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Agricultural nuisances: qualifying legislative “right-to-farm” protection through qualifying management practices
Land Use Policy 19 (2002) 259–267
Agricultural nuisances: qualifying legislative ‘‘right-to-farm’’ protection through qualifying management practices Terence J. Centner* Department of Agriculture and Applied Economics, College of Agricultural and Environmental Sciences, University of Georgia, 313 Conner Hall, Athens, GA 30602, USA Received 11 July 2001; received in revised form 14 December 2001; accepted 21 December 2001
Abstract New homeowners moving into rural areas may use nuisance law to enjoin objectionable agricultural activities. Such lawsuits may result in financial losses for farmers unable to pursue practices required for their livelihood. In response, all American State legislatures adopted anti-nuisance provisions known as right-to-farm laws. Some of the laws offer so much protection that neighbors challenged them as offending the US Constitution. This paper evaluates legislative provisions incorporating qualifying management practices as an equitable method to respond to nuisance disputes. Anti-nuisance protection is only available to qualifying farmers; neighbors retain the right to stop unreasonable agricultural practices. r 2002 Elsevier Science Ltd. All rights reserved. Keywords: Agricultural nuisances; Constitutional ‘‘takings’’; Neighbors; Property rights; Right-to-farm laws
Introduction The production of many agricultural products involves the emission of odors, noise, by-products, wastes, and pollutants that are topics for governmental regulation. Under common law, neighbors can seek redress to these offensive activities and land uses through nuisance actions (Green, 1997; Heimert, 1997). If an activity is too offensive to surrounding property owners, it can be enjoined by a court of law (Hamilton and Bolte, 1988). Moreover, even in cases where a balancing test shows a close question of whether there is a nuisance, courts have two major choices. The offensive conduct is either a nuisance or not. If there is a nuisance, the plaintiff is entitled to relief: cessation of the activity or damages. If there is not a nuisance, the plaintiff receives nothing (Lewin, 1989). The ‘‘winner takes all’’ approach embedded in nuisance law has its deficiencies; most notably the potential to render obsolete investments by landowners engaging in nuisances. Whenever a court enjoins an activity creating a nuisance, capital investments in land, structures, and equipment may be devalued greatly or rendered worthless. In the celebrated New York case of *Tel.: +1-706-542-0756; fax: +1-706-542-0739. E-mail address: [email protected] (T.J. Centner).
Boomer v. Atlantic Cement Company (1970), a court struggled with this problem and created an exception to proscribing the nuisance. Due to the investment of a cement company in its facility and the economic benefits to the community, the court declined to simply enjoin the disturbing activities. Instead, the court found a nuisance, awarded the neighbors damages, and allowed the cement plant to remain in operation. While the Boomer case recognized the importance of existing investments by landowners, nuisance lawsuits continued to result in landowners being forced to end activities and abandon or move existing buildings and facilities. Establishing zones for commercial and industrial operations helped reduce nuisance conflicts (Halper, 1998). Yet, many rural areas remained unzoned until the 1970s (Reinert, 1998). With the movement of people to suburbs and the countryside in the 1960s and 1970s, farmers were confronted with nuisance lawsuits and America was losing between two and three million acres of farmland a year (Grossman and Fischer, 1983). Especially troublesome to many of the new rural and suburban residents were the odors and annoying activities that accompanied the production of animals and use of chemicals (Lisansky, 1986). Neighbors resorted to nuisance law to end the disagreeable activities and caused some producers to cease farming (Lapping et al., 1983).
0264-8377/02/$ - see front matter r 2002 Elsevier Science Ltd. All rights reserved. PII: S 0 2 6 4 - 8 3 7 7 ( 0 2 ) 0 0 0 1 9 - 4
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In the late 1960s, agricultural interest groups advanced anti-nuisance legislation that subsequently acquired the name of ‘‘right-to-farm’’ laws in the United States (Bergstrom and Centner, 1989; Grossman and Fischer, 1983). Similar legislation has been enacted by Canadian provinces (Kalmakoff, 1999). Right-to-farm laws have given many agricultural activities sufficient protection from nuisance lawsuits so that existing farmers can carry on with their operations. Although most of the state right-to-farm laws were challenged, they were upheld as a reasonable exercise of the police power of state government. In 1998, the Iowa Supreme Court shattered the security proffered by right-to-farm laws (Centner, 2000). In Bormann v. Board of Supervisors (1998), the court found that the immunity from nuisance lawsuits provided by Iowa Code section 352.11(1)(a) (Iowa Code, 2001) was unconstitutional. The law constituted a ‘‘taking’’ of property contrary to the ‘‘takings clause’’ of the Fifth Amendment of the United States Constitution. The Bormann decision is troublesome given the importance of agriculture to Iowa’s economy and esteem for the Iowa judiciary. If Iowa Code section 352.11(1)(a) is unconstitutional, decisions by other state courts to follow the Bormann decision may lead to the demise of the nuisance protection afforded by right-tofarm laws. With the demise of nuisance protection, new land uses that are incompatible with agricultural operations may no longer be discouraged. New neighbors may be able to terminate nearby existing agricultural activities under the community standard incorporated in nuisance law protection. Objectionable agricultural operations may be forced to relocate or to revise their practices. This paper examines state right-to-farm laws to project whether the Iowa decision might be followed. The next section notes some of the changes in the countryside that are important in understanding the anti-nuisance provisions embedded in right-to-farm laws. Section addresses substantive provisions of state right-to-farm laws to delineate the scope of protection afforded by these laws. With this understanding of rightto-farm laws, the principles of ‘‘takings’’ jurisprudence are presented as a foundation for evaluating the Bormann ruling. Distinctions between Iowa Code section 352.11(1)(a) and other right-to-farm laws are identified to suggest that most right-to-farm laws should not be found to create an unconstitutional ‘‘taking’’. The fourth section of the paper evaluates provisions delineating management practices that offer a compromise resolution to nuisance actions. Rather than relying on the ‘‘all or nothing’’ approach of common law nuisance, the Michigan right-to-farm law employs generally accepted management practices as a reconciliation tool for competing rights between farmers and their neighbors (Michigan Compiled Laws Annotated,
2001). This approach is offered as a new paradigm for responding to nuisances.
Changes in the countryside The last half of the 20th Century saw changes in production agriculture that have altered American rural landscapes. The farm population has dwindled to two per cent of the country’s population (Castle, 1998) and specialization means that more than two-thirds of US farms depend on a single commodity or commodity group for 50 per cent or more of their total sales (Sommer et al., 1998). Farms have grown in size so that the largest 8 per cent of our farms produce 53 per cent of our nation’s food (Hoppe et al., 2001). An agriculture that traditionally had been associated with a pastoral ideal of yeoman farmers deserving of public support (Browne et al., 1992) is now viewed as a source of pollution (Marks, 2001). Along with these changes in the countryside, notable congressional and state legislative directives are being questioned (Ruhl, 2000). The lax oversight of agricultural pollution is no longer justified given the more stringent environmental provisions prescribed for other businesses and industries (Ruhl, 2000). Noise, odors, and pollutants from agricultural activities are being viewed as a misuse of natural resources. Scientists are busy developing technology to reduce the offensiveness of agricultural activities (Mackle et al., 1998; Honeyman, 1996; Schauberger et al., 2000; Zhu et al., 1997). Given the small percentage of Americans who live on farms and the conflicts between farmers and other land users, the political landscape has changed (Bower, 2000). The US Environmental Protection Agency wants to increase its regulatory oversight over animal feeding operations (EPA, 2001), consumers want to know more about genetically modified food products (i.e., Hobbs and Plunkett, 1999), environmentalists want to devise methods for greater accountability of polluters (i.e., Able and Stephan, 2000; Fung and O’Rourke, 2000), and the public wants to be involved in efforts to achieve cleaner air and water resources (i.e., Korfmacher, 2001; Lundqvist, 2000). The new millennium and the terrorist attacks of September 11, 2001 may bring a host of new regulatory challenges to agriculture in the United States and other developed countries. Citizens are concerned about their security. While immediate concern involves transportation, nuclear facilities, and hazardous materials, the public is also looking for assurances that food products are safe for consumption. Apprehension about security and safety may be expected to result in heightened governmental controls at the expense of existing agricultural legislation. For example, increased regulation of aerial spraying and crop dusting are possible
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(Zitner and Dahlburg, 2001). Agricultural producers will be asked to be more accountable to consumers of their products, neighbors, and society. With respect to nuisance law, non-farmers are flexing their political power to challenge objectionable agricultural activities. Two recent lawsuits show neighbors using nuisance law to stop hog operations from opening or expanding. In Superior Farm Management v. Montgomery (1999), the neighbors stopped the physical construction of a 1345-acre commercial hog breeding facility relying on a Georgia law that allowed an injunction to restrain a nuisance before the completion of a facility. Iowa law was interpreted in Rutter v. Carroll’s Foods of the Midwest Inc. (1999) as allowing injunctive relief to stop construction of a swine nursery and confinement facility. In both lawsuits, relief was granted to neighbors for an anticipated nuisance.
