Right to Farm Law
Fall harvest is a time of year when we hear complaints from neighbors and community residents about what we do in agriculture. Dust, grain bin dryers, equipment taking up the road, working late into the night or early in the morning ... these are the inconveniences of living in an agricultural area. But when do these activities become legally problematic as a “nuisance” to neighbors and others? Not often, due to Ohio’s Right to Farm Law. Even so, the Right to Farm Law expects us to conduct our agricultural activities according to regulations and practices that may reduce the nuisance impacts of farming, and it gives us nuisance protection when we do so.
Enacted in 1982, Ohio’s Right to Farm Law offers a nuisance defense for farming activities under certain conditions. Ohio was one of many states that passed a Right to Farm Law in the 1980s after the highly publicized Arizona case of Spur Industries v. Del E. Webb. In that case, the developer of a retirement community in Arizona sought to shut down a cattle feedlot that it claimed was a nuisance to its community residents. But the Arizona Supreme Court noted that the developer “came to the nuisance,” making the previously existing feedlot activities a nuisance only because the developer chose to locate residences near the feedlot, in an agricultural area.
Ohio adopted this “coming to the nuisance” approach in its Right to Farm Law soon after the Spur Industries case. The law’s intent is to protect agricultural landowners from nuisance claims made by those who move into an existing agricultural area and later complain about the agricultural activities occurring in the area. If faced with a nuisance complaint by someone who “came to the nuisance,” an agricultural landowner can use the Right to Farm Law as a defense against the complaint.
How the Right to Farm Law works
The Right to Farm Law has three requirements a landowner must meet to use the law as a defense against a nuisance claim.
- The agricultural activities that are the source of the nuisance complaint must be on qualifying land, which includes:
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- Land enrolled with the county auditor as “agricultural district land,” (which is not a zoning designation) or
- Land “devoted exclusively to agricultural use” under Ohio’s Current Agricultural Use Valuation law.
Both of these provisions establish the same criteria for the land: it must be either ten acres or more of land devoted to commercial agricultural production, or if less than ten acres and devoted to commercial agricultural production, it must generate a gross average annual income of $2500. Certain land devoted to bioenergy, biomass, methane, or electric or heat energy production also qualifies, if contiguous to other qualifying land, as can land under government conservation and land retirement programs.
Early versions of the Right to Farm Law required that the land be enrolled in the “agricultural district program” with the county auditor, not to be confused with having a zoning designation of agricultural district. But changes to the law removed the enrollment requirement, allowing nuisance protection even if the landowner has not enrolled land in that program.
- The agricultural activities were established prior to the plaintiff's activities or interest on which the action is based.
This is the “coming to the nuisance” timing element. The agricultural activities must have been in the area first, before the person complaining of a nuisance came to the area.
- The agricultural activities were not in conflict with federal, state, and local laws and rules relating to the alleged nuisance or were conducted in accordance with generally accepted agriculture practices.
The intent of the law is to protect “good operators” who follow legal requirements or generally accepted agricultural practices for the agricultural activity that is the source of the complaint. An operator who disregards law, regulations, and acceptable practices that apply to the agricultural activity loses the nuisance protection.
What are “agricultural activities”?
We often receive questions about the kinds of activities the law covers, or whether the protection applies if a farmer changes or expands an operation. The Right to Farm Law answers these questions with the following:
"Agricultural activities" means common agricultural practices, including all of the following:
(1) The cultivation of crops or changing crop rotation;
(2) Raising of livestock or changing the species of livestock raised;
(3) Entering into and operating under a livestock contract;
(4) The storage and application of commercial fertilizer;
(5) The storage and application of manure;
(6) The storage and application of pesticides and other chemicals commonly used in agriculture;
(7) A change in corporate structure or ownership;
(8) An expansion, contraction, or change in operations;
(9) Any agricultural practice that is acceptable by local custom.
What if a farmer is threatened with a nuisance claim?
A few steps can help a farmer deal with a threatened nuisance claim.
