Law

Kill Poison Hemlock Now!

– Christine Gelley, Agriculture and Natural Resources Educator, Noble County OSU Extension

While hemlock may still be vegetative today, it will soon look like this.

Poison hemlock has already emerged in a vegetative state around Noble County and beyond. Soon it will be bolting and blooming on stalks 6-10 feet tall. All parts of the plant are toxic to all classes of livestock if consumed and is prevalent along roadsides, ditches, and crop field borders.

It is a biennial weed that does not flower in the first year of growth but flowers in the second year. The earlier you can address poison hemlock with mowing and/or herbicide application, the better your control methods will be.

 

 

 

Continue reading Kill Poison Hemlock Now! →

Suspected 2,4-D Resistant Waterhemp Population Discovered

Source:  ICM News, Iowa State University

We know the evolution of resistance in waterhemp populations happens faster than new herbicides are discovered, so the recent report of dicamba resistant waterhemp in Iowa by Bayer was not unexpected. Corteva has now reported the discovery of a suspected 2,4-D resistant waterhemp population in Iowa. These reports emphasize the need to use herbicides wisely and diversify weed management tactics beyond herbicides, especially as more farmers rely on herbicide group (HG) 4-based postemergence weed control in both corn and soybean.

The particulars

In late January 2024, Corteva reported the discovery of a suspected 2,4-D resistant waterhemp population in 2022 in Wright County, Iowa. A Corteva employee collected two samples of waterhemp seed, one from plants in the field and one from plants growing in the ditch adjacent to the field. While greenhouse testing with seed collected from plants in the field did not confirm resistance, plants grown from the ditch population are suspected to be 2,4-D resistant. The communication reported that the ditch had a multi-year history of 2,4-D application to manage broadleaf weeds. Corteva will continue evaluation of the populations in the greenhouse and the field. If resistance is confirmed in this population, it will become at least the fourth report of 2,4-D resistance in waterhemp, joining prior reports from Nebraska in 2009 (Bernards et al. 2012), Illinois in 2016 (Evans et al. 2019), and Missouri in 2018 (Shergill et al. 2018).

Iowa State University screened populations of waterhemp against several herbicides in 2019 at their 1X rates (Table 1). On average, waterhemp exhibited 17% survival to 2,4-D, 5% survival to dicamba, and 4% survival to glufosinate (Hamberg et al. 2023). We are rapidly losing herbicide options for postemergence control of waterhemp.

Best management practices to slow resistance development

Now is the time to evaluate how to improve weed management in fields. While herbicides will remain the primary tactic to manage weeds, farmers can implement several best management practices to slow herbicide resistance evolution and improve control of weeds like waterhemp.

  1. Choose an effective herbicide program for the weed spectrum present on a field-by-field basis.
    1. Use full rates of effective residual herbicides and plant into a weed-free seedbed.
    2. Include overlapping residual herbicides and multiple effective herbicide groups in postemergence applications to provide longer waterhemp control. Consult manufacturers for specific tank-mix recommendations.
    3. Make timely applications and choose appropriate adjuvants, nozzles, application volume, etc.
    4. Scout fields 7-10 days after postemergence herbicide applications to evaluate weed control.
  2. Use a diversity of weed management tactics, including chemical, mechanical, and cultural options. Narrow row spacing, cover crops, more diverse crop rotations, and tillage are effective tactics to suppress waterhemp.
  3. Control weed escapes prior to seed production to reduce future weed populations and prevent resistance from spreading.
  4. Reduce influx of weed seed into crop fields by managing weeds in field edges and cleaning equipment between movement from problematic fields to clean fields. The detection reported here indicates the threat of weeds in field edges.

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

By:Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program

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:

Continue reading EPA issues “existing stocks” order for over-the-top dicamba use →

When farm animals escape, who’s liable?

Source: Peggy Kirk Hall, Attorney and Director, Agricultural & Resource Law Program

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 to violating 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.

Fall-applied Herbicide Considerations

Now that harvest is finally winding down, our thoughts change to fall weed control.   This is the best time of year to control winter annuals and some of the more difficult to manage overwintering weed species. Biennial and perennial plants are now sending nutrients down to the root systems in preparation for winter. Systemic herbicides like glyphosate and 2,4-D applied at this time will be translocated down into the roots more effectively than if applied in spring when nutrients are moving upward. This results in better control. In addition, the increasingly unpredictable spring weather patterns we have experienced in recent years can influence the timing and efficacy of spring burndown applications. Fall-applied herbicides can lead to weed free situations going into spring until early emerging annuals begin to appear in April, and are an essential component in the control of marestail and other overwintering species.

