All 50 states have right-to-farm laws on the books, and many of those specifically protect agricultural operations from nuisance lawsuits. And the courts continue to uphold the intent of those statutes which properly protects farm operations against unnecessary negligence challenges.
So what does it take to win? OFW Law's Gary Baise shares it’s about having the facts and asking the right questions that comes from having lawyers who know and can defend the practices of agriculture on your side.
When three high-powered trial lawyers announced four separate cases against Maxwell Farms in 2009, their goal was to wipe out concentrated animal feeding operations (CAFOs) in Indiana and declared it “ground zero” in a food fight over how Indiana farmers would produce pork and milk. Instead courts recently ruled in favor of the farms and backed Indiana’s Right to Farm Act as constitutional.
Acting on behalf of neighbors, they brought five negligence and nuisance lawsuits in Randolph County, Ind., against Maxwell Farms of Indiana and several individual farmers.
The complaints stated that the basis for the suits was the odor created by the production of hogs, improper handling of manure waste and dead hogs, fly generation and leaks of manure from the barns on to neighbors’ property.
But when Baise said he questioned those who filed the complaint about the “nuisance” of the ammonia smell, they couldn’t quantify that the “nuisance” was something that impacted them daily.
Baise and his OFW Law colleague Anson Keller represented Maxwell Farms in all five cases. In the first four cases, the plaintiffs' depositions showed that they knew nothing about improper handling of manure waste, improper handling of dead hogs or any leaks of manure from the barns on to their property. They claimed that those allegations came from their lawyers.
OFW Law moved for summary judgment in all five cases, and at no time did the plaintiffs attempt to show any evidence of negligence or negligent operation of the hog farms in any of the five cases.
The trial court judge, Marianne Vorhees, a special judge sitting in Muncie, Ind., found that the elements of the Indiana Right-to-Farm statute had been met.
The farms had been in existence for more than one year before the lawsuits began, there had been no change in circumstances in the operation of any of the farms and the plaintiffs provided no evidence to show that the farms had been a nuisance at the time the farms began operations.
Statute of repose
Baise said many states have a “statute of repose” which sets a time limit on how far back someone can challenge when negligence starts. In the case of Indiana, it was one year. This means that if the farm operation has been in place for a year, no one can say they’ve been negligent any time after 12 months.
Agriculture occasionally creates smells, dust, or drifts that can be considered a nuisance. But Baise says that’s exactly why these state legislatures have passed right-to-farm provisions - to protect the right to produce food. Similar provisions protect landfills and airports.
He notes the statute of repose challenge has rarely been used to win cases as it was in one of the Indiana challenges. He says Indiana’s case showed it can be a “very protective, legal safe harbor for agriculture, and most lawyers have never used it.”