Recent Blog Posts | Farm Office (2024)

Like the farm fields across Ohio lately, a little dust has been flying down at the Statehouse in Columbus. Our legislators are back to work and considering several bills that could affect agriculture. A few bills aren’t seeing much action, though. Here’s a summary of recent activity and inactivity at the Statehouse.

Newly introduced bills

H.B. 440 and S.B.241 – Agricultural Linked Deposit Program. This pair of bills introduced on September 30, 2021 by Representatives Swearingen (R-Huron) and White (R-Kettering) and Senators Cirino (R-Kirtland) and Rulli (R-Salem) is one of three bills in the “Ohio Gains Initiative” offered in partnership with Ohio Treasurer Robert Sprague. The Initiative proposes three new investment reforms affecting agriculture, health systems, and higher education. The agricultural proposal in H.B. 440 and S.B. 241 would expand the current Ag-LINK loan program that provides interest rate reductions of up to 3% on operating loans. The bill would make the loans available to cooperatives in addition to farm operators and agribusinesses and would also remove the $150,000 cap on Ag-LINK loans. It’s been referred to the House Financial Institutions Committee and the Senate Financial Institutions & Technology Committee.

Bills on the move

H.B. 175 – Deregulate certain ephemeral water features. The bill addresses “ephemeral features”—surface water that flows or pools only in direct response to precipitation but that is not a wetland. Under the proposal, ephemeral features would be exempt from water pollution control programs in Ohio, including the Clean Water Act Section 401 Water Quality Certification Program, as proposed in the federal 2020 Navigable Waters Protection Rule now on hold. The bill would also eliminate the certification review fee for ephemeral streams. H.B. 175 passed the House on September 30, 2021, amidst strong opposition. It awaits review before the Senate Agriculture and Natural Resources Committee.

H.B. 397 – Agricultural lease law. A proposal to address termination dates and notice provisions for crop leases received its second hearing before the House Agriculture and Conservation Committee on October 12. H.B. 397 would require a landowner who wants to terminate a crop lease that doesn’t address termination to do so by providing a written notice of termination to the tenant by September 1 of the year the termination would be effective. Discussion at the committee hearing could result in a broadening of the bill to include pasture leases.

S.B. 47 – Overtime pay. The Senate passed this bill on September 22, and it has since been referred to the House Commerce and Labor Committee. The bill exempts certain activities from the requirement for an employer to pay overtime wages. Under the proposal, traveling to and from a worksite would be exempt from overtime. Performing preliminary or postliminary tasks and activities outside of work hours that require insubstantial periods of time, such as checking email or voice mail, would also be exempt. The bill now moves to the House Commerce and Labor Committee.

Bills not moving

Several bills we’ve been watching have not generated continued interest at the Statehouse, including:

• H.B. 95, the Beginning Farmers bill that would provide income tax credits for beginning farmers who attend approved financial management programs and for owners who sell land and agricultural assets to certified beginning farmers. It passed the House in late June but was removed from the agenda when first scheduled for a hearing before the Senate Ways and Means Committee on September 28, 2021.
• H.B. 30, the bill adding marking and lighting requirements to animal-drawn vehicles, also passed the House in late June but has not seen action since its second hearing before the Senate Transportation Committee on September 22, 2021.
• H.B. 385, which would prohibit municipalities in the Western Basin of Lake Erie from discharging waste into those waters, fine those who do, and revoke NPDES permits for municipalities owning treatment works or sewerage systems within the Western Basin. The bill received one hearing before the House Agriculture and Conservation Committee on September 28.
• H.B. 349, which would place a moratorium on granting permits for a new construction or expansion of a regulated animal feeding facility in the Maumee watershed if the Ohio Department of Agriculture has determined that the phosphorus load in the Maumee River exceeded a specified number. The House Agriculture and Conservation Committee has not scheduled the bill for a hearing since it was referred to the committee on June 16, 2021.

Bills now effective

S.B. 52, the bill addressing large-scale wind and solar facility development in Ohio, became effective on October 11, 2021. The bill allows county commissioners to prohibit wind and solar developments and to establish restricted areas in the county that are off limit to the developments, gives county citizens an opportunity to place a restricted area designation on the ballot, increases local awareness and engagement in review of a proposed facility, and requires decommissioning plans and bonds for approved developments. Learn more about S.B. 52 with our law bulletins and videos on the new laws, available in our energy law library.

Hear our next review of state and federal legislation in Farm Office Live on November 17 and 19, 2021. More information is available here.

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Tags: legislation, ag-link, ephemeral water, water pollution, leases, overtime, beginning farmers, slow moving vehicles, roadway, CAFF, animal feeding, Lake Erie, waste, solar, wind, renewable energy, sb 52
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Did you know that the fastest animal in the world is the Peregrine Falcon?This speedy raptor has been clocked going 242 mph when diving.

