Update on Right-to-Farm Legislation, Cases, and Constitutional Amendments

UPDATE: As of July 1, 2021, Florida has a new Right to Farm Act (RTFA). On April 30, 2021, Governor DeSantis of Florida signed SB 88 into law, amending Florida’s RTFA in several ways. 

UPDATE: On October 5, 2020, the U.S. Supreme Court denied the plaintiffs' petition for certiorari in Himsel v. Himsel challenging Indiana's Right-to-Farm law. 

Beginning in the 1970s, states became concerned with urban sprawl and the impact it would have on agricultural production. To address the concern of urban residents moving next door to farms and then bringing nuisance lawsuits over naturally occurring sights, smells, and sounds, legislatures enacted Right-to-Farm laws. Currently, all fifty states have enacted Right-to-Farm laws.

In general, Right-to-Farm laws deny nuisance lawsuits against farms that follow all applicable laws and predate the plaintiff neighbors. If a farmer is conducting her operation in a legal manner by following accepted agricultural practices, she should not be liable when a person “comes to the nuisance.” Iowa’s statute specifically states that the purpose of the law is to prevent farmers who properly operate their farm from defending themselves from nuisance lawsuits. While many agricultural advocates support Right-to-Farm laws, critics claim these laws hurt rural property owners by denying individuals the right to use and enjoy their land.

Many Right-to-Farm laws begin with a preamble regarding the importance of agriculture to the state. However, states are still struggling to find a compromise between the necessity of agriculture and the importance of individual property rights. This article reviews recent activity regarding Right-to-Farm laws. The article also includes a list of state statutes with links to the corresponding text.

Indiana

In one of the most recent controversies regarding the Right-to-Farm, the Indiana Court of Appeals upheld the constitutionality of its law. On April 22, 2019, the court ruled that the Indiana Right-to-Farm law barred a nuisance lawsuit brought against a farmer and his two sons. The plaintiffs challenged the validity of the Right-to-Farm law while asserting claims of nuisance, trespass, and negligence; state constitutional claims including violations of the Open Courts Clause, the Takings Clause, and the Equal Privileges and Immunities Clause; and a claim of a violation of the federal Takings Clause.

In Himsel v. Himsel, the farmer switched from growing crops to raising hogs. In 2013, the farmer constructed two 4,000 hog production buildings after rezoning his land from agricultural residential to agricultural intense. No. 18A-PL-645 (Ind. Ct. App. April 22, 2019). The farmland had been used for agricultural purposes since 1941, but these farmers had been using the land since 1994. The plaintiffs were neighbors who had lived near the farm for decades. The nearest neighborhood to the farm was two miles away and the closest town was over five miles away.

Indiana law prohibits nuisance lawsuits against farms if (1) there is no significant change in the type of operation and (2) the operation would not have been a nuisance at the time the operation began. Ind. Code § 32-30-6-9 (2019). The Indiana Legislature specifically amended its Right-to-Farm law in 2005 to specify that the conversion from one type of agricultural operation to another was not a significant change in operation.

The farmer and his sons received rezoning permission to build a CAFO after several public hearings, notices to neighboring landowners, and the acquisition of proper building permits. The court reasoned that because the operation had not undergone a significant change and the farm was not operating negligently, the Right-to-Farm law barred the plaintiff’s claims.

The court in Himsel then considered whether the Right-to-Farm Act was unconstitutional as applied under the state’s Open Courts Clause, the Equal Privileges and Immunities Clause and both the federal and state constitutional Takings Clause. The court found that under all claims, Indiana’s Right-to-Farm Act was within the constitutional authority of the Legislature. Specifically, the court reasoned that the Right-to-Farm law did not create a taking because the plaintiffs had not been deprived of all or substantially all economic or productive use of their properties. While the value of the homes had dropped an estimated 60% for one plaintiff and 49.5% for another, the court found the homes still retained significant value despite the diminution in value because the plaintiffs continued to live in their homes and they had no specific economic loss due to the neighboring hog buildings.

North Carolina

In other states, courts have ruled that Right-to-Farm laws could not prevent ag nuisance lawsuits because they were inapplicable. In 2018, 26 federal nuisance lawsuits were brought against Murphy-Brown LLC. Murphy Brown is one of the largest hog integrators in the world and a subsidiary of Smithfield Foods. At the onset of the cases, a federal judge ruled that North Carolina’s Right-to-Farm statute did not apply because the plaintiffs’ residences predated the defendant’s hog farm.

