Ohio’s drainage laws get major update

Ohio’s “petition ditch laws” are at last receiving a major revision.  The Ohio General Assembly has passed H.B. 340, updating the laws that address the installation and maintenance of drainage works of improvement through the petition process.  Some of Ohio’s oldest laws, the drainage laws play a critical role in maintaining surface water drainage on Ohio lands but were in serious need of updating.

An updating process began over seven years ago with the Ohio Drainage Law Task Force convened by the County Commissioners Association of Ohio (CCAO).   CCAO charged the Task Force with the goals of clarifying ambiguous provisions in the law and embracing new technology and processes that would result in greater efficiencies, fewer misunderstandings and reduced legal costs for taxpayers.  Task Force members included county commissioners, county engineers and staff, county auditors, Soil and Water Conservation District (SWCD) professionals, Ohio Farm Bureau staff, and Ohio State University faculty.  Rep. Bob Cupp sponsored the resulting H.B. 340, which received unanimous approval from both the House of Representatives and Senate.

Here are a few highlights of the legislation:

  • Mirroring the time frames, deadlines, notices, and hearings and appeals procedures for petitions filed with the county engineer and with the county soil and water conservation district.
  • The use of technology may substitute for a physical view of a proposed drainage improvement site.
  • The minimum width of sod or seeded strips will be ten feet rather than four feet; maximum width remains at fifteen feet.
  • The entire amount of sod or seeded strips will be removed from the taxable valuation of property, rather than the current provision removing only land in excess of four feet.
  • Factors to consider for petition approval are the same for SWCD board of supervisors and county engineers, and include costs versus benefits of the improvement, whether improvement is necessary, conducive to public welfare, will improve water management and development and will aid lands in the area by promoting economic, industrial, environmental or social development.
  • Clarification that the lead county in a multi-county petition is the county in which a majority of the initial length of the proposed improvement would exist, and assignment of responsibilities to officials in the lead county.
  • The bond amount for county engineer petitions increases to $1,500 plus $5 for each parcel of land in excess of 200 parcels.
  • Additional guidance for factors to be considered when determining estimated assessments.
  • Current law allows county commissioners to repair an existing drainage improvement upon complaint of an assessed owner if the cost doesn’t exceed $4,000.  The new law increases that amount to $24,000 and allows payment of repair assessments in 10 semiannual installments rather than four.

We’re preparing detailed explanations of the bill’s provisions and a guideline of the new procedures.  County engineers and SWCD offices will begin following the revised law on the bill’s effective date of March 18, 2021, just in time for Spring rains and drainage needs.

Go here to read H.B. 340. 

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Ohio General Assembly agrees on water quality bill

Written by Jeffrey Lewis, Attorney and Research Specialist, OSU Agricultural & Resource Law Program

Ohio is thirsty for some quality H2O, but the legislature has recently struggled with how to get it.  After debating two separate water quality bills for over a year, the Ohio House of Representatives and the Ohio Senate finally passed H.B. 7 in December.  The bi-partisan bill aims to improve water quality in Ohio’s lakes and rivers but doesn’t establish a permanent H2Ohio Trust Fund as the House had first proposed. 

Even so, H.B. 7 will help fund and implement Governor Mike DeWine’s H2Ohio program.  DeWine unveiled his water quality plan in 2019 to help reduce phosphorus runoff, prevent algal blooms, and prevent lead contamination in Ohio’s waterways. In July 2019, the Ohio General Assembly invested $172 million to fund the H2Ohio initiative.  H.B. 7 continues those efforts by creating a statewide Watershed Planning and Management Program and directing the Ohio Department of Agriculture to implement a pilot program to assist farmers and others in phosphorus reduction efforts.

Here’s a summary of the specifics included in H.B. 7, delivered to Governor DeWine on December 30 and awaiting his signature.

Watershed planning and management program

The new Watershed Planning and Management Program established by the bill aims to improve and protect Ohio’s lakes and rivers. The Director of Agriculture will be responsible for appointing watershed planning and management coordinators throughout the seven watershed districts in Ohio.  The coordinators will be responsible for identifying sources and areas of water with quality impairment, engaging in watershed planning, restoration, protection, and management activities, collaborating with other state agencies involved in water quality activities, and providing an annual report to the Director of Agriculture regarding their region’s watershed planning and management.

Certification program for farmers

H.B. 7 also establishes a certification program for farmers who use best practices to help minimize their impact on water quality.  H.B. 7 requires the Director of Agriculture to undertake all necessary actions to ensure that assistance and funding are provided to farmers who participate in the certification program.

