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The NCPC does not anticipate severe impacts to the vast majority of the more than 2,100 permitted farms in the state. National Pork Board

North Carolina nuisance case: A serious threat to agriculture

When judges say right-to-farm laws don’t apply, livestock farming is in danger.

On Jan. 31, a Federal Appeals Court of three judges heard arguments for and against Murphy Brown, a North Carolina hog producing subsidiary of Smithfield Foods. The results of the case could devastate U.S. farm businesses. North Carolina Agriculture Commissioner Steve Troxler says, “There is not a farm in this country that is going to be safe” from plaintiffs’ nuisance theories.

Midway through arguments, Judge J. Harvie Wilkinson III stopped the proceedings to make a statement. “Yes, the hog farming certainly provides many jobs in eastern North Carolina. It’s important to the economy and national food supply. But it’s harmful to the people who live nearby. It’s got to be environmental (sic) harmful to the waterways. Nobody wants another Flint, Michigan. It can’t be good for children’s respiratory systems.”  

Wilkinson went on to discuss if there were “McMansions” in the area, the problem would have been solved earlier. He also indicated the North Carolina Right to Farm Act (RTFA) does not apply. (WRONG.)

Murphy Brown’s counsel did take some exception to that point. Even so, after making comments that the odors could “not be good” for children, Judge Wilkinson launched into the inhumanity of having to be close to a hog confined animal feeding operation (CAFO). He said, “And the inhumanity to the animals and the fatality rate. Some people may think [pigs] are ugly and they can treat them the way they want.”

No defense for ag

There seemed to be no response by Smithfield’s lawyer about how safe, healthy, and secure CAFOs are operated. There was no defense made on behalf of animal agriculture. Why? The Right to Farm Act is agriculture’s last defense. They are Statutes of Repose. When passed by legislatures it was assumed all farmland was rural. When this statute is not recognized as such, then all is lost. 

The judge certainly did not acknowledge this fact nor the counsel arguing the case. (Virtually all CAFO court wins recognized this fact!!)  

Judge Wilkinson said in court, “If this were my property, I’d be outraged at some of these conditions that were allowed to persist. Less fortunate citizens have property rights, too. They have a right to good health and enjoyment of their property. If this were some McMansion surrounding hog farming operations, or houses of the affluent and more politically powerful were here, wouldn’t these conditions have been cleared up sooner rather than later? That is my problem.”  

Again, Smithfield’s counsel seemed to have no response to these attacks on the farmers’ CAFOs and how well they are operated. 

As a result of these lawsuits, hogs have been taken away from farmers. There was a statement made that Murphy Brown is still paying the farmers. One argument made by Smithfield’s lawyer was, “The contract farmer has the responsibility to control the odors…”

Judge Wilkinson, again showing his hand against Smithfield and its subsidiary Murphy Brown, said “Can you assert control and use it to your advantage and then back away from the control when it comes to a verdict? I am just wondering whether you are wearing two masks.”

A lack of understanding

These comments and lack of understanding of the Right to Farm Act by one of the judges on a three- judge panel does not auger well for animal agriculture. Judge Steve Agee, another judge hearing the case, was deeply concerned that plaintiffs are black, are of modest means, and politically disadvantaged. The argument was that plaintiffs do not have full enjoyment of their property and have been harmed by Smithfield’s- Murphy Brown’s farmer CAFOs.

Plaintiffs have alleged, and the court seemed to accept, the arguments that Murphy Brown is fully responsible for flies and stench which emanate from open- air lagoons. There were also arguments plaintiffs made about the smell of urine, truck traffic rolling by the homes late at night, and buzzards flocking to rotting carcasses in dead boxes located on the property. (These arguments have been handled in other states successfully and protected by the states’ RTFA.)

Smithfield-Murphy Brown are arguing that legally, its contract farmers are indispensable parties to the lawsuits.  Smithfield’s counsel believes the farmers must be included in the lawsuit before a money judgment can be entered. He is correct.

Another harmful amount of evidence was allowed into the record at the district court level regarding the finances and pay of company executives at Smithfield. Defendants claim this evidence should have not been accepted.

A third issue argued involved North Carolina’s Right to Farm Act and how it should be interpreted. This issue was lost at the District Court level.

Without this defense in such a case, agriculture is facing danger. Let’s face it. Agriculture is a nuisance! That is the very reason Right to Farm statutes were created!   

The opinions of the author are not necessarily those of Farm Futures or Farm Progress. 
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