- Document the activity or area that is the source of the complaint with pictures, videos, notes, weather conditions, etc.
- Review the situation to determine if there are additional management practices that could reduce any future nuisance impacts of the activity.
- If the person takes legal action, notify your property insurance provider. Your insurer will need to be aware of potential litigation because if the issue is one that relates to your insured activities, your insurer will defend you in a lawsuit.
- Consider educating the person about your farming practices and the Right to Farm law. Share articles like this one, or have an agricultural attorney draft a letter explaining the law. A person might not pursue a claim after understanding the activities or realizing that the Right to Farm Law would likely dismiss the claim.
Don't forget the good neighbor part
Although Ohio farmers have the Right to Farm Law as a defense against nuisance claims, it’s still good practice to be aware of how our farming activities affect neighbors. While the law recognizes that we can’t remove all of the dust, noise, road use, and odors of farming, it does expect us to be “good operators.” Being a good operator and instituting practices that can reduce nuisance impacts is the first line of defense against the potential of a neighbor nuisance claim.
Read the Ohio Right to Farm Law's "defense to a civil action for nuisance" at Ohio Revised Code Section 929.04.
Tags: nuisance, neighbor law, farm neighbor law, Right to Farm Law, agricultural district program
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Happy Friday! It's time for another Ag Law Harvest and in this week's edition we explore landmark court rulings, pending lawsuits, and newly enacted laws that affect agriculture and the environment from around the country.
USDA announces $92.2 million in grants under the Local Agriculture Market Program. The USDA announced last week that it will be funding Local Agriculture Market Program (LAMP) grants through the Farmers Market program as part of the USDA’s Pandemic Assistance for Producers Initiative. Through these grants, the USDA hopes to support the development and growth of direct producer-to-consumer marketing and boost local and regional food markets. $76.9 million will be focused on projects that support direct-to-consumer markets like farmers markets and community supported agriculture. $15.3 million will fund public-private partnerships that will build and strengthen local and regional food markets. All applications must be submitted electronically through www.grants.gov. More information can be found on the following webpages: Farmers Market Promotion Program, Local Food Promotion Program, or Regional Food System Partnerships.
Mexico Supreme Court Rules in favor of U.S. Potato Growers. On April 28, 2021, Mexico’s highest court overturned a lower court’s decision preventing the Mexican government from implementing regulations to allow for the importation of U.S. potatoes. The ruling comes after nearly a decade of legal battles between Mexican potato growers and their government. Beginning in 2003, Mexico restricted U.S. potato imports but then lifted the restrictions in 2014, allowing U.S. potatoes full access to the Mexican market. Shortly after lifting the restrictions, the National Confederation of Potato Growers of Mexico (CONPAPA) sued its government claiming that Mexican regulators have no authority to determine if agricultural imports can enter the country. Since the filing of the lawsuit, the U.S. has been bound by the 2003 restrictions on U.S. potatoes entering the Mexican market. Mexico’s Supreme Court ultimately rejected CONPAPA’s argument and ruled that the Mexican government does have the authority to issue regulations about the importation of agricultural and food products, including U.S. potatoes. Mexico represents the third largest export market for U.S. potatoes, making this a landmark decision for U.S. potato farmers.
Indiana enacts new wetlands law. Indiana governor, Eric Holcomb, has approved a new controversial wetlands law. The new law amends the requirements for permits and restoration costs for “wetland activity” in a state regulated wetland (federally protected wetlands are excluded). Under Senate Bill 389, permits are no longer required to conduct activity in Class I wetlands, some Class II wetlands, and certain farmland. In Indiana, Class I wetlands are either: (a) at least 50% disturbed or affected by human activity; or (b) support only minimal wildlife or hydrological function. Class III wetlands are minimally disturbed by human activity and can support more than minimal wildlife or hydrologic function. Class II wetlands fall somewhere in the middle. Supporters of the law argue that the changes will reduce the cost to landowners and farmers for conducting activity in wetlands that only provide nominal environmental benefits. Opponents of the law argue otherwise. Some environmental groups believe that wetlands, whether they can support more than minimal wildlife or not, provide profound economic benefit by reducing the cost to citizens for water storage and water purification. Additionally, environmental groups argue that the subsequent loss of wetlands from this law will greatly increase flooding and erosion and reduce Indiana’s diverse wildlife. Some even suggest that this law is nothing more than a subsidy for the building and housing development industry. Senate Bill 389 became law on April 29, 2021, and has a retroactive effective date of January 1, 2021.
