Agritourism operators: now is the time for liability risk management

Many of Ohio’s farm markets, u-picks, farm petting zoos, and other “agritourism” operations are preparing to open for their spring and summer activities.  While these types of agritourism activities are popular, they raise unique liability concerns. That’s because there is always the risk of an injury or harm when bringing people onto the farm, whether allowing them to be near animals, riding on equipment, in crop and orchard areas, or engaging in physical activities.  Along with readying the farm for the new season, agritourism operators should also plan for the possibility of a liability incident. 

Here are five actions agritourism providers can take to manage liability risk.

1. Conduct a safety review.   Inspect your operation with visitor safety in mind.  Remember, many visitors have never been on a farm or don’t understand what might harm them on a farm. Examine all areas visitors will be in, including surrounding “off limits” areas visitors might try to access, and identify any possible safety hazards.  Pay extra attention to areas children will use. Consider these questions:
   • Are the facilities, fences, gates, steps, play areas, and other structures in good repair?
   • Are doors and gates working and latching properly?
   • Are pesticides, herbicides, or chemicals out of sight and inaccessible?   
   • Are animal enclosures sound, do any “dangerous” animals need to be fully off limits to visitors, and are there handwashing stations near animal contact areas?
   • Are there any accessible dangers that might attract children, such as ladders, equipment, lagoons, large tractor tires, and wells?
   • Are parking areas and walkways sufficiently sized and buffered from traffic?

Look for the potential dangers, then take actions such as making repairs; installing blockades, fences, locks, or other structures to keep visitors away; putting up signs and warnings; providing instructions or maps; expanding parking areas or walkways; and removing unnecessary dangers.

2. Complete our Agritourism Ready course.  Be prepared for the possibility of an emergency situation—both natural and man-made disasters can raise the need for an emergency response. How an operation responds to an emergency can reduce harm to visitors and ultimately affect the operation’s risk of liability or harm.  OSU offers a curriculum that helps agritourism operations reduce risks by developing an emergency management plan.  Access this valuable and free resource at https://u.osu.edu/agritourismready/.
3. Train employees.  A business is legally responsible for the negligence of its employees, so it’s important to reduce the risk that an employee’s actions will cause or contribute to a visitor’s harm.  Provide thorough safety training to agritourism employees.  Make sure employees know how to do the job, including activities like operating equipment, maintaining and cleaning visitor areas, handling animals, overseeing children, and responding to a safety incident.
4. Obtain agritourism insurance coverage.  Insurance is an excellent liability management tool.  But be aware that a typical farm insurance policy does not cover agritourism activities, and a separate endorsement or policy may be necessary.  Even if a farm has a separate endorsement for agritourism, it’s still important to ensure that any new agritourism activities fall under the agritourism coverage. Now is the time to schedule a visit with the insurance provider and review the insurance policy.  Don’t be secretive about what you’re doing in your operation.  Share all activities with the provider and ensure that each activity is covered by the policy.  If an activity is not covered or will require costly additional coverage, weigh the risk, costs, and benefits of continuing to offer the activity.
5. Install the Ohio agritourism immunity sign.  I’ve been surprised recently by how many operations I’ve visited that do not have an agritourism immunity sign on display. Posting the sign is a critical risk management tool.  That’s because Ohio law provides civil immunity for qualifying agritourism providers if a visitor suffers harm or injuries due to the “inherent risks” of being on a farm.  To receive the immunity, however, an agritourism provider must post the required agritourism immunity sign at the entrance to or near the agritourism activities.  The agritourism immunity sign warns visitors that the operation is not liable for harm from inherent risks and that they are assuming the risk of participating in agritourism activities. But while it’s an important tool, don’t let the sign replace all of the other recommendations provided in this article.  Read more about the immunity law and the agritourism immunity sign in our law bulletin, Ohio’s Agritourism Law, available on farmoffice.osu.edu.

Agritourism is a thriving industry in Ohio. Taking legal precautions to manage liability risk will help ensure that agritourism remains an important component of Ohio agriculture. To learn more about legal issues in agritourism, visit OSU’s Agritourism Law Library on the Farm Office website at farmoffice.osu.edu/law-library.

Preparing farms for the solar eclipse

Co-authored by Peggy Kirk Hall, OSU Agriculural & Resource Law Program and Wayne Dellinger, OSU Extension Educator in Union County and member of the OSU Ag Safety Team.

The upcoming solar eclipse on April 8 is a rare event that could bring a half-million people into the 124-mile eclipse path across Ohio, according to the Ohio Emergency Management Agency.  For months, we’ve been hearing about eclipse issues ranging from eye safety to best viewing locations.  But for farmers and farmland owners within the eclipse viewing area, the solar eclipse raises unique issues and concerns. Should we take steps to secure the farm?  Will it delay our farming activities? What if we have trespassers or want to invite people to the farm to view the eclipse? 

With the eclipse quickly approaching, now is the time to address the safety and legal questions it creates for the agricultural community.  To provide guidance on these questions, our Agricultural & Resource Law Program partnered with the OSU Ag Safety Team. We offer these five steps farmers and farmland owners can take now to prepare for the solar eclipse:

1. Secure the farm property. 
2. Understand trespass laws.
3. Know responsibilities for invited guests.
4. Plan ahead for farming activities.
5. Be prepared to react to an incident.