Like the Peregrine Falcon, this week’s Ag Law Harvest dives into supply chain solutions, new laws to help reduce a state’s carbon footprint, and federal and state case law demonstrating how important itis to be clear when drafting legislation and/or documents, because any ounce of ambiguity could lead to a dispute.

Reinforcing the links in the supply chain.President Joe Bidenannouncedthat ports, dockworkers, railroads, trucking companies, labor unions, and retailers are all coming together and have agreed to do their part to help reduce the supply chain disruption that has left over 70 cargo ships floating out at sea with nowhere to go.In his announcement, President Biden disclosed that the Port of Los Angeles, the largest shipping port in the United States, has committed to expanding its hours so that it can operate 24/7; labor unions have announced that its workers have agreed to work the additional hours; large companies like Walmart, UPS, FedEx, Samsung, Home Depot and Target have all agreed to expand their hours to help move product across the country.According to the White House, this expanded effort will help deliver an extra 3,500 shipping containers per week.Port and manufacturing disruptions have plagued retailers and consumers since the beginning of the COVID-19 pandemic.Farming equipment and parts to repair farming equipment are increasingly in short supply.The White House hopes that through these agreements, retailers and consumers can finally start to see some relief.

California breaking up with gas powered lawn equipment.California Governor Gavin Newsom recently signed a new bill into law that would phase out the use of gas-powered lawn equipment in California.Assembly Bill 1346requires that new small off-road engines (“SOREs”), used primarily in lawn and garden equipment, be zero-emission by 2024.The California legislation seeks to regulate the emissions from SOREs which have not been as regulated as the emissions from other engines.According to the legislation, “one hour of operation of a commercial leaf blower can emit as much [reactive organic gases] plus [oxides of nitrogen] as driving 1,100 miles in a new passenger vehicle.”The new law requires the State Air Resources Board to adopt cost-effective and technologically feasible regulations to prohibit engine exhaust and emissions from new SOREs.Assembly Bill 1346 is a piece of the puzzle to help California achieve zero-emissions from off-road equipment by 2035, as ordered by Governor Newsome inExecutive Order N-79-20.

U.S. Supreme Court asked to review E15 Vacatur.A biofuel advocacy group, Growth Energy, filed apetitionasking the U.S. Supreme Court to review a federal court’sdecisionto abolish the U.S. Environmental Protection Agency’s (“EPA”) rule allowing for the year-round sale of fuel blends containing gasoline and 15% ethanol (“E15”).Growth Energy argues that theethanol waiver under the Clean Air Actfor the sale of ethanol blend gasoline applies to E15, the same as it does for gas that contains 10% ethanol (“E10”).Growth Energy also claims that limiting the ethanol waiver to E10 gasolines contradicts Congress’s intent for enacting the ethanol waiver because E15 better achieves the economic and environmental goals that Congress had in mind when it drafted the ethanol waiver.Growth Energy asks the Supreme Court to overturn the lower court’s decision and instead interpret the ethanol waiver as setting a floor, not a maximum, for fuel blends containing ethanol that can qualify for the ethanol waiver.Growth Energy now awaits the Supreme Court’s decision on whether or not it will take up the case.Visit our recent blog post for more background information on E15 and the waivers at issue.

When in doubt, trust the trust.A farm family in Preble County may finally be able to find some closure after the12th District Court of Appeals affirmedthe Preble County Court of Common Pleas’ decision to prevent a co-trustee from selling farm property.Dorothy Wisehart (“Dorothy”), the matriarch of the Wisehart family established the Dorothy R. Wisehart Trust (the “Trust”) in which she conveyed a one-half interest in two separate farm properties, both located within Preble County to the Trust.Dorothy retained her one-half interest in the two farms which passed to her son, Arthur, upon her death.Furthermore, upon Dorothy’s death, the Trust became an irrevocable trust with Arthur as the sole trustee.The Trust had five income beneficiaries – Arthur’s wife and four kids.The Trust specifically allowed for removal and replacement of the trustee upon the written request of 75% of the income beneficiaries.In 2010, four of the five income beneficiaries executed a document removing Arthur as the sole trustee and instead placed Arthur and Dodson, Arthur’s son and one of the income beneficiaries, as co-trustees.Arthur, however, argued that only Dorothy had the power to remove and appoint a new trustee and once Dorothy passed, no new trustee could be appointed.In 2015, Dodson filed suit against his father after Arthur allegedly tried to sell the two farms and further alleged that Arthur breached his fiduciary duty by withholding funds from the Trust.Dodson also asked the court to determine the issue of whether Dodson was validly appointed as co-trustee.The common pleas court sided with Dodson and found that (1) the Trust held an undivided one-half interest in the farms, (2) Dodson was validly appointed as co-trustee, and (3) Arthur wrongfully withheld funds from the Trust, breaching his fiduciary duty as a trustee.Arthur appealed, arguing that the case was not “justiciable” because the harms alleged by Dodson were hypothetical and no real harm occurred.However, the 12th District Court of Appeals disagreed with Arthur.The court found that the Trust expressly provided for the removal and appointment of trustees by 75% of the income beneficiaries.Further, the court ruled that this case was justiciable because Dodson’s allegations needed to be resolved by the courts or else real harm would have occurred to the income beneficiaries of the Trust.This case highlights perfectly the importance of having well drafted estate planning documents to help clear up any disputes that may arise once you’re gone.