Watershed pilot program to reduce phosphorus in Ohio’s water

H.B. 7 authorizes but does not require the Department of Agriculture, in conjunction with the Lake Erie Commission, the Ohio Soil and Water Conservation Commission, and the Ohio State University Extension, to establish a pilot program that assists farmers, agricultural retailers, and soil and water conservation districts in reducing phosphorous and dissolved reactive phosphorous in a watershed.  The program, if established, would be funded from the Ohio Department of Agriculture’s budget for water quality initiatives.  Funding must be used for purchases of equipment, soil testing, implementation of variable rate technology, tributary monitoring, drainage management strategies, and implementation of nutrient best management practices.

Public record exemption for voluntary Nutrient Management Plans

Currently, a person who owns or operates agricultural land may develop and implement a voluntary nutrient management plan. A voluntary nutrient management plan provides for the proper application of fertilizer. An individual that implements a proper voluntary nutrient management plan receives an affirmative defense in any civil lawsuit involving the application of the fertilizer. In addition to the affirmative defense offered by using a voluntary nutrient management plan, H.B. 7 specifies that the information, data, and associated records used in the development and execution of a voluntary nutrient management plan is not a public record and is not subject to Ohio’s laws governing public records.

Regional water and sewer districts expanded authority

In addition to political subdivisions, regional water and sewer districts will have the authority to make loans, grants, and enter into cooperative agreements with any person, which includes a natural person, a firm, a partnership, an association, or a corporation, for water resource projects.

Also, regional water and sewer districts will be able to expand to whom they can offer discounts to for water and sewer services. Currently, districts can only offer discounts to persons who are 65 or older and who are of low or moderate income or qualify for the homestead exemption. H.B. 7 allows those discounts to be offered to any person who is considered of low or moderate income or that qualifies for the homestead exemption.

CAUV eligibility of land used for biofuel production

Unrelated to water quality, H.B. 7 also modifies the requirements that land used in biofuel production must meet in order to be valued for property taxes at its current agricultural use value (CAUV). Currently, land used for biofuel production qualifies for the CAUV program if:

  1. The production facility is located on, or on property adjoining, farmland under common ownership; and
  2. at least 50% of the feedstock used in the production comes from land under common ownership or leasehold.

H.B. 7 makes three changes:

  1. Instead of the 50% feedstock requirement, House Bill 7 requires that, of the feedstock used in biofuel production, at least 50% must be “agricultural feedstock” (manure or food waste) and at least 20% of the “agricultural feedstock” must come from land under common ownership or leasehold.
  2. None of the feedstock used in biofuel production can include human waste.
  3. The biofuel production facility may be part of, or adjacent to, farmland that is under common leasehold or common ownership.

To view the text of H.B. 7 and additional analysis on the bill, click here.

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How might the 2020 elections affect agricultural law and policy?

The 2020 elections will likely be historically significant for U.S. agriculture, but what can we expect?  Our partner, the National Agricultural Law Center, will try to answer that question with a webinar on January 13 at noon.  The webinar will feature Hunt Shipman, principal and director at Cornerstone Government Affairs in Washington, DC.   Mr. Shipman will share his predictions on what’s in store for agriculture, including:

  • Key appointments at USDA
  • Congressional committees positions
  • Implications for the next Farm Bill
  • International trade impacts
  • Changes in the federal and state regulatory environments

With nearly three decades of experience in Washington, Hunt Shipman has held a variety of positions in government and the private sector. Prior to joining Cornerstone, Shipman was a senior executive for the largest trade association serving the food and beverage industry, where he led the association’s government affairs and communications programs. From 2001 to 2003, Shipman was Deputy Under Secretary for Farm and Foreign Agricultural Services and served as the acting Deputy Under Secretary for Marketing and Regulatory Programs at the United States Department of Agriculture.  In this capacity, he led three agencies with over 18,000 employees stationed around the world, and administered over $31 billion in programs. Shipman was the Department of Agriculture’s principal negotiator with the Congress for the 2002 Farm Bill. He also served as the staff director of the Senate Agriculture Committee, Professional Staff Member at the Senate Appropriations Committee, and on the personal staff of Senator Thad Cochran.

The webinar is free, but limited to the first 500 registrants.  To register, visit here.

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Ohio legislation updates laws for agricultural societies

Ohio’s past fair season was mayhem thanks to the COVID-19 pandemic, but some help is on the way.  The Ohio General Assembly passed legislation on December 22 aimed at updating laws and regulations governing agricultural societies and local fairs.  Major highlights of the bill include increasing the amount that a county or independent agricultural society receives for operation expenses from a county, removing the cap on the amounts that a county may transfer to an agricultural society for junior club expenses associated with operating fairgrounds, and increasing the total amount of debt that a society may incur. Here’s a more detailed summary of the provisions contained within House Bill 665.