For each step, we provide explanations of the concerns and issues that might arise, any laws that apply, and actions farmers and farmland owners can take to reduce their safety and legal concerns.  Read the entire article at https://farmoffice.osu.edu/solar-eclipse-2024.

Winter application of manure in Ohio: what’s allowed?

Co-authored by Glen Arnold, OSU Extension Field Specialist in Manure and Nutrient Management

This week’s snow was a reminder that we’re still in the middle of winter in Ohio, with more cold weather yet to come.  Winter weather is a challenge for those who handle manure, and it’s equally challenging to know the laws for applying manure on frozen and snow covered ground.  Those laws vary according to several important factors:  whether ground is frozen or snow covered, whether a farm is operating under a permit, and the geographical location of the land application.  Here’s a summary of the different winter application rules and standards in effect this winter.

What is frozen ground?  Ohio’s rules don’t define the term frozen ground, but generally, ground is considered frozen if you cannot inject manure into it or cannot conduct tillage within 24 hours to incorporate the manure into the soil.

Farms with Permits.  Farms with permits from the Ohio Department of Agriculture (ODA) or Ohio EPA operate under different rules than other manure applications in Ohio, and they cannot apply manure in the winter unless it is an extreme emergency.  Movement to other suitable storage is usually the selected alternative.  Several commercial manure applicators have established manure storage ponds in recent years to help address this issue. 

Applications in the Grand Lake St. Marys (GLSM) watershed.  There is a winter manure application ban from December 15 to March 1 for the GLSM watershed,  8ODA has the authority to allow an application, but that is not likely during the winter period.  After March 1, applications on frozen ground or ground covered in more than one inch of snow may occur only if the manure is injected or incorporated within 24 hours of surface application. The rule is in OAC 901:13-1-11. 

Applications in the Western Lake Erie Basin (WLEB) watershed.  In those parts of western Ohio that are in the WLEB watershed, below, the House Bill 1 restrictions established in 2016 are still in effect.  The law prohibits any manure application on frozen ground.  Applications are permissible on snow-covered soil if the manure is injected into the ground or incorporated within twenty-four hours of surface application.  The law is in ORC 939.08.

Other parts of Ohio.  It’s important to note that the NRCS Nutrient Management Conservation Practice Standard Code 590 (NRCS 590) now applies statewide in Ohio (but does not replace the GLSM and WLEB restrictions).  NRCS 590 was revised in 2020 and states that the surface application of manure on frozen and snow-covered soil is not acceptable unless it is an emergency.  An emergency is a temporary situation created by unforeseen causes and only after all other options have been exhausted. In this emergency situation only, limited quantities of liquid manure may be applied to address manure storage limitations only until non-frozen soils are available for manure application. The Ohio Department of Agriculture will enforce NRCS 590 in counties outside of GLSM and WLEB only if there is a manure discharge from the field. If a citation is issued for a discharge, liability for the discharge will be based on the 590 standards.

All applications of liquid manure to frozen and snow-covered soils must be documented in the producers’ records and must be applied in accordance with ALL of the following criteria:

• The rate of application shall not exceed the lesser of 5,000 gallons/acre or P removal for the next crop.
• Applications are to be made on land with at least 90% surface residue cover (cover crop, good quality hay or pasture field, all corn grain residue remaining after harvest, all wheat residue cover remaining after harvest).
• Manure shall not be applied on more than 20 contiguous acres. Contiguous areas for application are to be separated by a break of at least 200 feet.
• Applications should be in areas of the field with the lowest risk of nutrient transport such as areas furthest from streams, ditches, waterways, and with the least amount of slope.
• Application setback distances must be a minimum of 200 feet from grassed waterways, surface drainage ditches, streams, surface inlets, water bodies and 300 feet from all wells, springs and public surface drinking water intakes. This distance may need to be increased due to local conditions.
• For fields exceeding 6% slope, manure shall be applied in alternating strips 60 to 200 feet wide generally on the contour, or in the case of contour strips on the alternating strips.

Stockpiling.  For farmers with solid manure, stockpiling could be an option. There are two different types of stockpiles: short-term and long-term.

The short-term stockpile standards are in NRCS Field Office Technical Guide 318,  Short Term Storage of Animal Waste and Byproducts Standard (“NRCS 318”). Essentially, short- term stockpile is a pile of solid manure being kept temporarily in one or more locations. It is considered a temporary stockpile as long as the pile is kept at the location for no more than 180 days and stockpiled in the field where the manure will be applied. Setback distances listed in NRCS 318 should be followed to prevent discharge to waters of the state. There are multiple recommendations listed in NRCS 318 that speak to location, timing, and preventative measures to use while stockpiling the manure short term.

The long-term stockpile standards are in NRCS Field Office Technical Guide 313 Waste Storage Facility Standard (“NRCS 313”). A long-term stockpile is directly related to solid manure being piled and kept at a facility for longer than 180 days at a permanent location. It is recommended that all permanent long term storage stockpiles follow the guidelines in NRCS 313 with the utilization of a stacking facility and the structural designs of fabricated structures. A stacking facility can be open, covered or roofed, but specific parameters should be in place to prevent manure runoff from the site—these recommendations are in NRCS 313.

