Ohio Supreme Court rules that landowners can challenge CAUV values before the Board of Tax Appeals

Decisions announced today by the Ohio Supreme Court will allow landowners to challenge Current Agricultural Use Valuation (CAUV) land values established by Ohio’s tax commissioner by appealing the values to the Board of Tax Appeals.

Twin rulings in cases filed by a group of owners of woodland enrolled in CAUV, Adams v. Testa, clarify that when the tax commissioner develops tables that propose CAUV values for different types of farmland, holds a public hearing on the values and adopts the final values by journal entry, the tax commissioner’s actions constitute a “final determination” that a landowner may immediately appeal to the Board of Tax Appeals.   The Board of Tax Appeals had argued that the adoption of values is not a final determination and therefore is not one that a landowner may appeal to the Board.

The tax commissioner forwards the CAUV tables to the county auditors, who must use the values for a three year period.  An inability to appeal the values when established by the tax commissioner would mean that a landowner must wait until individual CAUV tax values are calculated by the county auditor, who relies upon the tax commissioner’s values to calculate the county values.    As a result of today’s decision, landowners may appeal the values as soon as the tax commissioner releases them.

The landowners also claimed that the process and rules for establishing the CAUV values are unreasonable and not legal.  However, the Court rejected those claims.

For an excellent summary of the Adams v. Testa cases by Court News Ohio, follow this link.

 

 

 

 

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Bill proposes immunity for Ohio beekeepers

ENT-79-honey-bee-hivesThe first hearing for a bill that would limit legal liability for Ohio beekeepers took place this week before the House Economic Development, Commerce and Labor Committee. The bill’s sponsor, Rep. Dick Stein (R-Norwalk), offered several reasons for the proposal, including that beekeeping has recently grown in popularity along with increased demand for honey products, bees play an important role in pollinating plants and contribute to the agricultural economy, and beekeepers have incurred expenses defending themselves against lawsuits that are typically unsuccessful.

House Bill 392 aims to provide immunity from liability for any personal injury or property damage that occurs in connection with keeping and maintaining bees, bee equipment, queen breeding equipment, apiaries, and appliances, as long as the beekeeper does all of the following:

  1. Registers the  with the Ohio Department of Agriculture, as is currently required by Ohio law;
  2. Operates according to Ohio Revised Code Chapter 909, which contains provisions for apiaries;
  3. Implements and complies with the best management practices for beekeeping as established by the Ohio State Beekeepers Association; and
  4. Complies with local zoning ordinance provisions for apiaries. Note that zoning ordinances for apiaries would exist only in incorporated areas, as Ohio’s “agricultural exemption from zoning” prohibits townships and counties from using zoning to regulate agricultural activities like beekeeping.

A beekeeper would not have immunity from liability resulting from intentional tortious conduct or gross negligence, however.

The second hearing for the bill will take place on December 5, 2017. Information about the proposal is available here.

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New care standards for Ohio veal and dairy to begin in 2018

Written by Ellen Essman, Law Fellow, Agricultural & Resource Law Program

Image of dairy cattle in field_0Veal and dairy producers in Ohio will be subject to new livestock care standards in 2018. Producers were first made aware of these changes when the Ohio Livestock Care Standards for veal, dairy and other species were originally adopted in September of 2011 after the passage of State Issue 2, a constitutional amendment that required Ohio to establish standards for the care of livestock. Since the new care standards make significant changes to the management of veal and dairy, producers were given a little more than six years to transition their facilities and practices accordingly. The new standards will be effective on January 1, 2018.  Producers with veal calves and dairy cattle are encouraged to understand the regulations and make the required changes to their operations by January 1.

