Category Archives: Crop Issues

Answering your questions about Ohio’s noxious weeds laws

Noxious weed law questions are common in the midst of the growing season and this year is no different.  Below is a sampling of frequently asked questions we’ve received about noxious weed law.  Learn more about the laws in our new law bulletin, Ohio’s Noxious Weed Laws, available here.

My neighbor doesn’t keep his fence row clear of noxious weeds.  What can I do about it?
First, talk to the neighbor.  If your neighbor doesn’t respond favorably, the second step is to provide a written notice to the neighbor stating that he has ten days to clear the fence row of the noxious weeds.  Third, if the neighbor still doesn’t take action, provide a written notice of the situation to the township trustees, which will initiate a process that could result in the trustees determining that there is a valid need to clear the fence row and hiring some to do the work.  Your neighbor will be legally obligated to pay for the costs on his property tax bill.

I’ve been notified by my township trustees that I have noxious weeds on my property.  What should I do?
Be aware that you must respond within five days of the date the trustees notified you about the weeds or the trustees will have the authority to destroy.  Your options are to destroy or cut the weeds or to provide information to the township trustees showing that there is no need to take action.  For example, such information might include showing that noxious weeds don’t exist on the property or showing that plants were incorrectly identified as noxious weeds.

Do I have to destroy my crop if noxious weeds are on my land?
No, Ohio law states that you must only “cut or destroy the weeds” if you have been notified by the township trustees that noxious weeds are on your property.

Noxious weeds are growing in the road right-of-way. Can I remove them myself and charge the township for my costs? 
You may remove the noxious weeds, but you will probably not receive reimbursement for your costs unless the township trustees violated their duty to cut the weeds even after you followed the proper legal process for demanding their action.  Ohio law requires the township trustees to cut road right-of-way weeds in early June and August, in early September if necessary, and at other times if public safety is at issue.  If they fail to do so, you should formally complain to the township trustees in writing or by speaking at a township meeting.  If the trustees still fail to take action, the next step is to file a “writ of mandamus” action that asks the court to order the clearing.  Seeking reimbursement for your work prior to following this legal process is not the proper method for enforcing the township’s duty, according to the Second District Court of Appeals in Mezger v. Horton, 2013 Ohio 2964.

How do I know which weeds are “noxious”?
The director of the Ohio Department of Agriculture conducts rulemaking to designate a plant as a prohibited noxious weed.  The list of plants that the director has formally designated as noxious weeds is in the Ohio Administrative Code and is available at http://codes.ohio.gov/oac/901:5-37-01.

 

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Farmers Have One Month to Decide Whether to Stay in Syngenta Litigation

Farmers are receiving a lot of attention from law firms these days, from video mailers to offers of free consultations, dinners, hats and more.  The purpose of these marketing efforts is to entice farmers away from participating in the current class action lawsuit against Syngenta.  Law firms want farmers to exclude themselves from the class action litigation and participate in individual lawsuits their firms would bring against Syngenta.  With a deadline of April 1 looming, farmers must decide whether to remain in or step away from the class action lawsuit.

The class action lawsuit, known as “In re Syngenta AG MIR162 Corn Litigation,” is pending before the U.S. District Court in Kansas.  It is one of two major lawsuits regarding corn rejected by China in 2013 because China had not yet approved Syngenta’s Duracade and Viptera brands of genetically-modified corn.  The lawsuit consolidated hundreds of similar federal court cases that all claimed that Syngenta should be liable for the drop in corn prices that followed China’s rejections because Syngenta stated that it had obtained all necessary regulatory approvals for Duracade and Viptera, but instead released the seed before receiving China’s approval.

Class Certification

Last September, the court certified the litigation as a class action lawsuit, which allows the case to commence on behalf of all class members.  Any farmer that fits within the class definitions is automatically included in the lawsuit and does not have to pursue individual litigation against Syngenta.  The court established a nationwide class of “producers,” defined as any person or entity listed as a producer on an FSA-578 form filed with the USDA who priced corn for sale after November 18, 2013 and who did not purchase Viptera or Duracade corn seed (farmers who used Syngenta’s seed have different legal claims).  The nationwide class is for producers bringing claims under federal law.  The court also certified eight state classes for producers bringing claims under state laws, including Ohio.  Syngenta appealed the class certification, but the Tenth District Court of Appeals denied the appeal.

Ohio farmers who fit the definition of “producers” are now automatically members of both the nationwide and Ohio classes.  This means that every Ohio producer can receive a share of any award or settlement that results from the litigation, with required documentation.  However, Ohio producers may choose to exclude themselves from or “opt out” of their classes and bring their own individual actions against Syngenta.  The district court required attorneys for the class action suit to notify all potential producers of the lawsuit and of a producer’s right to be excluded from the litigation.   A producer must send an exclusion request by April 1, 2017, following the process for exclusion stated in the court’s order, available here.

