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Why you should pay attention to North Carolina ‘Right to Farm’ cases

Buddy up to your neighbors

Moving into a new year, several stories are developing that producers should be watching. One of them, a “Right to Farm” battle that’s brewing in North Carolina, could easily impact the Mid-South.

“Right to Farm is always something that farmers should keep in the back of their mind,” says Rusty Rumley of the National Ag Law Center, housed at the University of Arkansas in Fayetteville. “RTF is when nuisance lawsuits are being brought by neighbors against a farmer. It’s basically the codified defense that a farmer can use in cases where their neighbors sue them.”

The most obvious and easiest solution to any such suits, says Rumley, “is to simply keep good relationships with your neighbors. That solves a lot of legal problems that may come down the road. That’s anything from your cows getting loose and running around after getting through a fence to nuisance lawsuits involving odors, dust or noise.”

The length of time you’ve been farming may have a bearing. “In some states, if a farm has been in existence for some time and the neighbor decides to sue, farmers can use the RTF defense to fight back.”

RTF statutes have been around since the late 1970s to early 1980s. “The topic comes and goes,” says Rumley. “But it’s really been popping up in the last year because of a lot of litigation in North Carolina. There, they’ve had a series of cases — 26, I believe — that are ongoing. A law firm has recruited plaintiffs and four of the cases have gone to a verdict.”

The verdicts have been rather surprising in regards to the amount of money awarded to the plaintiffs. “Normally, in these types of cases a neighbor sues because they’re upset with dust from a grain operation. There might be a small amount of damages and they might say, ‘We want you to change your operation a little, or adopt new technology, to limit the dust coming onto our property.’”

$50 million

In this case, “the plaintiff sued Smithfield Foods for hog farms saying the (waste) lagoons weren’t the best technology and saying the odor was making their land unlivable. The first lawsuit came down and the 10 plaintiffs were awarded a total judgment of about $50 million.”

In the second trial, $25 million was awarded. The third trial awarded $473.5 million.

With those kinds of numbers will defendants be looking to settle?

“Not yet,” says Rumley. “North Carolina had a damage cap provision. So, in the first two cases, the damages were lowered significantly. The first case for $50 million was mostly punitive damages and was reduced to around $3.25 million. The second case was reduced to $630,000.”

The $473.5 million award was reduced to $94 million. “That’s still a good-sized chunk of money.”

The verdict on a fourth case came down in late 2018. “In that case, the judge refused to award punitive damages. The fourth case was under a new judge with the first three all under one judge. This is still very much ongoing and we expect the verdicts to be appealed.”

The cases have been interesting from an outsider’s perspective, says Rumley. “Usually, you have a neighbor suing another neighbor. In these cases, there are more than 500 plaintiffs involved. That’s unique.

Farmers weren’t sued

“Another thing is it’s usually the farmer that is sued. Here, they skipped straight up to Smithfield Foods and the farmers weren’t sued. From what we understand, though, the hogs on the farms from the first three cases have been removed.”

Has there been any reaction from Congress?

“There has been some talk, but court litigation of this type is, by and large, a state issue. There’s never been a lot of federal involvement. These cases, though, are being tried in federal court — there’s no federal law at stake, it’s just a diversity of parties jurisdiction. Ninety-nine percent of the time, these cases involve completely state-related issues.”

How might this translate to the Mid-South?

“All 50 states have RTF statutes. To make things more complicated, none are the same. Arkansas’ is a bit confusing, although it’s more robust than what North Carolina had. Mississippi has a strong RTF statute. What North Carolina had looks very similar to what Missouri now has — and other states also look similar.”

Last summer, North Carolina “revamped its RTF statute and really strengthened it. But they didn’t make it retroactive, so the other 22 RTF cases pending” are still under the old statute.

“By and large, the more prevalent agriculture is in the general economy of the state, the stronger the RTF statute. So, states like Texas, Oklahoma and Arkansas have very strong RTF statutes. On the other side, Vermont doesn’t have a strong statute.”

Again, says Rumley, be friendly with your neighbors. “It isn’t just RTF. When people get turned in for environmental violations and the like, generally it’s a ticked-off neighbor who did it. Most states don’t have inspectors patrolling rural areas. If you do get crosswise, though, it’s important to go to an attorney familiar with RTF statutes. Those can provide substantial protection.”

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