Cannons were firing down at the Statehouse recently in honor of Veteran’s Day and so were a few pieces of legislation.   It’s time to check in with the Ohio legislature for a look at proposals that impact agriculture.  Here’s our summary.

New proposals

S.B. 257– Income tax credit.  Sen. Frank Hoagland (R-Adena) introduced this bill on October 27, 2021.   It proposes a refundable income tax credit of up to $5,000 for qualifying donations of cash, services, real property, and personal property to a township, which must approve the donation.   The bill was referred to the Senate Ways and Means Committee on November 10.

SJR 3 – Constitutional right to hunt and fish.  Senator Sandra O-Brien (R-Ashtabula) is the primary sponsor of this proposal to amend Ohio’s Constitution introduced in late September.  It proposes a constitutional right for the people of Ohio to hunt, fish and harvest wildlife and to do so using traditional methods, subject only to laws that promote wildlife conservation and management and preserve the future of hunting and fishing.  The proposal also states that hunting and fishing shall be a preferred means of managing and controlling wildlife n Ohio and that the amendment would not limit trespass or property rights laws.  SJR 3 received its second hearing before the Senate Agriculture and Natural Resources Committee on November 16, 2021.  If it passes both the Senate and House, the measure would be placed on the general ballot in November 2022 for a vote by Ohio residents as is the required process for amending the Constitution.

Bills on the move

H.B. 440/S.B. 241– Agricultural Linked Deposit Program.  Part of Ohio Treasurer Robert Sprague’s “Ohio Gains Initiative” is to make revisions to the Agricultural Linked Deposit Program (Ag-LINK) that provides loans to farm operators and agribusinesses at reduced interest rates.  The bills would allow agricultural cooperatives to apply for the loans and would remove the $150,000 loan cap and allow the Treasurer to determine loan limits according to current conditions.  The companion bills received a second hearing in the Senate Financial Institutions and Technology Committee on November 16 and in the House Financial Institutions Committee on November 17.

H.B. 397– Agricultural lease law.  We expected this bill to be reported out of the House Agriculture and Conservation Committee in its fourth hearing on November 17, 2021, but the committee held off on a vote.  The bill would establish a statutory notice of termination date for verbal and written crop leases that don’t address termination.  It would require a landlord who wants to terminate the lease to provide written notice of termination of the next lease period by September 1 of the current lease period.

H.B. 321– Revisions to auction law.  The Ohio Auctioneers Association and Ohio Department of Agriculture collaborated on this bill, which updates Ohio’s laws regarding auctioneer licensing and auction regulation.  The bill removes barriers to entry for new auctioneers by eliminating the apprenticeship requirement replacing it education at approved institution prior to sitting for the auction exam.  It also allows the Ohio Department of Agriculture to have regulatory authority over internet auctions, currently exempt from regulatory oversight and makes changes to auctioneer licensing, testing, and continuing education requirements.  The House Agriculture and Conservation Committee approved the bill on November 17.

H.B. 175 – Deregulate certain ephemeral water features.  This highly controversial bill that passed the House largely along party lines on September 29, 2021, received its first hearing before the  Senate Agriculture and Natural Resources Committee on October 26, 2021.  The proposal would exclude “ephemeral features” from water pollution control programs and define an “ephemeral feature” as a surface water flowing or pooling only in direct response to precipitation, not including wetlands.  Environmental interests are urging the Senate to drop the bill.

H.B. 95:  Income tax credits for beginning farmers.  In the “bill I’ve reported on the most this year” category, HB 95 is inching steadily forward.  It would allow individuals to be certified as beginning farmers and create two income tax credits, one for owners who sell land and agricultural assets to certified beginning farmers and one for beginning farmers who attend approved financial management programs.  The bill passed the House back in June,  and finally received its first hearing before the Senate Ways and Means Committee on October 26, 2021.

S.B. 47– Overtime pay exceptions.  This proposal passed the Senate September 22, 2021 and had its first hearing before the House Commerce and Labor Committee on October 26, 2021.  It proposes two exceptions from employer overtime pay requirements:  traveling to and from a worksite and preliminary and postliminary tasks performed outside of work hours that are not at the direction of the employer.

S.B. 210– Postnuptial Agreements.  This proposal to allow spouses to voluntarily enter into a “postnuptial” agreement and to amend or terminate a prenuptial agreement passed the Senate on November 16, 2021.  Ohio is one of only four states that does not recognize postnuptial agreements that change a couple’s legal relations, such as inheritance rights, property division, and spousal support.   This bill would change that, and would also allow spouses to voluntarily agree to modify a prenuptial agreement.

Passed legislation

H.B. 215– Business Fairness Act.  A response to COVID-19 closures, the Business Fairness Act would allow a business subject to Department of Health orders to limit or cease operations during a pandemic, epidemic, or bioterrorism event to remain open.  To do so, the business must comply with all safety precautions required for “essential” businesses that are not ordered to close and must not be under an order to limit or cease operations that are based upon circumstances uniquely present at that business.   The measure passed the House on May 6 by a wide margin and passed Senate on November 16, 2021 with a unanimous vote.  It now goes on to Governor DeWine.