Right-to-farm laws Right-to-farm laws seek to assist agricultural producers and others by checking the loss of farmland and protecting existing farm investments (Hand, 1984). State right-to-farm laws vary on the activities that are covered by the anti-nuisance protection (Hamilton and Bolte, 1988). While some laws specifically delineate coverage to farms and farming operations, other laws cover the manufacturing of animal feed and roadside markets (i.e., Georgia Code Annotated, 1997). A few cover industrial facilities (i.e., Indiana Statutes Annotated, 1998). Generally, right-to-farm laws cover the growing and harvesting of crops, the feeding, breeding and management of livestock, and other agricultural and horticultural uses (i.e., Illinois Compiled Statutes Annotated, 1993 and Supplement 2001). For the purposes of this paper, farms will be the focus with the acknowledgment that the provisions are not necessarily limited to farms. Most laws incorporate a ‘‘coming to the nuisance’’ doctrine to effectuate the safeguard (Thompson, 1982). Persons moving to an offensive activity cannot use nuisance law to seek judicial abeyance of a pre-existing operation or activity (Hand, 1984). For example, consider the situation where a residential subdivision is built near existing farms. Due to a coming to the nuisance doctrine, the new residents would not be able to use nuisance law to end an existing objectionable activity. At the same time, property owners with land uses that preceded agricultural operations may continue to employ nuisance law to garner relief. All states have acknowledged special needs of agriculture, including protection for capital investments at existing operations and preserving land for food production, by enacting right-to-farm laws to curb nuisance litigation (Centner, 2000).
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Given protection accorded agriculture against nuisance lawsuits, right-to-farm laws reduce the rights of neighboring landowners. Farmers enjoy the right to engage in activities that at some time in the future may be objectionable. Neighbors who change the use of their land cannot employ nuisance law to close down existing agricultural operations. This legislative interference is similar to what happens when a government adopts new zoning provisions. Both zoning ordinances and right-tofarm laws circumscribe the uses of land within the regulated zone. Property owners in the district have reduced rights due to the zoning ordinance or right-tofarm law. Because most right-to-farm laws incorporate the coming to the nuisance doctrine, the date the activity commenced is important. Right-to-farm laws incorporating this doctrine look at the date that farming operations began. An operation must pre-date conflicting land uses before it qualifies for the nuisance protection of a right-to-farm law. Commonly, an agricultural operation that has been in business for more than one year prior to new land uses is afforded protection from nuisance lawsuits (i.e., Missouri Revised Statutes, 2000). This means that farmers have protection against actions by neighbors who adopt new land uses. Farmers do not have protection against nuisance actions by neighbors whose land use was established prior to the agricultural operation or the adoption of the right-to-farm law (Mayes v. Tabor, 1985). Right-to-farm laws contain various restrictions that abridge their coverage of agricultural operations. Many legislatures felt that hobbyists and non-farmers should not qualify for anti-nuisance protection so limited their right-to-farm laws to commercial operations (i.e., Nebraska Revised Statutes, Supplement 1999). Most laws say that improper and negligent agricultural activities are not protected (i.e., Georgia Code Annotated, 1997) and that local regulations are not preempted (Texas Agriculture Code, Supplement 2001). Another limitation by a few states was to restrict protection to agricultural producers in an agricultural district (i.e., Ohio Revised Code Annotated, 1994). An additional category of restrictions is qualifications concerning management practices (i.e., New York Agriculture and Markets Law, Supplement 2000). Permitting growth and expansion of protected operations Farms adopt new technology, commence new production activities, and expand business operations as part of their evolving business practices. Such changes pose difficult issues under most right-to-farm laws. Farmers need to be able to make changes while retaining the protection of the right-to-farm law if they are to continue with their business operations. Yet the
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expansion of an existing agricultural operation may be unfair to neighbors. For example, an operation introducing livestock may notably alter its acceptability. Most neighbors believe that they should not have to bear the increased inconvenience generated by expanded operations. Given conflicts that may accompany changes at agricultural operations, legislatures have had difficulty in addressing these issues. Some legislatures have attempted to allow unlimited expansion and changes. The Georgia right-to-farm law maintains that the expansion of physical facilities does not alter the established date of the agricultural operation (Georgia Code Annotated, 1997). Under this law, a farmer can expand an operation exponentially and still qualify for whatever protection was available to the earlier facility. The Pennsylvania law says that it covers ‘‘new activities, practices, equipment and procedures consistent with technological development within the agricultural industry’’ (Pennsylvania Statutes, 2000). Under this language, farmers can adopt new technology without losing the protection of the right-to-farm law. The Florida right-to-farm law attempts to cover changes in production undertaken by farmers who shift to new farming pursuits (Florida Statutes, 2000). Other legislatures have recognized that some changes are necessary yet have attempted to reconcile the protection. Minnesota places a percentage on the amount of expansion that qualifies for right-to-farm protection (Minnesota Statutes, 2000). The Florida law limits expansion to preclude excessive noise, dust, and odors (Florida Statutes, 2000). Finally, a few right-to-farm laws do not cover changes. The Indiana right-to-farm law states it only applies if there is no significant change in the type of operation and if the operation would not have been a nuisance when it began on that locality (Indiana Statutes Annotated, 1998). This means that many right-to-farm laws do not protect operations that change their production activities. For example, a court in Kansas found that the state right-to-farm law did not protect a change involving improvements on pasture land consisting of a confined feedlot-type operation (Finlay v. Finlay, 1993). Compliance with other laws The provisions of right-to-farm laws need to be coordinated with other laws as well as common law. Legislatures wrote right-to-farm laws narrowly to avoid interfering with common law and causes of action based on environmental, public health, and business laws. Operations remain subject to zoning ordinances, building codes, and local and state laws. If the activities or actions constitute negligence or trespass, or violate other legal provisions, the right-to-farm laws do not offer
protection to the operation or the operator. For causes of action for negligence, many of the right-to-farm laws specifically provide that any negligent or improper operation of an agricultural facility is not protected (i.e., Minnesota Statutes, 2000). Other provisions in right-to-farm laws may say that the law does not affect any other right to sue for damages (Washington Revised Code, Supplement 2001). Livestock operations remain subject to environmental laws (i.e., Texas Agriculture Code, Supplement 2001). Right-to-farm laws do not affect pollution legislation so that producers must comply with legislation governing clean water and the disposal of animal manure (i.e., Missouri Revised Statutes, 2000). Farmers also remain subject to public health and safety regulations.
