Right to Farm Laws

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Right to Farm Laws are laws insulating agricultural operations from nuisance lawsuits. Nearly all 50 states have passed Right to Farm bills.[1] However, the content of these laws vary greatly. Common elements of Right to Farm laws are:

  • Prohibiting local government from passing stricter laws on agriculture than the laws of the state.
  • Restricting nuisance suits if the plaintiff moved to the area of an already established agricultural operation.
  • Restricting nuisance suits if the farm operation engages in generally accepted agricultural practices that do not violate any laws.
  • Restricting nuisance suits if the farm operation is located in an agricultural zone.
  • Ordering the plaintiff to pay attorneys fees of the defendant if they (the plaintiff) lose the case.

The American Legislative Exchange Council has written a particularly far-reaching Right to Farm Act as one of its over 800 "model bills" that it encourages state legislators to pass. The bill would bar any lawsuits by neighbors claiming nuisance from any activities that are typical in farming, including industrial agriculture. This bill, when passed, likely benefits ALEC's agribusinesses members.

About ALEC
ALEC is a corporate bill mill. It is not just a lobby or a front group; it is much more powerful than that. Through ALEC, corporations hand state legislators their wishlists to benefit their bottom line. Corporations fund almost all of ALEC's operations. They pay for a seat on ALEC task forces where corporate lobbyists and special interest reps vote with elected officials to approve “model” bills. Learn more at the Center for Media and Democracy's ALECexposed.org, and check out breaking news on our PRWatch.org site.


ALEC's Right to Farm Model Bill

ALEC's model "Right to Farm Act" contains several rather far-reaching measures to ensure that nuisance claims may not be brought against large, industrial agricultural operations. It says:[2]

"A. A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation alleged to be a nuisance conforms to generally accepted agriculture and management practices according to policy determined by the {Insert Appropriate State Agency}. Generally accepted agriculture and management practices shall be reviewed annually by the {Insert Appropriate State Agency} and revised as considered necessary.
"B. A farm or farm operation shall not be found to be a public or private nuisance if the farm or farm operation existed before a change in the land use or occupancy of land within one mile of the boundaries of the farm or farm operation land, and if before that change in land use or occupancy of land, the farm or farm operation would not have been considered a nuisance.
"C. A farm or farm operation is in accordance with subsection one of section two and shall not be found to be a public or private nuisance as a result of any of the following:
1. A change in ownership or size.
2. Temporary cessation or interruption of farming.
3. Enrollment in government programs.
4. Adoption of new technology.
5. A change in the type of farm product being produced."

A common element of state Right to Farm laws is the distinction between whether a plaintiff moves to the vicinity of an already-established agricultural operation (in which case nuisance suits are often prohibited) or vice versa. However, this language would allow a farm to avoid a nuisance suit if it was established before the plaintiff moves to the area and then the farm expands or substantially changes, for example, by building a hog confinement and a large manure lagoon on the property.

Additional leeway is given to agricultural operations in the definitions of the terms "farm operation," "Generally Accepted Agricultural and Management Practices," and "Person."[3] For example, ALEC defines "farm operation" as including "The generation of noise, odors, dust, [and] fumes;" "field preparation and ground and aerial seeding and spraying;" "the application of chemical fertilizers or organic materials, conditioners, liming materials, or pesticides;" and "the management, storage, transport, application and utilization of farm by-products, including manure or agricultural wastes."

ALEC defines "Generally Accepted Agricultural and Management Practices" as "those practices defined by the {Insert Appropriate State Agency}. The department shall give due consideration to the written recommendations of the state university agriculture and natural resources extension and the agriculture experiment station in cooperation with the United States Department of Agriculture and industry and professional associations."

Last, ALEC defines "Person" as "an individual, corporation, partnership, association or other legal entity."

Right to Farm Bills in States

Restriction on Nuisance Suits if the Ag Operation is Already Established

One of the most common provisions in Right to Farm laws says that an agricultural operation may not be ruled a nuisance if it is already established (some require that it has been in operation for at least 1 year) and was not a nuisance at the time of its establishment. This is often intended to protect farms that were established in rural areas that subsequently became urban or suburban. However, bills differ on whether farms or agricultural operations that expand or significantly change their practices and retain their immunity from nuisance suits.

The following states ban nuisance suits on agricultural operations that are already established prior land use changes adjacent to it:

  • Alabama (ag operation must have been established for one year prior to land use changes)
  • Georgia (ag operation must have been established for one year prior to land use changes)
  • Wyoming

The following states ban nuisance suits on agricultural operations that have been in existence for one year or more without any substantial changes to the operation:

  • Pennsylvania

The following states ban nuisance suits on agricultural operations that have been in existence for one year or more, even if during that time the farm has expanded or changed:

  • Indiana

Restriction on Nuisance Suits Based on Zoning

Some states restrict nuisance suits based on zoning. If an agricultural operation is within an agricultural area, then it is not a nuisance. States with Right to Farm laws based on zoning include:

  • Iowa
  • Ohio

Ohio

Ohio law states that an agricultural operation is not a nuisance if the following conditions are met:

"(A) the agricultural activities were conducted within an agricultural district;
"(B) agricultural activities were established within the agricultural district prior to the plaintiff's activities or interest on which the action is based;
"(C) the plaintiff was not involved in agricultural production; and
"(D) the agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices."