Here are some reminders when it comes to fall-applied herbicides:

  • Evaluate weed emergence and growth post-harvest to help determine if an application is necessary.
  • Fall-applied herbicides should primarily target weeds that are emerged at the time of application.
  • Species present in large quantities late-season that would necessitate the application of an herbicide include (but are not limited to): marestail, dandelion, wild carrot, poison hemlock, common chickweed, purple deadnettle, henbit, annual bluegrass, and cressleaf groundsel.
  • OSU research has not found much of a benefit from adding metribuzin or other residual products late in the fall. The exception to this is chlorimuron, which can persist into the spring. The recommendation here has generally been to keep costs low in the fall and save those products for spring when you will get more bang for your buck.
  • Herbicides generally work across a range of conditions, though activity can be slower as temperatures drop. Foliar products are most effective when daytime temperatures are in the 50s or higher and nighttime temperatures remain above 40.

Table 1 in the Weed Control Guide for Ohio, Indiana, Illinois, and Missouri provides ratings for various overwintering weed species in response to fall-applied herbicides.

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

Source: Peggy Hall, OSU Extension

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 conditions in the open burning laws. Burning wastes that aren’t agricultural waste might require prior permission or notification, and it is illegal to burn some wastes due to the environmental harms they cause. Don’t get burned by failing to know and follow the open burning laws. Here’s a summary of important provisions 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. Laws that affect the burning location relate to where the waste is generated and whether the burn is in or near a village, city, or buildings:

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 of 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.

Ohio State University to Provide Resolution Services for Ohio Farms

Ohio has over 76,000 farms and 13 million acres of farmland.  In such a large and diverse industry, conflicts commonly arise that can lead to disputes, litigation, and appeals.  Ultimately, these conflicts can cause harmful effects that threaten the viability of Ohio agriculture.  To address these issues, a new program has been developed – Ohio Farm Resolution Services at The Ohio State University (OFRS).  The goal of OFRS is to cultivate solutions to the conflicts that impact Ohio’s farms and farm families.

OFRS will provide a three-pronged approach to assist farms and farm families in resolving problems and conflicts:

  1. Education resources.  The first approach will be to provide educational resources that may lead to a resolution.  Educational resources may be in the form of bulletins, publications, articles or individual discussions.  For example, OFRS may provide a law bulletin on farm leasing to a tenant and landowner involved in a lease dispute.  Some disputes can be resolved through education alone.
  2. Consultation and informal resolution services.  OSU Extension attorneys and farm management specialists will be available to meet with parties to assist with resolving their issues.  These services will be more informal and may include sitting at the kitchen table with a family struggling with transition planning or perhaps meeting in a pasture to discuss shared fence line concerns between neighboring farmers.
  3. Formal mediation.  Sometimes conflicts escalate to hard feelings and entrenched positions.  When this happens, formal mediation may be appropriate.  This process will involve the intervention of a trained mediator to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the parties at a neutral location, often shuttling between separate rooms, where the parties can discuss the dispute and explore a variety of solutions.  Formal mediation is often the last step before litigation.

Most consultation and mediation services will be conducted by OFRS’ primary consultants/mediators: Peggy Hall, David Marrison, Jeff Lewis and Robert Moore.  OFRS will also develop a pool of outside mediators who can assist with matters that require special or unique technical knowledge.  OFRS is committed to providing individuals who have both the knowledge and skill to help understand and resolve issues.

OFRS will be able to assist on a wide variety of matters.  The following are issues for which OFRS can provide assistance:

  • Family communication
  • Farm transition planning
  • Business entities
  • Business practices
  • Land use
  • Property issues/neighbor issues
  • Zoning
  • Farm leases
  • Energy leases
  • Farm labor issues
  • Farmland drainage
  • Crops/agronomy/soils disputes
  • USDA administrative appeals
  • ODA administrative appeals
  • Farm lender/creditor negotiations

OFRS is available to provide educational and consultation services now.  Mediation services will be available beginning in January 2024.  For more information or to refer someone to OFRS, contact Robert Moore at moore.301@osu.edu or 614-247-8260.  Information is also available at farmoffice.osu.edu/ofrs.

