Lawsuit affects all Ohio farmers

AKRON – The outcome of a Summit County lawsuit could affect generally accepted agricultural practices in other parts of the state.

Christine Bannerman of Akron is taking Don Bessemer of Bessemer Farms to court for using a “bird gun” or cannon to repel birds from his sweet corn fields that abut Bannerman’s property.

Bessemer, 60, farms 300 acres, including 160 acres within the Akron city limits. He represents the third generation on the family farm that grows more than 30 produce items that are sold at the family’s farm market and through local Acme grocery stores.

He operates the last working farm within the city limits, an operation that local officials have dubbed the “salad bowl of Akron.”

In an ag district. The farm has been enrolled in an agricultural district for at least six years, which is the anchor of Bessemer’s defense.

Proving that using the bird gun is a common, recommended practice, particularly in an area designated as agricultural, should be sufficient to stop the nuisance claim, he says.

If he loses, however, Bessemer said the impact will ripple throughout Ohio.

“If I lose this case, it sets a precedent,” he said. “Every farmer in Ohio can lose if I lose this case.

“The farmers in Ohio should be aware their livelihood is in jeopardy.”

Farm and Dairy was unable to reach Bannerman for comment.

Common tool. USDA wildlife biologist Jon Cepek likens the dull bang made by one of these propane exploders to something in between a balloon popping and a loud shotgun.

“We recommend them all the time,” said Cepek, who works for the USDA’s Animal and Plant Health Inspection Service office in Sandusky, Ohio. “They’re very common.”

Cepek said the cannon use is “definitely a generally accepted agricultural practice,” and the harassment tool is also used in airports, where birds pose a safety hazard.

Similar case in Warren Co. The Ohio Farm Bureau is closely monitoring Bessemer’s case, along with a similar case in Warren County, although the producer being sued in that county is not in an agricultural district.

“The use of these cannons is considered a Best Management Practice and an accepted use around the state,” said Larry Gearhardt, an attorney with the Ohio Farm Bureau. “I think it’s pretty clear-cut on the face of this issue.”

If the bird bun is deemed a nuisance in either case, and growers are required to modify either the time or use of the gun, Gearhardt said it would “greatly inhibit the ability of producers to profitably raise sweet corn.”

Chasing birds. Bessemer Farm’s major crop is sweet corn, with roughly 130 acres planted.

Keeping birds out of those stands is critical, Bessemer said.

“I’ve seen flocks of 3,000, 4,000 birds,” he said. “In a matter of an hour, they can ruin a field.”

Bessemer uses a multi-prong approach to deter the birds, including floating birds-eye balloons, audio recordings of birds in distress and the propane exploder.

“You can’t use just one method,” he said.

But if he loses the use of the bird gun to startle these foraging red-winged starlings, Bessemer says he may be out of the sweet corn business altogether.

“If I didn’t use it, I would have a 100 percent loss,” Bessemer said. “They’ll just completely destroy a field of corn.”

During the growing season, the guns are rotated through his fields and are set on a timer to go off four times an hour, from one hour after sunrise to one hour before sunset.

He estimates his cannons were within hearing range of Bannerman’s property 10 days last year.

History. This isn’t the first time the two property owners have disagreed.

Bessemer said he planted a field of sweet corn on Bannerman’s property at her request in 2000, but a disagreement prevented him from harvesting the crop, a loss of roughly $11,000.

The following year, he felt they had resolved the situation enough to plant a second corn crop, but said when he placed a bird gun on that stand, Bannerman took the gun and put it in her garage and called the police to file a noise violation complaint.

It was the first such noise complaint in more than 50 years of using the bird gun, Bessemer said.

“We have tried to get along with her,” Bessemer claims. “We have never, ever had a complaint from any of our other neighbors.”

“I thought it was just like a joke, but it just kept getting worse.”

It’s a battle this farmer never thought he’d have to fight.

“I can battle the birds and I can battle the deer,” Bessemer said, “but I can’t battle these people with briefcases.”

The case is slated to be heard by a jury trial, with a pretrial May 15 in Summit County Common Pleas Court.