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The Right to Farm

08/18/2020

According to Attorney Tiffany Dowell of the Texas A&M University AgriLife Extension Service, all fifty U.S. states have some form of right-to-farm legislation.  Addressing the issue in her weekly posting on June 10th, Dowell considered right-to-farm in relation to a case in Indiana involving a farmer who erected two hog-finishing houses each with a capacity of 4,000 animals. Subsequent to initiating operation neighbors sued claiming nuisance, diminution of property value and related undesirable outcomes.

 

Despite the protection extended by right-to-farm laws, intensive livestock or poultry operations designated as Concentrated Animal Feeding Operations (CAFOs) may require rezoning of land for intensive farming use in addition to permits from a state environmental management authority.  Invariably the permitting process is subject to public comment that must be considered in the granting of permits.

 


NC Hog Complex

Modern Egg-production Complex

A number of cases in which public input has influenced outcomes include the proposed Hi-Q breaking unit in central Ohio that was rejected in 2011 following concerted opposition. More recently, the Lincoln Premium Poultry operation was forced to change location for the proposed processing plant and industrial installations.  Opposition to establishing breeder and broiler growing contract farms was also encountered in various counties although the company was able to recruit sufficient growers in Nebraska to reach predetermined production levels.  Sanderson Farms was forced to abandon a proposed processing location in an industrial park in Nash County, North Carolina in 2012 following public opposition requiring relocation to Robeson County. 

 

What emerges from these cases is that broiler or turkey processing plants may be opposed based on the potential for contamination of ground water and streams from effluent, odor, traffic congestion, costs of services to local municipalities and opposition to tax concessions.  With respect to large processing facilities, public concern may be based on a perceived change in the ethnic composition of an area due to a projected influx of low-paid workers and their families representing a different heritage to existing residents.  Opposition to a production complex is frequently based on the potential depreciation in the value of existing or intended residential property.

 

In reviewing the case involving the hog units in Indiana, the CAFO permit was issued by the Indiana Department of Environmental Management following two public hearings.  Rezoning of the land from agriculture-residential to agriculture-intensive was successfully negotiated and approved  Subsequent to establishing and operating the two hog houses, residents in the area filed suit claiming nuisance, negligence and trespass.  The plaintiffs also challenged the Indiana Right-to-Farm Act claiming a violation of the Takings Clause and the Privileges and Immunities Clause of the Federal and Indiana Constitutions.  The Defendants invoked the Indiana Right-to-Farm Act and obtained summary judgment dismissing the case.  The decision of this court was upheld on appeal to the Indiana Supreme Court. The Court confirmed the right of the Defendant to establish two hog houses in accordance with the Indiana Right-to-Farm legislation that was enacted to “conserve, protect and encourage the development and improvement of agriculture and for the production of food and other agricultural products. 

 

Most Right-to-Farm Acts absolve a farm of being classified as a nuisance following continuous operation for more than a year without a significant change in operation and if the operation was not a nuisance at the time the operation commenced in the locality.  It is important to determine whether conversion from one type of agriculture to another has occurred or whether a change in ownership or technology has taken place.  Naturally farm operators cannot function legally applying obvious negligence specifically with respect to disposal of waste. 

 

In considering whether a nuisance is a factor in denying a permit, courts must consider whether the operation would have represented a nuisance when the farm was established.  Residents who move into an area with an existing CAFO in operation cannot claim nuisance.  In addition public hearings allow residents and other landowners to object to any material change in operation of a farm such as erection of hog or poultry houses on land previously used to grow crops.

 

To claim negligence, the opponents of a CAFO would have to demonstrate inappropriate operation or violation of the permit terms.  Simply establishing a CAFO on a farm does not represent negligent operation under the Right-to-Farm Act.

 

The claim of trespass would require opponents to demonstrate that odor, pollutants or dust enters their homes.  In the Indiana case, the Appeals Court considered this approach “artful pleading” and was inconsistent with the Right-to-Farm Act.

 

In reviewing the appeal, the court clearly established that the Indiana Right-to-Farm Act was in accordance with the State Constitution and affirmed that the Right-to-Farm Act does not violate common laws of nuisance.  The question of the Takings Clause in the Indiana and U.S. Constitutions were reviewed and it was established that although there was diminution of property values among neighboring homes, the Plaintiffs failed to show a deprivation of economic or productive use of their properties.  The Privileges and Immunities Clause of the Indiana Constitution was also considered and it was ruled that the Right-to-Farm Act protected agriculture and that there was no preferential benefit to any specific group.

 

The issue of Right-to-Farm in relation to nuisance will be considered in greater detail in the appeals filed by Smithfield Foods following a series of adverse jury verdicts in a Federal District court. Residents and landowners in North Carolina adjacent to hog farms contracted to Smithfield Foods, claimed nuisance and diminution of property values as a result of odor from lagoons holding hog waste.  The issue of Right-to-Farm and nuisance arising from CAFOs as previously litigated will now be considered by a Federal Appeals court. Since Right-to-Farm Acts have different provisions depending on state, specific defenses will differ. 

 

In reviewing recent approvals for egg production complexes, the examples set by Herbruck’s Poultry Ranch, a third generation egg-production enterprise in western Michigan can be used as an example of how a project can be presented for approval.  When the company decided to establish a complex in Mercersburg, Pennsylvania, the family initiated a preemptive program involving complete transparency regarding the plan for the organic egg production enterprise including the number of houses, hen population and traffic patterns.  Representatives of the County and media were provided an opportunity to review the ambiance of the prototype farm in Saranac, MI demonstrating an appearance in harmony with the area and an absence of odor or any other nuisance factor.

 

Public acceptance of proposed CAFOs is critical to obtaining environmental permits and rezoning where required.  This can only be achieved with transparency, openness and goodwill. It is necessary to effectively promote a proposed poultry enterprise with honesty and not simply rely on litigation based on Right-to-Farm laws.