Pros and Cons of Staying in the Class

A major benefit of remaining in the class action lawsuit is convenience.  Class members in the lawsuit have no responsibility for the proceedings, which falls upon the attorneys who represent the entire class.  However, convenience comes at the cost of deferring decision making authority and losing a share of the award or settlement to court-ordered attorney fees, although class members may file objections to such decisions.  Exclusion from the class gives producers freedom to pursue their own actions, which will likely lead to a stronger role in decision making and the ability to negotiate attorney fees.  Exclusion also allows a farmer who may not agree with the litigation on principal to dissociate from the lawsuit.

What’s Next?

The court has scheduled “bellwether” cases in the lawsuit, which will go to trial in June.  Bellwether cases are chosen to be representative of the class.  Allowing these cases to go to trial gives an indication of how the litigation will play out—the strength of each side, how juries react and how the law applies to the situation.   Upon completion of the bellwether cases, both sides should be better able to decide whether to settle the lawsuit or continue with litigation.

The U.S. District Court’s website for the Syngenta class action lawsuit is http://www.ksd.uscourts.gov/syngenta-ag-mir162-corn-litigation/

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What’s the Buzz about the Rusty-patched Bumble Bee?

Update:  The final rule concerning the listing of the rusty patched bumble bee as endangered was originally slated to go into effect on February 10, 2017, as is described below.  On February 9, the Fish and Wildlife Service published a notice in the Federal Register explaining that they would abide by the Trump Administration’s 60-day regulatory freeze and delay the effective date until March 21, 2017.   The Federal Register entry is available here.

Will the bee’s ESA listing stand, and how might it affect agriculture?

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

On January 11, 2017, the U.S. Fish and Wildlife Service (FWS) published a final rule designating the rusty patched bumble bee (scientific name Bombus affinis) as an endangered species, the first bee in the continental U.S. to receive this status.  The rule was originally slated to go into effect on February 10, 2017.  If the rule is allowed to stand, it will have a number of implications for federal agencies, farmers, and other private entities.

The final rule, found in the Federal Register at 50 CFR Part 17, includes a lengthy description of the rusty patched bumble bee.  The bees have black heads, and the worker bees, as well as the male bees, have a “rusty reddish patch centrally located on the abdomen,” giving them their common name.  Necessities for the species include “areas that support sufficient food (nectar and pollen from diverse and abundant flowers), undisturbed nesting sites in proximity to floral resources, and overwintering sights for hibernating queens.”  Additionally, the bees prefer temperate areas. The rusty patched bumble bee was found in 31 states and provinces in the 1990s. From the year 2000 and on, the bumble bee has only been found in a diminished range of 14 states and provinces.  The bumble bee has been found in Ohio since 2000, but following the overall trend, at much lower rates.

Possible reversal of the rule

Since the publishing of the final rule, the Trump Administration has instituted a regulatory freeze on administrative agencies which could push back effective dates for those regulations that have not yet gone into effect by at least 60 days.  In the meantime, the Congressional Review Act (CRA) may also affect the final rule.  The CRA gives Congress 60 legislative days from either the date a rule is published in the Federal Register, or the date Congress receives a report on the rule, to pass a joint resolution disapproving the rule.  A signature by the President is the final step required to invalidate the rule.  What is more, an agency cannot submit a rule after these steps are taken that is “substantially in the same form” as the overturned rule. Historically, the CRA has not been frequently used, as success is typically only possible when a number of events align:

  1. There is a new presidential administration;
  2. Congress and the President are members of the same party;
  3. The previous President was a member of the opposing party; and
  4. The timing of rule publication or rule reporting and Congressional calendars allow for a joint resolution within the 60-day limit.

The text of the CRA is available here.  With the regulatory freeze and the possible use of the CRA, it is not clear when or even if the new rule will actually go into effect.

Importance of the rusty patched bumble bee

The rusty patched bumble bee is a pollinator species, meaning they, along with other pollinators, assist with the reproduction of flowers, crops, and grasses.  According to a FWS fact sheet, in the United States, the rusty patched bumble bee and other insects’ pollination is worth $3 billion annually.

The Endangered Species Act

What exactly is the process for listing a species as “endangered?”  The Endangered Species Act’s (ESA) definition of an endangered species is: “any species which is in danger of extinction throughout all or a significant portion of its range.”  Accordingly, the ESA allows the FWS to designate species as endangered or threatened as long as one (or more) of five factors apply:

  • (A)  The present or threatened destruction, modification or curtailment of its habitat or range;
  • (B)  Overutilization for commercial, recreational, scientific, or educational purposes;
  • (C)  Disease or predation;
  • (D)  The inadequacy of existing regulatory mechanisms; or
  • (E)  Other natural or manmade factors affecting its continued existence.   16 USC 1533.

