A hunting we will go: laws landowners need to know

By:Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law

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?  Yes.  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?  Yes.  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 once.  If 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.

Back-to-school means different laws apply to youth farm workers

Source: Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law

When kids head back-to-school, it’s time for farmers to do some homework and recall the rules that apply to youth working on farms during the school year.   Once school is in session, Ohio labor laws place restrictions on the times of day and number of hours that youth under the age of 18 can work on a farm.  The laws don’t apply to parents, grandparents, or legal guardians, however.  For other farm employers, be aware that the laws vary according to the age of the minor and some require written parental consent.  Here’s a quick refresher:

16 and 17 year olds

  • Cannot work before 7:00 a.m. on school days, with the exception that they can work starting at 6:00 a.m. if they were not working past 8:00 p.m. the night before.
  • Cannot work after 11:00 p.m. on a school night, which means a night when the minor has school the next day.
  • No daily or weekly limits on the number of hours the youth can work.

14 and 15 year olds

  • Cannot work during school hours while school is in session.
  • Cannot work before 7:00 a.m. or after 7:00 p.m., but can work until 9:00 p.m. from June 1 to September 1 or during any school holiday or break lasting more than 5 weekdays.
  • Cannot work more than 3 hours during a school day or more than 8 hours during a non-school day.
  • Cannot work more than 18 hours in a week while school is in session, unless the job is part of a work education program such as vocational training or work study.

12 and 13 year olds

  • The same time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to 12 and 13 year olds, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
  • Employer must obtain written parental consent for the youth to be working, unless the youth’s parent or legal guardian also works on the same farm.

Under 12 years old

  • Can only work on a farm where employees are exempt from the federal minimum wage, which includes a farms of an immediate family member or a “small farm” that used fewer than 500 “man days” of agricultural labor in any calendar quarter the preceding year.  A “man day” is a day during which an employee performs agricultural work for at least one hour.
  • Exception to the above:  local youths 10 and 11 may hand harvest short-season crops outside school hours for no more than 8 weeks between June 1 and October 15 if their employers have obtained special waivers from the U.S. Secretary of Labor.
  • The same daily time restrictions and daily and weekly hour limits for 14 and 15 year olds (above) apply to youth under 12 years old, but there is no exception to the 18 hour weekly limit for vocational training or work study programs.
  • Employer must obtain written parental consent for the youth to be working.

The other labor laws that typically apply to youth doing agricultural work on a farm continue to apply throughout the school year. For example, employers must maintain records for youth employees, provide a written agreement of compensation and a statement of earnings on payday, and a 30-minute rest period if the youth works more than five consecutive hours. An employer can’t assign any youth under the age of 16 with a “hazardous” job or task unless the youth is 14 or 15 and has a certificate of completion for tractor or machine operation. Further information about these and other laws that apply to youth under 18 working on a farm is in our new Law Bulletin, Youth Labor on the Farm: Laws Farmers Need to Know, available here.

OHIO AG LAW BLOG—Case watch: LEBOR and Lake Erie battles linger

Source: OHIO AG LAW

It’s been a while since we’ve written about the Lake Erie Bill of Rights (LEBOR)! As a refresher, LEBOR was passed in February in a special election as an amendment to Toledo’s city charter.  LEBOR was meant to create new legal rights for Lake Erie, the Lake Erie ecosystem, and to give Toledo citizens the ability to sue to enforce those legal rights against a government or a corporation violating them.  For a longer explanation on LEBOR, see our post here.  Since then, lawsuits for and against LEBOR have been filed, and the state of Ohio has passed legislation concerning the language in LEBOR. Updates on those actions will be discussed below.