Unconstitutional ‘‘takings’’ A recent controversy concerning right-to-farm laws is whether a law can go too far and constitute an unconstitutional ‘‘taking’’ in violation of the US Constitution or a state constitution (Centner, 2000). The Fifth Amendment’s ‘‘just compensation clause’’ of the US Constitution requires payment if a government forces a person to bear public burdens. State constitutions have similar constitutional provisions on ‘‘takings’’. Whenever a government ‘‘takes’’ property rights for a public use then compensation is owed. Any state action that operates to ‘‘take’’ an individual’s property must be accompanied by compensation to the property owner, or in the alternative, will not be enforced. All ‘‘takings’’ of property, both permanent and temporary, require compensation under the just compensation clause. The question is whether an action by a government constitutes the use of the government’s police power to sustain health and safety or is a regulatory ‘‘taking’’ that requires compensation (Nollan v. California Coastal Commission, 1987). Governmental laws and regulations that have a substantial relation to the promotion of public health, safety, or general welfare are permitted under a government’s police powers (Lucas v. South Carolina Coastal Council, 1992). The distinction is whether the action is a mere restriction on the use of property or something more that exceeds constitutional parameters and so is considered a ‘‘taking’’ (Penn Central Transportation Co. v. City of New York, 1978). A right-to-farm law is subject to the same constitutional limitations as other exercises of police power. There are two categories of state action that generally must be compensated without further inquiry into additional factors. First, when a state’s action involves a permanent physical invasion of the property, the state must pay compensation. Second, when an owner is deprived of all economically beneficial or productive use
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of the land, there is a ‘‘taking’’ for which compensation must be paid. These two categories may be referred to as per se ‘‘takings’’. If there is no per se ‘‘taking’’, an ad hoc factual inquiry is conducted on a case-by-case basis for the regulatory ‘‘takings’’ challenge. The inquiry focuses on three factors: (1) the economic impact of the restriction on the claimant’s property; (2) the restriction’s interference with investment-backed expectations; and (3) the character of the governmental action. ‘‘Takings’’ under Iowa Code section 352.11(1)(a) The Iowa Supreme Court recently found in Bormann v. Board of Supervisors (1998) that the immunity against nuisances granted by Iowa Code section 352.11(1)(a) was a ‘‘taking’’ in violation of the due process clauses of the United States and Iowa constitutions. This code section was one of the three right-to-farm laws in Iowa (Iowa Code, 1999 and Supplement 2001). The Bormann case involved approval of a petition to create an agricultural area. Under Iowa Code section 352.11(1)(a), persons could petition to create an ‘‘agricultural area’’ that would offer landowners protection against nuisance lawsuits. After an agricultural area was approved by a county board of supervisors, neighbors challenged its formation as an unconstitutional ‘‘taking’’. The neighbors argued that the designation of an area where landowners have a right to create a nuisance constituted a per se ‘‘taking’’. Iowa Code section 352.11(1)(a) said that a farm or operation within a designated agricultural area ‘‘shall not be found to be a nuisance regardless of the established date of operation or expansion of the agricultural activitiesy’’ By providing immunity from nuisance lawsuits, section 352.11(1)(a) precipitates the right to maintain a nuisance over neighboring property. Under Iowa law, the right to maintain a nuisance is considered an easement. By that, Iowa Code section 352.11(1)(a) created an easement in favor of property in agricultural areas over properties affected by the nuisance. The Bormann court found this easement to be a permanent interest in neighboring land operating as a per se ‘‘taking’’ involving the physical invasion of property. Under this reasoning, Iowa Code section 352.11(1)(a) was found to create a non-trespassory invasion of private property by a governmental enterprise, contrary to the Fifth Amendment. ‘‘Takings’’ under other right-to-farm laws The question remains whether other state right-tofarm laws may also be found to offend the Fifth Amendment. While the Iowa decision has no direct effect on other states’ laws, agricultural interest groups
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are concerned. Supporters of right-to-farm laws are attempting to differentiate their state’s provisions from the offensive Iowa law. In most cases, meaningful distinctions may be observed so that another state court will not necessarily follow the Iowa decision. First, it is not clear that courts will follow the Bormann approach and find that the right-to-farm law is a per se ‘‘taking’’ involving a physical invasion. A more realistic procedure would be to examine a right-to-farm law as a governmental restriction that may constitute a regulatory ‘‘taking’’. If a right-to-farm law advances legitimate state interests, it should be upheld; if a right-to-farm law goes too far, then it is a ‘‘taking’’. Second, most right-to-farm laws allow for actions in trespass and negligence, and leave environmental and health regulations in place. Physical invasions of neighboring property remain actionable under these other causes of action and laws. The anti-nuisance protection of right-to-farm laws seems to encompass restrictions on land use distinct from physical invasions. If a right-to-farm law creates an easement or servitude under state law in favor of agricultural landowners, the law may not result in a per se ‘‘taking.’’ Instead, the law may be a regulatory ‘‘taking’’ that needs to be analyzed further. Third, for many state right-to-farm laws, the adoption of the coming to the nuisance doctrine distinguishes the law from Iowa Code section 352.11(1)(a). The Iowa law provided protection for future agricultural activities against current neighboring land uses thereby creating an easement. Right-to-farm laws with the coming to the nuisance doctrine do not offer protection for future agricultural activities. As such, a law may not embrace a physical invasion nor create a servitude or easement over existing land uses of the type considered in Bormann. Accordingly, the law may be justified as a permissible regulation serving a legitimate public purpose. Finally, the checks and balances imbedded in the provisions of some state right-to-farm laws may distinguish them from Iowa Code section 352.11(1)(a). A lower court decision from New York enumerated such a distinction (Pure Air and Water, Inc. v. Davidsen, 1999). Under the New York right-to-farm law, the New York Commissioner of Agriculture and Markets determines whether an agricultural practice is sound (New York Agriculture and Markets Law, Supplement 2000). The New York court determined that, rather than offering blanket immunity protection against nuisance lawsuits, the state right-to-farm law allows persons to present proof to overcome its nuisance defence. Thereby, the court found that the New York law did not constitute a compensable ‘‘taking’’ under the US or New York constitutions. A similar analysis was advanced by a Michigan court (Gillis v. Gratiot County, 1999).
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Under other state right-to-farm laws, the regulatory determination of what agricultural practices are not nuisances and the structure of the nuisance protection may offer sufficient justification for a court to find that the law is a valid governmental regulation. For example, a Kansas right-to-farm law provides that compliance with standards constitutes obvious evidence that a nuisance does not exist (Kansas Statutes Annotated, 1993). This should be sufficient to differentiate the Kansas law from Iowa Code section 352.11(1)(a).