Check with your SWCD office.  Regardless of where you are in Ohio, it’s probably best to check with your county Soil and Water Conservation District office before considering winter manure application in Ohio. The rules have changed, and you should become aware of those that affect your operation in your area.

EPA issues “existing stocks” order for over-the-top dicamba sale and use

A federal court decision last week vacated the registrations of dicamba products XtendiMax, Engenia, and Tavium for over-the-top applications on soybean and cotton crops, making the use of the products unlawful (see our February 12, 2024 blog post).  The decision raised immediate questions about whether the U.S. EPA would exercise its authority to allow producers and retailers to use “existing stocks” of dicamba products they had already purchased.  Yesterday, the U.S. EPA answered those questions by issuing an Existing Stocks Order that allows the sale and use of existing stocks of the products that were packaged, labeled, and released for shipment prior to the federal court decision on February 6, 2024.  For Ohio, the EPA’s order allows the sale and distribution of existing stocks until May 31, 2024 and the use of existing stocks until June 30, 2024.

Here is the EPA’s order:

1. Pursuant to FIFRA Section 6(a)(1), EPA hereby issues an existing stocks order for XtendiMax® with VaporGrip® Technology (EPA Reg. No. 264-1210), Engenia® Herbicide (EPA Reg. No. 7969-472), and A21472 Plus VaporGrip® Technology (Tavium® Plus VaporGrip® Technology) (EPA Reg. No. 100-1623). This order will remain in effect unless or until subsequent action is taken. The issuance of this order did not follow a public hearing. This is a final agency action, judicially reviewable under FIFRA § 16(a) (7 U.S.C. §136n). Any sale, distribution, or use of existing stocks of these products inconsistent with this order is prohibited.
2. Existing Stocks. For purposes of this order, “existing stocks” means those stocks of previously registered pesticide products that are currently in the United States and were packaged, labeled, and released for shipment prior to February 6, 2024 (the effective date of the District of Arizona’s vacatur of the dicamba registrations). Pursuant to FIFRA section 6(a)(1), this order includes the following existing stocks provisions:

a.  Sale or Distribution by the Registrants. As of February 6, 2024, sale or distribution by the registrants of these products is prohibited, except for the
purposes of proper disposal or to facilitate lawful export.
b.  Sale or Distribution by Persons other than the Registrants. Persons other than the registrants, including but not limited to co-ops and commercial distributors, who are already in possession of these products as of February 6, 2024, may sell or distribute these products until the end date for sale and distribution of existing stocks identified in Table 1; except that such persons may distribute these products after the date identified in Table 1 solely for purposes of proper disposal, lawful export, or to facilitate return to the manufacturer.
c.  Distribution or Sale by Commercial Applicators. Notwithstanding paragraph 2.b, for the purpose of facilitating use no later than the relevant end date for use of existing stocks identified in Table 1, distribution or sale of existing stocks of these dicamba products that are in the possession of commercial applicators is permitted
until the relevant end date for use in Table 1.
d.  Use of Existing Stocks. As of the date of this order, use of XtendiMax, Engenia, and Tavium is permitted until the relevant date identified in Table 1, provided that such use of existing stocks is consistent in all respects with the previously approved labeling accompanying the product.

What happens next? 

The Existing Stocks Order addresses dicamba over-the-top applications for the current growing season, but it’s not the end of the dicamba controversy.  One potential next step could come from the petitioners in the federal case that vacated the dicamba product registrations, Center for Biological Diversity v. EPA.  The petitioners could file a motion asking the Court to review the Existing Stocks Order–an action that took place in the previous dicamba cancellation case, National Family Farm Coaltion v. EPA (Monsanto).  The petitioners in that case unsuccessfully sought an Emergency Motion to enforce the vacatur and hold the EPA Administrator in contempt for issuing an Existing Stocks Order.  A second next step that may yet play out is an appeal of the recent federal decision by either the EPA or the dicamba product manufacturers–those parties have 30 days from the February 6 decision date to file an appeal.  At least one thing is clear at this point:  the long-term future of dicamba over-the-top products will continue to exist in a state of uncertainty.

Read the full text of the EPA’s Existing Stocks Order.

Dicamba’s future is uncertain, again

A federal district court in Arizona has vacated the registrations for dicamba products XtendiMax, Enginia, and Tavium, finding that the U.S. EPA violated pesticide registration procedures when it approved the product registrations in 2020.  As a result of the decision in Center for Biological Diversity v. EPA, the dicamba products are no longer legally authorized for use and application in the U.S.  Although there will likely be appeal of the decision, the new ruling creates uncertainty over the use of dicamba products for the upcoming crop season.