USDA being sued for promotion of meat and dairy industry. Three physicians have filed a lawsuit against the USDA in a federal court in California. The doctors, part of the Physicians Committee for Responsible Medicine (PCRM), argue that some of the USDA’s new 2020-2025 Dietary Guidelines for Americans, issued last December, contradict current scientific and medical knowledge. PCRM believes that the USDA is acting out of its interests in the dairy and meat industry rather than the health interests of U.S. residents. For example, PCRM argues that the USDA’s statement suggesting that more individuals would benefit by increasing their intake of dairy contradicts scientific evidence that increased dairy intake can increase the chances of prostate cancer and that 1 in 4 Americans is lactose intolerant. PCRM seeks a court order requiring the USDA to delete dairy promotions, avoid equating protein with meat, and eliminate deceptive language hiding the ill effects of consuming meat and dairy products. In an email to the Washington Post, a spokesperson for the USDA, claims that the dietary guidelines are just that – guidelines. The USDA argues that the dietary guidelines are meant to help provide guidance based on the best available science and research and provide many alternatives for people based on an individual’s preferences and needs.
Sesame added to the list of major allergens. On April 23, 2021, President Biden signed into law the Food Allergy Safety, Treatment, Education and Research (FASTER) Act. The law requires that sesame be added to the list of major allergens and be disclosed on food labels. Up until this law was enacted, sesame was allowed to be labeled as a “natural flavor” or a “natural spice.” With the new law, sesame, in any form, must be labeled as an allergen on packaged foods. Food manufacturers have until 2023 to add sesame allergen statements to their labels. This is the first time since 2006 that a new allergen has been added to the Food Allergen and Consumer Protection Act (FALCPA). Sesame joins peanuts, tree nuts, fish, shellfish, soy, dairy, eggs, and wheat as the FDA’s list of allergens that require specific labeling.
Florida passes updated Right to Farm Law. Florida Governor, Ron DeSantis, signed into law Florida’s new and improved Right to Farm Act. The new law adds agritourism to the definition of “farm operations” so that agritourism is also protected under Florida’s Right to Farm Law. Additionally, Florida lawmakers have expanded the protection given to farmers under the new law by defining the term nuisance. Under Florida’s Right to Farm Law, nuisance is defined as “any interference with the reasonable use and enjoyment of land, including, but not limited to, noise, smoke, odors, dust, fumes, particle emissions, or vibrations.” Florida’s definition of nuisance also includes all claims brought in negligence, trespass, personal injury, strict liability, or other tort, so long as the claim could meet the definition of nuisance. This protects farmers from individuals disguising their nuisance claim as a trespass claim. The importance of defining nuisance to include claims such as trespass can best be demonstrated by an ongoing federal lawsuit in North Carolina. In that case, Murphy-Brown, LLC and Smithfield Foods, Inc. are being sued for having ownership in a hog farm that caused odors, dust, feces, urine, and flies to “trespass” onto neighboring properties. North Carolina’s Right to Farm Law only protects farmers from nuisance claims, not trespass claims. Although Murphy-Brown and Smithfield argue that the neighbors are disguising their nuisance claim as a trespass claim, the federal judge is allowing the case to move forward. The judge found that farmers are protected from nuisance claims, not trespass claims and even if the trespass could also be considered a nuisance, the neighbors to the hog farm are entitled to seek compensation for the alleged trespass.
Tags: USDA, Food Allergens, Agricultural Exports, Right to Farm Law, Wetlands
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