County payments to county or independent agricultural societies

For county and independent agricultural societies, H.B. 665 increases, from $800 to $1,600, the max amount that a county treasurer must annually transfer to a society operating within the county. The County Auditor is required to request that the County Treasurer make the transfer if: (1) the society held an annual fair; (2) the society has made an annual report to the Director of Agriculture concerning the fair; and (3) the Director presents a certificate to the County Auditor indicating that the society has complied with the applicable laws of Ohio.

H.B. 665 also removes the $500 cap on the annual amount that a Board of County Commissioners must reimburse an agricultural society for junior club expenses. Additionally, the $2,000 cap on the amount that a Board of Commissioners must annually appropriate to a county agricultural society has been removed, but only if the society: (1) owns or leases real estate used as a fairground; (2) has control and management of the lands and buildings on the fairground; and (3) requests an appropriation from the Board.

Debt authorization

H.B. 665 expands the total amount of debt that an agricultural society may incur. Under the new law, county and independent agricultural societies’ annual payments for debt obligations cannot exceed 25% of the prior three-year average of its annual revenue. However, a county agricultural society must obtain approval from the Board of County Commissioners prior to incurring any debt if the Board pays or has paid money out of the county treasury to purchase the society’s fairgrounds. 

Other notable provisions

  • H.B. 665 removes restrictions on how proceeds for beer/liquor sales are to be used.
  • Any county or independent agricultural society member can sell seasonal tickets or passes for the society’s annual fair and the sale need not be conducted on the premises of the fairgrounds.
  • Any property owned by an agricultural society is now tax exempt, so long as that property is “used in furtherance” of the society’s purposes.
  • Modernizes the manner in which a county agricultural society must publish its annual financial information.
  • If the Board of County Commissioners wish to sell or exchange the fairgrounds, the Board must notify the applicable agricultural society 14 days prior to the sale or exchange.

H.B. 665 modernizes Ohio fair laws and agricultural society laws, some of which have not been updated since the 1950s. Many of the provisions contained within H.B. 665 were set to help out local agricultural societies for the 2020 fair season, and thus many provisions expired on December 1, 2020. However, the modernization and updates to Ohio’s laws will hopefully make next year’s fair season that much better. H.B. 665 now awaits Governor DeWine’s signature, and is available here.

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The new COVID relief bill: what’s in it for USDA?

Just in time for Christmas, Congress delivered quite a package this morning by passing new COVID-19 relief legislation.  President Trump is expected to sign the bill soon.  Buried in the 5,593 pages of the legislation is an allocation of nearly $11.2 billion dollars to the USDA.   A large portion of the USDA funds will provide additional payments for agricultural producers under the Coronavirus Food Assistance Program (CFAP).   Benefits for food processors, energy producers and timber harvesters are also in the bill, as well as funding for several other USDA programs and studies.  We’ve categorized, compiled and summarized where the USDA funds are to go below.

Crops

  • Supplemental CFAP payments of $20 per eligible acre for the 2020 crop year, for eligible “price trigger crops,” which includes barley, corn, sorghum, soybeans, sunflowers, upland cotton and wheat, and eligible “flat rate crops,” which includes alfalfa, amaranth grain, buckwheat, canola, cotton, crambe, einkorn, emmer, flax, guar, hemp, indigo, industrial rice, kenaf, khorasan, millet, mustard, oats, peanuts, quinoa, rapeseed, rice, rice, sweet, rice, wild, rye, safflower, sesame, speltz, sugar beets, sugarcane, teff, and triticale but excludes hay, except alfalfa, and crops intended for grazing, green manure, or left standing.
  • $100 million in additional funding for the Specialty Crop Block Grant Program.

Livestock, poultry and dairy

  • Supplemental CFAP payments to livestock or poultry producers (excluding packers and live poultry dealers) for losses from depopulation that occurred due to insufficient processing access, based on 80% of the fair market value of depopulated livestock and poultry and including depopulation costs not already compensated under EQIP or state programs.
  • Supplemental CFAP payments to cattle producers for cattle in inventory from April 16 to May 14, 2020 according to different payment formulas for slaughter cattle, feeder cattle and all other cattle.
  • Supplemental Dairy Margin Coverage payments for eligible operations with a production history of less than 5 million pounds whenever the average actual dairy production margin for a month is less than the selected coverage level threshold, according to a specified formula.
  • $1 billion for payments to contract growers of livestock and poultry to cover not more than 80% of revenue losses from January 1 to December 22, 2020.
  • $20 million for the USDA to improve animal disease prevention and response capacity.
  • Establishment of a statutory trust via the Packers and Stockyards Act that requires a dealer with average annual purchases above $100,000 to hold cash purchases of livestock by the dealer in trust until full payment has been received by the cash seller of the livestock.

