Tag Archives: property law

A hunting we will go: laws landowners need to know

With archery season in full swing and deer gun season opening today, hunters will be out in full force across Ohio.  That means it’s also high season for questions about hunting laws, trespassers, property harm, and landowner liability.  Below, we provide answers to the top ten frequently asked questions we receive on these topics.

  1. I gave them permission to hunt on my land, but do I have to sign something?   Permission to hunt should be in writing.  Ohio law requires a person to obtain written permission from a landowner or the landowner’s agent before hunting on private lands or waters and to carry the written permission while hunting.  A hunter who doesn’t obtain written permission can be subject to criminal misdemeanor charges.  ORC 1533.17.  The ODNR provides a permission form at http://wildlife.ohiodnr.gov/Portals/wildlife/pdfs/publications/hunting/Pub8924_PermissiontoHunt.pdf.   If a hunter uses another form, read it carefully before signing and ensure that it only addresses hunting and doesn’t grant other rights that you don’t want to allow on the land.
  2. Do family members need a license to hunt on my land? Some of them will, depending on their relationship to you.  Resident landowners, their children of any age and their grandchildren under the age of 18 are exempt from the hunting license requirement when hunting on the landowners’ private lands and waters.  The same rule applies if a limited liability company (LLC), limited liability partnership (LLP) or a trust holds the land and the LLC, LLP or trust has three or fewer members, partners, trustees and beneficiaries, as long as the LLC member, LLP partner or trustee is a resident of Ohio.   When the landowner is not a resident, only the landowner, spouse and children of any age 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.  ORC 1533.10.  Family members who don’t fall under the license exemption must obtain a hunting license and follow the written permission requirement.
  3. Does a hunter need my permission to retrieve an animal injured on another property?   The written permission requirement applies to all of these activities:  shooting, shooting at, catching, killing, injuring, or pursuing a wild bird, wild waterfowl or wild animal.  ORC 1533.17.
  4. Will I be liable if a hunter is injured on my land? Probably not.  Two laws apply to this situation, depending upon whether you gave the hunter permission.   A landowner is not liable for injuries to or harm caused by a hunter who does not have written permission to be on the land.  ORC 1533.17.  Ohio’s Recreational User Statute applies when a hunter does have permission to be on the land; it states that a landowner has no legal duty to keep the premises safe for a hunter and assumes no responsibility for or incurs liability for any injury to person or property caused by any act of a hunter.  ORC 1533.181.  Note that this immunity doesn’t apply if the landowner charges a fee for hunting, unless the fee is a payment made under a hunting lease with a hunter or hunting group.  ORC 1533.18.  Read more about the law in our law bulletin, here.  These laws provide significant protection from liability for hunter injuries, but won’t protect a landowner who willfully or recklessly causes harm to hunters.  One situation that might rise to the level of willful or reckless conduct by a landowner is granting permission to too many hunters and failing to inform or manage the hunters, explained below.
  5. What if several people want to hunt on my land—how many should I allow? Ohio law does not state how many hunters can have permission to hunt on a parcel, but be careful about setting up a dangerous situation by allowing multiple hunters on the land at onceIf you do give permission to several hunters, let them know that others could also be hunting on the land and designate a particular parking area so that they know when other hunters are present.  You could even consider scheduling hunters on certain days.  If the hunters are part of a hunting club, consider leasing your land to the hunting club and letting the club decide how to manage multiple hunters (see our Hunting Lease checklist, here).  Taking such steps to manage multiple hunters will ensure that you aren’t behaving recklessly and have immunity from liability under the Recreational User Statute.
  6. Should I allow a hunter to bring along someone who’s not hunting? In regards to liability for that person, the Recreational User Statute described above applies to any person engaging in any kind of recreational activity, in addition to hunting. Hiking or walking on the land is a recreational activity covered under the law. As long as you give permission and don’t charge the recreational user a fee, the law provides immunity from liability for their injuries.
  7. What if a hunter leaves a tree stand or a blind on my land—can I get rid of it? It depends.  It’s okay to carefully remove a stand or blind from the area, but be careful about damaging or getting rid of it too soon if it’s the property of a hunter who had permission to be on the land.  According to Ohio common law, you might be liable for the property under a claim of “conversion” if the property is not “abandoned” or “lost.”  Abandoned property is that to which the owner has relinquished all rights with the intention of not reclaiming it, while lost property is that which the owner has involuntarily parted with through neglect, carelessness, or inadvertence.  A finder who possesses abandoned property takes absolute title to the property, while a finder of lost property takes title against everyone except the owner.  In either case, destroying or disposing of property that is not abandoned or lost could lead to a claim of conversion, and you could be liable for the damages.
  8. What if a hunter who had my permission to hunt ends up harming my property? There are two ways with deal with property harm from hunters.  First, the hunting laws prohibit a hunter from acting in a negligent, careless or reckless manner so as to injure persons or property.  Violating this law can lead to first degree misdemeanor charges and compensation to the landowner, as well as revocation of the hunting licenses and permits.  ORC 1533.171 and 1533.99.  Second, Ohio law allows a landowner to seek compensation for the “reckless “destruction of vegetation, trees and crops under ORC 901.51.  Reckless means acting intentionally and without regard for consequences.  If successful, a landowner can receive triple the amount of the harm caused to the property.
  9. What can I do to a trespasser who’s hunting on my land?  Dealing with trespassers is tricky.  First, don’t willfully harm the trespasser, as you could be liable for causing intentional harm.  Second, call your local ODNR wildlife officer or the Turn in a Poacher program, below, to report the incident.  Third, read our law bulletin on “Do’s and Don’ts of Dealing with Trespassers on the Farm,” available on farmoffice.osu.edu, here.
  10. What if I see someone violating hunting laws? ODNR’s “Turn in a Poacher” program encourages the public to report wildlife violations such as hunting out of season or without a license or permission.  The program provides several ways to report:  complete an online form available at http://wildlife.ohiodnr.gov/stay-informed/turn-in-a-poacher-tip and submit it through the internet or via mail,  call the TIP hotline at 1-800-POACHER, or use the same number to text photos of suspects, vehicles or signs of violations.  All reports are confidential.