No need to cut the “GRAS” today.Consumer advocates, Center for Food Safety (“CFS”) and Environmental Defense Fund (“EDF”), brought suit against the Food and Drug Administration (“FDA”) asking the court to overturn theFDA’s rule regarding “Substances Generally Recognized as Safe (the “GRAS Rule”).According to the plaintiffs, the GRAS Rule subdelegated the FDA’s duty to ensure food safety in violation of the United States Constitution, the Administrative Procedure Act (“APA”), and the Federal Food, Drug, and Cosmetic Act (“FDCA”).In 1958, Congress enacted the Food Additives Amendment to the FDCA which mandates that any food additive must be approved by the FDA.However, the definition of “food additive” does not include those substances that are generally recognized as safe.Things like vinegar, vegetable oil, baking powder and many other spices and flavors are generally recognized as safe to use in food and not considered to be a food additive.Under the GRAS Rule, anyone may voluntarily, but is not required to, notify the FDA of their view that a substance is a GRAS substance.There are specific guidelines and information that must be presented to back up a manufacturer’s claim that a substance is GRAS.In any case, the FDA retains the authority to issue warnings to manufacturers and to stop distribution when the FDA believes that a substance is not a GRAS substance.Plaintiffs claim that under the GRAS Rule, the FDA is subdelegating its duty by allowing manufacturers to voluntarily notify the FDA of a GRAS substance rather than requiring it.However, theFederal District Court for the Southern District of New York foundthat the FDA did not subdelegate its duties because the FDCA does not require the FDA provide prior authorization that a substance is GRAS.Further, the court held that the FDA has done nothing more than implement a process by which manufacturers can notify the FDA of GRAS determinations and the FDA can choose to agree or disagree.The court reasoned that even if a mandatory GRAS notification procedure or prior approval process were in place, manufacturers could simply lie about what’s in their products and the FDA would be none the wiser.The court also noted that mandatory submissions would consume the FDA’s resources which would be better spent evaluating higher priority substances.The court ultimately concluded that the FDA’s GRAS Rule does not highlight a constitutional issue, nor does it violate the FDCA or APA.

Posted In: Contracts, Environmental, Estate and Transition Planning, Food, Property, Renewable Energy, Uncategorized
Tags: E15, ethanol, GRAS, Food Additives, trusts, Estate Planning, Zero Emissions, Supply Chain, Environment, FDA, FDCA, APA, Clean Air Act
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Large-scale wind and solar energy development has generated both opportunity and conflict across Ohio in recent years. For several months, we monitored the progress of Senate Bill 52, a proposal intended to address community and landowner concerns about wind and solar facilities. This past Monday marked the effective date for Senate Bill 52, passed by the Ohio Legislature in June, and we've been busy developing new resources to help explain the laws that are now effective.

The legislation expands local involvement in the siting and approval of large-scale wind and solar facilities in several ways:

• County commissioners may designate “restricted areas” where such facilities may not locate.
• County citizens may petition for a referendum to approve or reject restricted area designations.
• Developers must hold a public meeting overviewing a proposed facility in the county where it would locate.
• County commissioners may prohibit or limit a proposed wind or solar facility after learning of it at the public meeting.
• County and township representatives must sit on the Ohio Power Siting Board committee that reviews facility applications.

The new laws also require wind and solar developers to submit decommissioning plans and performance bonds to address removal of a facility at the end of its lifetime.

Our two law bulletins and video series on Senate Bill 52 are now available. The resources work through each part of Senate Bill 52 and explain which types of facilities will be subject to the laws. You'll find the new resources in our energy law library on the Farm Office website at https://farmoffice.osu.edu/our-library/energy-law.

Posted In: Renewable Energy
Tags: renewable energy, solar energy, solar leasing, wind energy, Senate Bill 52
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Posted In: Tax
Tags: tax, sales tax, agricultural exemption from sales tax, Ohio tax law
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Barry Ward & Julie Strawser, OSU Income Tax Schools

Dealing with the tax provisions of the COVID-related legislation for both individuals and businesses are among the topics to be discussed during the upcoming Tax School workshop series offered throughout Ohio in November and December.