General payment provisions

  • In determining the amount of eligible sales for CFAP, USDA must include a producer’s crop insurance indemnities, non-insured crop disaster assistance payment and WHIP payments, and may allow a producer to substitute 2018 sales for 2019 sales.
  • USDA shall make additional payments under CFAP 1 and CFAP 2 to ensure that payments closely align with the calculated gross payment or revenue loses, but not to exceed the calculated gross payment or 80% of the loss.  For income determination, USDA shall consider income from agricultural sales, including gains, agricultural services, the sale of agricultural real estate, and prior year net operating loss carryforward.
  • USDA may take into account when making direct support payments price differentiation factors based on specialized varieties, local markets and farm practices such as certified organic production.

Marketing and processing

  • $100 million for grants under the Local Agriculture Market Program for COVID-19 impacts on local agriculture markets.  USDA may reduce and allow in-kind contributions for grant matching requirements.USDA may provide support to processors for losses of crops due to insufficient processing access.
  • $60 million for a grant program for meat and poultry slaughter and processing facilities seeking federal inspection status or eligibility for the Cooperative Interstate Shipment program to modernize facilities or equipment, comply with packaging, labeling, and safety requirements and develop food safety processes.
  • USDA must deliver a report on possible improvements to the Cooperative Interstate Shipment program that allows interstate shipments of meat and poultry products and on the availability and effectiveness of federal loan and grant programs for meat and poultry processing facilities and support for increasing processing capacity.
  • USDA may make recourse loans available to dairy product processors, packagers or merchandisers impacted by COVID-19.
  • Until September 30, 2021, USDA may extend the term of marketing assistance loans to 12 months.

Food purchases

  • $1.5 billion to purchase and distribute food and agricultural products to individuals in need, and for grants and loans to small and mid-sized food processors or distributors, seafood processing facilities, farmers’ markets, producers or other organizations for the purpose of responding to COVID, including for worker protections.  USDA must conduct a preliminary review to improve COVID-19 food purchasing, including the fairness of purchases and distribution.
  • $400 million for a Dairy Donation Program to reimburse dairy processors for purchasing and processing milk and partnering with non-profit organizations to develop donation and distribution plans for the processed dairy products. 

Timber and energy

  • $200 billion for relief to timber harvesting and hauling businesses that experienced a loss of 10 percent or more in gross revenue from January 1 to December 1, 2020, as compared to the same period in 2019.
  • USDA may make payments for producers of advanced biofuel, biomass-based diesel, cellulosic biofuel, conventional biofuel or renewable fuel produced in the U.S. for unexpected market losses resulting from COVID-19.

Training and outreach

  • $75 million for the Farming Opportunities Training and Outreach Program for grants for beginning, socially disadvantaged and veteran farmers and ranchers impacted by COVID-19.  USDA may reduce and allow in-kind contributions for grant matching requirements and waive maximum grant amounts.

Farm stress

  • $28 million for grants to State departments of agriculture to expand or support stress assistance programs for agriculture-related occupations, not to exceed $500,000 per state.

Nutrition

  • $75 million for the Gus Schumacher Nutrition Incentive Program, and USDA may reduce matching grant requirements.

We’ll keep digging through the legislation to report on other agricultural provisions. Or readers may take a look at H.R. 133, available here.  The USDA allocations we summarized are in Subtitle B, beginning on page 2,352.   

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Transition planning in the Farm Office

The Farm Office team spends a good deal of time helping farmers with planning, and right now we’re practicing what we teach.  The past few months have brought transitions to the Farm Office, with two team members leaving and a new member coming on board.  The changes forced us to survey our strengths, weaknesses and opportunities, to review and revise goals, and to identify the skills and talent that we need for the future.

That planning process brought us Jeffrey Lewis, an attorney who joined the Agricultural & Resource Law Program this month.  Jeff was in private practice for several years with Rolfes Henry Co, LPA in Columbus and was a legal intern with Wright & Moore Law Co, LPA in Delaware.  He followed his degree from OSU in Business Administration with a law degree from Capital University Law School, where he was a law review member and graduated with honors.  We’re excited that Jeff’s interests and expertise in business planning, non-profits, employment, and tax law align with the needs we identified in our planning process.

