Right to Farm Laws:  Will Missouri’s Statute

Withstand a Constitutional Challenge Today?

Stephen F. Matthews

http://aglaw.missouri.edu/

All fifty states have some version of a “right to farm” statute.  Such statutes purport to protect (to provide a “safe harbor”) for agricultural operations from nuisance-tort lawsuits  if they meet certain conditions.  Not all state statutes have the same requirements, though most say that if the agricultural operation is in compliance with all environmental regulations, is properly run, and was there first (usually one year) before a “change in the locality thereof,” then the agricultural operation cannot be found to be a “nuisance” under tort law.

But times are a changing, if court decisions invalidating (finding these acts unconstitutional) right to farm statutes in Iowa[1], Pennsylvania[2], and New York have their reasoning followed.  The basic reasoning is that such statutes go too far (constitute a “taking” which requires just compensation under either the state constitution or the Fifth Amendment of the U.S. Constitution) by depriving neighboring landowners the right to sue in nuisance-theory tort agricultural operations for unreasonable and substantial interference (smells, dust, noise, insects, rodents, etc.).

Other states’ right to farm statutes have stood up well to constitutional challeges, notably California’s act[3].  Vermont[4] in 2004 revised its right to farm statute to grant agricultural operations there first (before the plaintiff) a “rebuttable presumption” that they are not a nuisance.

Just how similar is Missouri’s right to farm statute with the ones in those states whose acts have been thrown out, such as Iowa?  Frankly, there are substantial similarities.  It may be time, or not depending on whether you prefer a wait-and-see approach, to re-think and to modify the statutory language.[5] 

In the recent Gacke case (Iowa),  Pork Xtra in l996 built two hog confinement buildings about 1,300 feet from the plaintiffs’ residence, who had lived there since l974.  The trial court found the hog operation to be a nuisance, and awarded the Gackes $50,000 for loss in property value (economic damages) and $46,500 in compensatory damages for past inconvenience, emotional distress, and pain and suffering (non-economic damages).  But no punitive damages nor injunction was awarded.  The defendant (Pork Xtra) argued it was protected under Iowa’s right to farm law, as its hog operations were in compliance with federal and state animal feeding statutes and regulations and also used generally accepted management practices reasonable for such hog operations. 

On appeal to the Iowa Supreme Court, the trial court decision was sent back for retrial (because the trial court had erroneously admitted prejudicial evidence) and said non-economic damages (pain and suffering, etc) would be inappropriate.  The Iowa Supreme Court’s opinion did clearly say that the right to farm statute didn’t protect the hog operation, as that statute went too far in denying neighboring landowners the right to sue under nuisance-theory tort.  It was a “taking without just compensation,” which is protected under state and federal constitutions.

Isn’t that what Missouri’s right to farm statute does, too?  Aren’t the rights of burdened neighboring landowners to sue on nuisance-theory tort removed by our statute?

Counter-arguments might include that Missouri’s statute doesn’t safe-harbor from nuisance-tort lawsuits those agricultural operations which are established after the potential plaintiffs live on their land, as the Iowa statute allowed.  In effect, Missouri’s statute is less of a “taking” than the Iowa statute.  Under Missouri’s right to farm statute, the agricultural operation must have been there first and for at least one year before “a change in the locality.”  But does that still leave the Missouri statute open to challenge as a taking of neighbors’ right to be free of unreasonable and substantial interference of their use and enjoyment of their property?

Our statute was first enacted in l982, when there were few CAFOs (concentrated animal feeding operations), at least the size now regulated by Missouri statutes[6], Department of Natural Resources regulations, and federal Environmental Protection Agency regulations[7] (generally CAFOs with 1,000 or more animal units, such as more than 2,500 hogs, more than 1,000 feeder cattle, more than 700 dairy cows, more than 100,000 broiler chickens, or more than 55,000 turkeys).

Here in 2004 there are many more CAFOs (some considerably larger than 1,000 animal units) than back when our right to farm statute sought to offer protection from nuisance-tort lawsuits to agricultural operations.  The potential to seriously burden neighbors with unreasonable and substantial interference from odors, noise, dust, and pests from modern-day CAFOs has increased significantly since l982.  This is what the Iowa court decision is talking about, that the statutes may have been appropriate for several decades in the past, but a re-think is called for.

Revision of right to farm statutes need not necessarily be a complete revocation.  Instead, consider Vermont’s 2004 amendments which basically swap an immunity from nuisance-tort lawsuits for a rebuttable presumption that the agricultural operation is not a nuisance if it is in compliance with local, state, and federal environmental statutes and regulations, was there first before the neighbors moved in, is following normal husbandry management practices, and has not significantly changed since the neighbors moved in.

This would be less protection “on its statutory face” than the existing Missouri statute, but would more likely pass the “takings” constitutional challenge as a reasonable trade-off between fostering the agricultural economy and not unreasonably burdening neighboring landowners.  Some would even argue that the amended Vermont right to farm act returns to the time when there was no right to farm statute. 

The bottom line here is that there is no absolute safe-harbor from a lawsuit based on nuisance-theory tort.   No Missouri agricultural operation should ignore good neighborly relations, adequate buffers from neighboring residences and setbacks from boundary lines and water sources (creeks, wells, ponds), and compliance with all environmental/health laws.