December 15, 2022
Earlier this year, the Iowa Supreme Court issued two agricultural law opinions that are critical to the state’s animal agriculture industry. The discussion below is merely a summary of each case–for more information and detail, be sure to read the full opinions.
Right to Farm Statute Upheld
In August, the Iowa Supreme Court issued an amended 4-3 opinion upholding the state’s Right to Farm law in Garrison v. New Fashion Pork LLP. [Read opinion here.] Specifically at issue was the Iowa Constitution’s inalienable rights clause and its application to the Right to Farm statute.
Garrison owned 300 acres of farmland in Iowa and lived there since 1999. For decades, he raised sheep on his property, having from 500-1000 animals on his land depending on the breeding/lambing season. He managed manure by spreading it on his fields and using a manure compost pile. In December 2015, New Fashion Pork (NFP) began operating a confined animal feeding operation (CAFO) with 4,400-8,800 hogs about 1/2 a mile from Garrison’s property line. Garrison claims that NPF’s manure application resulted in manure being discharged onto his property. In 2018, NFP applied manure to frozen ground in violation of state regulations, resulting in a consent order and administrative penalty. Garrison claimed that the odors interfered with his enjoyment of his property over 100 days of the year. NFP took several steps to reduce the odor such as adjusting pit fan placement and installing an electrostatic precipitating fence, the first of its kind for a swine operation.
Three years after the CAFO began operating, Garrison filed suit in federal court for a Clean Water Act violation, RCRA violation, and several state law claims. The federal court dismissed the two federal claims under the CWA and RCRA, and refused to exercise supplemental jurisdiction over the state law claims. After that, Garrison filed the trespass, nuisance, and drainage claims in state court. The state court granted summary judgment to NFP on all claims. The court held a hearing to apply the Gacke test to determine whether the Right to Farm defense, which NFP raised, was constitutional under the inalienable rights clause as applied in this case. The court found the right to farm defense was constitutional because Garrison had received at least “some benefit” from the same statute. Garrison filed an appeal.
Understanding the Gacke test is important to understand this decision. The Gacke court found that to survive an inalienable rights clause challenge, the plaintiff in a Right to Farm case must show: (1) they received no particular benefit from the nuisance immunity granted to their neighbors other than that inuring to the public in general; (2) they sustained a significant hardship; and (3) they resided on their property long before any animal operation was commenced on neighboring land & spent considerable sums of money in improvements to the property prior to the defendant’s facility construction.
It is interesting to note, according to the Iowa Supreme Court, Iowa is the only state to have found a Right to Farm law unconstitutional in any manner.
The Iowa Supreme Court overruled Gacke‘s three-part test. “Gacke is an outlier. This appeal once again illustrates how Gacke’s three-part test, which Gacke created out of whole cloth, engenders unnecessary litigation which is difficult to administer.”
Instead of the Gacke test, the Court analyzed the Iowa Right to Farm statute under rational basis review, which asks whether the law “furthers a reasonable legislative objective” and applies a presumption of constitutionality. Applying the rational basis test, the Court found the Right to Farm statute constitutional. “Protecting and promoting livestock production is a legitimate state interest, and granting partial immunity from nuisance suits is a proper means to that end.” The Court also noted that the Right to Farm statute does not eliminate recovery rights all together, noting the exceptions to the defense which would allow recovery in certain situations. As such, NFP was entitled to statutory immunity from suit pursuant to the Iowa Right to Farm statute, and summary judgment on the nuisance claim was proper.
The court then affirmed the grant of summary judgment on the additional claims as well.
Justice Mansfield issued a concurring opinion focused primarily on challenging issues raised by the dissenting opinion. He noted that where a common law right exists, that right may be limited by statute, which is exactly what the Right to Farm defense does.
Two justices wrote dissenting opinions. Justice Appel was concerned that overruling Gacke was inconsistent with stare decisis. He also criticized the majority looking to appellate cases from other states in order to interpret Iowa law, calling those cases “mildly interesting but irrelevant.” Justice McDonald wrote his dissent focused more on the harm facing Garrison and other landowners with property neighboring a CAFO. He would not have overruled Gacke and argued the Right to Farm law was per se unconstitutional.
