Ohio Agricultural Law Blog–In the Weeds: Taking a Closer Look at the Lake Erie Bill of Rights

Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

If You Are Involved in Agriculture – You Need to Read This!!

Lake Erie once again made headlines when the Ohio Supreme Court recently decided that a “Lake Erie Bill of Rights” (LEBOR) initiative could be placed on the Toledo ballot on February 26, 2019.  The decision raised alarm in Ohio’s agricultural community and fears that, if passed, the measure will result in litigation for farmers in the Lake Erie watershed.

The OSU Extension Agricultural and Resource Law Program took a close look at LEBOR.  Specifically, we wanted to know:

  • What does Toledo’s Lake Erie Bill of Rights petition mean?
  • What does the petition language say?
  • What happened in the legal challenges to keep the petition off the ballot?
  • Have similar efforts been successful, and if not, why not?
  • Who has rights in Lake Erie?
  • What rights do business entities have?

We examine all of these questions, plus a number of frequently asked questions, in a new format called “In the Weeds.”  While many of our readers know of our blog posts and law bulletins, explaining this issue required something different.  Using “In the Weeds” is a way for us to dig into a current legal issue more in depth.

For answers to the questions above and more, CLICK HERE to view the new “In the Weeds: The Lake Erie Bill of Rights Ballot Initiative.”

The LL-GT27 soybean – what’s legal?

Source: Dr. Mark Loux, OSU Extension

We are starting to see the availability of soybean varieties with more than two herbicide resistance traits, which can expand the herbicide options, improve control, and allow multiple site of action tank mixes that reduce the rate of selection for resistance.  One of these is the Enlist soybean, with resistance to glyphosate, glufosinate, and 2,4-D.  As of this writing, full approval for the Enlist soybean is still being held up by the Philippines (because they can apparently).  The other is the LL-GT27 soybean, which has resistance to glyphosate, glufosinate, and isoxaflutole (Balance).  There is no label for use of isoxaflutole on this soybean yet, but it is legal to apply both glyphosate and glufosinate.  In Ohio, as long as neither label prohibits applying a mixture of two herbicides labeled for a specific use, it’s legal to apply the mixture.  So, it’s also legal to apply a mixture of glyphosate and glufosinate to the LL-GT27 soybean.  There is no label that actually mentions or provides guidance for this mixture, which does not affect legality, but could affect who assumes liability for the recommendation to apply a mixture if that matters to you.  Some seed companies are making the recommendation for POST application of the mix of glyphosate and glufosinate to the LL-GT27 soybean in printed materials.  Our interpretation after discussion with ODA, is that these materials are essentially supplements to labels, and so the seed company would assume some liability for the recommendation.

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Does Your Pesticide or Fertilizer License Expire in 2019?

The Knox County Re-certification Dates are listed below

Knox County

Pesticide & Fertilizer Re-Certification

January 29, 2019 – 5:30 p.m.

March 27, 2019 – 9:00 a.m.

Cost – $35, includes all materials & PIZZA

Conference Room – Advantage Ag & Equipment

1025 Harcourt Rd., Mount Vernon, Oh.

Check http://u.osu.edu/knoxcountyag for updates

 

New Requirements For Dicamba Use

Revised label and new training required before use in 2019

If you are planning to use Engenia (BASF), XtendiMax (Monsanto) and FeXapan (DuPont) in 2019 there are major changes to the labels for the products that you need to be aware of.  The biggest change is only license applicators can purchase, mix, load, apply or clean application equipment.  Previously these tasks could have been completed by an unlicensed applicator if they were “supervision by a certified applicator”.  Below is the ODA news release pertaining to the new regulations.

REYNOLDSBURG, Ohio (Jan. 16, 2019) – The Ohio Department of Agriculture (ODA) is reminding farmers of revised labels and new training requirements for applicators who intend to use dicamba herbicide products this year. In October 2018, U.S. EPA approved revised labels for the three dicamba products that are labeled for use on soybeans: Engenia (BASF), XtendiMax (Monsanto) and FeXapan (DuPont).

“Like any other product, we want to ensure licensed applicators are properly following label directions as they get ready for this growing season,” said Matt Beal, chief of the ODA Division of Plant Health. “This not only helps ensure the safe use of pesticides, it also helps prevent misuse and mishandling.”

The manufacturers of these dicamba products also agreed to additional requirements for their products. Some of the requirements include:

  • 2019 labels supersede all prior labels for these products. Applicators must obtain a copy of the new label and must have that label in their possession at the time of use
  • Only certified applicators may purchase and apply the products
    • Those operating under the supervision of a certified applicator may no longer purchase or apply.
    • Anyone who mixes, loads or cleans dicamba application equipment must become licensed.
    • ODA will host additional “Dicamba Ag Only” exams in February and March for those looking to become a certified applicator. Visit agri.ohio.gov for more details.
  • Applicators must complete dicamba-specific training
  • Increased recordkeeping requirements
  • Wind speed restrictions
  • Temperature inversion restrictions
  • Sensitive/susceptible crop consultation
  • Spray system equipment clean-out

More details on these revisions can be found in the attached fact sheet. Applicators looking for a list of ODA-approved trainings can visit www.agri.ohio.gov. For questions, applicators can contact the ODA Pesticide and Fertilizer Regulation Section at 614-728-6987 or pesticides@agri.ohio.gov.