Qualifying management practices Several states have adopted right-to-farm laws with a provision restricting nuisance protection to operations employing qualifying management practices (see Table 1). A specific nomenclature regarding the management practices that must be observed is delineated in each of these laws. Some laws address sound agricultural practices (Utah Code Annotated, 1996), others address generally accepted agricultural practices (Minnesota Statutes, 2000), and a few simply refer to best management practices (Virginia Code, 1994). Obviously these are quite different, yet all offer a demarcation of management practices for a constructive reconciliation of competing rights between farmers and their neighbors. Most, simply employ the provision as a qualification. Some are more instructive and employ management practices as a means for a regulatory agency to become involved in circumscribing protection. These laws involve input from an outside committee, government, or institution to determine whether a
management practice meets the legislative qualification. Due to the limitation, the nuisance protection of a rightto-farm law would be less likely to subject neighbors to undeserving activities and operations. The qualification appears to offer a more evenhanded compromise to the conflicting rights of neighbors and farmers than is achieved under some of the more traditional right-tofarm laws. Perhaps the foremost change implemented by provisions on management practices is that they move some decisions from the courtroom to an alternative setting. In this manner, the management provisions operate to implement an alternative dispute resolution procedure. For neighbors, the major advantage of not using a judicial setting is that the parties are likely to have a better relationship after resolving their controversy (Cochran, 2001). Litigation under the adversarial system often leads parties to take extreme positions for the purpose of bargaining that impede collaborative problem resolution (Dauer, 2000). Provisions to resolve controversies involving management practices outside of the courtroom offer a more efficient and amicable means of resolving nuisance disputes (Gislason, 1999). The Michigan right-to-farm law Especially significant are innovative new provisions in Michigan that establish some additional procedures for resolving nuisance complaints against farming operations (Michigan Compiled Laws Annotated, 2001). Under the Michigan right-to-farm law, farming operations need to conform to ‘‘generally accepted agricultural and management practices’’ to qualify for protection
Table 1 Right-to-farm law provisions on management practices State and code section
Key statutory language
Arizona—section 3-112 Colorado—section 35-3.5-102
Consistent with good agricultural practices Employs methods or practices commonly or reasonably associated with agricultural production Follows generally accepted agricultural practices Conforms to generally accepted agricultural and management practices In accordance with generally accepted agricultural practices Conforms to best management practices Used in normal, generally accepted farming procedures Conforms to generally accepted agricultural and management practices (no) operations contrary to commonly accepted agricultural practices Conforms to agricultural management practices recommended by the committee Constitutes a sound agricultural practice Conducted in accordance with generally accepted agriculture practices Conforms to generally accepted agricultural and management practices Consistent with sound agricultural practices Consistent with good agricultural practices Conducted in accordance with existing best management practices Consistent with good agricultural and forest practices Conforms to generally accepted agricultural management practices
Connecticut—section 19a-341 Florida—section 823.14 Louisiana—section 3:3603 Maine—title 17, section 2805 Massachusetts—ch. 111, section 125A Michigan—section 12.122 Minnesota—section 561.19 New Jersey—section 4:1C-10 New York Agriculture & Markets Law—section 308 Ohio—section 929.04 Tennessee—section 46-23-103 Utah—section 78-38-7 Vermont—title 12, section 5753 Virginia—section 3.1-22.29 Washington—section 7.48.305 Wyoming—section 11-44-103
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against nuisance lawsuits. These management practices are determined by the Michigan Commission of Agriculture and need to be reviewed annually by the Commission. The Commission is a bipartisan group of citizens appointed by the Governor and confirmed by the state senate, although current membership is proagriculture. In devising the qualifying practices, the Commission must consider information from a broad range of governmental and institutional specialists, experts, and professionals, and information from industry. Given the participation, this suggests that the qualifying practices will be scientifically based yet relate to practicalities appertaining to the production process. Complaints about agricultural nuisances may be filed with the Michigan Department of Agriculture. When the director of this department receives a complaint concerning manure, waste products, odors, water pollution, or other enumerated problems of a farm, the director must notify the local government and make an on-site inspection. From the inspection, the director determines whether the farm is using generally accepted agricultural and management practices. For situations where the source of the problem at an operation is caused by the use of other than generally accepted agricultural and management practices, the farm operator is advised to make changes to resolve the problem. Further details prescribe a resolution procedure for the problem. For new and expanding livestock production facilities, Michigan requires producers to submit a livestock production facility siting request. Successful approval of a facility siting request, with the necessary adoption of generally accepted agricultural and management practices, provides the facility with protection against nuisance lawsuits (Michigan Commission of Agriculture, 2001). The Michigan procedure thereby allows operators to qualify for nuisance protection prior to a major investment in new facilities. It is too early to know whether the revised Michigan right-to-farm law effects a fair resolution for competing interests. Given the involvement of the Department of Agriculture and the bias of the Michigan Commission of Agriculture, the law may go too far in favoring agriculture to the detriment of neighbors. Yet the law does move the initial controversy from the courtroom to a regulatory body, which should be helpful in reducing the charged atmosphere and hard feelings that often accompany litigation. The Florida right-to-farm law A few other states have attempted to curtail the local regulations that might be used to adversely affect existing agricultural operations. In 2000, the Florida legislature expanded its right-to-farm provisions concerning management practices and local regulations.
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Like Michigan, the Florida right-to-farm law limits its nuisance protection to operations that conform to generally accepted agricultural and management practices (Florida Statutes, 2000). However, the Florida law goes on to prescribe limitations on local governments that attempt to restrict activities of bona fide farm operations on land classified as agricultural land. Operations engaged in activities that are regulated through implemented best management practices cannot be further restricted by local governments, except for emergencies and other enumerated exceptions. The Florida law thereby imposed two qualifications based on management practices. Agricultural operations must comport with generally accepted agricultural and management practices to qualify for nuisance protection. For exemption from local restrictions, the operations must be located on classified agricultural land and already regulated through best management practices.
Concluding comments For more than 20 years, agricultural producers have enjoyed a defence against some nuisance lawsuits by neighbors. Right-to-farm laws operated to protect the investments of agricultural operators by enabling them to continue their activities despite the objections of neighbors. Yet right-to-farm laws were not intended to eliminate all nuisance cases and did not grant operators a license to engage in bad practices or to pollute. Rather, most right-to-farm laws adopted a coming to the nuisance doctrine to protect existing land uses on neighboring properties. The Bormann case shows the danger of strong protection of agriculture. If governmental regulation goes too far and the interference with the rights of the neighbors is too great, the regulation may be a ‘‘taking’’. Right-to-farm laws may go too far if they grant blanket immunity or assert that all expansion and changes in production activities are protected. The Michigan right-to-farm law shows a compromise solution for agricultural nuisance disputes. In place of nuisance immunity for existing agricultural activities, the law employs qualifying management practices to provide a more equitable resolution of nuisance disputes. Agricultural operations are granted protection conditioned on employing generally accepted agricultural and management practices. By having a commission review qualifying management practices, superior new technology and techniques may be emphasized for adoption by agricultural operators. Farmers are assisted and encouraged to adopt good practices that should be environmentally friendly. At the same time, the public is protected against bad and unreasonable agricultural practices. Right-to-farm laws that limit nuisance protection to operations employing qualifying management practices
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offer the public and agricultural producers an auspicious resolution. Controversies involving management practices can be resolved outside of a courtroom. Given similar problems connected with other nuisance activities, businesses and industries might consider a regulatory regime under which appropriate management practices would provide them protection against nuisance lawsuits. In this manner, existing facilities could continue operating, yet the public would be protected against bad operations and unfriendly environmental practices.
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Hand, J.P., 1984. Right-to-farm laws: breaking new ground in the preservation of farmland. University of Pittsburgh Law Review 45, 289–350. Heimert, A.J., 1997. Keeping pigs out of parlors: using nuisance law to affect the location of pollution. Environmental Law 27, 403–492. Hobbs, J.E., Plunkett, M.D., 1999. Genetically modified foods: consumer issues and the role of information asymmetry. Canadian Journal of Agricultural Economics 47, 445–455. Honeyman, M.S., 1996. Sustainability issues in US swine production. Journal of Animal Science 74, 1410–1417. Hoppe, R.A., et al., 2001. Structural and financial characteristics of US farms: 2001 family farm report. US Department of Agriculture, Economic Research Service, May, p. 7. Illinois Compiled Statutes Annotated, 1993 and Supplement 2001. Chapter 740, sections 70/1 to 70/5. Indiana Statutes Annotated, 1998. Section 34-19-1-4. Iowa Code, 1999 and Supplement 2001, Sections 172D.2, 352.11(1)(a), 657.11. Kalmakoff, J.J., 1999. ‘The right to farm’: a survey of farm practices protection legislation in Canada. Saskatchewan Law Review 62, 225–258. Kansas Statutes Annotated, 1993. Section 47-1505. Korfmacher, K.S., 2001. The politics of participation in watershed modeling. Environmental Management 27, 161–176. Lapping, M.B., Penfold, G.E., Macpherson, S., 1983. Right-to-farm laws: do they resolve land use conflicts?. Journal of Soil and Water Conservation 26, 465–467. Lewin, J.L., 1989. Comparative nuisance. University of Pittsburgh Law Review 50, 1009–1089. Lisansky, J., 1986. Farming in an urbanizing environment: agricultural land use conflicts and right to farm. Human Organization 45, 363– 371. Lundqvist, J., 2000. Rules and roles in water policy and management: need for clarification of rights and obligations. Water International 25, 194–201. Mackle, R.I., Stroot, P.G., Varel, V.H., 1998. Biochemical identification and biological origin of key odor components in livestock waste. Journal of Animal Science 76, 1331–1342. Marks, R., 2001. Cesspools of shame: How factory farm lagoons and sprayfields threaten environmental and public health. Natural Resources Defense Council and Clean Water Network, July. Michigan Commission of Agriculture, 2001. Generally accepted agricultural and management practices for site selection and odor control for new and expanding livestock production facilities, Appendix A, http://www.mda.state.mi.us/right2farm/siteSelection/ index.html. Michigan Compiled Laws Annotated, 2001. Section 12.122. Minnesota Statutes, 2000. Section 561.19. Missouri Revised Statutes, 2000. Section 537.295. Nebraska Revised Statutes, Supplement 1999. Section 2-4402. New York Agriculture and Markets Law, Supplement 2000. Section 308. Ohio Revised Code Annotated, 1994. Title 9, section 929.04. Pennsylvania Statutes, 2000. Title 3, section 952. Reinert, A.A., 1998. The right to farm: hog-tied and nuisance-bound. New York University Law Review 73, 1694–1738. Ruhl, J.B., 2000. Farms, their environmental harms, and environmental law. Ecology Law Quarterly 27, 263–349. Schauberger, G., Piringer, M., Petz, E., 2000. Separation distance to avoid odour nuisance due to livestock calculated by the Austrian odour dispersion model (AODM). Agriculture Ecosystems & Environment 87, 13–28. Sommer, J.E., Hoppe, R.A., Green, R.C., Korb, P.J., 1998. Structural and financial characteristics of US farms, 1995: 20th annual family farm report to the Congress. US Department of Agriculture, Economic Research Service, December, p. 8.
