Written by Evin Bachelor, Law Fellow, OSU Extension Agricultural & Resource Law Program

Here’s our latest gathering of agricultural law news that you may want to know:

Congress considers bankruptcy code changes with Family Farmer Relief Act of 2019.  Senator Grassley and Representative Delgado introduced companion bills in their respective chambers of Congress that would modify the definition of “family farmer” in the federal bankruptcy code.  The change would raise the operating debt limit for a family farmer from $3.2 million as listed in the U.S. Code to $10 million.  Sometimes a small change can make a big difference.  In chapter 12 of the bankruptcy code, a “family farmer” has special options that other chapters do not offer, such as the power to determine a long-term payment schedule and pay the present market value of the asset instead of the amount due on the loan.  Many farmers had not been able to take advantage of the special bankruptcy provisions because of the low debt limit, but that may change.  For more information on the bills, click HERE for S.897 and HERE for H.R. 2336.

Congress also considers changing the number of daily hours a driver may transport livestock.  The Transporting Livestock Across America Safely Act would instruct the Secretary of Transportation to amend the rules governing drivers who transport certain animals.  The changes would loosen restrictions on the number of hours that drivers may drive, and increase the types of activities that are exempt from counting toward the maximum time.  Travel under 300 miles would be exempt from the hours of service (HOS) and electronic logging (ELD) requirements.  Both chambers of Congress are considering this bill, and both companion bills are currently in committee.  For more information on the bills and to learn about the changes proposed, click HERE for S.1255 and HERE for H.R. 487.

It’s not too late to submit comments to the FDA about its potential cannabidiol rulemaking.  Electronic or written comments can be sent to the FDA until July 2nd, although the deadline to request to make an oral presentation or comment at tomorrow’s hearing has passed.  Click HERE for more information from the Federal Register about the May 31st hearing and submitting comments.

Meatpackers face second class-action lawsuit, and R-CALF refiles.  In our last edition of The Harvest, we talked about a new class-action lawsuit filed in Illinois federal court by a number of cattle ranchers, including R-CALF, against the nation’s largest meatpacking companies.  Now, another lawsuit has been filed in Minnesota federal court also alleging a price fixing conspiracy by the meatpackers.  The second lawsuit is being brought by a cattle futures trader, rather than a rancher.  After the second suit was filed, R-CALF voluntarily dismissed its case in Illinois to refile it in Minnesota.  This refiling allows the lawsuits to be heard by the same court.

Tyson sues the USDA’s Food Safety and Inspection Service.  Tyson, which is named as a defendant in the class action suits we just mentioned, is a plaintiff in a case against the USDA’s Food Safety and Inspection Service.  The company alleges that a FSIS inspector falsified an inspection of 4,622 hogs, which were intermingled with another 8,000 carcasses, at one of its Iowa facilities in 2018.  The company claims that the false inspection required it to destroy all of the carcasses, and cost nearly $2.5 million in total losses and expenses.  The complaint, which is available HERE, alleges four counts: negligence, negligent inspection, negligent retention, and negligent supervision.  The lawsuit is based on the legal principle that an employer is liable for the actions of its employee.

Ohio Case Law Update

Plaintiff must prove that a defendant wedding barn operator’s breach of a duty caused her harm.  Conrad Botzum Farmstead is a privately operated wedding and event barn located in the Cuyahoga Valley National Recreation Area and on lease from the National Park Service.  The plaintiff in the case was attending a wedding at the barn, where she broke her ankle while dancing on a wooden deck.  The jury trial found that the barn operator was 51% at fault for her injuries, and awarded the plaintiff compensation.  However, the barn operator appealed the decision and won.  The Ohio Ninth District Court of Appeals found that the plaintiff did not introduce sufficient evidence to prove that any act or breach of duty by the barn operator actually or proximately caused the plaintiff to fall and break her ankle.  The case raises standard questions of negligence, but it is worth noting in the Ag Law Blog because the court did not base its decision on Ohio’s agritourism immunity statute.  The case is cited as Tyrrell v. Conrad Botzum Farmstead, 2019-Ohio-1874 (9th Dist.), and the decision is available HERE.

Ohio History Connection can use eminent domain to cancel Moundbuilders Country Club’s lease.  A Licking County judge ruled in early May that the Ohio History Connection, formerly the Ohio Historical Society, can reclaim full ownership of land that it had leased to a country club.  The Moundbuilders County Club has operated a golf course around prehistoric Native American earthworks for decades under a long-term lease with the state.  The Ohio History Connection sought to have the lease terminated in order to give the public full access to the earthworks as part of a World Heritage List nomination.  The judge viewed the request as sufficiently in the public interest to apply Ohio’s eminent domain laws.

Mr. Jason Hartschuh, Extension Educator for Agriculture and Natural Resources, Crawford County, The Ohio State University Extension

Spring 2019 has been challenging to say the least. Hay fields have disappeared due to winter kill and small grains matured before we could make hay. Making the forages that you have at the highest quality possible will be key. One way to maintain forage quality with small dry weather windows is to make silage or baleage instead of dry hay. The ideal conditions for baleage is to bale the hay between 40 to 65% moisture and wrap within 2 hours of baling. This process uses anaerobic conditions and the acids produced in fermentations to preserve hay. Baleage fermentation is slower than in haylage, often taking 6 weeks. When forage is baled between 25 to 40% moisture, it will not ferment properly and baleage at these moisture levels should be considered as temporary storage. During such situations, preservation is primarily a function of maintaining anaerobic, oxygen-limiting conditions. Mold is very likely at this moisture; higher bale densities and more wraps of plastic is required to better seal out oxygen. Baleage at this moisture will not maintain quality very long in storage, and thus, it needs to be fed as soon as possible. Baleage can be utilized as a plan or as a backup, but the best baleage is a plan and not a rescue.