The Ag Law Roundup: your legal questions answered

Source: Peggy Hall, OSU Extension

Is a tree service business considered “agriculture” for purposes of Ohio rural zoning?

No, tree trimming and tree cutting activities are not listed in the definition of agriculture in Ohio’s rural zoning laws, although the definition does include the growing of timber and ornamental trees. The definition ties to the “agricultural exemption” and activities that are in the “agriculture” definition can be exempt from county and township zoning.  Here is the definition, from Ohio Revised Code sections 303.01 and 519.01:

“agriculture” includes farming; ranching; algaculture meaning the farming of algae; aquaculture; apiculture; horticulture; viticulture; animal husbandry, including, but not limited to, the care and raising of livestock, equine, and fur-bearing animals; poultry husbandry and the production of poultry and poultry products; dairy production; the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any combination of the foregoing; and the processing, drying, storage, and marketing of agricultural products when those activities are conducted in conjunction with, but are secondary to, such husbandry or production.

What are the benefits of being enrolled in the “agricultural district program” in Ohio, and is there a penalty for withdrawing from the program?

There are three benefits to enrolling farmland in the agricultural district program:

  1. The first is the nuisance protection it offers a landowner.  A landowner can use the defense the law provides if a neighbor who moves in after the farm was established files a lawsuit claiming the farm is a “nuisance” due to noise, odors, dust, etc.  Successfully raising the defense and showing that the farm meets the legal requirements for being agricultural district land would cause the lawsuit to be dismissed.
  2. The second benefit is that the law also exempts agricultural district land from assessments for water, sewer and electric line service extensions that would cross the land.  As long as the land remains in agricultural district program, the landowner would not be subject to the assessments.  But if the land is changed to another use or the landowner withdraws the land from the agricultural district program, assessments would be due.  The assessment exemption does not apply to a homestead on the farmland, however.
  3. A third benefit of the agricultural district program law is that it requires an evaluation at the state level if agricultural district land is subject to an eminent domain action that would affect at least 10 acres or 10% of the land.  In that case, the Director of the Ohio Department of Agriculture must be notified of the eminent domain project and must assess the situation to determine the effect of the eminent domain on agricultural production and program policies.  Both the Director and the Governor may take actions if the eminent domain would create an unreasonably adverse effect.

Continue reading The Ag Law Roundup: your legal questions answered →

Is it Pigweed or Palmer? – Hope it’s not Waterhemp!

It’s that time of year when weeds are beginning to show their ugly heads above the soybean canopy in many fields.  During your scouting, if you find Palmer Amaranth or Waterhemp you should do whatever you can to prevent these devastating weeds from going to seed, including removing the entire plant from the field.

Each of the last 3 weeks I have included a post highlighting the different characteristics of Pigweed, Palmer Amaranth and Waterhemp.  These posts also included a step by step video to help with the identification process for these weeds.

Depending upon the growth stage, identifying these weeds in the field can be challenging. If a seedhead is present, most weeds are easier to identify, including pigweed, palmer and waterhemp. If you have seen a mature palmer seadhaed you will never forget it!  (see pictures above)

When trying to differentiate between these weeds I look for the following 3 plant characteristics:

1.Hair

Pigweed has hair the others do not.  Rub the stem and leaves checking for a “rough” texture.  Palmer and waterhemp will be smooth.

 

2. Leaves

Long Lanceolate Leaves

Waterhemp has long, slender leaves (lanceolate). While pigweed and palmer are more oval in shape.  Pigweed is wider in the middle and palmer is wider near the base of the leaf (this is usually hard do differentiate in the field).

 

 

3. Petiole

The petiole is the part of the plant that connects the leaf to the stem.  The petiole on palmer plant is as long or longer than the leaf.  Pigweed and waterhemp have much shorter petioles (often less than 1/2 the length of the leaf).

These weeds are here, they best way to prevent the spread is by preventing them from developing a seedhead.  One mature female plant  can produce up to 1,000,000 seeds.

 

Weed Identification Videos

 

If you  are still not sure about the identification, do not hesitate to call 740-397-0401) or send (barker.41@osu.edu) me a picture!!!