T.J. Centner / Land Use Policy 19 (2002) 259–267 Texas Agriculture Code, Supplement 2001. Section 251.004. Thompson Jr., E., 1982. Defining and protecting the right to farm. Zoning and Planning Law Report 5, September, pp. 57–63. Utah Code Annotated, 1996. Section 78-38-7. Virginia Code, 1994. Section 3.1–22.29. Washington Revised Code, Supplement 2001. Section 7.48.305. Zitner, A., Dahlburg, J., 2001. New crop-dusting restrictions weighed. The Los Angeles Times, September 25, p. A3. Zhu, J., Bundy, D.S., Li, X.W., Rashid, N., 1997. Reduction of odor and volatile substances in pig slurries by using pit additives. Journal of Environmental Science and Health, Part A 32, 605–619.
Cases Boomer v. Atlantic Cement Company, 1970. North Eastern Reporter 2d 257, 870–877 (New York Court of Appeals). Bormann v. Board of Supervisors, 1998. North Western Reporter 2d 584, 309–322 (Iowa Supreme Court).
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Finlay v. Finlay, 1993. Pacific Reporter 2d 856, 183–191 (Kansas Court of Appeals). Gillis v. Gratiot County, 1999. File No. 97-04351-AV, Circuit Court, Gratiot County, Michigan, March 31 (Michigan Circuit Court). Lucas v. South Carolina Coastal Council, 1992. United States Reports 505, 1003–1078 (US Supreme Court). Mayes v. Tabor, 1985. South Eastern Reporter 2d 334, 489–491 (North Carolina Court of Appeals). Nollan v. California Coastal Commission, 1987. United States Reports 483, 825–867 (US Supreme Court). Penn Central Transportation Co. v. City of New York, 1978. United States Reports 438, 104–153 (US Supreme Court). Pure Air and Water, Inc. v. Davidsen, 1999. Decision Index No. 2690– 2697, Albany County, New York, May 25 (New York Supreme Court). Rutter v. Carroll’s Foods of the Midwest, Inc., 1999. Federal Supplement 2d 50, 876–888 (US District Court of Northern Iowa). Superior Farm Management v. Montgomery, 1999. South Eastern Reporter 2d 213, 215–219 (Georgia Supreme Court).
Agricultural nuisances: qualifying legislative ‘‘right-to-farm’’ protection through qualifying management practices Terence J. Centner* Department of Agriculture and Applied Economics, College of Agricultural and Environmental Sciences, University of Georgia, 313 Conner Hall, Athens, GA 30602, USA Received 11 July 2001; received in revised form 14 December 2001; accepted 21 December 2001
Abstract New homeowners moving into rural areas may use nuisance law to enjoin objectionable agricultural activities. Such lawsuits may result in financial losses for farmers unable to pursue practices required for their livelihood. In response, all American State legislatures adopted anti-nuisance provisions known as right-to-farm laws. Some of the laws offer so much protection that neighbors challenged them as offending the US Constitution. This paper evaluates legislative provisions incorporating qualifying management practices as an equitable method to respond to nuisance disputes. Anti-nuisance protection is only available to qualifying farmers; neighbors retain the right to stop unreasonable agricultural practices. r 2002 Elsevier Science Ltd. All rights reserved. Keywords: Agricultural nuisances; Constitutional ‘‘takings’’; Neighbors; Property rights; Right-to-farm laws
Introduction The production of many agricultural products involves the emission of odors, noise, by-products, wastes, and pollutants that are topics for governmental regulation. Under common law, neighbors can seek redress to these offensive activities and land uses through nuisance actions (Green, 1997; Heimert, 1997). If an activity is too offensive to surrounding property owners, it can be enjoined by a court of law (Hamilton and Bolte, 1988). Moreover, even in cases where a balancing test shows a close question of whether there is a nuisance, courts have two major choices. The offensive conduct is either a nuisance or not. If there is a nuisance, the plaintiff is entitled to relief: cessation of the activity or damages. If there is not a nuisance, the plaintiff receives nothing (Lewin, 1989). The ‘‘winner takes all’’ approach embedded in nuisance law has its deficiencies; most notably the potential to render obsolete investments by landowners engaging in nuisances. Whenever a court enjoins an activity creating a nuisance, capital investments in land, structures, and equipment may be devalued greatly or rendered worthless. In the celebrated New York case of *Tel.: +1-706-542-0756; fax: +1-706-542-0739. E-mail address: [email protected] (T.J. Centner).
Boomer v. Atlantic Cement Company (1970), a court struggled with this problem and created an exception to proscribing the nuisance. Due to the investment of a cement company in its facility and the economic benefits to the community, the court declined to simply enjoin the disturbing activities. Instead, the court found a nuisance, awarded the neighbors damages, and allowed the cement plant to remain in operation. While the Boomer case recognized the importance of existing investments by landowners, nuisance lawsuits continued to result in landowners being forced to end activities and abandon or move existing buildings and facilities. Establishing zones for commercial and industrial operations helped reduce nuisance conflicts (Halper, 1998). Yet, many rural areas remained unzoned until the 1970s (Reinert, 1998). With the movement of people to suburbs and the countryside in the 1960s and 1970s, farmers were confronted with nuisance lawsuits and America was losing between two and three million acres of farmland a year (Grossman and Fischer, 1983). Especially troublesome to many of the new rural and suburban residents were the odors and annoying activities that accompanied the production of animals and use of chemicals (Lisansky, 1986). Neighbors resorted to nuisance law to end the disagreeable activities and caused some producers to cease farming (Lapping et al., 1983).
0264-8377/02/$ - see front matter r 2002 Elsevier Science Ltd. All rights reserved. PII: S 0 2 6 4 - 8 3 7 7 ( 0 2 ) 0 0 0 1 9 - 4
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In the late 1960s, agricultural interest groups advanced anti-nuisance legislation that subsequently acquired the name of ‘‘right-to-farm’’ laws in the United States (Bergstrom and Centner, 1989; Grossman and Fischer, 1983). Similar legislation has been enacted by Canadian provinces (Kalmakoff, 1999). Right-to-farm laws have given many agricultural activities sufficient protection from nuisance lawsuits so that existing farmers can carry on with their operations. Although most of the state right-to-farm laws were challenged, they were upheld as a reasonable exercise of the police power of state government. In 1998, the Iowa Supreme Court shattered the security proffered by right-to-farm laws (Centner, 2000). In Bormann v. Board of Supervisors (1998), the court found that the immunity from nuisance lawsuits provided by Iowa Code section 352.11(1)(a) (Iowa Code, 2001) was unconstitutional. The law constituted a ‘‘taking’’ of property contrary to the ‘‘takings clause’’ of the Fifth Amendment of the United States Constitution. The Bormann decision is troublesome given the importance of agriculture to Iowa’s economy and esteem for the Iowa judiciary. If Iowa Code section 352.11(1)(a) is unconstitutional, decisions by other state courts to follow the Bormann decision may lead to the demise of the nuisance protection afforded by right-tofarm laws. With the demise of nuisance protection, new land uses that are incompatible with agricultural operations may no longer be discouraged. New neighbors may be able to terminate nearby existing agricultural activities under the community standard incorporated in nuisance law protection. Objectionable agricultural operations may be forced to relocate or to revise their practices. This paper examines state right-to-farm laws to project whether the Iowa decision might be followed. The next section notes some of the changes in the countryside that are important in understanding the anti-nuisance provisions embedded in right-to-farm laws. Section addresses substantive provisions of state right-to-farm laws to delineate the scope of protection afforded by these laws. With this understanding of rightto-farm laws, the principles of ‘‘takings’’ jurisprudence are presented as a foundation for evaluating the Bormann ruling. Distinctions between Iowa Code section 352.11(1)(a) and other right-to-farm laws are identified to suggest that most right-to-farm laws should not be found to create an unconstitutional ‘‘taking’’. The fourth section of the paper evaluates provisions delineating management practices that offer a compromise resolution to nuisance actions. Rather than relying on the ‘‘all or nothing’’ approach of common law nuisance, the Michigan right-to-farm law employs generally accepted management practices as a reconciliation tool for competing rights between farmers and their neighbors (Michigan Compiled Laws Annotated,
2001). This approach is offered as a new paradigm for responding to nuisances.