History of the case

If the court’s ruling feels familiar, that’s because it is a repeat of a 2020 Ninth Circuit Court of Appeals decision in National Family Farm Coalition v. EPA (Monsanto).  In that case, the court vacated the first “conditional” dicamba product registrations granted by the EPA in 2018.  The court found that the EPA had “substantially understated” and failed to acknowledge the risks of dicamba’s volatility and its effects on non-users.  The EPA then cancelled the product registrations in June of 2020, but allowed producers to use “existing stocks” of already purchased products to apply the products until July 31, 2020.  The Ohio Department of Agriculture shortened that timeline in Ohio due to growing conditions within the state, prohibiting applications of dicamba after June 30, 2020.

Bayer, BASF, and Syngenta immediately revised the label application instructions and restrictions for their dicamba products and resubmitted their registration requests to the EPA. In October of 2020, the EPA granted the applications and issued “unconditional” five-year registrations for over-the-top applications (OTT) of the products on cotton and soybean crops.  The EPA did not provide a notice and opportunity for the public to submit comments before it made the registration decision. The National Family Farm Coalition, Pesticide Action Network, Center for Food Safety, and Center for Biological Diversity filed the current lawsuit, claiming that the EPA violated federal law by granting the unconditional registrations without a notice and comment period.

The court’s reasoning in this case

EPA’s error.The primary basis for the court’s decision is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Section 136a(c)(4), which contains the notice and comment requirement for registration of a “new use” of a pesticide or herbicide.  It states that the EPA:

“. . . shall publish in the Federal Register. . . a notice of each application for registration of any pesticide that contains any new active ingredient or if it would entail a changed use pattern. The notice shall provide for a period of 30 days in which any Federal agency or any other interested person may comment.”

FIFRA further states that a “new use” of a product means, in part, “any additional use pattern that would result in a significant increase in the level of exposure, or a change in the route of exposure, to the active ingredient of man or other organisms.”

The EPA took the position that it did not have to provide the FIFRA notice and a comment period because the 2020 registration requests were not applications for a “new use” since EPA had previously approved the products.  The court strongly disagreed, however, emphasizing the previous court decision that had vacated those registrations because the EPA had failed to fully consider the risks of the products.  The EPA’s conclusion that the 2020 registrations were not for a new use “is so implausible that the Court cannot ascribe it to be a mere difference in view,” the court stated.  Stakeholders who would be affected by the dicamba registrations should have had an opportunity to “meaningfully weigh in during the decision-making process before EPA concluded whether OTT dicamba has unreasonable adverse effects on the environment,” said the court.

Remedy for the error.  The court explained that upon finding an agency has violated federal law, the presumed remedy a court must grant is to vacate the agency’s action.  The law requires that only in limited circumstances, when equity requires it, should a court remand without vacating an agency decision.  There are two factors the law requires a court to review in determining the remedy:  the seriousness of the agency’s error and the disruptive consequences of vacating the agency’s decision.  The court’s next step was to review those two factors and determine whether it should remand the issue with or without vacating the dicamba registrations.

Examining the first factor, the court concluded that the EPA’s error was “very serious” because it was likely that, had the agency considered field studies, data, and other information that would have been submitted during the comment period, the EPA’s registration decision likely would have differed from the decision it made to grant the five-year unconditional registration.  The history of the dicamba registrations were important to the court, and the judge noted that there had not been a notice and comment period for stakeholders who were opposed to approving dicamba products since 2016, when the EPA considered the original registration.  The court reiterated a long list of field studies, incident reports, and data generated since 2016 that the agency could have considered had it provided a comment period.  Noting that the EPA was “highly confident that control measures would eliminate dicamba offsite movement to only a minimal effect,” the court pointed to years of incident reports on dicamba offsite movement and concluded:

“This Court believes hearing from all stakeholders is likely to change the OTT dicamba registrations at least from unconditional to conditional, with data gathering requirements reinstated. Hearing from non-users of OTT dicamba may change the EPA’s circular approach to assessing costs for risks from OTT dicamba offsite movement. Instead of simply concluding there is no risk and, therefore, no costs to these stakeholders, EPA is likely to include the costs to these stakeholders when balancing the risks and benefits for OTT dicamba. Accordingly, the Court finds the EPA’s procedural error to unconditionally issue the “new use” 2020 dicamba registration, without notice and comment, was serious.”

The court then examined the second factor, the disruptive consequences of vacating the agency’s decision. The court recognized the benefits of dicamba products to the agricultural industry and that growers, through no fault of their own, would be in the difficult position of finding legal herbicides to protect their crops if the dicamba registrations were vacated.  Nevertheless, the court agreed with the reasoning in the previous dicamba case, National Family Farm Coalition v. EPA (Monsanto), that the seriousness of the EPA’s failure to assess the risks and costs for non-users of dicamba warranted vacating the registration despite the disruptive consequences.

What happens next?

There are two issues to watch now in the wake of the court’s decision. First is whether the EPA and the dicamba manufacturers will appeal the federal district court’s decision.  The appeal would go the Ninth Circuit Court of Appeals, the same appellate court that reviewed the decision in the first dicamba appeal, National Family Farm Coalition v. EPA (Monsanto).  An appeal would put the federal district court’s decision on hold.