Inversion and Drift Mitigation – Workshop on December 14

Inversion and Drift Mitigation Workshop
Dec. 14, 2018 • 10 a.m. – noon

10 – 11 a.m. Weather Conditions and Potential Inversions
Speaker: Aaron Wilson, Weather Specialist & Atmospheric Scientist, OSU Extension, Byrd Polar & Climate Research Center

11 – noon Using FieldWatch to Communicate
Speaker: Jared Shaffer, Plant Health Inspector, Ohio Department of Agriculture

Two choices for attending the workshop:

Attend in person (pre-registration required, limited to the first 75 people registered)
Ohio Dept. of Agriculture • Bromfield Administration Building
8995 E. Main St., Reynoldsburg, OH 43068
Click here to register

Attend virtually:
Link coming soon – no pre-registration required

No cost to attend. Core commercial and private pesticide recertification credits available only athe Reynoldsburg in-person location. Limited to the first 75 registered. No recertification credits given for virtual/internet attendees.

For more information about the workshop, contact:
Cindy Folck, folck.2@osu.edu
614-247-7898

Event sponsored by OSU Extension IPM program and the USDA NIFA Crop Protection and Pest Management Competitive Grants Program (Grant number 2017-70006-27174).

 

Precautions for Dicamba use in Xtend Soybean

Ohio, Indiana, and Illinois are heavily infested with weeds resistant to glyphosate (group 9), PPO inhibitors (group 14), and ALS inhibitors (group 2). This has greatly reduced the number of effective postemergence herbicides for controlling these weeds in Roundup Ready 2 (RR2) soybeans. Adoption of Roundup Ready 2 Xtend (glyphosate and dicamba resistant – RR2 Xtend) soybeans and use of dicamba-based herbicides is one option for managing resistant weed populations. Keep in mind that selection for dicamba resistance occurs each time dicamba is applied, and over reliance on this technology will lead to the development of dicamba-resistant weed populations.

The extension weed science programs at The Ohio State University, Purdue University, and the University of Illinois recently collaborated to revise suggestions and precautions for use of dicamba in dicamba-resistant soybean.  The United States Environmental Protection Agency renewed labels of Xtendimax, Engenia, and FeXapan last October, and this updated extension weed science publication offers additional suggestions to help further reduce off-target dicamba movement.

Click here to view the publication

Landowner’s Evidence Not Determinative in CAUV Tax Appeal According to Ohio Supreme Court

Source: Evin Bachelor, Law Fellow, Agricultural and Resource Law Program

 

A landowner may present evidence regarding the value and acreage of his or her land, but the Board of Tax Appeals (BTA) is free to weigh that evidence as it wishes, according to the Ohio Supreme Court.  All seven justices agreed that the BTA in the case of Johnson v. Clark County Board of Revision acted with appropriate discretion, although two justices did not sign onto the reasoning as to why the BTA acted appropriately.  The case involved a property owner’s challenge of the Clark County Auditor’s determination of Current Agricultural Use Valuation (CAUV) for property tax purposes.

Click here to read more

Save the Date


Save the Date!

The following meetings are scheduled for 2019

January 16 – Precision Ag Symposium – All Occasions Catering – Waldo

Featuring the most up-to-date information on Precision Ag Technologies

January 29 – Pesticide and Fertilizer Re-certification – 5:30 p.m.

1025 Harcourt Rd. Mt. Vernon

March 27 – Pesticide and Fertilizer Re-certification – 9:00 a.m.

1025 Harcourt Rd. Mt. Vernon

***Continue to check back for more information on these and other Winter Educational Events ***

Registration of Dicamba for Use on Dicamba-Tolerant Crops

The EPA extended the registration for two years for over-the-top use of dicamba to control weeds in fields for cotton and soybean plants genetically engineered to resist dicamba. This decision was informed by extensive collaboration between EPA, the pesticide manufacturers, farmers, state regulators, and other stakeholders. The registration includes label updates that add protective measures to further minimize the potential for off-site damage.  The registration will automatically expire on December 20, 2020, unless EPA further extends the registration.

The following label changes willbecome effective this year.

  • Only certified applicators may apply dicamba over the top (those working under the supervision of a certified applicator may no longer make applications)
  • Prohibit over-the-top application of dicamba on soybeans 45 days after planting and cotton 60 days after planting
  • For cotton, limit the number of over-the-top applications from 4 to 2 (soybeans remain at 2 OTT applications)
  • Applications will be allowed only from 1 hour after sunrise to 2 hours before sunset
  • In counties where endangered species may exist, the downwind buffer will remain at 110 feet and there will be a new 57-foot buffer around the other sides of the field (the 110-foot downwind buffer applies to all applications, not just in counties where endangered species may exist)
  • Clarify training period for 2019 and beyond, ensuring consistency across all three products
  • Enhanced tank clean-out instructions for the entire system
  • Enhanced label to improve applicator awareness on the impact of low pH’s on the potential volatility of dicamba
  • Label clean up and consistency to improve compliance and enforceability

Click Here To Read The Entire Article

 

 

License Required to Broker Oil-and-Gas Leases in Ohio

Those who help obtain oil-and-gas leases in Ohio for oil-and-gas development companies must be licensed real-estate brokers, the Ohio Supreme Court ruled today (9/25/2018).

The Supreme Court affirmed the dismissal of Thomas Dundics’ lawsuit against Eric Petroleum Corp. and its owner for nonpayment after Dundics found property owners, negotiated gas leases, and worked with Eric Petroleum to obtain leases. Dundics did not have a real-estate broker license and claimed that negotiating subsurface leases did not require a license.

Writing for the Court majority, Chief Justice Maureen O’Connor stated that nothing in Ohio’s real-estate broker law — R.C. 4735.01 — excludes oil-and-gas leases.

Justices Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined the opinion, as did First District Court of Appeals Judge Beth A. Myers, sitting for Justice Mary DeGenaro. Justices Terrence O’Donnell and Sharon L. Kennedy concurred in judgment only.