Jeff’s position became possible by a renewed partnership opportunity with the National Agricultural Law Center and funding from the USDA’s National Agriculture Library.  That same grant allowed us to have Ellen Essman on staff for three years.  Ellen recently moved to a new role with the college’s Government Affairs unit.  As a law fellow with the Agricultural & Resource Law Program, Ellen authored many publications and led a national project surveying and assessing state efforts to address water quality impacts from agricultural nutrients.  Ellen’s ability to explain current litigation and legislation on the Ohio Ag Law Blog with a touch of clever humor will be missed, but she will serve Government Affairs well.

The Farm Office is also planning for the departure of Ben Brown, Asst. Professor in Ag Risk Management, who recently left OSU to return home to the University of Missouri.  OSU hired Ben several years ago and charged him with building a Farm Management Program in the Dept. of Agricultural, Environmental and Development Economics.  He tackled that goal with astonishing energy, a mind built for marketing and policy analysis, and genuine interest in Ohio’s agricultural community.  The Farm Office team will miss Ben’s passion and insight, but we look forward to continued collaboration with Ben in the future and hope to coax Ben onto Farm Office Live every now and then. 

The past few months have reminded us that transitions are difficult, both in a farm operation and an institutional program.   Our recent experience made us examine the impact of losing people, a reality that farm families face as generations move in and out of the farm operation. That’s a topic we’ll be able to teach more about this winter, now that we’ve done our planning.

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Dealing with the threat of intentional harm to farm property

Whether from trespassers, thieves, vandals, disgruntled employees, drug makers, activists, or extremists, farm security threats are a risk farmers face.  Unfortunately, current social and political conditions have added new dimensions to that risk.  Intruders can harm property in many ways:  releasing or injuring livestock, stealing anhydrous or chemicals, destroying crops, contaminating water, introducing disease, setting fires, or committing other acts of theft, vandalism or destruction.   

Recent suspicious activities on Ohio farms have reminded us of the need for constant awareness of farm security and intentional harms to farm property.  Our newest publication, Intentional Harm to Farm Property:  Legal Options and Strategies for Farm Owners aims to meet this need by addressing:

What to do when a farm security issue occurs.  Three immediate actions can be helpful to ensuring a clear-headed reaction to an incident:

  • Call local law enforcement.
  • Secure the property and preserve the evidence.
  • Contact insurance provider.

Options for legal action.  How can a farmer address a security incident through the legal system?  Local law enforcement might pursue a criminal action, a farm owner might choose to file a civil action, or both criminal and civil actions could take place.  Conferring with law enforcement and an attorney will help determine an appropriate course of action.  The bulletin explains common criminal actions that might apply to a farm security episode, such as:

  • Agricultural product or equipment terrorism
  • Animal or ecological terrorism based on corrupt activity
  • Arson
  • Aggravated arson
  • Breaking and entering
  • Criminal damaging or endangering
  • Criminal mischief
  • Criminal trespass
  • Injuring animals
  • Poisoning animals
  • Reckless destruction of crops or timber
  • Theft
  • Vandalism
  • Attempt, complicity and conspiracy regarding any of the above crimes

We also review laws that provide for civil actions against someone who intentionally harms farm property, such as:

  • Civil action for damages for criminal act
  • Civil theft and willful damage
  • Civil trespass to personal property, such as animals and equipment
  • Civil trespass to real property
  • Civil vandalism
  • Civil action for animal or ecological terrorism
  • Destruction of crops or timber

Preventing the risk of farm security occurrences.   Farmers can adopt practices that reduce the possibility of intruders and incidents of intentional harm to farm property.  We list a dozen strategies in the bulletin that may be helpful, such as marking, posting and security property boundaries, maintaining a record of suspicious activities, vetting employees, and conferring with a security professional.

Intentional Harm to Farm Property:  Legal Options and Strategies for Farm Owners is available in the agricultural law library, here

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Court of Appeals confirms decision not to allow weddings on hay farm as “agritourism”

When does the business of hosting weddings on a farm qualify as “agritourism” under Ohio law?  That was the question faced by Ohio’s Second District Court of Appeals in a legal battle between Caesarscreek Township and the owners of a farm property in Greene County.  The answer to the question is important because local zoning can’t prohibit the hosting of weddings and similar events if they fall under Ohio’s definition of “agritourism.”  Those that don’t qualify as “agritourism” are subject to local zoning prohibitions and regulations.  According to the court’s recent decision, the determination depends largely upon the facts of the situation, but merely taking place on an agricultural property does not automatically qualify a wedding or event as “agritourism.”