If there is not an appeal, the second issue to watch for is how the EPA and state agencies will direct the use of existing stocks of dicamba products.  The EPA could use its authority to allow continued use of existing stocks of dicamba products until a certain date, as it did in the previous case.  If the EPA does issue an existing stocks order, states could also address the extent of existing stocks use within their borders, as Ohio did in the previous case.

Follow the Ohio Ag Law Blog for continued legal information about Center for Biological Diversity v. EPA and review the federal district court’s opinion through this link.  Ohio growers should also refer to information from OSU’s Weed Science Extension Specialist, Dr. Allyssa Essman, available through OSU’s C.O.R.N. newsletter.

When farm animals escape, who’s liable?

Recent collisions involving cattle on Ohio roadways raise the question of who is liable when a farm animal causes a roadway accident?  Ohio’s “animals at large law” helps answer that question. It’s an old law that establishes a legal duty for owners and keepers of farm animals to contain their animals.  The law states that an owner or keeper shall not permit their animals to run at large “in the public road, highway, street, lane, or alley, or upon unenclosed land.”  But as with many laws, the answer to the question of “who’s liable” under the law is “it depends.”  Here’s how the law works.

The law applies to both owners and “keepers.”  The animals at large law places responsibility on both the owners and the “keepers” of the animals.  The reference to “keepers” can expand the duty to someone other than the animal owner.  Ohio courts have interpreted the “keeper” language to include a person “who has physical care or charge” of the animal or has “some degree of management, possession, care, custody or control” over the animal.  Whether someone is a “keeper” is a fact specific determination made on a case-by-case basis.

Animals that must be contained.  Several years ago, Ohio legislators added poultry to the list of animals an owner must prevent from running at large.  The full list of animals an owner or keeper must contain now includes horses, mules, cattle, bison, sheep, goats, swine, llamas, alpacas, and poultry. 

The law creates both civil and criminal liability.  There are two potential outcomes toviolating the animals at large law.   The first is civil liability for “negligently permitting”  animals to run at large.  The owner or keeper who does so is responsible for all damages resulting from injury, death, or loss to a person or property caused by the animal.  The second is criminal liability.  An owner or keeper who “recklessly” permits the animals to run at large can be charged with a fourth degree misdemeanor.

An owner’s negligent conduct creates civil liability.  An owner can be liable for “negligently permitting” animals to run at large, but what does “negligently permitting” mean?  Courts have answered this question by stating that the law requires “negligent conduct” by the owner or keeper and that failing to exercise “ordinary care” to contain animals would be negligent conduct.  As an example, a court determined that an owner who leaned a gate against a barn opening without fastening the gate to the barn or to any fence posts did not exercise ordinary care to contain his cattle.  But the law allows an owner to rebut the presumption that the animals were out because of the owner’s negligent conduct.  An owner can offer proof of “ordinary care” taken to contain the animal, such as maintaining fences, locking gates, or checking animals regularly.  If the owner had exercised reasonable care and the animals escaped for other reasons, such as being spooked by a storm or a gate left open by someone else, the owner might not be liable for the animals running at large. Whether the owner or keeper “negligently permitted” the escape would be a fact specific determination, made on a case-by-case basis.

Reckless conduct can result in criminal charges.  In the example above, the court determined that the owner who merely leaned a gate up against the barn opening behaved “recklessly.”  Legally, recklessness is acting with complete disregard to the consequences.  Reckless behavior can lead to a criminal charge against the animal owner, with a maximum jail sentence of 30 days and a fine of up to $250.

Reducing liability risk under the animals at large law

1.  Regular management practices.  In the court cases that apply Ohio’s animals at large law, the owner or keeper’s management practices are critically important to a liability determination.  Animal owners and keepers can reduce liability risk by following routine management practices and documenting those practices, which include:

• Regularly checking and maintaining fences.
• Locking gates.
• Inspecting and maintaining stalls and similar enclosures.
• Checking and counting animals regularly, and immediately after a storm or similar event.
• Installing cameras.
• Training employees to follow management practices.

2. The fence matters.  It’s also important to build a sufficient fence.  OSU Extension offers helpful resources on fencing in this video on fencing systems by Educator Ted Wiseman and this article on common fencing mistake posted by the OSU Sheep Team.  Be aware that another Ohio law requires a new boundary line fence for livestock to be a certain type of fence.  Ohio’s “partition fence law” requires a new boundary line fence for containing livestock to be:

“a woven wire fence, either standard or high tensile, with one or two strands of barbed wire located not less than forty-eight inches from the ground or a nonelectric high tensile fence of at least seven strands and that is constructed in accordance with the United States natural resources conservation service conservation practice standard for fences, code 382.” If adjacent owners agree in writing, a new line fence to contain livestock can also be a barbed wire, electric, or live fence. 

3. Insurance and business entities.  Insurance is necessary risk management tool for farm animal owners and keepers.  It’s important to review all animals and animal activities with an insurance provider and ensure adequate liability coverage.  In some situations, using a separate business entity like a Limited Liability Company might be helpful for liability purposes.  Animal owners and keepers should consult with insurance and legal advisors to determine individual insurance and legal needs.

Ohio’s animals at large law is in Ohio Revised Code Chapter 951.  Ohio’s partition fence law is in Ohio Revised Code Chapter 971.