Restriction on Nuisance Suits Based on "Good Agricultural Practices"

Several states restrict nuisance suits on agricultural operations that follow "generally accepted" or "good agricultural practices" and do not violate any laws. This means that if hog confinements with large manure lagoons are common in agriculture and legal, then they cannot be sued as nuisances. States with laws that include similar language are:

  • Arizona

Setting the Bar at Harming "Public Health and Safety"

Many states require a plaintiff to prove that an agricultural operation harms public health and safety for the operation to be a nuisance. According to Wisconsin Lawyer:[4]

"This formulation is a departure from the law of private nuisance, which allows recovery for an unreasonable and substantial interference with the use and enjoyment of one's property, and therefore substantially raises the bar for proving a private nuisance and possibly eliminates nuisance as a cause of action."

These states include:

  • Arizona
  • Wisconsin

Local Control Preemption

The following states have Right to Farm laws that preempt local control, prohibiting local governments from making stricter laws on agriculture than laws at the state level.

  • Alabama
  • Arkansas
  • Colorado
  • Florida
  • Idaho
  • Kentucky
  • Louisiana (local governments may not restrict any farm that practices "generally accepted agricultural practices or traditional farm practices")
  • Maine (local governments may not ban a farming practice "if the method of operation constitutes best management practices as determined by the commissioner")
  • Michigan
  • New York (local governments "shall not unreasonably restrict or regulate farm operations within agricultural districts" unless public health or safety is threatened)
  • North Dakota
  • Oregon
  • Pennsylvania (local governments may only ban practices that harm public health and safety)
  • South Carolina (allows an exception so that local government can regulate swine operations and new slaughterhouse operations; local government may also use zoning to limit agriculture operations)
  • Utah (local governments may not "unreasonably restrict a farm structure or farm practice")
  • Virginia

Corporate Personhood

The model ALEC bill defines "Person" to include corporations. The following states include a similar corporate personhood clause in their Right to Farm law:

States That Use ALEC's Bill Language

The following states have Right to Farm laws that use some or all of ALEC's model bill language.

Arkansas

The Arkansas Right to Farm law takes the ALEC language nearly word for word in a section asserting that an agricultural operation may not be ruled a nuisance as a result of:

"(A) Change in ownership or size;
"(B) Nonpermanent cessation or interruption of farming;
"(C) Participation in any government-sponsored agricultural program;
"(D) Employment of new technology; or
"(E) Change in the type of agricultural product produced."[5]

Another section of the law is similar, but not identical to ALEC's language. The section states that an agricultural operation "shall not be or become a public or private nuisance as a result of any changed conditions in and about the locality after it has been in operation for a period of one (1) year or more when the agricultural operation or its facilities or appurtenances were not a nuisance at the time the agricultural operation began." Similar to ALEC law, the agricultural operation may not be considered a nuisance if it "employs methods or practices that are commonly or reasonably associated with agricultural production."

The bill also removes local control over agricultural operations, prohibiting local governments from passing ordinances on agriculture that are stricter than state laws. Additionally, the court may order the losing side of the case to pay the attorneys fees of the winner.

Florida

Florida uses some of ALEC's language in its Right to Farm law, in its definition of "farm operation."[6] However, it does not define a "person" as a corporation, etc. The law protects a farm operation from being ruled a nuisance so long as it has been in operation for more than 1 year and was not a nuisance at the time of its establishment. The "date of establishment" is considered " the date the farm operation commenced" even if the farm expands within its original boundaries. However, if the farm expands onto new land, that constitutes a new date of establishment for that part of the farm. The law states that the farm operation "shall be a public or private nuisance if the farm operation conforms to generally accepted agricultural and management practices." The exceptions to the farm operation's exemption from nuisance lawsuits are:

"1. The presence of untreated or improperly treated human waste, garbage, offal, dead animals, dangerous waste materials, or gases which are harmful to human or animal life.
"2. The presence of improperly built or improperly maintained septic tanks, water closets, or privies.
"3. The keeping of diseased animals which are dangerous to human health, unless such animals are kept in accordance with a current state or federal disease control program.
"4. The presence of unsanitary places where animals are slaughtered, which may give rise to diseases which are harmful to human or animal life."

The bill also states that "No farm operation shall become a public or private nuisance as a result of a change in ownership, a change in the type of farm product being produced, a change in conditions in or around the locality of the farm, or a change brought about to comply with Best Management Practices adopted by local, state, or federal agencies." It adds: "When expansion of operation not permitted.--This act shall not be construed to permit an existing farm operation to change to a more excessive farm operation with regard to noise, odor, dust, or fumes where the existing farm operation is adjacent to an established homestead or business on March 15, 1982."

Last, the bill prohibits local governments from passing laws limiting agricultural operations that are more restrictive than state laws and regulations.