The annual series is designed to help tax preparers learn about federal tax law changes and updates for this year as well as learn more about issues they may encounter when filing individual and small business 2021 tax returns.

OSU Income Tax Schools are intermediate-level courses that focus on interpreting tax regulations and changes in tax law to help tax preparers, accountants, financial planners and attorneys advise their clients. The schools offer continuing education credit for certified public accountants, enrolled agents, attorneys, annual filing season preparers and certified financial planners.

Attendees also receive a class workbook that alone is an extremely valuable reference as it offers over 600 pages of material including helpful tables and examples that will be valuable to practitioners. Summaries of the chapters in this year’s workbook can be viewed at this site:

https://farmoffice.osu.edu/tax/2021-tax-school-chapters

A sample chapter from a past workbook can be found at:

https://taxworkbook.com/about-the-tax-workbook/

This year, OSU Income Tax Schools will offer both in-person schools and an online virtual school presented over the course of four afternoons.

In-person schools:

November 1-2, Presidential Banquet Center, Kettering/Dayton

November 3-4, Ole Zim’s Wagon Shed, Gibsonburg/Fremont

November 17-18, Ashland University John C. Meyer Convocation Center, Ashland

November 22-23, Christopher Conference Center, Chillicothe

November 29-30, Zane State/Ohio University Zanesville Campus, Zanesville

December 2-3, Nationwide & Ohio Farm Bureau 4-H Center, OSU Campus, Columbus

December 6-7, Hartville Kitchen, Hartville

Virtual On-Line School presented via Zoom:

November 8, 12, 15 & 19, 12:30 – 4:45 p.m.

Register two weeks prior to the school date and receive the two-day tax school early-bird registration fee of $400. This includes all materials, lunches and refreshments. The deadline to enroll is 10 business days prior to the date of each school. After the school deadline, the fee increases to $450.

Additionally, the 2022 RIA Federal Tax Handbook is available to purchase by participants for a discounted fee of $50 each. Registration information and the online registration portal can be found online at:

http://go.osu.edu/2021tax

In addition to the tax schools, the program offers a separate, two-hour ethics webinar that will broadcast Wednesday, Dec. 15 at 1 p.m. The webinar is $25 for school attendees and $50 for non-attendees and is approved by the IRS and the Ohio Accountancy Board for continuing education credit.

A webinar on Ag Tax Issues will be held Monday, Dec. 13 from 8:45 a.m. to 3:20 p.m.

If you are a tax practitioner that represents farmers or rural landowners or are a farmer or farmland owner that prepares your own taxes, this five-hour webinar is for you. It will focus on key topics and new legislation related specifically to those income tax returns.

Registration, which includes the Ag Tax Issues workbook, is $150 if registered at least two weeks prior to the webinar. After November 29, registration is $200. Register by mail or on-line at https://go.osu.edu/agissues2021.

Participants may contact Ward at 614-688-3959, ward.8@osu.edu or Julie Strawser 614-292-2433, strawser.35@osu.edu for more information.

Posted In: Business and Financial, Legal Education, Tax
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Each year, preliminary crop enterprise budgets are unveiled at the Farm Science Review which reveals our best estimates for costs and returns for the main row crops in Ohio for the upcoming year. With continued high crop prices projected for 2022 there is some optimism, however, higher costs will likely decrease profit margins to levels lower than 2021 margins.

Production costs for Ohio field crops are forecast to be higher compared to last year with higher fertilizer, seed, chemical, fuel, machinery and repair costs leading the way.

Variable costs for corn in Ohio for 2022 are projected to range from $477 to $583 per acre depending on land productivity. Variable costs for 2022 Ohio soybeans are projected to range from $266 to $302 per acre. Wheat variable expenses for 2022 are projected to range from $213 to $262 per acre. These are increases over last year of 19%, 18%, and 25% for corn, soybeans and wheat, respectively.

If the current grain prices and costs endure through next year, profit margins will likely be positive although higher costs may create losses for some producers. Grain prices currently used as assumptions in the 2022 crop enterprise budgets are $4.80/bushel for corn, $12.20/bushel for soybeans and $6.90/bushel for wheat. Projected returns above variable costs (contribution margin) range from $226 to $472 per acre for corn and $288 to $529 per acre for soybeans. Projected returns above variable costs for wheat range from $191 to $344 per acre.

Return to Land is a measure calculated to assist in land rental and purchase decision making. The measure is calculated by starting with total receipts or revenue from the crop and subtracting all expenses except the land expense. Returns to Land for Ohio corn (Total receipts minus total costs except land cost) are projected to range from $54 to $283 per acre in 2022 depending on land production capabilities. Returns to land for Ohio soybeans are expected to range from $166 to $393 per acre depending on land production capabilities. Returns to land for wheat (not including straw or double-crop returns) are projected to range from $99 per acre to $242 per acre.

