When do you have the right
to farm and when don't you?
By Jeff Caldwell
You may have heard the story.
A livestock feeding operation is sued by the residents of the area, citing odors or other perceived nuisance, even though the farmer or rancher may have been there first. The operator is left unprotected from such litigation, making it all too easy for his or her operation to be shut down because of a smell or sight neighbors did not like, regardless of how minor it was.
Situations like this one, in addition to other conditions calling for and as a result of right-to-farm and nuisance laws, were addressed during the 2003-2004 Iowa Commodity Conference in Ames, Iowa, Dec. 16.
Defined by the House of Representatives Agriculture Committee as "laws [that] deny nuisance suits against farmers who use accepted and standard farming practices, even if these practices harm or bother adjacent property owners or the general public," right-to-farm laws were originally established to protect farming or ranching operations that meet state legal requirements from prosecution by encroaching non-ag interests, primarily urban or suburban commercial or residential developments. Without such laws, operations found to pose a nuisance to neighboring developments by the court can face penalties ranging from fines or forced changes to an operation to eliminate the said nuisance, or in extreme cases, closure altogether.
Iowa is the lone state in the U.S. that currently has no established right-to-farm law. In 1998, it became the only state to have its law declared unconstitutional by its state Supreme Court.
In areas where urban and suburban sprawl have become more prevalent, however, the definition of a "nuisance" has been subject to the opinions of jurors, making it difficult to objectively define. As a result, the decision that can often mean the survival of a farmer or rancher's economic livelihood is left in the hands of an eight-member jury. And, if a court case goes on long enough, fees and other costs associated with a legal defense can be enough to drive a producer to bankruptcy.
This subjectivity in definition has proven to be a problem in past nuisance law defenses, according to Eldon "Mac" McAfee, attorney-at-law with Beving, Swanson and Forrest, P.C., of Des Moines, who has taken part in nuisance lawsuits in the past. The nuisance or interference, which can range from noise or odor, to visual clutter or dangerous structures, must be validated as actually causing legitimate harm, another factor whose interpretation can vary widely from juror to juror.
"Is there substantial interference? Farmers feel that maybe we have reached zero-tolerance for odor and other interferences," McAfee said. "It is defined as unreasonable interference with a person's comfortable use and enjoyment of land. There's a lot of interpretation involved in that."
The success of a state's right-to-farm law, according to Terry Centner, professor of agricultural and applied economics at the University of Georgia, depends on how the law works within the context of other state laws and regulations. In this context, ag producers should understand nuisance and right-to-farm laws are bases for legal defense, not immunity from litigation. By operating within the bounds of existing statutes for "generally accepted agricultural and management practices" or GAAMPs, Centner said ag producers can work together with government agencies to avoid the possibility of legal actions against them.
"We have to realize the right-to-farm law works with other laws in the state. Farmers need a right-to-farm law to protect their capital investments," Centner said. "What we try to do is be fair to all balancing, competing interests."
Currently, with no right-to-farm or nuisance law on the books in Iowa, McAffee said this lack of policy can be attributed to the number of cases currently in litigation. With 15 nuisance cases ongoing in the Iowa legal system, McAffee said it leads him to question the system.
"What is causing the number of nuisance suits?" he said. "Is it because we don't have a valid nuisance defense available?"
Without a nuisance or right-to-farm law in Iowa, McAffee echoed Centner's thoughts on how producers can work to avoid nuisance lawsuits. By operating in accordance with GAAMPs, producers should be protected from litigation from interests outside the agriculture industry.
In looking forward to when Iowa officials re-visit the establishment of nuisance and right-to-farm policy, McAffee said it will be a difficult, but vital task to ensure the state's agricultural producers are protected, while maintaining a standard for operating within the requirements for the definition of a nuisance in the eyes of the non-agriculture general public.
"My concern is that the courts and other branches of government are not working to protect our state's largest industry, agriculture, and that they're looking to other avenues, like tourism, that they want to build," McAffee said. "Basically, it's biting the hand that feeds you."
Date: 1/15/04
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