The case regards the Lusardis, who own a 13.5 acre property in Caesarscreek Township containing a pole barn and outbuilding, a one-acre pond, several acres of woods, and an eight acre hayfield on which the Lusardis had produced hay for several years.  Their plan was to offer corn mazes, hayrides and celebratory events like weddings and receptions on the property.  To do so, the Lusardis had to demonstrate to the township’s Board of Zoning Appeals (BZA) that their activities fit within Ohio’s definition of “agritourism” and thus must be allowed according to Ohio law.   That definition in ORC 901.80 states:

“Agritourism means an agriculturally related educational, entertainment, historical, cultural, or recreational activity, including you-pick operations or farm markets, conducted on a farm that allows or invites members of the general public to observe, participate in or enjoy that activity.”

In applying the definition of agritourism to its local zoning, Caesarscreek Township requires an agritourism provider to explain how the “educational, entertainment, historical, cultural or recreational” activities it plans to offer are “agriculturally related” to the property and the surrounding agricultural community.  In their agritourism application with the township, the Lusardis explained that guests could use the property to celebrate an agriculturally themed event, enjoy the scenery, hay fields and woods, learn about plants and wildlife, have bonfires, play corn hole, fish, and get married outside, in the woods, or in the hayfield.  The township zoning inspector, however, testified to the BZA that he did not see a relationship between weddings and receptions and the Lusardi property itself.  A wedding or reception would not have a “basic relationship” to the existing agricultural use of the property or the surrounding area and the agricultural use of the property was incidental, at best, to the wedding and reception business, argued the zoning inspector.

The township BZA agreed with the zoning inspector.  It determined that the Lusardi’s corn maze and hayride activities qualified as agritourism, but held that any celebratory events such as weddings would not be “agriculturally related” to the property and thus did not fit within the definition of agritourism and could not take place on the property.  The Lusardis appealed the BZA’s decision to the Greene County Court of Common Pleas, whose duty under Ohio law was to determine whether the BZA’s conclusion was “unconstitutional, illegal, arbitrary, capricious, unreasonable or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record.”  The common pleas court found the BZA’s conclusion reasonable and upheld the decision.  The BZA’s determination that weddings don’t bear a general relevance to agriculture was understandable, whereas corn mazes and hay rides do bear a reasonable relationship to agriculture, the court stated.

The Lusardis appealed the common pleas court decision to the Ohio Court of Appeals.  Its duty in reviewing the case was to determine whether the common pleas court had abused its discretion by making a judgment on a question of law that is “unreasonable, arbitrary or unconscionable.”  The appellate court concluded that the common pleas court had not abused its discretion by affirming the BZA decision.  Agreeing that it was reasonable for the BZA to conclude that the celebratory events were not sufficiently related to the agricultural property, the court stated that “just because an activity is on agricultural property does not make it “agritourism” and is not, by itself, enough to make the activity “agriculturally related.” 

The “what does ‘agriculturally related’ mean?” question is one we’ve pondered since the Ohio legislature created the definition of agritourism in 2016.   An important rule to draw from this case is that the answer must be made on a case-by-case basis.  The Lusardis asked the court of appeals to decide whether any celebratory event on an agricultural property would be agriculturally related and would therefore constitute “agritourism” as a matter of law, but the court refused to do so.  “Whether a particular activity constitutes “agritourism” is an issue that shades to gray quite quickly,” stated the court.  “Given the great variety of factual situations, we decline to rule on whether celebratory events constitute “agritourism” as a matter of law.”

Also noteworthy is the court’s attention to the BZA’s analysis of the activities that were to take place on the Lusardi property.  The BZA pointed to a lack of evidence that any crops or flowers grown on the property would be used in the events.  Also remiss was evidence that the only agricultural crop grown on the property—hay—was somehow connected to the celebratory events that would take place.  The court observed that these evidentiary flaws supported the BZA’s conclusion that the Lusardis were proposing an event venue with an incidental theme rather than an agricultural activity with an incidental event. 

Wedding barn issues have been a cause of controversy in recent years.  The Lusardi v. Caesarscreek Township decision follows an Ohio Supreme Court case earlier this year regarding whether a wedding barn fit within the agricultural exemption from zoning for buildings and structures used “primarily for vinting and selling wine.”  In that case, the Supreme Court determined that making and selling wine was the primary use of the barn and that weddings and events were incidental, yet were related to the production because event guests had to purchase the wine produced at the farm.  Taken together, these cases illustrate the importance Ohio’s agricultural zoning exemption places on production activities.  Where agricultural goods are being produced and sold, additional incidental activities such as celebratory events that are related to agricultural production will likely fall under the agricultural exemption.  But as the Lusardi case illustrates, local zoning may prohibit celebratory events that don’t have a clear connection to agricultural production and instead appear to be the primary rather than incidental use of the property.