The nursery rhyme “A Hunting We Will Go” paints a happy-go-lucky picture of hunting.  But hunting raises many questions and concerns for agricultural landowners.  Ohio law offers rules and remedies that can ease those concerns.  Landowners who know and use the laws just might be able to hum along with the nursery rhyme through hunting season.

 

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Ohio Ag Law Blog–The Ag Law Harvest

Written by: Ellen Essman and Peggy Hall

October is almost over, and while farmers have thankfully been busy with harvest, we’ve been busy harvesting the world of ag law.  From meat labeling to RFS rules to backyard chickens and H-2A labor certification, here’s our latest gathering of agricultural law news you may want to know:

Federal judge upholds Missouri’s meat labeling law—for now.  Missouri passed a law in 2018, which among other things, prohibited representing a product as “meat” if it is not derived from livestock or poultry.  As you can imagine, with the recent popularity of plant-based meat products, this law is controversial, and eventually led to a lawsuit.  However, U.S. District Judge Fernando Gaitan Jr. decided not issue a preliminary injunction that would stop the Missouri Department of Agriculture from carrying out the labeling law.  He reasoned that since companies like Tofurky, who brought the suit, label their products as plant-based or lab-grown, the law does not harm them.  In other words, since Tofurky and other companies are not violating the law, it doesn’t make sense to stop enforcement on their account. Tofurky, the American Civil Liberties Union, and the good Food Institute have appealed Judge Gaitan’s decision, asserting that Missouri’s law infringes upon their right to free speech.  This means that the Missouri law can be enforced at the moment, but the decision is not final, as more litigation is yet to come.

Oregon goes for cage-free egg law.   In August, Oregon passed a new law that would require egg-laying chickens, turkeys, ducks, geese, or guinea fowl to be kept in a “cage-free housing system.” This law will apply to all commercial farms with more than 3,000 laying hens.  A cage-free housing system must have both indoor and outdoor areas, allow the hens to roam unrestricted, and must have enrichments such as scratch areas, perches, nest boxes and dust bathing areas.  As of January 1, 2024, all eggs sold in the state of Oregon will have to follow these requirements for hens.  The law does allow hens to be confined in certain situations, like for veterinary purposes or when they are part of a state or county fair exhibition.