Total costs projected for trend line corn production in Ohio are estimated to be $919 per acre. This includes all variable costs as well as fixed costs (or overhead if you prefer) including machinery, labor, management and land costs. Fixed machinery costs of $78 per acre include depreciation and other overhead. A land charge of $207 per acre is based on data from the Western Ohio Cropland Values and Cash Rents Survey Summary. Labor and management costs combined are calculated at $82 per acre. Details of budget assumptions and numbers can be found in footnotes included in each budget.

Total costs projected for trend line soybean production in Ohio are estimated to be $619 per acre. (Fixed machinery costs: $62 per acre, land charge: $207 per acre, labor and management costs combined: $53 per acre.)

Total costs projected for trend line wheat production in Ohio are estimated to be $541 per acre. (Fixed machinery costs: $36 per acre, land charge: $207 per acre, labor and management costs combined: $48 per acre.)

Current budget analyses indicates favorable returns for soybeans compared to corn or wheat but crop price change, harvest yields and other factors through fall and into summer of next year may change this outcome. These projections are based on OSU Extension Ohio Crop Enterprise Budgets. Newly updated Enterprise Budgets for 2022 have been completed and posted to the Farm Office website: https://farmoffice.osu.edu/farm-mgt-tools/farm-budgets

In addition to projected row crop budgets for 2022, there are newly updated forage budgets posted to our Farm Office site. These include Alfalfa Hay, Alfalfa Haylage and Corn Silage. Also recently updated are two Market Beef Budgets which include Market Beef Budget (Self-Fed) and Market Beef Budget (Bunk-Fed).

Posted In: Business and Financial, Crop Issues
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Did you know that the Nile Crocodile has the strongest bite of any animal in the world?The deadly jaws can apply 5,000 pounds of pressure per square inch, which is about 10 times more powerful than the crunch of the Great White Shark. Humans?Well, they can apply about 100 pounds of pressure per square inch.

This edition of the Ag Law Harvest takes a bite out of some federal lawsuits, Department of Labor developments, and USDA announcements affectingagriculture and the environment.

Animal advocates lack standing to sue poultry producer.In 2020, animal advocacy groups In Defense of Animals (“IDA”) and Friends of the Earth (“FoE”) (collectively the “Plaintiffs”) filed a lawsuit against Sanderson Farms (“Sanderson”), a Mississippi poultry producer, alleging that Sanderson engaged in false advertising as it relates to its chicken products.According to Plaintiffs, Sanderson advertises that its chickens are “100% natural” with no “hidden ingredients.”However, Plaintiffs allege that Sanderson has been misleading the public after many of Sanderson’s products tested positive for antibiotics and other unnatural substances.This however is not the first court battle between FoE and Sanderson.In 2017, FoEsuedSanderson for the same false advertising.However, the 2017 case was dismissed because the court held that FoE did not have standing to bring the lawsuit.The 2017 case was appealed to the Ninth Circuit Court of Appeals where the decision to dismiss the lawsuit wasupheld.Fast forward to 2020, FoE joined forces with a new plaintiff, IDA, hoping to file a lawsuit that would finally stick.Recently however, a federal district court in Californiadismissedthe most recent lawsuit because FoE was precluded, or prohibited, from suing Sanderson again on the same claims and because IDA lacked the standing to bring the lawsuit.The California district court found that FoE could not bring its claims against Sanderson because those same claims were litigated in the 2017 lawsuit.This legal theory, known as issue preclusion, prevents the same plaintiff from a previous lawsuit from bringing the same claims against the same defendant in a new lawsuit, when those claims were resolved or disposed of in a prior lawsuit.Issue preclusion did not affect IDA, however, because it was a new plaintiff.But the California district court still found that IDA lacked standing to bring this lawsuit against Sanderson.IDA argued that because it expended resources to launch a campaign against Sanderson to combat the allegedly false advertising, it had organizational standing to bring the lawsuit.Standing requires a plaintiff to show they suffered an “injury-in-fact” before they can maintain a lawsuit.Organizational standing is the theory that allows an organization like IDA to establish an “injury-in-fact” if it can demonstrate that: (1) defendant frustrated its organizational mission; and (2) it diverted resources to combat the defendant’s conduct.IDA argued that because it diverted resources including writing letters to Sanderson and the Federal Trade Commission, filing a complaint with the Better Business Bureau, publishing articles and social media posts, and diverting staff time from other campaigns to focus on countering Sanderson’s advertising, it had the organizational standing to bring the lawsuit.The Court disagreed.The Court reasoned that the diverting of resources by IDA was totally voluntary and not a result of Sanderson’s advertising.The Court determined that in order to obtain organizational standing, IDA must have been forced to take the actions it did as a result of Sanderson’s advertising, the diverting of resources cannot be self-inflicted.The Court held that Sanderson’s advertising did not ultimately frustrate IDA’s organizational mission and that any diverting of resources to counter Sanderson’s advertising was the normal course of action taken by a group like IDA.