“Ag Gag” Statute Found Unconstitutional
In September, the Iowa Supreme Court issued an opinion in Animal Legal Defense Fund v. Reynolds, holding the Iowa “ag gag” statute unconstitutional. [Read Opinion here.]
Iowa Code Section 727.8A (“the Act”) is the third attempt by the Iowa Legislature intended to prevent harms arising from undercover investigations by activist groups on certain facilities. Both prior statutory versions were found at least partially unconstitutional. [Read prior blog posts here and here.]
After these rulings, the Iowa Legislature passed the Act, which provides that it is a crime “for a person committing trespass…to knowingly place or use a camera or electronic surveillance device that transmits or records images or data while the device is on the trespassed property.” Law violators of the face criminal penalties which are far more severe than the penalties for a regular trespass violation.
The Animal Legal Defense Fund, along with four other animal welfare groups, filed suit against the Act, which they argue violates the First Amendment by restricting speech by making it a crime to place an electronic surveillance device on trespassed property and that the Act is overly broad. The Defendants, several Iowa state and county government officials, argue that the law does not regulate protected speech and, even if it does, it is narrowly tailored to significant government interest.
First, the Court found that the Plaintiffs did have standing to bring these claims. Standing is analyzed under a three-part test: (1) injury-in-fact; (2) causal connection between injury and alleged conduct; and (3) likelihood injury will be redressed with a favorable decision. The Defendants conceded that the Plaintiffs “may have suffered an injury” by not being able to trespass and record videos under the statute, thus meeting the injury-in-fact requirement. It was undisputed that the Defendants were charged with enforcing the Act, meeting the second prong, and that their requested relief–an injunction–would redress the alleged injury. Thus, Plaintiffs had standing to bring the lawsuit.
Does the Act regulate speech?
The First Amendment only protects “speech”, but that includes the “creation of speech.” The US Court of Appeals for the Eighth Circuit has said that recording, production, editing, and publication of videos is protected speech. Here, prohibiting the recording or transmission of data does prohibit speech, and the First Amendment applies. The Court also drew an important distinction with regard to how the Act impacts private property rights. The Act still allows a property owner the ability to exclude a person who wishes the speak from their private property. Simple trespass law allows for that. However, the Act goes further, by jailing someone for that speech, an issue “of great constitutional import.” This, the Court noted, “is what the government cannot do.”
Does the Act meet intermediate scrutiny?
The parties focused on whether the Act meets the intermediate scrutiny analysis. To be constitutional under intermediate scrutiny, the Act “must be narrowly tailored to serve a significant governmental interest.” It must “genuinely advance the state’s interest without sweeping too broadly or failing to regulate ‘significant influences’ on the state’s interest.”
Defendants argue the significant governmental interest the Act serves is the protection of private and public property from invasion via trespass. They argue it is needed to protect proprietary information and trade secrets. They contend the Act is narrowly tailored because it focuses solely on situations where an individual has already committed a trespass and is attempting to use a camera or electronic surveillance device on the trespassed property.
Plaintiffs argue the law is both over- and under-inclusive. They argue it is over-inclusive, because property and privacy can be protected by prohibiting entry, invasion, theft, and other non-expressive activities without restricting speech. They also point out that the statute is not limited to only agricultural facilities, further demonstrating over-inclusiveness. They argue the Act is also under-inclusive because it only protects against theft accomplished by electronic surveillance, but does address any other way to steal trade secrets.
“The Court agrees with the Plaintiffs that the Act is insufficiently tailored compared to its burden on speech.” Although the Court notes that privacy and property rights are important, there is nothing in the record to show the Act was narrowly tailored to address these concerns. There are other laws currently in effect that cover many instances related to privacy concerns. Thus, the statute does not pass intermediate scrutiny.
Based on this, the Defendants’ Motion to Dismiss was denied and the Plaintiffs’ Motion for Summary Judgment was granted, and the Act was declared unconstitutional.
For more information on other “Ag Gag” decisions, click here.
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