The court interpreted North Carolina’s statute to apply only when the environment outside the farm operation changes. North Carolina’s Right-to-Farm law stated that an agricultural operation cannot be a nuisance “by any changed conditions outside of the operation.” N.C. Gen. Stat. § 106-700 (2017). Unlike Himsel v. Himsel, the court found that the plaintiffs’ residences predated the farm operation. It reasoned this was not a situation of urban sprawl, but a nuisance lawsuit caused by the farm’s actions.

After the court denied Smithfield’s motion for summary judgment based on the Right-to-Farm law, the cases started going to trial. In the first three cases, juries awarded $50.75 million, $25 million, and almost $475 million respectively. While North Carolina state law limited the amount of damages actually recovered, these cases set precedent on the limited use of North Carolina’s Right-to-Farm statute.[1] So far, five cases have gone to trial with the jury awarding damages to the plaintiffs each time.

In response to these lawsuits, the North Carolina General Assembly passed Senate File 711. Governor Cooper vetoed the bill, but the legislature overrode the veto and the bill became law. This new statute denies nuisance lawsuits unless the claim is brought within one year of the farm’s establishment or operational change. The law also prohibits any person from bringing a nuisance claim against a farm unless the person is the legal possessor of the property and lives within one-half of a mile from the farm.

For more information on the lawsuits, click here.

Iowa

Iowa’s Right-to-Farm law, which was enacted in 1982, has had serious legal challenges since its inception. The initial law was declared facially unconstitutional in 1998 after the Iowa Supreme Court issued its ruling in Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998).

In Bormann, the court analyzed whether the Right-to-Farm law constituted a taking by granting statutory immunity from nuisance lawsuits without just compensation. In that case, a group of neighbors in Kossuth County challenged the Board of Supervisor’s decision to allow the establishment of a 960 acre “agricultural area.” Under the statute, farmers within agricultural areas were immune from nuisance lawsuits. The plaintiffs claimed this zoning decision created an easement over their land in favor of the agricultural producers. The major holding of the case was that the Legislature had exceeded its authority by “authorizing the use of property in such a way as to infringing on the rights of other by allowing the creating of a nuisance without the payment of just compensation.” Id. at 321. While Bormann made its way through the judicial system, the Iowa Legislature amended the Right-to-Farm law which can now be found in Iowa Code § 657.

Several years later, Iowa’s Right-to-Farm was challenged again. In Gacke v. Pork Xtra, L.L.C., plaintiff neighbors who lived 1,300 feet away from to two hog confinements claimed the confinements were a nuisance and caused a decrease in their property value. They claimed that by denying their claim through agricultural nuisance immunity, the state committed an unconstitutional taking. 684 N.W.2d 168, 170 (Iowa 2004). Using the same reasoning applied in Bormann, the Court ruled that despite the statute requiring reasonable and prudent management practices, the law still constituted a taking.

The Court then analyzed whether by denying property owners special damages for items such as annoyance and loss of enjoyment, the statute violated Iowa’s inalienable rights clause, Iowa Const. art. I, §1. The Court found that the plaintiffs' right to possess their property included their right to use and enjoy it, but that these rights are subject to reasonable regulation by the state in the exercise of its police power. The Court analyzed the question of whether the law was reasonably necessary and not unduly oppressive by applying a three-prong test under which plaintiffs must show that they:

• Bear the burden of the undesirable impact of the statute without any particular benefit from the nuisance immunity law,
• Sustained significant hardship, and
• Lived on and spent considerable sums of money in improvements on their property long before the farm operation constructed its facilities.

Based on the specific facts of the Gacke case, the Court held that the means were not reasonably necessary, and the law was an oppressive exercise of the state’s police power. As such, the law violated Iowa’s inalienable rights clause, as applied to the plaintiffs.

In 2018, Iowa’s Right-to-Farm law was once again challenged. In Honomichl v. Valley View Swine, LLC, a group of plaintiffs sued a Confined Animal Feeding Operation (CAFO) for nuisance and claimed Iowa’s Right-to-Farm law was unconstitutional as applied. 914 N.W.2d 223 (Iowa 2018). The Iowa Supreme Court upheld the decision in Gacke and found that the three prong test was still applicable. The Court ruled, however, that plaintiffs must demonstrate with specific factual evidence that they meet all three prongs of the Gacke test. The Court then remanded the case to the lower court to undergo further fact finding using the three-pronged Gacke test. In addition to Honomichl, a number of pending nuisance cases in Iowa remain subject to the Gacke test.

