Last month the Iowa Supreme Court heard oral arguments in a case that will further shape Iowa nuisance law, as it applies to animal feeding operations. The court is in the process of analyzing Iowa Code 657.11, a law enacted in 1995 to protect agricultural producers “who manage their operations according to state and federal requirements from the costs of defending nuisance suits.”

This will be the third time Iowa’s highest court has assessed the constitutionality of a statute protecting agricultural producers from nuisance lawsuits.

In Bormann v. Board of Supervisors (Iowa 1998), the court ruled that a different statute, Iowa Code 352.11(a), was unconstitutional because it prevented landowners from seeking damages for the diminished value of their property caused by an agricultural nuisance.

That statute generally said a farm operation located in an agricultural area “shall not be found to be a nuisance.” The court in Bormann found that the immunity granted by the statute subjected neighboring landowners to a taking, without just compensation, by granting an easement benefiting the ag operation and burdening the neighboring landowner, thus violating the Takings Clause of the Iowa and U.S. constitutions.

Legislature limited immunity of producers
After Bormann, the Iowa Legislature modified the statute to narrow the immunity granted to ag producers. Specifically, Iowa Code 657.11(2) provides that the immunity does not apply if the animal feeding operation “unreasonably and for substantial periods of time interfered with the person's comfortable use and enjoyment of the person's life or property,” and the animal feeding operation failed to use “existing prudent generally accepted management practices reasonable for the operation.”

In 2004, Iowa Code 657.11(2) came under fire in Gacke v. Pork Xtra LLC. In Gacke, defendants had built a two 2,000-head hog confinement buildings across the road from the plaintiffs. The plaintiffs argued that the confinement operation decreased the value of their property and caused them personal injury and emotional distress. The Iowa Supreme Court first followed Bormann to rule that the statute created an easement and was an unconstitutional taking without just compensation.

Court rules law unconstitutional
The court then turned to the plaintiffs’ second argument. That is, by denying property owners special damages for items such as annoyance and loss of enjoyment, the statute violated Iowa’s inalienable rights clause, in the Iowa Constitution: “All men are, by nature, free and equal, and have certain inalienable rights among which are those of … acquiring, possessing and protecting property.”

The court found that the plaintiffs' right to possess their property included their right to use and enjoy it. The court noted that these rights are subject to reasonable regulation, including promoting animal agriculture by protecting responsible producers from nuisance lawsuits.

The court ruled, however, that, as applied to the Gacke plaintiffs, the statute violated the inalienable rights clause because the plaintiffs bore the brunt of the undesirable impact of the law without any corresponding benefit. As such, the court ruled that the statute was “unduly oppressive” to the plaintiffs.

Number of lawsuits increase
Fast-forward to 2018. Since Gacke, the number of nuisance lawsuits filed against ag producers in Iowa has increased significantly. One plaintiff’s firm alone has had as many as 15 lawsuits pending at one time in nine different Iowa counties against agricultural operations. The lawsuits have involved hundreds of plaintiffs. One of those lawsuits is Honomichl v. Valley View Swine, the case recently heard by the Iowa Supreme Court.

The defendants in Honomichl include the owner of two animal feeding operations in Wapello County, and the integrator and operator of the hogs finished in those units. The units were constructed in compliance with Iowa Department of Natural Resources permits and increased setback requirements. The closest plaintiff to one unit is 3,527 feet away, and the closest plaintiff to the second unit is 3,802 feet away. The units began operating in mid-2013. Several months later, plaintiffs filed their initial nuisance action against the defendants.

Case sent to Iowa Supreme Court
Since that time, multiple cases have been filed against these defendants and the composition of the cases has continued to change. The plaintiffs were not seeking damages for diminished property values, only special damages for loss of use and enjoyment. The defendants sought summary judgment, arguing that Iowa Code 657.11(2) granted them immunity from such lawsuits. The plaintiffs argued the statute was unconstitutional, as applied to them. The district court sided with the plaintiffs, and the Iowa Supreme Court agreed to hear the case.

The court’s ultimate ruling will impact all pending ag nuisance cases in Iowa.

The defendants say 657.11(2) is a valid exercise of the Legislature’s police power because it protects the right to farm in Iowa by limiting economic damages available in nuisance suits. The defendants contend that “rigorous agricultural regulations” implemented since the Gacke decision, including significantly increased setbacks, have offered more protections to neighboring landowners. They argue that the inalienable rights clause “does not give Iowa farmers the ability to practice their trade without reasonable regulation imposed by the Legislature any more than it gives their neighbors the rights to recover for lawful farming activity.”

Will Supreme Court give clearer guidance?
The defendants stress the importance of the $1.1 billion Iowa hog industry to the public and the significant burdens imposed by a “proliferation of frivolous nuisance lawsuits.” They note that Iowa Code 657.11(2) does not prevent landowners from seeking damages for diminished value of their property at any time or for special damages if the animal feeding operation has operated in a negligent manner.

For their part, plaintiffs urge the court to go further than it did in Gacke and declare Iowa Code 657.11(2) unconstitutional on its face. They say the statute violates the inalienable rights clause because it “unduly oppresses an individual’s right to use and enjoy property by denying her right to recover for an injury.” They also contend that striking the statute on its face would clarify the process and “create much needed certainty for all parties and the lower courts.” The plaintiffs argue that the changes in the regulatory framework for animal feeding operations since Gacke do not alter the constitutional analysis.

With oral arguments now out of the way, the fate of the case (and many like it) rests in the hands of the Iowa Supreme Court. An opinion should be issued later this year.

Tidgren is staff attorney and assistant director for the Center for Ag Law and Taxation at Iowa State University. For more information, visit calt.iastate.edu.