Update on the Drewes Farm lawsuit

The day after LEBOR passed, Drewes Farm Partnership initiated a lawsuit in the U.S. District Court for the Northern District of Ohio, Western Division, against the city of Toledo. Our initial blog posts concerning this lawsuit are available here and here.  In May, we discussed updates to the Drewes Farm lawsuit in yet another blog post.  Since our last update, the Lake Erie Ecosystem and TSW’s motion to stay pending appeal and the appeal were both denied, meaning the Sixth Circuit agreed with the district court’s decision to leave the ecosystem and TSW out of the lawsuit.  As a result, the current parties to the lawsuit are plaintiffs Drewes Farm Partnership and the State of Ohio, as well as the defendant City of Toledo.  In early June, both the Drewes Farm Partnership and the state of Ohio filed motions for judgement on the pleadings.  The district court has not yet determined whether to grant the motions; the City of Toledo’s response to the motions is due on August 9, 2019.  After the response is filed, the plaintiffs will have a chance to reply.

Toledo Citizens file lawsuit against State of Ohio Continue reading

Poultry Litter Applications

Source: Glen Arnold, OSU Extension

Stockpiles of poultry litter can be seen in farm fields across Ohio. While common each year in wheat stubble fields, there are also stockpiles showing up in preventative plant fields.

Poultry litter is an excellent source of plant nutrients and readily available in most parts of the state.  Poultry litter can be from laying hens, pullets, broilers, finished turkeys, turkey hens, or poults. Most of the poultry litter in the state comes from laying hens and turkey finishers. Typical nutrient ranges in poultry litter can be from 45 to 57 pounds of nitrogen, 45 to 70 pounds of P2O5, and 45 to 55 pounds of K2O per ton. The typical application rate is two tons per acre which fits nicely with the P2O5 needs of a two-year corn/soybean rotation.

Like all manures, the moisture content of the poultry litter greatly influences the amount of nutrients per ton. Handlers of poultry litter have manure analysis sheets indicating the nutrient content.

Poultry manure for permitted operations needs to follow the Natural Resource Conservation Service 590 standards when being stockpiled prior to spreading. These include:

– 500 feet from neighbors

– 300 feet from streams, grassed waterways, wells, ponds, or tile inlets

– not on occasionally or frequently flooded soils

– stored for not more than eight months

– not located on slopes greater than six percent

– located on soils that are deep to bedrock (greater than 40 inches to bedrock)

Farmers who want to apply the poultry litter delivered to their fields are required by Ohio law to have a fertilizer license, Certified Livestock Manager certificate, or be a Certified Crop Advisor. Check with your local Soil and Water Conservation District for proper setbacks from steams, ditches and wells when applying poultry litter.

No Pigweed Left Behind – Late-Season Scouting for Palmer Amaranth and Waterhemp

Source: Dr. Mark Loux (edited)

Remain vigilant!  We have Palmer and Waterhemp in Knox County!! Now is an excellent time to scout for these weeds, especially in bean fields. If you would like help with identification call John at 740-397-0401.

If you don’t already have to deal with waterhemp or Palmer amaranth, you don’t want it.  Ask anyone who does.  Neither one of these weeds is easy to manage, and both can cause substantial increases in the cost of herbicide programs, which have to be constantly changed to account for the multiple resistance that will develop over time (not “can”, “will”).  The trend across the country is for Palmer and waterhemp to develop resistance to any new herbicide sites of action that are used in POST treatments within about three cycles of use.  Preventing new infestations of these weeds should be of high priority for Ohio growers.  When not adequately controlled, Palmer amaranth can take over a field faster than any other annual weed we deal with, and waterhemp is a close second.  Taking the time to find and remove any Palmer and waterhemp plants from fields in late-season before they produce seed will go a long way toward maintaining the profitability of Ohio farm operations.  There is information on Palmer amaranth and waterhemp identification on most university websites, including ours –  u.osu.edu/osuweeds/ (go to “weeds” and then “Palmer amaranth”).  An excellent brief video on identification can be found there, along with an ID fact sheet.  The dead giveaway for Palmer amaranth as we move into late summer is the long seedhead, and those on female seed-bearing plants are extremely rough to the touch.  We recommend the following as we progress from now through crop harvest: Continue reading

Budget bill brings changes to Ohio’s Right to Farm Law

Source: Peggy Kirk Hall, Associate Professor, Agricultural & Resource Law, OSU Extension

The funny thing about a “budget bill” is that it’s not all about the budget.  Many laws that are not related to the budget are created or revised within a budget bill.  That’s the case with Ohio’s HB 166, the “budget bill” signed on August 18 by Governor Dewine.  In the midst of the bill’s 2,602 pages are revisions to an important law for agricultural landowners—the “Right to Farm” Law.