Read the case of Lusardi v. Caesarscreek Township Board of Zoning Appeals here.

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The Ag Law Harvest

Written by Ellen Essman

In case you didn’t notice, we are deep into election season.  Discussion of Supreme Court vacancies, presidential debates, and local races abound.  Even with all the focus on the election, the rest of the world hasn’t stopped. The same is true for ag law.  This edition of the Harvest includes discussion of ag-related bills moving through the Ohio General Assembly, federal lawsuits involving herbicides and checkoff programs, and some wiggle room for organic producers who have had a hard time getting certified with all the pandemic-related backups and shutdowns. 

Changes to Ohio Drainage Law considered in Senate—The Ohio Senate’s Agriculture & Natural Resources Committee continues to hold hearings on HB 340, a bill that would revise drainage laws.  The bill was passed in the house on June 9, 2020.  The 157 page bill would amend the current drainage law by making changes to the process for proposing, approving, and implementing new drainage improvements, whether the petition is filed with the board of the Soil and Water Conservation District, the board of county commissioners, or with multiple counties to construct a joint county drainage improvement.  The bill would further apply the single county maintenance procedures and procedures for calculating assessments for maintenance to multi-county ditches and soil and water conservation districts.  You can find the current language of the bill, along with a helpful analysis of the bill, here

Purple paint to warn trespassers? Elsewhere in the state Senate, SB 290 seems to be moving again after a lengthy stall, as it was recently on the agenda for a meeting of the Local Government, Public Safety & Veterans Affairs Committee.  If passed, SB 290 would allow landowners to use purple paint marks to warn intruders that they are trespassing.  The purple paint marks can be placed on trees or posts on the around the property.  Each paint mark would have to measure at least three feet, and be located between three and five feet from the base of the tree or post.  Furthermore, each paint mark must be “readily visible,” and the space between two marks cannot be more than 25 yards.  You can see the text, along with other information about the bill here

Environmental groups look to “Enlist” more judges to reevaluate decision.  In July, the U.S. Court of Appeals for the Ninth Circuit decided it would not overturn the EPA registration for the herbicide Enlist Duo, which is meant to kill weeds in corn, soybean, and cotton fields, and is made up of 2,4-D choline salt and glyphosate.  Although the court upheld registration of the herbicide, it remanded the case so that EPA could consider how Enlist affects monarch butterflies.  The court found that EPA failed to do this even though it was required under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  On September 15, 2020, the Natural Resources Defense Council (NRDC) and other groups involved in the lawsuit filed a petition to rehear the case “en banc,” meaning that the case would be heard by a group of nine judges instead of just three.  If accepted, the rehearing would involve claims that the EPA did not follow the Endangered Species Act when it made the decision to register Enlist Duo. 

R-CALF USA has a “beef” with federal checkoff program.  Earlier this month, the Ranchers-Cattlemen Action Legal Fund, United Stockgrowers of America (R-CALF USA) sued the United States Department of Agriculture (USDA) in the U.S. District Court for the District of Columbia.  R-CALF USA has filed a number of lawsuits involving the Beef Checkoff program over the years, including several that are on-going.  Their argument, at its most basic, is that the Beef Checkoff violates the Constitution because ranchers and farmers have to “subsidize the private speech of private state beef councils through the national beef checkoff program.” In this new complaint, R-CALF USA alleges that when USDA entered into MOUs (memorandums of understanding) with private state checkoff programs in order to run the federal program, its actions did not follow the Administrative Procedure Act (APA).  R-CALF USA argues that entering into the MOUs was rulemaking under the APA.  Rulemaking requires agencies to give notice to the public and allow the public to comment on the rule or amendment to the rule.  Since USDA did not follow the notice and commenting procedures when entering into the MOUs, R-CALF USA contends that the MOUs violate the APA.  R-CALF USA further argues that did not consider all the facts before it decided to enter into the MOUs, and therefore, the agency’s decision was arbitrary and capricious under the APA.  You can read R-CALF USA’s press release here, and the complaint here

Flexibility for organics during COVID-19. Back in May, due to COVID uncertainty and state shutdowns, the Risk Management Service (RMS) stated that approved insurance providers “may allow organic producers to report acreage as certified organic, or transitioning to organic, for the 2020 crop year if they can show they have requested a written certification from a certifying agent by their policy’s acreage reporting date.” RMS’s original news release can be found here. In August, RMS extended that language. The extension will provide certification flexibility for insurance providers, producers, and the government in the 2021 and 2022 crop years.  Other program flexibilities may apply to both organic and conventional producers.  Information on those can be found here.