City can ban backyard chickens, says court.   The Court of Appeals for Ohio’s Seventh District upheld the city of Columbiana’s ordinances, which ban keeping chickens in a residential district, finding that they were both applicable to the appellant and constitutional. In this case, the appellant was a landowner in Columbiana who lived in an area zoned residential and kept hens in a chicken coop on his property.  The appellant was eventually informed that keeping his hens was in violation of the city code.  A lawsuit resulted when the landowner would not remove his chickens, and the trial court found for the city. The landowner appealed the trial court’s decision, arguing that he did not violate the city ordinances as they were written, and that the city applied the ordinances in an arbitrary and unreasonable way because his chickens did not constitute a nuisance. Although keeping chickens is not explicitly outlawed in Columbiana, the Court of Appeals for Ohio’s Seventh District found that reading the city’s zoning ordinances all together, the “prohibition on agricultural uses within residential districts can be inferred.”  Furthermore, the court pointed out that the city’s code did not ban chickens in the whole city, but instead limited them to agricultural districts, and that the prohibition in residential areas was meant to ensure public health.  For these reasons, the court found that the ordinances were not arbitrarily and unreasonably applied to the appellant, and as a result, the ordinances are constitutional.  To read the decision in its entirety, click here.

EPA proposes controversial Renewable Fuel Standard rule.   On October 15, EPA released a notice of proposed rulemaking, asking for more public comment on the proposed volumes of biofuels to be required under the Renewable Fuel Standard (RFS) program in 2020.  The RFS program “requires a certain volume of renewable fuel to replace the quantity of petroleum-based transportation fuel” and other fuels.  Renewable fuels include biofuels made from crops like corn, soybeans, and sugarcane.  In recent years, the demand for biofuels has dropped as the Trump administration waived required volumes for certain oil refiners.  The administration promised a fix to this in early October, but many agricultural and biofuels groups feel that EPA’s October 15 proposed rule told a different story. Many of these groups are upset by the proposed blending rules, claiming that way the EPA proposes calculate the biofuel volumes would cause the volumes to fall far below what the groups were originally promised by the administration. This ultimately means the demand for biofuels would be less.  On the other hand, the EPA claims that biofuels groups are misreading the rule, and that the calculation will in fact keep biofuel volumes at the level the administration originally promised. The EPA plans to hold a public hearing on October 30, followed by a comment period that ends November 29, 2019.  Hopefully the hearing and comments will help to sort out the disagreement. More information is available here, and a preliminary version of the rule is available here.

New H-2A labor certification rule is in effect.    The U.S. Department of Labor has finalized one of many proposed changes to the H-2A temporary agricultural labor rules.  A new rule addressing labor certification for H-2A became effective on October 21, 2019.  The new rule aims to modernize the labor market test for H-2A labor certification, which determines whether qualified American workers are available to fill temporary agricultural positions and if not, allows an employer to seek temporary migrant workers.   An employer may advertise their H-2A job opportunities on a new version of the Department’s website, SeasonalJobs.dol.gov, now mobile-friendly, centralized and linked to third-party job-search websites.  State Workforce Agencies will also promote awareness of H-2A jobs.  Employers will no longer have to advertise a job in a print newspaper of general circulation in the area of intended employment. For the final rule, visit this link.

And more rules:  National Organic Program rule proposals.  The USDA has also made two proposals regarding organic production rules.  First is a proposed rule to amend the National List of Allowed and Prohibited Substances for organic crops and handling.  The rule would allow blood meal made with sodium citrate to be used as a soil amendment, prohibit the use of natamycin in organic crops, and allow tamarind seed gum to be used as a non-organic ingredient in organic handling if an organic form is not commercially available.  That comment period closes on December 17, 2019.  Also up for consideration is USDA’s request to extend the National Organic Program’s information collection reporting and recordkeeping requirements, which are due to expire on January 31, 2020.  The USDA’s Agricultural Marketing Service specifically invites comments by December 16, 2019 on:  (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency’s estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Great Lakes restoration gets a boost from EPA.  On October 22, 2019, the EPA announced a new action plan under the Great Lakes Restoration Initiative (GLRI).  The plan will be carried out by federal agencies and their partners through fiscal year 2024.  Past GLRI action plans have removed environmental impairments on the lakes and prevented one million pounds of phosphorus from finding its way into the lakes.  The plans are carried out by awarding federal grant money to state and local groups throughout the Great Lakes, who use the money to carry out lake and habitat restoration projects.  Overall, the new plan’s goals are to remove toxic substances from the lakes, improve and delist Areas of Concern in the lakes, control invasive species and prevent new invasive species from entering the lakes, reduce nutrients running off from agriculture and stormwater, protect and restore habitats, and to provide education about the Great Lakes ecosystem.  You can read EPA’s news release on the new plan here, and see the actual plan here. We plan to take a closer look at the plan and determine what it means for Ohio agriculture, so watch for future updates!

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