Ohio’s Right to Farm Law, also referred to as the “Agricultural District Program,” provides immunity from a civil nuisance claim made by those who move near an existing farm.  To receive the immunity under the old law, the land must be enrolled as an “agricultural district” with the county auditor, agricultural activities have to be in place first, i.e., before the complaining party obtained its property interest, and the agricultural activities must not be in conflict with laws that apply to them or must be conducted according to generally accepted agricultural practices.  The immunity comes in the form of an affirmative defense that a farmer can raise if sued for nuisance due to agricultural activities such as noise, odors, dust, and other potential interferences with neighbors.  If the landowner can prove that the activities are covered by the Right to Farm law, the law requires dismissal of the nuisance lawsuit.  For years, we’ve been encouraging farmers to enroll land in this program to protect themselves from those who move out near a farm and then complain that the farming activities are a nuisance.

The new revisions to the law in the budget bill change the requirements for the land and agricultural activities that can receive Right to Farm immunity.  In addition to protecting agricultural activities on land that is enrolled with the county auditor as agricultural district land, the law will now also protect the following from nuisance claims:

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The Ohio Noxious Weed Law – A Tool in the Prevention of Waterhemp and Palmer Amaranth

Source: Dr. Mark Loux

Waterhemp and Palmer amaranth are both now listed on the Ohio noxious weed law, which means that landowners must take steps to control infestations and prevent further spread.  Since these are annual weeds, preventing spread is achieved by preventing plants from reaching maturity and producing seed.  This is the basis for our “No pigweed left behind” effort, for which the goal is to create an understanding that the only way to beat these weeds is to prevent seed.  Prevention needs to occur in any area that might be subject to infestation, such as roadsides, parks, conservation seedings, parks, etc, in addition to agricultural fields.  The entities managing these areas are responsible for recognizing and controlling infestations of waterhemp and Palmer amaranth, but this does not always occur.  Not everyone involved in crop production or land management is aware of the waterhemp/Palmer problem to begin with, and many managers are busy enough that preventing noxious weed problems has low priority.

Our advice is to pay attention to what’s happening in your area or in the areas that you farm, with the goal of becoming aware of new infestations early enough that plant maturity and seed can still be prevented, regardless of where they may be occurring.  We recommend as a first step contacting the land manager or owner to explain the issue, make them aware that they have an infestation, and request that action be taken.  However, where it’s not possible to have this conversation, or there is a refusal to take action, the Ohio noxious weed law can be used to try to force action.  A two-page summary of the noxious weed law that can be found here on the OSU Ag Law Blog, and also links directly to the law itself.

The basic idea here is that following an unsuccessful attempt to work with a landowner or manager, noxious weed issues should be reported to township trustees, and this must be done in writing.  The trustees then have the responsibility to deal with the issue, and the method for doing so varies depending upon what the land is used for and who is managing it.  If it’s necessary to use the noxious weed law, be sure to start the process early enough in summer, well before potential seed production.  There is a need to allow time for all of the steps in the process to occur, and for notifications to be received and acted on (or not).  Our experience is that not all landowners and managers will take action upon first notification, and in addition to action, their response to notification can include minimal response of protesting their need to act.  Waiting too late to start the process can result in lack of resolution of these issues in time to prevent plant maturity and seed production.  The noxious weed law has been used several times within the last two years to force managers to control Palmer amaranth, and could be used to accomplish the same for waterhemp, which was recently added to the list.  Consider the law a tool to prevent the establishment and spread of these weeds when other methods are ineffective.

You can search this blog for a complete description and pictures of all the weeds on the Ohio Noxious weed list.