Indiana

Indiana's Right to Farm law includes ALEC's model bill language in the following section:

"(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:
"(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:
"(A) The conversion from one type of agricultural operation to another type of agricultural operation.
"(B) A change in the ownership or size of the agricultural operation.
"(C) The:
"(i) enrollment; or
"(ii) reduction or cessation of participation; of the agricultural operation in a government program.
"(D) Adoption of new technology by the agricultural operation.
"(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality."

This language was added in 2005 by the passage of Indiana S.B. 267, sponsored by Sen. Robert N. Jackman, a vet with a hog operation, Sen. Vic Heinold, who ran a grain elevator, and Sen. Brandt Hershman, an ALEC member.

Michigan

Michigan has adopted a Right to Farm law with quite a bit of identical language to the ALEC.[7] Michigan's Right to Farm law was initially adopted as Act 93 in 1981.[8] However, it has been amended several times over the years. In 2000, the Michigan government passed Public Act 261 of 1999 (Senate Bill 205, sponsored by Joel D. Gougeon) which prohibits local governments from making laws stricter than state law.[9]

As urban agriculture flourishes in Detroit, Michigan's Right to Farm Act might see a new addition, if a bill like 2010 House Bill 6458, which exempts Detroit from Michigan's Right to Farm law, is passed.[10]

Other State Right to Farm Laws

Wisconsin

Wisconsin first passed a Right to Farm act in 1982.[11] This law "advised local governments to use their zoning power to prevent land use conflicts" and "placed considerable emphasis on local zoning to guide the resolution of nuisance lawsuits." Farms within agricultural zones could not be forced to change their practices "unless such relief is necessary to protect public health or safety." However, farms outside of agricultural zones could be ordered to "mitigate the nuisance" by a court. The law also limited the damages a farm could be assessed if "the agricultural use existed in substantially the same manner and in the same location before the plaintiff began using his or her property."

The initial law was substantially changed with Assembly Bill 546 in 1995.

"The 1995 amendments made several key changes. First, while the 1982 law merely focused on limiting the remedies available in a nuisance case, the 1995 amendments also limited the scope of the cause of action. For example, the Right to Farm Law prevents a court from finding that an agricultural use or practice, as defined in the statute, is a nuisance if two conditions are met: 1) the plaintiff "came to the nuisance," and 2) the agricultural use or practice does not pose a threat to public health and safety."[12]

The "coming to a nuisance" clause essentially means that if, for example, a plaintiff moves next door to an already established mega-dairy, the mega-dairy's farming practices cannot be ruled a nuisance. However, this applies "regardless of whether a change in agricultural use or agricultural practice is alleged to have contributed to the nuisance."[13] In other words, if you move next door to a farm that does not pose as a nuisance at the time and they change their farming methods in a way that is problematic, you have still come to a nuisance and the farm is protected under the law.

Second, and perhaps more significantly, the 1995 bill changed the law so that an agricultural operation or practice cannot be ruled as a nuisance if it "does not present a substantial threat to public health or safety."

According to Wisconsin Lawyer:[14]

"This formulation is a departure from the law of private nuisance, which allows recovery for an unreasonable and substantial interference with the use and enjoyment of one's property, and therefore substantially raises the bar for proving a private nuisance and possibly eliminates nuisance as a cause of action."

Recent changes to the law (the 1995 bill as well as amendments passed in 1997 and 1999) limit the remedies available to the plaintiffs. If a plaintiff proves that an agriculture operation poses a substantial threat to public health of safety, the Right to Farm Law restricts what can be done about it in four ways:[15]

"1) The relief awarded by the court may not substantially restrict the agricultural use or practice.
"2) If the court orders an agricultural operation to mitigate the nuisance, it must consult the Department of Natural Resources (DNR) or the Department of Agriculture, Trade, and Consumer Protection (DATCP) for suggested mitigation measures.
"3) The court must provide the agricultural defendant with at least one year to install the measures.
"4) Most significantly, any action that the court orders cannot substantially or adversely affect the economic viability of the agricultural use."

Additionally, the plaintiff must pay the defendants' legal fees if they cannot prove that the agricultural operation is a nuisance.[16]

ALEC's Agribusiness Members

See a full list of ALEC's corporate members.

Corporations:

Trade Groups:

Sourcewatch resources

References

  1. Right to Farm Laws, Accessed July 19, 2011.
  2. ALEC Model Right to Farm Act
  3. ALEC Model Right to Farm Act
  4. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.
  5. Arkansas Right to Farm law
  6. Florida's Right to Farm law
  7. Michigan's Right to Farm law
  8. Peter Goralski, The Michigan Right to Farm Act, Michigan Policy, August 26, 2008, Accessed July 19, 2011.
  9. Paul W. Jackson, Right-to-Farm Affirmed in Court, Michigan Farm News, August 30, 2001.
  10. Russ Harding, Mackinac Center for Public Policy, Detroiters May Lose Right to Garden, organizational publication, September 28, 2010.
  11. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.
  12. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.
  13. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.
  14. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.
  15. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.
  16. Andrew C. Hanson, Brewing Land Use Conflicts: Wisconsin's Right to Farm Law, Wisconsin Lawyer, Vol. 75, No. 12, December 2002, Accessed July 19, 2011.

External resources

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