If you are thinking baleage might be a needed option for you, either as planned or when your dry hay window disappears, start your plan before you are calling around to find a bale wrapper. The first consideration is how fast will you be able to feed the forage? This is a major consideration when selecting the type of bale wrapper you will buy or rent. The two options are individual wrappers, which are usually ideal if feeding 50 head or less from these bales. These machines can usually wrap 20 to 30 bales per hour and use twice as much plastic as a line wrapper.  Line wrappers can wrap 40 to 50 bales per hour using less plastic, but they require uniformity between bales. When bales aren’t uniform, there is oxygen captured between bales, often leading to spoilage within the tube of bales where bales meet. They require higher feed-out rates of ideally two bales per day. With a line wrapper, the end of the next bale is exposed to oxygen when you remove one bale to feed and the spoilage clock begins.

Determining where you will be storing bales ahead of time is very important. Making sure that the plastic is not punctured, allowing oxygen to enter and spoil the forage, due to storage site selection is critical. Ideal storage is in a well-drained location with year around access. Stone pads can work well as long as they don’t puncture the plastic. Be weary of storing on stubble, grassy areas, or under trees. These areas often attract rodents, lead to plastic damage, or have sticks that fall and puncture the plastic. Stored forage should be checked weekly for damage and holes taped as soon as they are found.

While KEEPING OXYGEN OUT is the most important part of making high quality baleage, it starts with mowing. When baleage is the planned storage method, your harvest capacity-limiting factor will be how many bales you can wrap an hour with the ideal goal of wrapping the bales within 4 hours. Based on research done at the University of Wisconsin-Madison, we recommend laying swaths as wide as your mower will allow, helping preserve forage quality and speeds up drying to 65% moisture by 10.8 hours. When baling, your goal needs to be for the highest density bales that you can make. A study from Penn State shows that by increasing bale density from 6 lb/ft³to 8lb/ft³,you gain an extra 12 hours of bunk life in the haylage due mostly to better bale fermentation. It is important to wrap bales as soon as possible after baling to avoid spoilage. The temperatures of bales that were wrapped each day from at baling to 4 days after baling are provided in Figure 1 (data from University of Wisconsin). With the temperature on day one representing the actual day of wrapping. These data show that just 24 hours after baling, the  bales that are not wrapped were over 120ºF. While wrapping bales even 4 days after baling stopped the heating process, the quality of these bales still declined.

Most bale wrap is one mil low-density polyethylene and bales need a minimum of 5 mils of plastic to seal out oxygen, requiring a minimum of 6 wraps. Types of plastic vary greatly in their stretchiness, which can reduce thickness by up to 25%. Some stretch is necessary so that the plastic stays sticky and seals well between the layers of plastic. Be cautious when wrapping in the rain as this will reduce the stickiness and allow more oxygen to penetrate, causing spoilage. Also, be cautious when wrapping forages that poke through the plastic which will require more layers. When oxygen enters the bale, they start to heat and quality declines when temperatures are over 120ºF.  The amount of time until bales are wrapped and the number of mils of wrap significantly effects internal bale temperature. Figure 2 shows that 6 to 12 mils of plastic maintained similar bale quality. With less wraps than this, bale spoilage is often prevalent. The general recommendations for layers of bale wrap are provided in Table 1.

Table 1. General recommendations for layers of bale wrap.

After bales are wrapped, handle them carefully using a squeeze so that plastic is not torn. If plastic is torn in storage, the tears should be taped as soon as you notice them. For this reason, bales should be inspected weekly in storage. Never use bale spears to move wrapped haylage until the day you are going to feed it. It is recommended that bales be fed within a year of wrapping. Haylage that is to wet, over 60% moisture, should be feed within 3 months, and haylage that is below 40% will not ferment well and should be fed within 6 months. Most of the time when we make baleage as a rescue, it falls in the range of needing to be fed within 6 months. When done right, baleage can last a year and make excellent feed that often has 5% better quality than dry hay. When done wrong, haylage can spoil, mold, and grow organisms that will make your animals sick; use your eyes and nose to be sure that the forage your going to feed is of high quality. Don’t force animals to eat forage they don’t want.

References

Undersander D., “Making Baleage” UW Extension, January 2015, https://fyi.extension.wisc.edu/forages/files/2015/06/Making-Baleage.pdf

Hall M., and J. Williamson, “Bale Density Effects on Baleage Quality” Penn State Extension, May 2019, https://extension.psu.edu/bale-density-effects-on-baleage-quality  Accessed May 2019

Undersander D., and C. Saxe, “Field Drying Forage for Hay and Haylage” UW Extension Focus on Forage”, April 2013, https://fyi.extension.wisc.edu/forage/drying-forage-for-hay-and-haylage/ Accessed May 2019

Managing and Utilizing Summer Annuals for Hay and Pasture

Wednesday, June 19, 7:00pm-8:30pm

Cost: Free

Registration: James Morris (937-378-6716)

Location: Brown County Extension Office, 325 W. State St., Georgetown, OH 45121

Speakers:

• Mike Estadt, OSU Extension Educator, Pickaway Co.
• James Morris, OSU Extension Educator, Brown County

Recent weather has left many producers with poor forage stands and as the temperature begins to heat up, cool season grasses fall into the “summer slump”. Summer annuals such as, Sorghum × drummondii (Sudangrass) and Pearl Millet can be used to supplement poor forage stands and meet nutritional demands.

This program will provide you with the information needed to plant, maintain and utilize summer annuals successfully. See the attached flyer for more information