Legal: Understand your right to farm

Legal: Understand your right to farm Dairy Herd Management By Tiffany Dowell Lashmet Imagine a family-owned dairy in business for generations. It complies with all state and federal laws, ensures animals are treated well and works hard to minimize odors. As a nearby city grows, the dairy finds itself surrounded by new neighbors unfamiliar with agriculture. They express frustration when slow-moving tractors are on roadways. They complain about the smell of manure and silage. They dislike dust blowing into their swimming pool. Soon, a neighbor files a nuisance lawsuit against the dairy, claiming the odor and dust constitute a nuisance. Sadly, this is not an imaginary situation. Beginning in the 1970s, state legislatures recognized this problem threatened not only individual operations, but also the nation’s food supply. In response, legislatures in all 50 states passed statutes, known as Right to Farm laws, designed to protect an agricultural operation facing a nuisance lawsuit if certain conditions are met. Right to Farm statutes provide an affirmative defense in the event a farm is sued for nuisance. It does not prevent a lawsuit from being filed, but does allow a party to whom the statute applies to successfully seek its dismissal. Specific provisions vary greatly by state. It is critical for dairy operators to be familiar with their state’s Right to Farm statute. Consider these points when reviewing your state’s Right to Farm statute. To whom does the statute apply? Most Right to Farm statutes define agricultural operations to which the statute applies. Most cover traditional farming operations and practices like soil cultivation, dairying and breeding and raising livestock. However, certain definitions are much broader. For example, Hawaii’s law protects farmers’ markets, and Nebraska’s protection includes grain elevators and warehouses. What claims does the statute bar? All Right to Farm statues offer protection from nuisance suits, but it’s important to understand whether the statute also applies to trespass suits. A nuisance suit involves the interference with one’s use and enjoyment of his or her property, while a trespass suit involves unauthorized entry onto property. A plaintiff might bring both claims, and it is important to know if the defense is applicable. In Texas, for example, a dairy was sued for both nuisance and trespass when a rainstorm caused manure to run onto a neighboring property. The plaintiff argued the Right to Farm defense applied only to the nuisance claim, but the court rejected that argument. Other states, including Oregon, California and Hawaii, have found the defense applies to both types of claims. Does the statute require compliance with generally accepted practices? Some statutes, including those in Michigan and New York, offer protection to farmers who comply with generally accepted agricultural practices. Michigan publishes generally accepted practices for dairy activities such as manure storage, nutrient utilization and animal care. Producers must know how generally accepted practices are defined, and should attempt to comply with them. Is there a “time in operation” requirement? Many statutes establish a time period the agricultural operation must be in existence before the statutory defense is available. Montana and Wyoming require only that the ag operation be in existence before the plaintiff possessed his or her property. Idaho requires the operation be in existence one year before a suit is filed, Oklahoma requires two years and California requires three years. Finally, some states like Rhode Island have no such duration requirement. How does the statute address changes in operation? Producers must know how changes to their operation – changes in technology or new agricultural activities – will impact their Right to Farm protection. For example, in Colorado “employment of new technology” cannot constitute a nuisance. Missouri allows “reasonable expansion” to an operation. Other state statutes do not offer these protections. Does the statute allow for attorney fees? Even if successful, defending a lawsuit is expensive. Some Right to Farm laws (Michigan and Texas) award attorney fees to the successful party. Others, like Virginia, contain no such provision. What are the limitations? Right to Farm laws are not absolute. Most statutes provide no protection if the farm operated in a negligent manner or violated state or federal laws, such as the Clean Water Act. *************************