No pigweed left behind

No pigweed left behind

Noxious Weeds in Cover Crop Seed and Seed Germination

Source: Alexander Lindsey, Laura Lindsey, Mark Loux, Anne Dorrance, Stan Smith, John Armstrong, OSU Extension

Seed quality is key to establishing a good crop (or cover crop). Some of the critical components of seed quality are percent germination, mechanical analysis for purity (% other crops, % inert, and % weeds), and a listing of noxious weeds identified by scientific/common name and quantity found. As producers are looking for seed sources to provide living cover on acreage this year that was previously earmarked for corn or soybeans, it is important to pay attention to the quality. These tests may also be required on seed lots for use in some relief programs as well. Commercial or certified seed used for cover crops should have a seed tag that shows variety and the seed quality measurements above. However, if the seed is sourced from out of state, the noxious weeds listed (or NOT listed) on the tag by name may differ from those had the seed been sourced from Ohio.

Only the noxious weeds for the state where the seed was originally going to be sold are required to be listed on the tag by name and quantity (Federal Seed Act, part 201.16). Each state determines which species are included on this list, and can differ from state to state. If seed is outside of Ohio for use on-farm, producers may want to have the seed tested for an “all state noxious-weed exam” prior to planting if this was not done previously on the seed lot. Only 1.1-1.2 lbs of seed is needed for the test, but it is critical the sample is representative of the lot to ensure quality test results. This test would screen the seed sample supplied for the weed contained in this list: https://www.ams.usda.gov/sites/default/files/media/StateNoxiousWeedsSeedList.pdf, and may serve as a more comprehensive exam than was conducted at the time of initial seed lot labeling. One service provider that can conduct this exam is Central Ohio Seed Testing (a subsidiary of the Ohio Seed Improvement Association; https://ohseed1.org/about-our-lab/). Samples can also be sent to ODA for an Ohio noxious weed exam (https://agri.ohio.gov/wps/portal/gov/oda/divisions/plant-health/grain-warehouse-feed-and-seed/). Depending on the source of seed and the planned use, a seed lot may be eligible to be tested for free through ODA between June and December (up to three per farmer). Conducting a noxious weed exam could help slow the movement of problematic weeds throughout the state and minimize future weed problems.

Another issue to consider is the quality of seed in storage that was not planted this year due to weather. Storing seed in an environment where the temperature (in F) plus the % relative humidity are less than 100 (Harrington’s rule) helps to minimize the rate of seed deterioration (or loss in germination and vigor). Seed germination is an important consideration for determining seeding rate to ensure the critical final stand for yield is achieved for crops like corn and soybeans. Most seed germination percentages on a seed tag for agricultural seeds (like corn and soybeans) are valid for 12 months from the last date of the month in which they were completed, with the exception being cool season grasses which are valid for 15 months beyond the month of testing (Ohio Revised Code, Chapter 907.07). Be sure to check the seed tag for both the date of the test as well as the germination when planning seeding rates.

You can search this blog for a complete description and pictures of all of the weeds on the Ohio Noxious weed list.

It’s All About the Weed Seedbank – Part 1: Where Has All the Marestail Gone?

Source: Mark Loux

For the second year in a row, we are scrounging to find enough marestail at the OARDC Western Ag Station to conduct the research we had planned on this weed.  After years of having plenty of marestail, we have had to look around for off-site fields where there is still a high enough population.  Which, since we are scientists after all, or at least make our best attempts, left us thinking about reasons for the lack of marestail, and our overall marestail situation, and seedbanks.

While the short game in weed management is about getting good enough control to prevent weeds from being a yield-limiting factor and interfering with harvest, the long game is about preventing seed production and managing the soil seedbank.  One of the characteristics shared by marestail, giant ragweed, and the nasty pigweeds, waterhemp and Palmer amaranth, is a rapid decline in seed viability in the soil within the first year, and an overall decline to 5% or less viable seed within 3 to 4 years.  Another characteristic of marestail and pigweed seed is a relative lack of dormancy, which results in the potential for an almost immediate increase in population the year following a year of substantial escapes and seed production.  How big that increase is depends upon how many plants go to seed and how many seeds are produced per plant, with the potential of up to about 200,000 seeds per marestail plant and one million per waterhemp or Palmer amaranth plant.  The net result of these two characteristics, though, is that these weeds can ramp up population fast following a year of poor control, but populations can also decline rapidly with good control that prevents seed.

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