Changes in the countryside The last half of the 20th Century saw changes in production agriculture that have altered American rural landscapes. The farm population has dwindled to two per cent of the country’s population (Castle, 1998) and specialization means that more than two-thirds of US farms depend on a single commodity or commodity group for 50 per cent or more of their total sales (Sommer et al., 1998). Farms have grown in size so that the largest 8 per cent of our farms produce 53 per cent of our nation’s food (Hoppe et al., 2001). An agriculture that traditionally had been associated with a pastoral ideal of yeoman farmers deserving of public support (Browne et al., 1992) is now viewed as a source of pollution (Marks, 2001). Along with these changes in the countryside, notable congressional and state legislative directives are being questioned (Ruhl, 2000). The lax oversight of agricultural pollution is no longer justified given the more stringent environmental provisions prescribed for other businesses and industries (Ruhl, 2000). Noise, odors, and pollutants from agricultural activities are being viewed as a misuse of natural resources. Scientists are busy developing technology to reduce the offensiveness of agricultural activities (Mackle et al., 1998; Honeyman, 1996; Schauberger et al., 2000; Zhu et al., 1997). Given the small percentage of Americans who live on farms and the conflicts between farmers and other land users, the political landscape has changed (Bower, 2000). The US Environmental Protection Agency wants to increase its regulatory oversight over animal feeding operations (EPA, 2001), consumers want to know more about genetically modified food products (i.e., Hobbs and Plunkett, 1999), environmentalists want to devise methods for greater accountability of polluters (i.e., Able and Stephan, 2000; Fung and O’Rourke, 2000), and the public wants to be involved in efforts to achieve cleaner air and water resources (i.e., Korfmacher, 2001; Lundqvist, 2000). The new millennium and the terrorist attacks of September 11, 2001 may bring a host of new regulatory challenges to agriculture in the United States and other developed countries. Citizens are concerned about their security. While immediate concern involves transportation, nuclear facilities, and hazardous materials, the public is also looking for assurances that food products are safe for consumption. Apprehension about security and safety may be expected to result in heightened governmental controls at the expense of existing agricultural legislation. For example, increased regulation of aerial spraying and crop dusting are possible
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(Zitner and Dahlburg, 2001). Agricultural producers will be asked to be more accountable to consumers of their products, neighbors, and society. With respect to nuisance law, non-farmers are flexing their political power to challenge objectionable agricultural activities. Two recent lawsuits show neighbors using nuisance law to stop hog operations from opening or expanding. In Superior Farm Management v. Montgomery (1999), the neighbors stopped the physical construction of a 1345-acre commercial hog breeding facility relying on a Georgia law that allowed an injunction to restrain a nuisance before the completion of a facility. Iowa law was interpreted in Rutter v. Carroll’s Foods of the Midwest Inc. (1999) as allowing injunctive relief to stop construction of a swine nursery and confinement facility. In both lawsuits, relief was granted to neighbors for an anticipated nuisance.
Right-to-farm laws Right-to-farm laws seek to assist agricultural producers and others by checking the loss of farmland and protecting existing farm investments (Hand, 1984). State right-to-farm laws vary on the activities that are covered by the anti-nuisance protection (Hamilton and Bolte, 1988). While some laws specifically delineate coverage to farms and farming operations, other laws cover the manufacturing of animal feed and roadside markets (i.e., Georgia Code Annotated, 1997). A few cover industrial facilities (i.e., Indiana Statutes Annotated, 1998). Generally, right-to-farm laws cover the growing and harvesting of crops, the feeding, breeding and management of livestock, and other agricultural and horticultural uses (i.e., Illinois Compiled Statutes Annotated, 1993 and Supplement 2001). For the purposes of this paper, farms will be the focus with the acknowledgment that the provisions are not necessarily limited to farms. Most laws incorporate a ‘‘coming to the nuisance’’ doctrine to effectuate the safeguard (Thompson, 1982). Persons moving to an offensive activity cannot use nuisance law to seek judicial abeyance of a pre-existing operation or activity (Hand, 1984). For example, consider the situation where a residential subdivision is built near existing farms. Due to a coming to the nuisance doctrine, the new residents would not be able to use nuisance law to end an existing objectionable activity. At the same time, property owners with land uses that preceded agricultural operations may continue to employ nuisance law to garner relief. All states have acknowledged special needs of agriculture, including protection for capital investments at existing operations and preserving land for food production, by enacting right-to-farm laws to curb nuisance litigation (Centner, 2000).
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Given protection accorded agriculture against nuisance lawsuits, right-to-farm laws reduce the rights of neighboring landowners. Farmers enjoy the right to engage in activities that at some time in the future may be objectionable. Neighbors who change the use of their land cannot employ nuisance law to close down existing agricultural operations. This legislative interference is similar to what happens when a government adopts new zoning provisions. Both zoning ordinances and right-tofarm laws circumscribe the uses of land within the regulated zone. Property owners in the district have reduced rights due to the zoning ordinance or right-tofarm law. Because most right-to-farm laws incorporate the coming to the nuisance doctrine, the date the activity commenced is important. Right-to-farm laws incorporating this doctrine look at the date that farming operations began. An operation must pre-date conflicting land uses before it qualifies for the nuisance protection of a right-to-farm law. Commonly, an agricultural operation that has been in business for more than one year prior to new land uses is afforded protection from nuisance lawsuits (i.e., Missouri Revised Statutes, 2000). This means that farmers have protection against actions by neighbors who adopt new land uses. Farmers do not have protection against nuisance actions by neighbors whose land use was established prior to the agricultural operation or the adoption of the right-to-farm law (Mayes v. Tabor, 1985). Right-to-farm laws contain various restrictions that abridge their coverage of agricultural operations. Many legislatures felt that hobbyists and non-farmers should not qualify for anti-nuisance protection so limited their right-to-farm laws to commercial operations (i.e., Nebraska Revised Statutes, Supplement 1999). Most laws say that improper and negligent agricultural activities are not protected (i.e., Georgia Code Annotated, 1997) and that local regulations are not preempted (Texas Agriculture Code, Supplement 2001). Another limitation by a few states was to restrict protection to agricultural producers in an agricultural district (i.e., Ohio Revised Code Annotated, 1994). An additional category of restrictions is qualifications concerning management practices (i.e., New York Agriculture and Markets Law, Supplement 2000). Permitting growth and expansion of protected operations Farms adopt new technology, commence new production activities, and expand business operations as part of their evolving business practices. Such changes pose difficult issues under most right-to-farm laws. Farmers need to be able to make changes while retaining the protection of the right-to-farm law if they are to continue with their business operations. Yet the
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expansion of an existing agricultural operation may be unfair to neighbors. For example, an operation introducing livestock may notably alter its acceptability. Most neighbors believe that they should not have to bear the increased inconvenience generated by expanded operations. Given conflicts that may accompany changes at agricultural operations, legislatures have had difficulty in addressing these issues. Some legislatures have attempted to allow unlimited expansion and changes. The Georgia right-to-farm law maintains that the expansion of physical facilities does not alter the established date of the agricultural operation (Georgia Code Annotated, 1997). Under this law, a farmer can expand an operation exponentially and still qualify for whatever protection was available to the earlier facility. The Pennsylvania law says that it covers ‘‘new activities, practices, equipment and procedures consistent with technological development within the agricultural industry’’ (Pennsylvania Statutes, 2000). Under this language, farmers can adopt new technology without losing the protection of the right-to-farm law. The Florida right-to-farm law attempts to cover changes in production undertaken by farmers who shift to new farming pursuits (Florida Statutes, 2000). Other legislatures have recognized that some changes are necessary yet have attempted to reconcile the protection. Minnesota places a percentage on the amount of expansion that qualifies for right-to-farm protection (Minnesota Statutes, 2000). The Florida law limits expansion to preclude excessive noise, dust, and odors (Florida Statutes, 2000). Finally, a few right-to-farm laws do not cover changes. The Indiana right-to-farm law states it only applies if there is no significant change in the type of operation and if the operation would not have been a nuisance when it began on that locality (Indiana Statutes Annotated, 1998). This means that many right-to-farm laws do not protect operations that change their production activities. For example, a court in Kansas found that the state right-to-farm law did not protect a change involving improvements on pasture land consisting of a confined feedlot-type operation (Finlay v. Finlay, 1993). Compliance with other laws The provisions of right-to-farm laws need to be coordinated with other laws as well as common law. Legislatures wrote right-to-farm laws narrowly to avoid interfering with common law and causes of action based on environmental, public health, and business laws. Operations remain subject to zoning ordinances, building codes, and local and state laws. If the activities or actions constitute negligence or trespass, or violate other legal provisions, the right-to-farm laws do not offer
protection to the operation or the operator. For causes of action for negligence, many of the right-to-farm laws specifically provide that any negligent or improper operation of an agricultural facility is not protected (i.e., Minnesota Statutes, 2000). Other provisions in right-to-farm laws may say that the law does not affect any other right to sue for damages (Washington Revised Code, Supplement 2001). Livestock operations remain subject to environmental laws (i.e., Texas Agriculture Code, Supplement 2001). Right-to-farm laws do not affect pollution legislation so that producers must comply with legislation governing clean water and the disposal of animal manure (i.e., Missouri Revised Statutes, 2000). Farmers also remain subject to public health and safety regulations.