Changes to veal regulations

The regulations for veal address housing for veal calves weighing 750 pounds or less. Currently, veal calves may be tethered or non-tethered in stalls of a minimum of 2 feet x 5.5 feet. Next year, the following housing standards will apply:

  • Tethering will be permitted only to prevent naval and cross sucking and as restraint for examinations, treatments and transit, if:
    • The tether is long enough to allow the veal calf to stand, groom, eat, lie down comfortably and rest in a natural posture;
    • The tether’s length and collar size is checked every other week and adjusted as necessary.
  • Individual pens must allow for quality air circulation, provide opportunity for socialization, allow calves to stand without impediment, provide for normal resting postures, grooming, eating and lying down, and must be large enough to allow calves to turn around.
  • By the time they are ten weeks old, veal calves must be housed in group pens. The regulations currently require that group pens meet the above standards required for individual pens and also must contain at least two calves with a minimum area of 14 square feet per calf, must separate calves of substantially different sizes and that calves must be monitored daily for naval and cross sucking and be moved to individual pens or provided other intervention for naval or cross sucking.

The veal regulations, including both the current rules and the rules that will become effective January 1, are available here.

Changes to dairy cattle regulations

There is only one change to the dairy care standards. As of January 1, docking the tails of dairy cattle will only be permissible if:

  • Performed by a licensed veterinarian; and
  • Determined to be medically necessary.

The dairy cattle standards, including the current tail docking rule and the rule that becomes effective January 1, are here.

More information is also available in this press release recently published by the Ohio Department of Agriculture and on the website for Ohio’s Livestock Care Stand

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Law bulletin helps livestock farmers with new air emissions reporting

Beginning today, farmers must now report air emissions of certain hazardous substances that exceed a reportable quantity under CERCLA, the Comprehensive Environmental Response, Compensation and Liability Act.  This new requirement affects livestock farmers with larger numbers of animals, as they may exceed the reportable quantity for ammonia emissions.  We’ve authored a new Law Bulletin on Continuous Release Reporting of Air Emissions for Livestock Farms to help farms determine whether they must report air emissions and if so, how to complete the reporting process.  The new bulletin is available here.

Read more about the new CERCLA air emissions reporting mandate in our earlier post.

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Ohio EPA sues Rover Pipeline for polluting state waters

Longstanding complaints against Rover Pipeline’s environmental practices while constructing an interstate natural gas pipeline across Ohio recently culminated in a lawsuit against the company.  Attorney General Mike Dewine filed the suit in Stark County on behalf of the Ohio EPA, alleging that Rover illegally discharged drilling fluids, sediment-laden storm water and several million gallons of drilling fluids into Ohio waters, including wetlands in Stark County.  The state seeks a court order requiring Rover to apply for state permits, comply with environmental plans approved and ordered by the Ohio EPA, and pay civil penalties of $10,000 per day for each violation.

To read more about the state’s claims visit this post by our partner, the National Agricultural Law Center.

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Farms must now begin reporting air releases of hazardous substances from animal wastes

Beginning November 15, 2017, many livestock, poultry and equine farms must comply with reporting requirements under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) section 103. The law requires entities to report releases of hazardous substances above a certain threshold that occur within a 24-hour period. Farms have historically been exempt from most reporting under CERCLA, but in the spring of 2017 the U.S. Court of Appeals for the District of Columbia Circuit struck down the rule that allowed reporting exemptions for farms. As long as there is no further action by the Court to push back the effective date, farmers and operators of operations that house beef, dairy, horses, swine and poultry must begin complying with the reporting requirements on November 15, 2017.

Farmers and operators, especially of sizeable animal operations that are likely to have larger air emissions, need to understand the reporting responsibilities. The Environmental Protection Agency (EPA) has published interim guidance to assist farms with the new compliance obligations. The following summarizes the agency’s guidance.

What substances to report

The EPA specifically names ammonia and hydrogen sulfide as two hazardous substances commonly associated with animal wastes that will require emissions reporting. Each substance has a reportable quantity of 100 pounds. If a farm releases 100 pounds or more of either substance to the air within a 24-hour period, the owner or operator must notify the National Response Center. A complete list of hazardous substances and their corresponding reportable quantities is here.

Note that farmers do not have to report emissions from the application of manure and fertilizers to crops or the handling, storage and application of pesticides registered under federal law. However, a farmer must report any spills or accidents involving these substances when they exceed the reportable quantity.