Senate Agriculture and Natural Resources Committee at work on three bills

The holidays aren’t distracting the Senate Agriculture and Natural Resources Committee from considering three legislative proposals concerning scenic rivers, small beer brewers, and state agriculture day designations.   On December 12, the committee will hear testimony on all three bills.  Here’s a summary of the proposals.

S.B. 156 – Designation of wild, scenic, and recreational rivers.  Senators Bill Reineke (R-Tiffin) and Bob Hackett (R-London) introduced this legislation to revise portions of the Ohio Scenic Rivers Program that were raising concerns from private property owners.  The committee will hold its fourth hearing on the bill on December 12.  The proposal makes the following changes to the Ohio Scenic River Law:

• Clarifies that the designation of a Wild, Scenic or Recreational River does not grant authority to oversee private activities on private property or enter private land within the river area to the Ohio Department of Natural Resources (ODNR), which administers the program. 
• States that the agency has management and oversight of lands along a designated river only for those lands the state owns.
• Requires ODNR to adopt rules to govern the use, visitation, and protection of scenic river lands and to establish facilities and improvements within the areas necessary for visitation, use, restoration, and protection of the lands.
• Clarifies that certain public entities must obtain approval from the ODNR Director to perform certain construction activities within 1,000 feet of a wild, scenic, or recreational river. 
• Extends the public comment period following the announcement of intent to designate a new river from 30 days to 60 days.

S.B. 138 – Alcohol Franchise Law exemption for small brewers.  This bill introduced by Senator Andrew Brenner (R-Delaware) aims to help small brewers who annually manufacture less than 250,000 barrels (7.75 million gallons) of beer.  The bill exempts small brewers from Ohio’s Alcohol Franchise Law, which requires a beer or wine manufacturer to enter into a franchise agreement with a distributor and lays out requirements for the franchise agreement.  The exemption would allow small brewers to establish agreements with distributors under their own negotiated terms rather than the state-required terms.  S.B. 138 will see its second committee hearing on December 12.

H.B. 162 – Agriculture Appreciation Act.  The House of Representatives passed H.B. 162 in October, and it will have its  second hearing on December 12.  Proposed by Reps. Roy Klopfenstein (R-Haviland) and Darrell Kick (R-Loudonville), the bill designates the following federal agriculture days as state days in Ohio:

• March 21 of each year as “Agriculture day”;
• The week beginning on the Saturday before the last Saturday of each February through the last Saturday in February as “FFA Week”;
• October 12 of each year as “Farmer’s Day”;
• The week ending with the second Saturday of March as “4-H Week.”

Keep up with the Senate Agriculture and Natural Resources Committee’s activity on the Ohio Senate’s website at https://ohiosenate.gov/committees/agriculture-and-natural-resources. 

Ohio House and Senate differ on CAUV property tax relief

Responding to concerns about potential increases in Ohio property taxes, the Senate passed House Bill 187 (HB 187) this week to provide some relief from property tax hikes.  That relief, however, affects only the Ohio homestead exemption.  The Senate removed provisions the House had passed in HB 187 offering relief on other property taxes, including Current Agricultural Use Valuation (CAUV) taxes.  The House and Senate differences mean the CAUV adjustments originally in HB 187 are currently at a standstill.

House Bill 187.  The House passed its version of HB 187 in October.  The House version included provisions that would temporarily adjust CAUV calculations until 2026.  When updating the CAUV value, a county auditor would be required to use an average of the CAUV formula value for the current year along with CAUV values that would have been assigned in each of the preceding two years, since the last update.  This three year averaging would lower the expected increase in the new CAUV value.  But the Senate drafted and passed a substitute of HB 187, and the substitute bill does not contain the CAUV language. The House and Senate must now confer on its differing versions of HB 187 to work out the differences.

Senate Bill 153.  The Senate isn’t completely ignoring the CAUV adjustments—they exist in another bill.  Senate Bill 153 (SB 153), introduced in the Senate back in September, contains the same CAUV language as HB 187.  The Senate Ways and Means Committee held four hearings on SB 153 in September and October.  But the committee has not taken any action on the bill since the last hearing on October 11.

What’s next for CAUV relief?  There are two avenues to enacting the CAUV three year averaging provisions that could bring some relief from CAUV increases.  First is for the Senate to reinsert the provisions in HB 187.  The second is for the Senate to pass SB 153 and send it over to the House for consideration.  From our view, it’s difficult to gauge if the House and Senate are on the same page for completing either route.

Follow HB 187on the legislature’s website at https://www.legislature.ohio.gov/legislation/135/hb187 and track SB 153 at https://www.legislature.ohio.gov/legislation/135/sb153.

Open burning restrictions lift December 1, but don’t get burned by the laws

With the warm, dry, and windy months of October and November behind us, Ohio farmers will soon have legal clearance to conduct open burning during the daylight hours.  Ohio law prohibits all open burning from 6 a.m. to 6 p.m. during October and November.  That’s because ground cover and weather conditions create high fire risk and volunteer firefighters with daytime jobs aren’t readily available to fight the fires. 

