Right to Farm laws are hardly new. By the mid-1980s all 50 states had passed some version that aimed to protect farmers and keep the flow of food and fiber unencumbered by nuisance lawsuits.
The original Right to Farm laws typically deal with suits brought against farmers because of odor, noise, dust, and flies. There have even been suits brought because of slow-moving farm vehicles that delay traffic.
Currently, in some states, those laws are being backed up by a second round of legislative attempts to further define the rights of producers.
One related case worth watching is in eastern North Carolina where 588 complaints were filed in early July. The reason? Neighbors have grown weary and wary of a large Smithfield-owned hog operation that is storing waste in lagoons and applying manure on adjoining land.
One potential hang-up for the hundreds filing complaints is a new North Carolina law waiting for the governor’s signature. The law would require that if those bringing a nuisance suit lose, they must pay the farmer’s attorney fees.
Rusty Rumley, an attorney with the National Agricultural Law Center  located at the University of Arkansas, says North Carolina’s approach is not novel. “In the last couple of years, several states have either passed statutes or put in their constitutions amendments about protecting modern farming rights. Those are also known as ‘Right to Farm’ and have no connection with the original statutes which only deal with nuisance lawsuits.
“Since those have the same name and are very different, it is confusing to many people – especially since there’s been action with both types recently.”
Rumley says there is not yet any case law on the newer Right to Farm laws. “We do not really know how those statutes will come into play because they are so new. They are written broadly and may affect legislative actions in the state that try to limit new or existing technologies or farming techniques. They may work well within the state; however, there are some questions about how they might affect a federal law restricting certain types of farming practices. Does the federal law trump the state law? It will be probably have to be evaluated on an issue by issue basis.
“Right now, though, those new ‘Right to Farm’ laws – enacted in North Dakota, and it will be on the ballot in Missouri in 2014 -- have been on the books for such a short period of time that there have not been any cases. So, we do not know what kind of impact they’ll have yet.”
Among Rumley’s other comments:
On the reasons ‘Right to Farm’ laws were passed in the 1970s and 1980s…
“There is an old legal doctrine called ‘coming to the nuisance.’ Basically, if you move in next to an ongoing operation (farming, manufacturing, etc.) then you may not be able to prevail in a nuisance lawsuit because you chose to move there.
“Prior to the 1970s, because ‘coming to the nuisance’ was not typically part of the statutory law, it was within the judges’ discretion of whether to recognize it or not.
“Then, in the 1970s and 1980s, all 50 states addressed this issue through ‘Right to Farm’ statutes. These statutes codified the ‘coming to the nuisance’ defense into statutory law. At that point, judges were compelled to consider that defense if the farmer was able to meet the elements required to use it.”
On differences of Right to Farm statutes between states…
“While all 50 states have the Right to Farm statutes, that doesn’t mean they are all identical. Some are substantially different; others have only a couple of words of difference.
“Usually, if a farm has been in existence for a year, or two, and has been substantially unchanged, the farmer will be able to use a Right to Farm statute as a permanent defense against a neighbor suing for a nuisance action depending on the language of that state’s statute.
“There are all kinds of different permutations on what can and cannot happen under these cases. You can get into the weeds really quickly and many of these cases are fact-specific.”
On Delta states…
“A lot of Mid-South states have fairly strong Right to Farm statutes…
“One of the main concerns has been defining ‘substantial change.’ If you’re running a farming operation and you change it in a substantial way, you may lose the Right to Farm protections for a certain period of time.
“Say you have a row-crop operation growing corn and soybeans. Then, you decide to switch over to running a poultry operation. That would be considered a substantial change in many states and you would lose those protections for several years. If no one sues within those two years, the statute comes back into play.”
On legislative updates to “substantial change” language…
“In 2009, Oklahoma changed the Right to Farm statute and modified the substantial change language allowing the farmer to change their operation, adopt new technologies or expand their operation without it being considered a ‘substantial change.’
“One of the provisions in the Arkansas statute actually prohibits local government from enforcing any ordinance that would make a farming operation be considered a nuisance. One of the reasons for that is it can be easier to affect change at the local level of government.
“Another important provision in some states says that if you sue a farmer and the judge finds the case to be frivolous he can order you to pay the farmer’s attorney fees. Some states say that if you sue a farmer for nuisance, lose, and the Right to Farm statute applies then you automatically must pay the farmer’s attorney fees. Texas is a good example of that.
“At the same time, in Arkansas and soon to be in North Carolina, if a suit is brought and Right to Farm (is applicable) then either the farmer or the neighbor that brought the suit could be made to pay the other side’s attorney fees if the judge finds in a certain way.”
How do juries typically react to these nuisance suits and Right to Farm statutes?
“A lot of the cases are very fact-specific. Whether they reach juries or not is dependent largely on each state’s procedural rules.
“And one of the things to consider is that states like Arkansas and Mississippi have extremely wide, diverse types of agriculture. There can be some really interesting cases brought.”
“I’d stress that these laws have been on the books for the last three or four decades. What we’re seeing now is some change in how some states are updating their Right to Farm statutes.
“Farmers need to know what their state says about this issue. Neighbors change and so do farming operations. So, they need to be aware of where they might be vulnerable.
“A rancher with a cow-calf operation may decide to try and feed out his own calves as a value-added part of business, but this decision may open him up to a potential lawsuit.
“And it’s always nice to have a good relationship with your local attorney.”
Note: Rumley will be among the speakers at the August 1 Annual Symposium on Advances and Issues in Food Animal Wellbeing hosted by the University of Arkansas in Fayetteville.