How to report

Under CERCLA, farm owners and operators have two compliance options—to report each release or to follow the continuous release reporting process:

  • For an individual release that meets or exceeds the reportable quantity for the hazardous substance, an owner or operator must immediately notify the National Response Center (NRC) by phone at 1-800-424-8802.
  • Continuous release reporting allows the owner or operator to file an “initial continuous release notification” to the NRC and the EPA Regional Office for releases that will be continuous and stable in quantity and rate. Essentially, this puts the authorities “continuously” on notice that there will be emissions from the operation within a certain estimated range. If the farm has a statistically significant increase such as a change in the number of animals on the farm or a significant change in the release information, the farm must notify the NRC immediately. Otherwise, the farm must file a one year anniversary report with the EPA Regional Office to verify and update the emissions information and must annually review emissions from the farm. Note that a farm must submit its initial continuous release notification by November 15, 2017.

No reporting required under EPCRA

The litigation that led to CERCLA reporting also challenged the farm exemption from reporting for the Emergency Planning and Community Right to Know Act (EPCRA). EPRCRA section 304 requires facilities at which a hazardous chemical is produced, used or stored to report releases of reportable quantities from the chemicals. However, EPA explains in a statement issued on October 25, 2017 that the statute excludes substances used in “routine agricultural operations” from the definition of hazardous chemicals. EPCRA doesn’t define “routine agricultural operations,” so EPA states that it interprets the term to include regular and routine operations at farms, animal feeding operations, nurseries, other horticultural operations and aquaculture and a few examples of substances used in routine operations include animal waste stored on a farm and used as fertilizer, paint used for maintaining farm equipment, fuel used to operate machine or heat buildings and chemicals used for growing and breeding fish and plans for aquaculture. As a result of this EPA interpretation, most farms and operations do not have to report emissions under EPCRA. More information on EPA’s interpretation of EPCRA reporting for farms is here.

What should owners and operators of farms with animal wastes do now?

  1. Review the EPA’s interim guidance on CERCLA and EPCRA Reporting Requirements, available here.
  2. Determine if the operation may have reportable quantities of air emissions from hazardous substances such as ammonia or hydrogen sulfide. The EPA offers resources to assist farmers in estimating emission quantities, which depend upon the type and number of animals and type of housing and manure storage facilities. These resources are available here.
  3. A farm that will have reportable emissions that are continuous and stable should file an initial continuous release notification by November 15, 2017. A guide from the EPA for continuous release reporting is here. Make sure to understand future responsibilities under continuous release reporting.
  4. If not operating under continuous release reporting, immediately notify the National Response Center at National Response Center (NRC) at 1-800-424-8802 for any release of a hazardous substance that meets or exceeds the reportable quantity for that substance in a 24-hour period, other than releases from the normal application or handling of fertilizers or pesticides.
  5. Learn about conservation measures that can reduce air pollution emissions from agricultural operations in this guide from the EPA.

Note that the EPA is seeking comments and suggestions on the resources the agency is providing or should provide to assist farm owners and operators with meeting the new reporting obligations. Those who wish to comment should do so by November 24, 2017 by sending an e-mail to CERCLA103.guidance@epa.gov.

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Ohio law students excel at American Agricultural Law Association Conference

Evin and Devon AALA 2017

The American Agricultural Law Association held its national conference last week in Louisville, Kentucky, and two Ohio law students from OSU Moritz College of Law and Capital University Law School took top honors in the student competitions.  Evin Bachelor and  Devon Alexander joined forces with U. of Houston law student Sara Luther and finished first in the Student Quiz Bowl competition.  The Quiz Bowl requires law students to correctly answer questions about law, agriculture and agricultural law.

Bachelor also entered and took first place in the Student Research Poster Competition with his research project titled “Ohio: The Midwestern Ag Mediation Holdout.” Bachelor discussed the potential for Ohio to become one of the last midwestern states to engage in USDA’s Agricultural Mediation Program.  Bachelor is a third year law student at OSU’s Moritz College of Law and Alexander is a second year law student at Capital University Law School.  Both hope to work in the agricultural law arena after law school.

OSU was able to send the students to the conference due to the generous support of the Paul L. Wright Endowment in Agricultural Law at OSU.

For more information about the American Agricultural Law Association, visit https://www.aglaw-assn.org/.

 

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