December 1 marks the end of the daytime burn restriction, but other open burning laws remain in effect. Farmers can burn “agricultural waste,” but must follow burning conditions.  Burning other types of waste can require prior permission or notification and it is illegal to burn some wastes due to the environmental harms they cause.  Failing to know and follow the open burning laws can burn you, so here’s a summary of important provisions in the open burning laws that affect farmers and farmland owners.

What you can burn.  Ohio law allows the burning of “agricultural wastes” under certain conditions.  Ohio law defines what is and is not “agricultural waste” as follows:

• Agricultural waste is any waste material generated by crop, horticultural, or livestock production practices, and includes such items as woody debris and plant matter from stream flooding, bags, cartons, structural materials, and landscape wastes that are generated in agricultural activities.
• Agricultural waste does not include buildings; dismantled or fallen barns; garbage; dead animals; animal waste; motor vehicles and parts thereof; or “economic poisons and containers,” unless the manufacturer has identified open burning as a safe disposal procedure.
• Agricultural waste does not include”land clearing waste,” which is debris resulting from the clearing of land for new development for agricultural, residential, commercial or industrial purposes.  Burning of “land clearing waste” requires prior written notification to Ohio EPA.
• If an agricultural waste pile is greater than 20 ft. wide x 10 ft. high (4,000 cubic feet), permission from Ohio EPA is necessary.

Where you can burn.  Two rules that affect the burning location relate to where the waste is generated and whether the burn is in or near a village or city:

• It is legal to burn agricultural waste only if it is generated on the property where the burn occurs.  It is illegal to take agricultural waste to a different property for burning and to receive and burn agricultural waste from another property.
• Burning inside a “restricted area” requires providing a ten day written notice to Ohio EPA.  A restricted area is any area inside city or village limits, within 1,000-feet of a city or village with a population of 1,000 to 10,000, or within one-mile zone a city or village with a population of more than 10,000. 
• A burn must be located more than 1,000 feet from any neighboring inhabited building.

How to manage the burn.  Ohio laws impose practices a person must follow when conducting open burning, which includes:

• Remove all leaves, grass, wood, and inflammable materials around the burn to a safe distance.
• Stack waste to provide the best practicable condition for efficient burning.
• Don’t burn in weather conditions that prevent dispersion of smoke and emissions.
• Take reasonable precautions to keep the fire under control. 
• Extinguish or safely cover an open fire before leaving the area.

Local laws matter too. A local government can also have laws that regulate burning activities, so it’s important to check with the local fire department to know whether any additional regulations apply to a burn.

A bad burn can burn you.   Violation of state and local open burning laws creates several risks for farmers and farmland owners. First is the risk of enforcement by the Ohio EPA, which has the authority to issue fines of up to $1,000 per day per offense for an illegal burn.  According to the EPA, the most common violations by farmers include burning substances that are not “agricultural wastes,” such as tires and plastics, failing to meet the 1,000 foot setback requirement, and burning waste from another property. EPA enforcement officers regularly patrol their districts, investigate fires they see, and investigate complaints from neighbors or others who report burning activities, so “getting caught” is quite possible.

An illegal burn might also bring in the Ohio Division of Forestry or local law enforcement.  Beyond the environmental provisions, other violations of the open burning laws can result in third degree misdemeanor charges.  Penalties of up to $500 and 60 days of jail time per violation could result.  

A final risk to consider is liability for harm to yourself, other people, or other property if a burn goes wrong.  It’s possible for a fire to escape and burn unintended property, to reduce roadway visibility and cause an accident, or to interfere with people, animals, crops, or buildings.  These situations can cause personal injuries, property harm, and could result in insurance claims or a negligence or nuisance lawsuit.  Using common sense and taking reasonable safety precautions when conducting a burn can go a long way toward reducing the risk of harm and resulting liability for harm.

To learn more about Ohio’s open burning laws, visit the Ohio EPA website at https://epa.ohio.gov/divisions-and-offices/air-pollution-control/permitting/open-burning.

Ten legal tips for the fall hunting season

The fall hunting season is upon us, and landowners across Ohio are being asked to give permission to allow hunting on their land. That means now is a good time for a refresher on the laws that affect Ohio landowners and hunting.  Here are ten legal tips for landowners considering hunting activities on their land.