Unconstitutional ‘‘takings’’ A recent controversy concerning right-to-farm laws is whether a law can go too far and constitute an unconstitutional ‘‘taking’’ in violation of the US Constitution or a state constitution (Centner, 2000). The Fifth Amendment’s ‘‘just compensation clause’’ of the US Constitution requires payment if a government forces a person to bear public burdens. State constitutions have similar constitutional provisions on ‘‘takings’’. Whenever a government ‘‘takes’’ property rights for a public use then compensation is owed. Any state action that operates to ‘‘take’’ an individual’s property must be accompanied by compensation to the property owner, or in the alternative, will not be enforced. All ‘‘takings’’ of property, both permanent and temporary, require compensation under the just compensation clause. The question is whether an action by a government constitutes the use of the government’s police power to sustain health and safety or is a regulatory ‘‘taking’’ that requires compensation (Nollan v. California Coastal Commission, 1987). Governmental laws and regulations that have a substantial relation to the promotion of public health, safety, or general welfare are permitted under a government’s police powers (Lucas v. South Carolina Coastal Council, 1992). The distinction is whether the action is a mere restriction on the use of property or something more that exceeds constitutional parameters and so is considered a ‘‘taking’’ (Penn Central Transportation Co. v. City of New York, 1978). A right-to-farm law is subject to the same constitutional limitations as other exercises of police power. There are two categories of state action that generally must be compensated without further inquiry into additional factors. First, when a state’s action involves a permanent physical invasion of the property, the state must pay compensation. Second, when an owner is deprived of all economically beneficial or productive use
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of the land, there is a ‘‘taking’’ for which compensation must be paid. These two categories may be referred to as per se ‘‘takings’’. If there is no per se ‘‘taking’’, an ad hoc factual inquiry is conducted on a case-by-case basis for the regulatory ‘‘takings’’ challenge. The inquiry focuses on three factors: (1) the economic impact of the restriction on the claimant’s property; (2) the restriction’s interference with investment-backed expectations; and (3) the character of the governmental action. ‘‘Takings’’ under Iowa Code section 352.11(1)(a) The Iowa Supreme Court recently found in Bormann v. Board of Supervisors (1998) that the immunity against nuisances granted by Iowa Code section 352.11(1)(a) was a ‘‘taking’’ in violation of the due process clauses of the United States and Iowa constitutions. This code section was one of the three right-to-farm laws in Iowa (Iowa Code, 1999 and Supplement 2001). The Bormann case involved approval of a petition to create an agricultural area. Under Iowa Code section 352.11(1)(a), persons could petition to create an ‘‘agricultural area’’ that would offer landowners protection against nuisance lawsuits. After an agricultural area was approved by a county board of supervisors, neighbors challenged its formation as an unconstitutional ‘‘taking’’. The neighbors argued that the designation of an area where landowners have a right to create a nuisance constituted a per se ‘‘taking’’. Iowa Code section 352.11(1)(a) said that a farm or operation within a designated agricultural area ‘‘shall not be found to be a nuisance regardless of the established date of operation or expansion of the agricultural activitiesy’’ By providing immunity from nuisance lawsuits, section 352.11(1)(a) precipitates the right to maintain a nuisance over neighboring property. Under Iowa law, the right to maintain a nuisance is considered an easement. By that, Iowa Code section 352.11(1)(a) created an easement in favor of property in agricultural areas over properties affected by the nuisance. The Bormann court found this easement to be a permanent interest in neighboring land operating as a per se ‘‘taking’’ involving the physical invasion of property. Under this reasoning, Iowa Code section 352.11(1)(a) was found to create a non-trespassory invasion of private property by a governmental enterprise, contrary to the Fifth Amendment. ‘‘Takings’’ under other right-to-farm laws The question remains whether other state right-tofarm laws may also be found to offend the Fifth Amendment. While the Iowa decision has no direct effect on other states’ laws, agricultural interest groups
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are concerned. Supporters of right-to-farm laws are attempting to differentiate their state’s provisions from the offensive Iowa law. In most cases, meaningful distinctions may be observed so that another state court will not necessarily follow the Iowa decision. First, it is not clear that courts will follow the Bormann approach and find that the right-to-farm law is a per se ‘‘taking’’ involving a physical invasion. A more realistic procedure would be to examine a right-to-farm law as a governmental restriction that may constitute a regulatory ‘‘taking’’. If a right-to-farm law advances legitimate state interests, it should be upheld; if a right-to-farm law goes too far, then it is a ‘‘taking’’. Second, most right-to-farm laws allow for actions in trespass and negligence, and leave environmental and health regulations in place. Physical invasions of neighboring property remain actionable under these other causes of action and laws. The anti-nuisance protection of right-to-farm laws seems to encompass restrictions on land use distinct from physical invasions. If a right-to-farm law creates an easement or servitude under state law in favor of agricultural landowners, the law may not result in a per se ‘‘taking.’’ Instead, the law may be a regulatory ‘‘taking’’ that needs to be analyzed further. Third, for many state right-to-farm laws, the adoption of the coming to the nuisance doctrine distinguishes the law from Iowa Code section 352.11(1)(a). The Iowa law provided protection for future agricultural activities against current neighboring land uses thereby creating an easement. Right-to-farm laws with the coming to the nuisance doctrine do not offer protection for future agricultural activities. As such, a law may not embrace a physical invasion nor create a servitude or easement over existing land uses of the type considered in Bormann. Accordingly, the law may be justified as a permissible regulation serving a legitimate public purpose. Finally, the checks and balances imbedded in the provisions of some state right-to-farm laws may distinguish them from Iowa Code section 352.11(1)(a). A lower court decision from New York enumerated such a distinction (Pure Air and Water, Inc. v. Davidsen, 1999). Under the New York right-to-farm law, the New York Commissioner of Agriculture and Markets determines whether an agricultural practice is sound (New York Agriculture and Markets Law, Supplement 2000). The New York court determined that, rather than offering blanket immunity protection against nuisance lawsuits, the state right-to-farm law allows persons to present proof to overcome its nuisance defence. Thereby, the court found that the New York law did not constitute a compensable ‘‘taking’’ under the US or New York constitutions. A similar analysis was advanced by a Michigan court (Gillis v. Gratiot County, 1999).