In 2017, the Iowa Legislature passed a new law to curb damages awards in agricultural nuisance cases. Iowa Code § 657.11A allows for damages for diminution in property value and medical expenses, but limits special compensatory damages to one-and-a-half times the total amount of property value loss and medical expenses. No challenge to this law has yet been filed. For more information on Iowa Right-to-Farm laws and cases, click here.

Idaho

Hogs are not the only subjects of farm nuisance lawsuits. In 2014, the Idaho Supreme Court considered a complaint against an equine operation. The plaintiffs in McVicars v. Christensen claimed the odor and noise from their neighbors’ horse arena built in 2006 interfered with their enjoyment of the property and constituted a public nuisance. 320 P.3d 948 (Idaho 2014).

The defendants built an indoor riding arena near the plaintiff’s property. The building was 120 feet wide, 260 feet long and 31,200 square feet. It was almost three stories tall standing between forty-two and fifty feet. The plaintiff’s claimed the dust, flies, and odor as well as the noise and light from the building interfered with the use of their land.

The land in question had always been used for agricultural purposes such as raising llamas and cattle. However, like the North Carolina lawsuits, the nuisance allegation was based on a change in the agricultural operation not on changes to the surrounding area. The preamble to the Idaho Right-to-Farm law addressed the impact of urbanization on nuisance lawsuits. Here, it was the agricultural operation that had changed, not the urban neighbors.

Interestingly, the Idaho Supreme Court found the district court erred in finding that defendants building had to be moved because it was a nuisance. While a landowner does have the right to the use and enjoyment of his property, he does not have a right under nuisance to prevent structures he finds unaesthetically pleasing. The court reasoned that by taking into consideration the buildings size and location, the lower court inappropriately considered information that was not relevant to the finding of a nuisance.

Missouri

Missouri upheld the constitutionality of its Right-to-Farm law in the 2015 case, Labrayere v. Bohr Farms. 458 S.W.3d 319 (Mo. 2015). Here neighbors brought claims of private nuisance against a CAFO that could house more than 4,000 hogs. The plaintiffs claimed that the CAFO was a nuisance that impaired their use and enjoyment of their land. They did not bring any claims for diminution in property or medical expenses.

The Missouri Supreme Court found that the law did not authorize a taking without just compensation. Because the plaintiffs were only seeking damages for a temporary nuisance, this was only a temporary taking. The law still allowed for plaintiffs to recover for a diminution in property value and was therefore constitutional.

Constitutional Amendments

In 2014, the citizens of Missouri voted to approve Amendment 1 to the Missouri Constitution. This amendment asked whether “the Missouri Constitution [should] be amended to ensure that the right of Missouri Citizens to engage in agricultural production and ranching practices shall not be infringed?” After passing by a slim margin, the Missouri Constitution was amended to add:

That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy.  To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.

The next year, the ballot title was challenged. The plaintiffs in Shoemyer v. Kander claimed the ballot title was insufficient and unfair. 464 S.W.3d 171, 171 (Mo. 2015). Under Missouri law, a ballot title may be challenged pre-election if the ballot title is insufficient or unfair or post-election for irregularities that occur during the election. Mo. Code §§ 116.190.3, 115.553, 115.593 (2019). In Shoemyer, the plaintiffs were allowed to challenge the sufficiency and fairness of the ballot title. However, the court found the title to be sufficient and fair because the phrasing of the law was effectively communicated to the voters.

In 2012, North Dakota became the first state to amend its constitution to add a Right-to-Farm provision. The amendment passed easily by two-thirds of the vote. Oklahoma considered State Question 777 in 2006 to amend its constitution to include the Right-to-Farm. That amendment, however, did not pass.

Conclusion

In light of many of these cases and controversies, state legislatures are amending Right-to-Farm statutes to address potential weaknesses in their laws. For example, the Nebraska Legislature voted on a Right-to-Farm amendment this past session. The main change to the Nebraska law includes limiting to two years the time in which a private nuisance can be brought against a farm operation. There is an exception if a farm operation fails to remedy a past nuisance under court order.

In addition to Nebraska, states such as Georgia, North Carolina, Oklahoma, West Virginia, and Utah have recently considered legislation to protect farmers from nuisance lawsuits. Many laws retain exceptions to immunity from nuisance if the farm is operated negligently.

Legal actions in Idaho, Iowa, and North Carolina demonstrate how Right-to-Farm statutes apply in limited circumstances. Additional states such as Texas and New York have had constitutional claims against their respective Right-to-Farm laws. States seem to agree that rural landowners should be protected from negligently operated farm operations and new farm operations. There will no doubt be continued controversy.

Right-to-Farm Laws by State