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Governor signs Ohio coronavirus immunity bill

It took five months of negotiation, but the Ohio General Assembly has enacted a controversial bill that grants immunity from civil liability for coronavirus injuries, deaths, or losses. Governor DeWine signed House Bill 606 on September 14, stating that it strikes a balance between reopening the economy and keeping Ohioans safe.  The bill will be effective in 90 days. 

The bill’s statement of findings and declaration of intent illustrate why it faced disagreement within the General Assembly.  After stating its findings that business owners are unsure of the tort liability they may face when reopening after COVID-19, that businesses need certainty because recommendations on how to avoid COVID-19 change frequently, that individuals who decide to go out in public places should bear responsibility for taking steps to avoid exposure to COVID-19, that nothing in existing Ohio law established duties on business and premise owners to prevent exposure to airborne germs and viruses, and that the legislature has not delegated authority to Ohio’s Executive Branch to create new legal duties for business and premises owners, the General Assembly made a clear declaration of intent in the bill:  “Orders and recommendations from the Executive Branch, from counties and local municipalities, from boards of health and other agencies, and from any federal government agency do not create any new legal duties for purposes of tort liability” and “are presumed to be irrelevant to the issue of the existence of a duty or breach of a duty….and inadmissible at trial to establish proof of a duty or breach of a duty in tort actions.”

The bill’s sponsor, Rep. Diane Grendell (R-Chesterland), refers to it as the “Good Samaritan Expansion Bill.”  That name relates to one of the two types of immunity in the bill, a temporary qualified immunity for coronavirus-based claims against health care providers.  In its original version of H.B. 606, the House of Representatives included only the health care immunity provisions.   More applicable to farms and other businesses are the bill’s general immunity provisions, added to the final legislation by the Senate.   

General immunity from coronavirus claims

The new law will prohibit a person from bringing a civil action that seeks damages for injury, death or loss to a person or property allegedly caused by exposure to or transmission of coronavirus, with one exception.  The civil immunity does not apply if the exposure to or transmission of coronavirus resulted from a defendant’s “reckless conduct,” “intentional misconduct,” or “willful or wanton misconduct.”  “Reckless conduct” means disregarding a substantial and unjustifiable risk that conduct or circumstances are likely to cause exposure to or transmission of coronavirus and having “heedless indifference” to the consequences.

Government guidelines don’t create legal duties

Consistent with the bill’s stated intent, the new law clarifies that a claimant cannot assert liability based on a failure to follow government guidelines for coronavirus.  The law states that any government order, recommendation or guideline for coronavirus does not create a duty of care that can be enforced through a civil cause of action.  A person may not admit such orders and guidelines as evidence of a legal right, duty of care or new legal cause of action. 

No class actions

Another provision in the new law also prohibits a class action that alleges liability for coronavirus exposure or transmission if the law’s general immunity provisions do not apply.

Time period covered

The general immunity provisions apply only to a specified period of time:  from March 9, 2020, when the Governor declared a state of emergency due to COVID-19, until September 30, 2021.

Workers compensation not addressed

An earlier version of the bill passed by the House of Representatives would have classified coronavirus as an “occupational disease” and would have allowed food workers, first responders and corrections officers to receive workers’ compensation benefits for the disease.  However, the Senate removed the workers’ compensation provisions from the final bill based on its belief that the Bureau of Workers’ Compensation is already covering 85% of such claims.

What does H.B. 606 mean for agricultural businesses?

The new law provides certainty that agricultural businesses won’t be assailed by lawsuits seeking damages for COVID-19.  A person claiming harm from exposure to COVID-19 at an agricultural business will only be successful upon a showing that the business acted recklessly and with intentional disregard or indifference to the possibility of COVID-19.  That’s a high evidentiary standard and burden of proof for a claimant. 

As is often the case when an immunity bill is enacted, however, there are several reasons why businesses should not let down their guards because of the new law.   Note that while the law rejects government guidelines and orders about COVID-19 as a basis for placing legal duties upon businesses, following such guidelines and recommendations counters an allegation of reckless or indifferent behavior about COVID-19 exposure or transmission.  And there can be consequences from COVID-19 other than litigation, such as impacts on customer and employee health and safety, workers’ compensation claims, and negative publicity from an alleged COVID-19 outbreak.  Continuing to take reasonable actions to manage COVID-19 and documenting actions taken can enhance the certainty offered by Ohio’s new COVID-19 immunity law.

Read H.B. 606 here.

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