul
06
2011

Ohio estate tax will disappear in 2013

The Ohio legislature has approved a repeal of the Ohio estate tax, but the tax will remain in effect for another 18 months.  The new law removes the Ohio estate tax obligation for any person who dies on or after January 1, 2013.  Governor Kasich signed the provision into law on June 30, 2011 as part of the state’s budget package.  The final version of the repeal differed from the language proposed earlier this year in H.B. 3, which proposed ending the estate tax as of January 1, 2011 (see our earlier post).


This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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Estate Planning, July 2011, Legal Issues
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Jun
30
2011

Legislature agrees on changes to Ohio Livestock Environmental Permitting Program

Bill establishes time limits for township and county infrastructure review

A bill approved by the Ohio General Assembly proposes limiting the amount of time county and township officials have for recommending local infrastructure needs for the operation or expansion of a Concentrated Animal Feeding Facility (CAFF).  Both the House and Senate have approved H.B. 22, sponsored by Rep. Buchy (R-77).  The bill now awaits action by Governor Kasich.

Recently introduced on May 17, 2011, H.B. 22 proposes a 75 day time limit for county commissioners and township trustees to provide final recommendations for improvements to local infrastructure that are needed to accomodate a CAFF.   Notification by the CAFF to the county and township is a required step in the Livestock Environmental Permitting Program (LEPP) permit application process.  Information on anticipated traffic routes and number and weights of vehicles must accompany the notification.  Under current law, the county and township must next provide initial recomendations to the CAFF for needed infrastructure improvements.  The CAFF may accept the recommendations or may propose an alternative, and the county and township must then render written final recommendations for infrastructure improvements.  The CAFF must submit the county and township’s final recommendations in its LEPP permit application.

Under the language agreed to by the legislature in H.B. 22, if the county or...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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July 2011, Legal Issues
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Jun
27
2011

Ohio Legislature revises law for livestock running loose

New law establishes clear standards for liability, adds alpacas, llamas and bison

Livestock owners and keepers in Ohio will soon have less risk of automatic liability when their animals escape enclosures and run loose on public roadways or the property of others.   The Ohio legislature has revised the “animals running at large” law to clarify two different standards for criminal and civil liability under the law.  

Criminal liability will occur only when proven that a livestock operator behaved “recklessly” in allowing the animals to run loose.  Under Ohio law, a person behaves recklessly when he or she perversely disregards a known risk of his or her conduct, with heedless indifference to the consequences of that conduct.   For example, a livestock owner who sees but intentionally ignores a downed fence where cattle graze near a roadway could be deemed “reckless.”  

The new law establishes a different standard of liability for a civil situation.  A person may recover damages against a livestock owner if harm resulted because the livestock owner’s “negligence” caused the animals to escape.  Under Ohio law, negligence is a substantial lapse of “due care” that results in a failure to perceive or avoid a risk.  For example, a livestock owner who has not checked the line fences in a grazing area for several years could be deemed “negligent.”

...
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This post is a reprint of a post by Peggy Hall that originally appeared at Ohio Agricultural Law Blog.
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July 2011, Legal Issues
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Jun
16
2011

GIPSA Hog Contract Requirements

by Robert Moore, Attorney-Wright Law Co. LPA Dublin, Ohio The 2008 Farm Bill contained specific provisions that must be included in all hog production contracts. The Grain Inspection, Packers, and Stockyards Administration (GIPSA) defines hog production contracts as “any growout contract or arrangement under which a person or business raises and cares for swine according to the instructions of another person”. In essence, anyone raising, feeding, or growing hogs for another person or business is subject to these provisions. Four specific provisions must be included in all hog production contracts executed after June 18, 2008. The provisions are as follows: 1. The Grower may cancel the contract within three days after signing or within some other agreed to period. The method of notice and deadline for cancellation must be specifically provided. 2. Include a disclosure statement on the first page that clearly states that additional large capital investments may be required of the grower during the term of the contract. 3. Allow growers to opt out of arbitration provisions before entering a contract. 4. The venue for a contractual dispute shall be the federal judicial district in which the contract was performed and the choice of law shall be governed by the state in which the dispute arose (unless otherwise prohibited by the law of the state in which the contract was being performed). Contracts that were executed after June 18, 2008 but do not contain the...
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Farm Policy, July 2011, Legal Issues
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