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Under other state right-to-farm laws, the regulatory determination of what agricultural practices are not nuisances and the structure of the nuisance protection may offer sufficient justification for a court to find that the law is a valid governmental regulation. For example, a Kansas right-to-farm law provides that compliance with standards constitutes obvious evidence that a nuisance does not exist (Kansas Statutes Annotated, 1993). This should be sufficient to differentiate the Kansas law from Iowa Code section 352.11(1)(a).
Qualifying management practices Several states have adopted right-to-farm laws with a provision restricting nuisance protection to operations employing qualifying management practices (see Table 1). A specific nomenclature regarding the management practices that must be observed is delineated in each of these laws. Some laws address sound agricultural practices (Utah Code Annotated, 1996), others address generally accepted agricultural practices (Minnesota Statutes, 2000), and a few simply refer to best management practices (Virginia Code, 1994). Obviously these are quite different, yet all offer a demarcation of management practices for a constructive reconciliation of competing rights between farmers and their neighbors. Most, simply employ the provision as a qualification. Some are more instructive and employ management practices as a means for a regulatory agency to become involved in circumscribing protection. These laws involve input from an outside committee, government, or institution to determine whether a
management practice meets the legislative qualification. Due to the limitation, the nuisance protection of a rightto-farm law would be less likely to subject neighbors to undeserving activities and operations. The qualification appears to offer a more evenhanded compromise to the conflicting rights of neighbors and farmers than is achieved under some of the more traditional right-tofarm laws. Perhaps the foremost change implemented by provisions on management practices is that they move some decisions from the courtroom to an alternative setting. In this manner, the management provisions operate to implement an alternative dispute resolution procedure. For neighbors, the major advantage of not using a judicial setting is that the parties are likely to have a better relationship after resolving their controversy (Cochran, 2001). Litigation under the adversarial system often leads parties to take extreme positions for the purpose of bargaining that impede collaborative problem resolution (Dauer, 2000). Provisions to resolve controversies involving management practices outside of the courtroom offer a more efficient and amicable means of resolving nuisance disputes (Gislason, 1999). The Michigan right-to-farm law Especially significant are innovative new provisions in Michigan that establish some additional procedures for resolving nuisance complaints against farming operations (Michigan Compiled Laws Annotated, 2001). Under the Michigan right-to-farm law, farming operations need to conform to ‘‘generally accepted agricultural and management practices’’ to qualify for protection
Table 1 Right-to-farm law provisions on management practices State and code section
Key statutory language
Arizona—section 3-112 Colorado—section 35-3.5-102
Consistent with good agricultural practices Employs methods or practices commonly or reasonably associated with agricultural production Follows generally accepted agricultural practices Conforms to generally accepted agricultural and management practices In accordance with generally accepted agricultural practices Conforms to best management practices Used in normal, generally accepted farming procedures Conforms to generally accepted agricultural and management practices (no) operations contrary to commonly accepted agricultural practices Conforms to agricultural management practices recommended by the committee Constitutes a sound agricultural practice Conducted in accordance with generally accepted agriculture practices Conforms to generally accepted agricultural and management practices Consistent with sound agricultural practices Consistent with good agricultural practices Conducted in accordance with existing best management practices Consistent with good agricultural and forest practices Conforms to generally accepted agricultural management practices
Connecticut—section 19a-341 Florida—section 823.14 Louisiana—section 3:3603 Maine—title 17, section 2805 Massachusetts—ch. 111, section 125A Michigan—section 12.122 Minnesota—section 561.19 New Jersey—section 4:1C-10 New York Agriculture & Markets Law—section 308 Ohio—section 929.04 Tennessee—section 46-23-103 Utah—section 78-38-7 Vermont—title 12, section 5753 Virginia—section 3.1-22.29 Washington—section 7.48.305 Wyoming—section 11-44-103
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against nuisance lawsuits. These management practices are determined by the Michigan Commission of Agriculture and need to be reviewed annually by the Commission. The Commission is a bipartisan group of citizens appointed by the Governor and confirmed by the state senate, although current membership is proagriculture. In devising the qualifying practices, the Commission must consider information from a broad range of governmental and institutional specialists, experts, and professionals, and information from industry. Given the participation, this suggests that the qualifying practices will be scientifically based yet relate to practicalities appertaining to the production process. Complaints about agricultural nuisances may be filed with the Michigan Department of Agriculture. When the director of this department receives a complaint concerning manure, waste products, odors, water pollution, or other enumerated problems of a farm, the director must notify the local government and make an on-site inspection. From the inspection, the director determines whether the farm is using generally accepted agricultural and management practices. For situations where the source of the problem at an operation is caused by the use of other than generally accepted agricultural and management practices, the farm operator is advised to make changes to resolve the problem. Further details prescribe a resolution procedure for the problem. For new and expanding livestock production facilities, Michigan requires producers to submit a livestock production facility siting request. Successful approval of a facility siting request, with the necessary adoption of generally accepted agricultural and management practices, provides the facility with protection against nuisance lawsuits (Michigan Commission of Agriculture, 2001). The Michigan procedure thereby allows operators to qualify for nuisance protection prior to a major investment in new facilities. It is too early to know whether the revised Michigan right-to-farm law effects a fair resolution for competing interests. Given the involvement of the Department of Agriculture and the bias of the Michigan Commission of Agriculture, the law may go too far in favoring agriculture to the detriment of neighbors. Yet the law does move the initial controversy from the courtroom to a regulatory body, which should be helpful in reducing the charged atmosphere and hard feelings that often accompany litigation. The Florida right-to-farm law A few other states have attempted to curtail the local regulations that might be used to adversely affect existing agricultural operations. In 2000, the Florida legislature expanded its right-to-farm provisions concerning management practices and local regulations.
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Like Michigan, the Florida right-to-farm law limits its nuisance protection to operations that conform to generally accepted agricultural and management practices (Florida Statutes, 2000). However, the Florida law goes on to prescribe limitations on local governments that attempt to restrict activities of bona fide farm operations on land classified as agricultural land. Operations engaged in activities that are regulated through implemented best management practices cannot be further restricted by local governments, except for emergencies and other enumerated exceptions. The Florida law thereby imposed two qualifications based on management practices. Agricultural operations must comport with generally accepted agricultural and management practices to qualify for nuisance protection. For exemption from local restrictions, the operations must be located on classified agricultural land and already regulated through best management practices.
Concluding comments For more than 20 years, agricultural producers have enjoyed a defence against some nuisance lawsuits by neighbors. Right-to-farm laws operated to protect the investments of agricultural operators by enabling them to continue their activities despite the objections of neighbors. Yet right-to-farm laws were not intended to eliminate all nuisance cases and did not grant operators a license to engage in bad practices or to pollute. Rather, most right-to-farm laws adopted a coming to the nuisance doctrine to protect existing land uses on neighboring properties. The Bormann case shows the danger of strong protection of agriculture. If governmental regulation goes too far and the interference with the rights of the neighbors is too great, the regulation may be a ‘‘taking’’. Right-to-farm laws may go too far if they grant blanket immunity or assert that all expansion and changes in production activities are protected. The Michigan right-to-farm law shows a compromise solution for agricultural nuisance disputes. In place of nuisance immunity for existing agricultural activities, the law employs qualifying management practices to provide a more equitable resolution of nuisance disputes. Agricultural operations are granted protection conditioned on employing generally accepted agricultural and management practices. By having a commission review qualifying management practices, superior new technology and techniques may be emphasized for adoption by agricultural operators. Farmers are assisted and encouraged to adopt good practices that should be environmentally friendly. At the same time, the public is protected against bad and unreasonable agricultural practices. Right-to-farm laws that limit nuisance protection to operations employing qualifying management practices
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offer the public and agricultural producers an auspicious resolution. Controversies involving management practices can be resolved outside of a courtroom. Given similar problems connected with other nuisance activities, businesses and industries might consider a regulatory regime under which appropriate management practices would provide them protection against nuisance lawsuits. In this manner, existing facilities could continue operating, yet the public would be protected against bad operations and unfriendly environmental practices.
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