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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What’s Legal to Apply to the LL-GT27 Soybean – The (maybe almost) Final Story

by: Dr. Mark Loux, OSU Extension

Having to issue a retraction to previous C.O.R.N. article where we thought we had it right is always fun.  About a month ago we ran an article that covered the legality of POST glyphosate and glufosinate applications to the LL-GT27 soybean, which is resistant to both herbicides.  The issue at that time was the legality of applying a mix of both herbicides, based on questions we had received.  Cutting to the quick, our conclusion was that because it was legal to apply the mixture since both herbicides could legally be applied and labels did not prohibit mixing.  We were naïve apparently, because that article caused the issue over whether it was actually legal to apply glyphosate to the LL-GT27 soybean to be raised.  Since then, ODA, USEPA, and the companies who are the involved registrants have been working to come to a solution that clarifies this issue and keeps us all moving forward toward a resolution.  The issue here seems to be this – wording on most glyphosate labels specifies application is allowed to “Roundup Ready” and “Roundup Ready 2 Yield” soybeans, and since the LL-GT27 soybean is not designated as such, those glyphosate products could not legally be applied.  After a month of deliberation, the USEPA issued some guidance which took the form of the following:

“Users of pesticide products containing glyphosate should refer to the pesticide product labels of herbicide products containing glyphosate for the specific registered uses on pesticide-resistant crops such as soybeans with glyphosate-resistant trait(s).  Regardless of the herbicide product name (brand name), if the label of the glyphosate product states it is for over-the-top (post-emergent) use on glyphosate-resistant soybeans, and it is not otherwise restricted by other label statements/directions for use, it can be used on any soybean that has a glyphosate-resistant trait.  However, if the label of the glyphosate product states it is for use on crops such as soybeans, with specific glyphosate-resistant traits by name, then the glyphosate product can only be used on those crop(s) with those traits specifically identified on the label.  Ultimately, growers and commercial applicators must comply with the entirety of the pesticide label.  Please let us know if you have any questions.”

Questions – yes – excuse us while we look for the head scratching emoji.  We can try to interpret in real-life speak.  Here’s what it comes down to:

– the important part of the glyphosate label here is the use-specific directions, or the section within the larger “Roundup Ready” part of the label that deals with soybeans.

If the soybean section of the glyphosate product label does not mention specific genetics by trade name, but just the wording “glyphosate-resistant” or “glyphosate-tolerant”, then it is legal to apply that product to the LL-GT27 soybean.

– if the soybean section of the label restricts use to certain genetics by trade name –  “Roundup Ready”, “Roundup Ready 2 Yield”, etc, then it would not be legal to apply to the LL-GT27 soybean.

– if the wording on the label is along the lines of “For Use on Soybeans with the Roundup Ready gene”, or similar wording with other specific genetics, it would not be legal to apply to the LL-GT27 soybean.

Our not exhaustive search through glyphosate product labels indicates that most if not all do not contain any wording about “glyphosate tolerance” in the soybean section, and indicate use is specifically on “Roundup Ready” or “Roundup Ready 2 Yield” or “Soybeans with the Roundup Ready gene”.   This includes Roundup PowerMAX, Durango DMA, Abundit Edge, Credit Extreme, and Cornerstone to name a few.  Manufacturer reps with a glyphosate product label that varies from this are free to contact us so we know.

The inability to use glyphosate on the LL-GT27 soybean affects primarily growers who bought it for the genetics or other traits and not the LibertyLink trait, who might have planned to use only glyphosate POST.  Most of the utility of this soybean on problem broadleaf weeds comes from the LibertyLink trait though (and it’s definitely legal to apply glufosinate POST).  There’s plenty of generic clethodim around to help out with grass.  We assume label language will adapt over time to take care of the glyphosate issue.  We’re not even sure this issue would have come up if we hadn’t tried to clarify the tank-mix legality and stepped right in it.  There appeared to be some confusion in the field about this though, with different stories being told, and better to just clear it all up way in advance of the season.  Stay tuned for the next chapter.  Offer void where not legal.  Legality may vary by state.  Your mileage may vary.  Side effects may include confusion, apathy, anger, and spontaneous profanity.

Legal defenses for agricultural production activities

Source: Ohio Agricultural Aw Blog

Whether producing crops, livestock, or other agricultural products, it can be challenging if not impossible for a farmer to completely prevent dust, odors, surface water runoff, noise, and other unintended impacts.   Ohio law recognizes these challenges as well as the value of agricultural production by extending legal protections to farmers.  The protections are “affirmative defenses” that can shield a farmer from liability if someone files a private civil lawsuit against the farmer because of the unintended impacts of farming.  A court will dismiss the lawsuit if the farmer successfully raises and proves an applicable affirmative legal defense.

In our latest law bulletin, we summarize Ohio’s affirmative defenses that relate to production agriculture.  The laws afford legal protections based on the type of activity and the type of resulting harm.  For example, one offers protections to farmers who obtain fertilizer application certification training and operate in compliance with an approved nutrient management plan, while another offers nuisance lawsuit protection against neighbors who move to an agricultural area.  Each affirmative defense has different requirements a farmer must meet but a common thread among the laws is that a farmer must be a “good farmer” who is in compliance with the law and utilizing generally accepted agricultural practices.  It is important for farmers to understand these laws and know how the laws apply to a farm’s production activities.

To learn more about Ohio’s affirmative defenses for agricultural production activities, view our latest law bulletin HERE.

Agriculture Improvement Act (Farm Bill) of 2018: Summary

Source: Carl Zulauf, Emeritus Professor, and Ben Brown, Program Manager – Farm Management Ohio State University, Department of Agricultural, Environmental, and Development Economics

Some information is beginning to come out regarding the new Farm Bill.  The complete farm bill is 807 pages.  Click on the following link to read the complete 9 page summary compiled by Dr. Carl Zulauf and Ben Brown  Farm Bill-196wwqa