Did you know that white sturgeon are North America’s largest fish?  The largest white sturgeon on record was caught in 1898 and weighed approximately 1,500 pounds. Sturgeon is the common name for the species of fish that belong to the Acipenseridae family. The largest sturgeon on record was a Beluga sturgeon weighing in at 3,463 pounds and 24 feet long.  Talk about a river monster!  Swimming right along, this edition of the Ag Law Harvest brings you some intriguing election results from across the country, pandemic assistance for organic producers, and a lesson in signatures.

Maine first state to have “right to food.”  Earlier this month, Maine voters passed the nation’s first “right to food” constitutional amendment.  The referendum asked voters if they favored an amendment to the Maine Constitution “to declare that all individuals have a natural, inherent and unalienable right to grow, raise, harvest, produce and consume the food of their own choosing their own nourishment, sustenance, bodily health and well-being.”  Supporters of the new amendment claim that the amendment will ensure the right of citizens to take back control of the food supply from large landowners and giant retailers.  Opponents claim that the new amendment is deceptively vague and is a threat to food safety and animal welfare by encouraging residents to try and raise their own products in their backyards without any knowledge or experience.  The scope and legality of Maine’s new constitutional amendment is surely to be tested and defined by the state’s courts, but until then, Maine citizens are the only ones the in the United States that can claim they have a constitutional right to food.

New York voters approve constitutional environmental rights amendment.  New Yorkers voted on New York Proposal 2, also known as the “Environmental Rights Amendment.”  The proposal passed with overwhelming support.  The new amendment adds that “[e]ach person shall have a right to clean air and water, and a healthful environment” to the New York constitution.  New York is one of a handful of states to have enacted a “green amendment” in its state constitution.  Proponents of the amendment argue that such an amendment is long overdue while opponents argue that the amendment is too ambiguous and will do New York more harm than good.

USDA announces pandemic support for certified organic and transitioning operations.  The U.S. Department of Agriculture (“USDA”) announced that it will be providing pandemic assistance to cover certification and education expenses to agricultural producers who are currently certified or to those seeking to become certified.  The USDA will make $20 million available through the Organic and Transitional Education and Certification Program (“OTECP”) as part of the USDA’s Pandemic Assistance for Producers initiative. OTECP funding is provided through the Coronavirus Aid Relief, and Economic Security Act (“CARES Act”).  Producers can apply for expenses paid during the 2020, 2021, and 2022 fiscal years.  For each fiscal year, OTECP will cover 25% of a certified operation’s eligible certification expenses, up to $250 per certification category.  Crop and livestock operations transitioning to organic production may be eligible for 75% of eligible expenses, up to $750 for each year.  Both certified organic operations and transitioning operations are eligible for 75% of eligible registration fees, up to $200, per year for educational events to help operations increase their knowledge of production and marketing practices.  Applications are now open and will be available until January 7, 2022.  Producers can apply through their local Farm Service Agency office.  For more information on OTECP visit https://www.farmers.gov/pandemic-assistance/otecp.

A signature case.  In 2018 Margaret Byars died intestate survived by her 5 children.  After Byars’s death, one her sons, Keith, revealed that Margaret had allegedly executed a quitclaim deed in 2017 giving her Dayton home to Keith.  The other siblings brought this lawsuit claiming that the deed was invalid and unenforceable because the facts surrounding the execution of the deed seemed a little odd.  In 2017, Margaret was diagnosed with breast cancer and moved into a nursing facility.  Shortly after entering the nursing home, Sophia Johnson, a family friend and the notary on the deed, showed up to notarize the quitclaim deed.  Trial testimony revealed that the quitclaim deed was prepared and executed by a third party.  Margaret did not physically sign the deed herself.  In fact, the trial court noted that the signature looked like the handwriting of the person that prepared the deed and that no one saw Margaret authorize another to sign the deed for her.  Sophia testified that when she showed up to notarize the deed, the deed was already completed and signed.  Sophia also testified that Margaret seemed to intend to transfer the house to Keith and understood the nature and consequences of the deed.  After hearing all the testimony, the trial court concluded that the deed was enforceable, and the house belonged to Keith.  However, on appeal, the Second District Court of Appeals found the deed to be invalid.  The Second District stated that in Ohio a grantor need not actually sign a deed in order to be valid, however, the court concluded that the “signature requirement may be satisfied by another affixing a grantor’s signature on a deed so long as the evidence shows that the grantor comprehend the deed, wanted its execution, and authorized the other to sign it.”  The court concluded that the evidence showed that Margaret comprehended the deed and perhaps even wanted its execution.  But the evidence did not show that Margaret authorized anyone to sign the deed for her.  Because it could not be established that Margaret authorized the preparer or anyone else to sign the deed for her, the Second District court held that that deed was invalid under Ohio law.  This case demonstrates the importance of attorneys and the work they do to make sure all asset transfers and estate planning documents are in compliance with the law to help avoid unnecessary lawsuits and prevent any unintended outcomes.