Joshua trees, a threatened species?WildEarth Guardians (“Plaintiff”), a conservation organization, brought suit against the U.S. Secretary of the Interior and the U.S. Fish and Wildlife Service (“Defendants”) for failing to list the Joshua tree as a threatened species under the Endangered Species Act (“ESA”).Plaintiff argued that the Defendants’ decision not to list the Joshua tree as threatened was arbitrary, capricious, contrary to the best scientific and commercial data available, and otherwise not in line with the standards set forth by the ESA.In 2015 Plaintiff filed a petition to have the Joshua tree listed as a threatened species after Plaintiff provided scientific studies showing that climate change posed a serious threat to the continued existence of the Joshua tree.The U.S. Fish and Wildlife Service (“FWS”) issued a 90-day finding that Plaintiff’s petition presented credible information indicating that listing the Joshua tree as threatened may be warranted.However, the FWS’s 12-month finding determined that listing the Joshua tree as threatened or endangered under the ESA was not necessary due to the Joshua tree’s long lifespan, wide range, and ability to occupy multiple various ecological settings.That’s when Plaintiff decided to bring this lawsuit asking the federal district court in California to set aside the 12-month finding and order the Defendants to prepare a new finding,and the Court agreed.The Court held that Defendants’ decision was arbitrary, capricious, and contrary to the ESA and ordered the Defendants to reconsider Plaintiff’s petition.The Court reasoned that the FWS’s climate change conclusions were arbitrary and capricious because it failed to consider Plaintiff’s scientific data and failed to explain why in its 12-month finding.Further, the Court noted that the FWS’s findings regarding threats to the Joshua tree posed by climate change and wildfire were unsupported, speculative, or irrational.And finally, the Court determined that the FWS’s conclusion that Joshua trees are not threatened in a significant portion of their range was arbitrary and capricious.The FWS must now prepare a new finding that addresses all the above deficiencies.

Department of Labor announces expanded measures to protect workers from extreme heat.The U.S. Department of Labor (“DOL”)announcedthat the Occupational Safety and Health Administration (“OSHA”) is working on ways to protect workers in hot environments and reduce the dangers associated with exposure to high heat.According to the DOL, OSHA will be implementing anenforcement initiativeon heat-related hazards,developing aNational Emphasis Programon heat inspections, and launching a rulemaking process to develop a workplace heat standard.Current and future extreme heat initiatives and rules apply to indoor and outdoor worksites in general industry, construction, agriculture and maritime where potential heat-related hazards exist.

Deadline to apply for pandemic assistance to livestock producers extended.The USDAannouncedthat it is providing additional time for livestock and poultry producers to apply for thePandemic Livestock Indemnity Program(“PLIP”).Producers who suffered losses during the Covid-19 pandemic due to insufficient access to processing may now apply for relief for those losses through October 12, 2021.Payments are based on 80% of the fair market value of the livestock and poultry and for the cost of depopulation and disposal of the animals.Eligible livestock include swine, chickens, and turkeys.For more information on PLIP, and how to apply, visitfarmers.gov/plip.

Posted In: Animals, Conservation Programs, Environmental, Food, Labor
Tags: USDA, endangered species act, Food Labeling, conservation, Labor and Employment, Heat
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As it often goes with farming, the weather interfered a bit with Farm Science Review this year. We missed seeing farmers and students from across the state gather for the show on Wednesday. But even wind and rain didn’t stop our Farm Office team, above, from presenting Farm Office Live from the Review on Thursday. I gave an update on Ohio legislation, as Ohio’s legislature is back from its summer break. Here’s a summary of the legislation I discussed at our Farm Science Review program.

Bills passed and soon effective

S.B. 52 – Solar and wind facilities. S.B. 52 passed several months ago and will be effective on October 11, 2021. The new law will allow counties to designate “restricted areas” in a county where wind and solar projects may not locate and creates a county referendum process for a public vote on restricted area designation. The law will also require developers to hold a public meeting in the county where a facility is proposed at least 90 days before applying for project approval with the Ohio Power Siting Board. After the meeting, the county commissioner may choose to prohibit or limit the proposed project. Another provision of the new law appoints 2 local officials from the proposed location to serve on the OPSB board that reviews a project. And importantly for landowners, the new law requires a developer to submit a decommissioning plan to OPSB for approval with the application and to post and regularly update a performance bond for the amount of decommissioning costs. Watch for our new law bulletins on S.B. 52, which we’ll publish soon.