In the case of the rusty patched bumble bee, the FWS found that factors (A), (C), and (E) applied.  For factor (A), which concerns loss of habitat and range, the FWS cited past encroachment by residential, commercial, and agricultural development.  Additionally, agriculture has contributed to the replacement of plant diversity with monocultures, which has resulted in loss of food for the bees.  What is more, the range of the rusty patched bumble bee has faced an 87% reduction, as well as an 88% drop in the number of recognized populations.

Concerning factor (C), FWS pointed to a number of diseases and parasites that have afflicted the rusty patched bumble bee.  Finally, for factor (E), the FWS identified more numerous hot and dry periods, pesticide and herbicide use, and reproductive issues that have contributed to the reduction of the species.  Due to its findings and the factors discussed, the FWS determined that the rusty patched bumble bee is “in danger of extinction throughout its range,” and therefore designated it as endangered.

Significance of ESA listing

After a species is labeled “endangered,” what happens next?  In order to facilitate recovery of a species, the ESA also calls for, to the “maximum extent prudent and determinable,” a critical habitat designation to be made for the species.  The term “critical habitat” does not apply to everywhere the species is found.  Instead, “critical habitat” can be certain places both inside and outside the overall “geographical area occupied by the species” that are found to be “essential” to its preservation. In the case of the rusty patched bumble bee, the FWS has not yet determined its critical habitat.

Implications for agriculture

Under the ESA, federal agencies and private entities have different responsibilities.  Federal agencies generally must make sure that any action they are involved in will not do harm to an endangered species or its critical habitat. For the most part, private entities are not affected by critical habitat unless financial aid or approval is sought from a federal agency.

Even though critical habitat concerns do not explicitly apply to private entities, the ESA does contain provisions that prohibit the importing, exporting, possession, sale, delivery, transport, shipping, receiving, or carrying of an endangered species in the United States or in foreign commerce.  What is more, the ESA prohibits the “taking” of endangered species within the United States or in the ocean.  “Take” is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect,” an endangered species, or to attempt to do so (emphasis added).  It is important to note that “harm” is defined as “an act which actually kills or injures fish or wildlife…includ[ing] significant habitat modification or degradation which actually kills or injures fish or wildlife by significantly impairing essential behavior patterns, including, breeding, spawning, rearing, migrating, feeding or sheltering.” Thus, even though the designation of an endangered species and its critical habitat does not explicitly affect private entities, the definitions of “take” and “harm,” when read together, implicitly prohibit actions that are damaging to the species or its habitat.  The FWS rule defining “harm” can be found here.   The government can assess penalties against those who violate these provisions.

Farmers and other private entities should be aware of the designation of a species as endangered.  In the case of the rusty patched bumble bee, if the rule is allowed to stand, private landowners, including farmers, would not be allowed to “take” or “harm” the bee or destroy its critical habitat.   Given the important role pollinators like the rusty patched bumble bee play in making agriculture possible, we can assume that agriculture will want to protect the species.  But due to the nature of this species, it will be difficult to ascertain when a farmer’s actions do “take” or “harm” a rusty patched bumble bee.   The nature of the species and the future status of the rule create much uncertainty on how agriculture will address the rusty patched bumble bee going forward.

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Comparing Ohio’s Proposed Algae Control Legislation

Senate and House bills on algae control differ On March 10, the Ohio House of Representatives passed H.B. 61, a proposal to address Ohio’s toxic algae issues.   Last month, the Ohio Senate approved a bill on the same issue, but with several points of difference.  To read this post, visit our new blog site at aglaw.osu.edu/blog.

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FAA Proposes Rule for Small Drone Operation

After much anticipation, the Federal Aviation Administration (FAA) has published proposed regulations that would govern the operation of drones used for agricultural and other activities.   To read this post, visit our new blog site at http://aglaw.osu.edu/blog. 

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Ohio Senate Passes Algae Control Legislation

Legislation intended to reduce the occurrence of harmful algae blooms in Ohio passed the Ohio Senate on February 18 after a fast track through the Senate Agriculture Committee.  To read this post, visit our new blog site at http://aglaw.osu.edu/blog.

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OSU Extension to Offer Farmland Leasing Workshops in February

Ohio State University Extension will offer four Farmland Leasing Workshops throughout Ohio next month.  The three hour workshops will include topics of interest to both landowners and farm operators, such as factors affecting leasing options and rental rates, analyzing rent survey data and legal requirements and provisions for farm leases.  To read this post, visit our new website at aglaw.osu.edu/blog.

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