Property owners – especially those who operate a commercial enterprise – can be confronted with neighbors who view those commercial activities as infringing on the rights and privileges of the latter’s property enjoyment. This is certainly true for agricultural operations that can create byproducts others may find objectionable. Of course, we want to enjoy a tender steak at our discretion, but we may not want to live adjacent to a ranch. This "not in my backyard" syndrome – NIMBY for short – can lead to property owners filing nuisance lawsuits against producers, trying to coerce the state into forcing closure of or changes to that operation, thus limiting any undesirable effects of production.
As a result, to unburden courts from unnecessary lawsuits while protecting agricultural production – an engine of economic development and a mainstay of cultural identity – all 50 states have enacted right-to-farm laws seeking to protect producers from lawsuits filed by individuals who move into an area where farming operations exist and who later use nuisance actions to attempt to stop or modify those operations.
What does ‘right to farm’ mean?
State laws are often similar, but each includes its own definitions and applicable circumstances. As a starting point for understanding these provisions, what is their stated purpose? Texas and New Mexico, for example, each explicitly declare their purpose in enacting right-to-farm laws to conserve, protect and encourage the development and improvement of agricultural land to produce food and other products, and to reduce the loss of agricultural resources by limit operations from being deemed a nuisance. It is noteworthy that in New Mexico, the Right to Farm Act is placed within the statutory title addressing property rights, emphasizing both its importance and broad applicability. In both instances, each declares that agricultural production is a valuable asset and should be protected.
This begs the question – what is an “agricultural operation”? As defined in New Mexico, an operation can include any preparation or management of soil to include pesticide application for purposes of commercial production; breeding, feeding, slaughtering or processing of commercial livestock animals including honeybees and eggs; application of technology to such operations; and even conducting a roadside market. Kansas includes the handling, storage and transportation of commercial agricultural products and specifically includes chemical applications like New Mexico. By contrast, Colorado more precisely defines that agricultural operations are only protected against nuisance lawsuits where the operation “employs methods or practices that are commonly or reasonably associated with agricultural production.” Oklahoma stipulates that agricultural activities are presumed reasonable – and thus protected – when consistent with good agricultural practices and are established prior to nearby nonagricultural activities, unless the activity has a substantial adverse effect on public health and safety. New Mexico includes an exception that no private cause of action may be brought by a person who acquired a property interest proximate to a previously established agricultural operation, except in the instance where the latter substantially changed in nature or scope. However, as water is a scarce and essential resource in New Mexico, like much of the West, there is a carveout for instances where damages are sustained because of pollution, change in condition of surface waters or where an operation caused overflow onto the property owner’s land.
When do these provisions apply?
Timing is everything – a cause of action arising before the relevant state’s Right to Farm Act was effective will not protect an operator. Kansas mirrors Oklahoma’s intent, stating that agricultural practices are presumed reasonable and do not constitute a nuisance if they preceded any cause of action without a stipulated time limit, unless the agricultural activity has a substantial adverse effect on public health and safety. Most states agree that operator compliance with laws and regulations are presumed to be “good agricultural practice” and do not adversely affect public health and safety.
Texas declares that that no nuisance action may be brought against an operation that has existed for one year if the conditions or circumstances complained of have existed “substantially unchanged” since the established date of the operation. However, this does not restrict state authority to protect public health, safety and welfare but instead protects against private rights of action for nuisance, assuming the operator is compliant with relevant federal, state and local laws.
The New Mexico statute declares that an agricultural operation is not, nor should be, deemed a private or public nuisance if any change of condition of that operation was not a nuisance when it began operations and has been in existence for more than one year, except in cases where the operation is operated negligently or otherwise illegally. This last point is an important one – negligent operation is not protected. The New Mexico Right to Farm Act specifically indicates that its act does not invalidate land uses and powers of counties and municipalities.
How are producers protected? Recoverable damages
State laws differ on an operator’s recoverable expenses when sued as a nuisance. New Mexico stipulates that reasonable costs and attorney’s fees may be rewarded to the owner/operator where it finds a frivolous nuisance suit has been filed.
Colorado includes that expert witness fees are recoverable. Kansas caps recoverable damages to the reduction in fair market value of the plaintiff’s property caused by a permanent nuisance finding, and in a temporary nuisance finding, the lesser of reasonable costs to repair or mitigate the injury, decrease in fair rental value of plaintiff's property, or the loss value of use or enjoyment is recoverable. Oklahoma specifically limits noneconomic damages recoverable from an operation to three times economic damages or $250,000, whichever is greater. In Texas, a plaintiff who sues violating their provision is liable to the operator for all expenses incurred that were necessary to defend the suit.
There is no more widely applicable adage than to be a good neighbor – and accordingly – mind your fences! However, also be mindful that as a producer, especially one who has been operating in a location for many years, you have an established right to operate in good faith.