Bills on the move

H.B. 30 – Slow-moving vehicles. The bill passed the House on June 23, 2021, and just received its second hearing before the Senate Transportation on September 22, 2021. It proposes revisions to marking and lighting requirements for animal-drawn vehicles to make the vehicles more visible and reduce roadway accidents.

H.B. 95 – Beginning farmers. We’ve been hoping this bill aiding beginning farmers would continue to receive attention. It would allow individuals to be certified as beginning farmers and create income tax credits for owners who sell land and agricultural assets to certified beginning farmers and for beginning farmers who attend approved financial management programs. The bill passed the House on June 28, 2021 and was referred to the Senate Ways and Means Committee on September 8, 2021.

S.B. 47 – Overtime pay. The Senate passed S.B. 47 on September 22, soon after returning from break. It would exempt an employer from paying overtime wages for certain activities, including traveling to the workplace, actions before or after beginning principal work activities, or “de minimus” acts requiring insignificant time. The bill sponsors state that it will bring necessary clarity to overtime pay in the era of more employees working unsupervised from home.

Bills newly introduced

H.B. 397 – Termination of Agricultural Lease. A bill that aims to bring certainty to farmland leases was introduced in the House on August 24, 2021 and referred to the Agriculture and Conservation Committee. The proposal states that where a farm lease agreement does not provide for a termination date or a method for giving notice of termination, a landlord who wants to terminate that agreement must do so in writing by September 1. Unless otherwise agreed in writing, the termination date would be either the date harvest or removal of the crops is complete or December 31, whichever is earlier.

H.B. 385 – Municipal waste discharges to Lake Erie western basin Municipalities would be prohibited from discharging waste from treatment plants into Lake Erie under a new bill proposed by Rep. Jon Cross (R-Kenton). The bill would require the Ohio EPA to revoke all existing NPDES permits for municipal treatment works or sewerage systems to in the western basin and prohibit any additional permits for that purpose. It would also fine municipalities up to $250,000 per day for knowingly discharging waste into Lake Erie on the first offense and $1,000 per day for subsequent offenses, or to fine $100 million if the discharge amount exceeds 100 million gallons in a 12-month period. Introduced on August 6, 2021, the bill has been referred to the House Agriculture and Conservation Committee.

Catch a replay Farm Office Live from Farm Science Review at https://farmoffice.osu.edu/farmofficelive. Register at that site to join us for the next Farm Office Live on October 13 at 7 p.m. or a repeat on October 15 at 10 a.m., whern the Farm Office team will digest the latest news and information on agricultural law and farm management issues that affect Ohio’s farm offices.

Posted In: Business and Financial, Contracts, Environmental, Labor, Renewable Energy
Tags: Ohio legislation
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It’s time to round up another batch of legal Q&A. Here's a sampling of questions from around the state that we’ve recently received in the Farm Office.

My township recently notified me of having noxious weeds. They identified "ragweed" as the problem, but the Ohio Revised Code's list of noxious weeds doesn’t list "ragweed.” What are my rights? Under Ohio law, you have five days to respond to the township trustees to explain that no action need to be taken because no noxious weeds exist on the property and that plants were incorrectly identified as noxious weeds. Therefore, your conversations with the township trustees should have met the legal requirements because you notified them that plants were incorrectly identified as noxious weeds. Having a written record is always best, just in case there is ever a dispute, so you may want to follow up with the townships trustees in an email, just to confirm that no action need to be taken.

I read that each landowner has a ten foot right of access on either side of the fence row. How does that work? The ten foot right of access is for a situation where one neighbor hasn’t shared in the construction of the line fence. If a landowner chooses to build a line fence and the adjoining neighbor doesn’t share in the construction of the fence. Ohio Revised Code Section 971.08 allows the landowner to enter the neighbor’s property for up to ten feet for the length of the fence to build and maintain the fence. A landowner who stays within that ten feet strip cannot be held guilty for trespassing, but can be liable for any damages caused on the neighbor’s property, including damages to crops.

A neighbor is spraying herbicides on the fence row where an adjoining neighbor is raising organic livestock. Is there anything the livestock operator can do? There could be a spray drift issue if the herbicides are coming over onto the organic producer’s property. The most common legal action for dealing with spray drift is negligence, and another legal theory is trespass. If the drift causes harm, there would be a legal claim under either of those theories and the sprayer could be liable for harm caused by the drift. Before moving right to a lawsuit, however, a letter from an attorney that explains the potential liability for the drift could be helpful. Losing the organic certification would be costly, and an attorney would likely point that out. Those types of letters don’t take a lot of time and wouldn’t be as costly as filing a lawsuit. Additionally, the sprayer’s insurance policy might address negligence for spray drift and could provide a mechanism for compensation to the livestock producer.