1. Ohio law requires permission in writing–but landowners should review the permission form and know who they’ve permitted.   Ohio law requires a hunter to obtain a hunting license and written permission from a landowner or the landowner’s agent before hunting on private lands or waters.  Landowners should expect to be asked to sign the permission form provided by ODNR, which is available on ODNR’s website.  The permission form allows a landowner to designate a permission period—either the entire hunting season or specific dates.  If a hunter uses a different permission form, it might contain additional provisions beyond the permission to hunt, such as the right to install a tree stand or a blind on the property.  Landowners should have an attorney review a form if unsure of its meaning and should document names and contact information for hunters granted permission to hunt on the property.  Contact information will be helpful if there is a hunting incident or a need to contact the hunter.
2. Know the laws for family members and tenants.  A landowner who is a resident of Ohio, the landowner’s spouse, all children of any age, and all grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowner’s land.  All other family members must obtain a hunting license and follow the written permission requirement.   When a landowner is not a resident, only the landowner, spouse, and children living with the landowner may hunt without a license, and only if the landowner’s state of residency grants the same rights to Ohioans who own land in that state.  In a rental situation where a tenant resides on the land, the tenant and the tenant’s children who live on the land may hunt on the property without a hunting license and written permission.
3. The hunting license exemption also applies to certain entities.    If the owner of land is a limited liability company or a limited liability partnership with three or fewer individual members or partners, a member or partner who is a resident of Ohio may hunt on the land without a hunting license, as can the member or partner’s children of any age and grandchildren under the age of 18. If a trust owns the land and has a total of three or fewer trustees and beneficiaries, a trustee or beneficiary who is an Ohio resident and their children of any age and grandchildren under the age of 18 may hunt on the land without a hunting license.
4. A hunter must also have written permission to pursue or retrieve an injured animal.Hunters often mistakenly believe they have the right to pursue an injured animal onto another property, but Ohio law says otherwise.  Written permission of a landowner is required for each of these hunting activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild animal or bird.  Contrary to popular belief, the law does not require a landowner to give a hunter permission to pursue an injured animal—it’s a choice a landowner can make.
5. Two Ohio laws can protect landowners from liability for hunting injuries.  The first is Ohio’s Recreational User Statute, which states that a landowner has no legal duty to keep the premises safe for a hunter and other recreational users who have permission to be on the land.  This means the law will protect a landowner from liability if a hunter is harmed while on the property, but it won’t protect a landowner who caused the harm through intentional or reckless conduct.   Note that the liability protection does not apply if a landowner charges a hunter a fee for hunting, unless the fee is a payment made under a hunting lease.   Read more about the Recreational User’s Statute in our law bulletin on farmoffice.osu.edu.    A second  Ohio law addresses liability for someone who is hunting on land without permission.  In that case, Ohio law states a landowner is not liable for “injury, death, or loss to person or property” that arises from a violation of the requirement to have a landowner’s permission to hunt on the land.
6. Be mindful of the number of hunters who could be on the land.   For safety purposes, a landowner should be careful about allowing multiple hunters onto the land at the same time.  Strategies for managing multiple hunters include designating a specific parking area so hunters know if another hunter is present and setting specific hunting periods for different hunters.  Taking reasonable steps to manage multiple hunters will help ensure that someone isn’t harmed, and it can also protect a landowner from a potential claim that the Recreational User’s Statute shouldn’t apply because the landowner behaved recklessly by not managing multiple hunters allowed on the land.  While such a claim might not be legally successful, it would require landowners and their insurance providers to prove that the Recreational User’s Statute protects the landowner from liability.
7. Consider a hunting lease.  Many hunters and hunting groups prefer to secure hunting rights through a hunting lease.A lease can provide a landowner with additional income and is one situation where the liability protection of Ohio’s Recreational User Statute applies even if a payment is made to the landowner.  A lease can also address other rights and responsibilities, such as number and gender of animals to be taken, placement of tree stands and blinds, use of feeders and bait, where animals may be cleaned, and property maintenance activities by hunters.  See our law bulletin on hunting lease considerations in the property law library on farmoffice.osu.edu at https://farmoffice.osu.edu/our-library/property-law.
8. Ohio laws address harm to property caused by hunters.  What if a landowner gives permission to a hunter, but then that hunter causes property damage?  Ohio’s hunting law is one law that can help.  It prohibits a hunter from acting in a “negligent, careless or reckless manner so as to injure persons or property.”  A hunter who violates this law can face first degree misdemeanor charges and revocation of the hunting license and must also pay compensation to the harmed landowner.  Ohio’s reckless destruction of vegetation law is a second helpful law.  It allows a landowner to seek compensation for “reckless” destruction of vegetation, trees, and crops and would address a situation where a hunter acted intentionally and without regard for the consequences.  Intentionally cutting down a tree without permission or running an ATV through a planted crop are behaviors that could be deemed reckless.  Under this law, a landowner could receive triple the amount of the harm caused to the property by a hunter’s reckless behavior.
9. It’s a good time to mark property boundaries.   Many of the old fences that marked a farm’s property boundaries in Ohio are long gone, and it’s not as easy today for hunters to know where one farm begins and another ends.  Especially for landowners who don’t want hunting on their land, be sure boundary lines are clear to hunters.  Use corner posts, fences, and “no trespassing signs.”  In woodlots, marking the trees on the boundary with paint is also helpful.  For an overview of woodlot boundary marking, refer to this video at https://www.youtube.com/watch?v=zSYYn_onE80 from OSU Extension.
10. Ohio has a process for dealing with poachers and trespassers. Ohio’s “Turn in a Poacher” program (TIP) establishes mechanisms for reporting a violation of wildlife laws, such as hunting without permission or a license and taking animals out of season.  A person can report a violation using an online reporting form on ODNR’s website or by calling the TIP hotline at 1-800-POACHER (762-2437).  Incident reporters are encouraged to share details such as what happened, the location, vehicle description and license plate, and descriptions of suspects.  All information submitted to TIP is confidential, and reporters may choose whether or not they are willing to speak with a wildlife officer about the incident.