We are in the process of buying a farm property to raise horses and relocate a small craft brewery to the location and grow hops and barley for the brewery. Can you provide information to help navigate the legal issues in doing this? Let’s start with two separate issues—the liquor licensing issue and the zoning issue. You may already know that Ohio has a relatively new licensing law that eases the liquor license process for small brewers—the A-1c license, explained at https://www.com.ohio.gov/liqr/permitclasses.aspx. That would allow you to brew and sell onsite if you meet the license requirements.

The zoning question is not as straightforward and instead is an “it depends” answer. Ohio zoning law does specifically exempt wineries from local zoning regulation, if the winery is growing grapes. There is not a similar specific exemption for breweries, though. In some situations, the agricultural exemption from zoning authority applies and prevents the township from prohibiting an agricultural use if it meets the definition of “agriculture.” Some of the activities you describe, growing hops and grains and raising horses, do fit within that definition. Processing and marketing activities, like making and selling beer on-site, only fit within that definition if they are “secondary to” the growing/production activities. Showing that the brewery would be a “secondary” use to the primary production activities could be difficult, and there aren’t clear standards on how to prove which is primary and which is secondary. Some townships have examined amount of the property dedicated to the different uses, some have examined financial returns of the different uses, some have looked at amount of time… it’s a bit gray and open to interpretation.

The other way to be exempt from zoning regulations would be to prove that the brewery is “agritourism.” This requires first showing that the activity is a cultural, recreational, entertainment or historic activity that is “agriculturally related” to the property and that the property qualifies as a “working farm” that is engaged in commercial agricultural production. Townships vary on how closely they examine these different components, but it seems that many are becoming more strict about what is and is not “agriculturally related” to the property. If none of the exemptions apply, whether you could engage in the land use would depend on your district zoning provisions. You’d want the zoning district to allow a brewery activity as a permitted use in the zoning district, or to be able to seek a “conditional use” permit for it.

If someone has a hornet’s nest in the yard in a neighborhood with a sidewalk, is there concern if the hornets were to attack someone walking by? This is one of those “maybe” answers. We don’t have clear legal guidance or court cases on liability for stings in Ohio, and my guess is that’s because the cases may settle out in the insurance process. The hornet nest, though, is probably a natural situation that is less likely to result in liability on the landowner’s part than a manmade condition, especially if the nest is out in the open and easily seen. The law expects people to bear responsibility to protect themselves from open and obvious natural dangers. However, the fact that the landowner knows it is there could be problematic given the neighborhood situation, as in “you should have done something about it because you knew people would be walking by,” especially if it’s not easy for passers-by to detect it or if the landowner knows someone in the neighborhood is allergic to bees. To avoid the risk of potential harm or problems, the landowner could consider either putting up a sign warning about the nest or have it removed. The cost of removal would probably be less than an injury claim or a lawsuit. The landowner may also want to talk with her insurance agent to see if there would be coverage for an incident—likely not, but it’s worth an ask. That might bring the landowner some peace of mind if he or she allows it to remain.

If you have an agricultural law question, send it to aglaw@osu.edu and we'll do our best to provide an answer. We can't give you legal advice,of course, but we can explain the laws that apply to the situation. Also be sure to check for answers in our law bulletins on the Ag Law Library, here on the Farm Office website.

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Tags: noxious weed law, line fence law, partition fence law, spray drift, farm brewery, Zoning, agricultural zoning, agritourism, bee sting liability
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Farm Science Review is back! OSU's Farm Office Team will be there, and we'll broadcast the next Farm Office Live from our farm office at the Review. We can't promise we'll be able to ignore biscuits and gravy, pork tenderloins, bahama mamas, or milkshakes during Farm Office Live, but we can promise you updates on recent developments in the world of farm management and agricultural law.

The broadcast will be on Thursday, September 23 beginning at 10 a.m. Here's what's on the agenda:

• Carbon market programs and carbon agreements

• Legislative update

• 2022 crop budgets

• 2020 Farm Business Analysis program results from crop farms

• Ohio cash rental rates

• Dairy Market Volatility Assistance Program

• Highlights of FSR and upcoming programs

Who's on the Farm Office Live Team? OSU experts ready to help farmers, landowners and agribusiness professionals navigate the issues we all deal with in the farm office. Our team includes:

• Peggy Kirk Hall - Agricultural Law

• David Marrison - Farm Management

• Dianne Shoemaker - Farm Business Analysis and Dairy Production

• Barry Ward - Farm Management and Tax

To learn more and register for Farm Office Live, visit https://farmoffice.osu.edu/farmofficelive. Recordings of our previous Farm Office Live webinars are also available at that site.

Posted In: Business and Financial
Tags: Farm Office Live
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