Law of the West: Right to farm?
April 14, 2006
by John Scorsine
Last year, a client came into the office with another of those problems that have different rules in the country than in the city. He just purchased a 40 acre ranchette.
His neighbor raises horses and has about 50 of them. His farm is up wind from my client’s new home. During the summer, being in the yard was simply not pleasant. The odor became intense. He thought it was a public nuisance.
Welcome to country living! Assuming that the horse farm is in compliance with whatever sanitation, environmental and health regulations may apply, the law in many states is clear. It is not a nuisance.
Prior to the recent flight from urban centers and suburban bedroom communities, the generally established principles of nuisance law applied to these situations. Agricultural interests were generally protected from suits claiming a nuisance. A general principle is that you are unable to complain about a situation if you knowingly came to it. In other words, when you move next to a farm, you cannot later complain that you are living next to a farm. But, as more and more people moved to the country, there was a disturbing trend of successful nuisance suits being brought against farmers and ranchers by their newfound neighbors. Hog and poultry farms ” along with cattle feedlots ” were in many cases closed or sharply curtailed by successful suits. Adjacent residents brought these suits. Judges were becoming engaged in judging what agricultural practices were appropriate. As a result, many states have adopted “Right to Farm” laws.
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In Wyoming, the law is clear. A farm or ranch cannot be a nuisance if it uses generally accepted agricultural management practices and it would not have been a nuisance prior to the change in the use of the adjacent lands. Both Colorado and Nebraska have similar statutes on their books. Many local communities have also adopted county resolutions or ordinances that protect the right to farm.
However, a “Right to Farm” law does not prevent a lawsuit from being filed against an operation a new neighbor finds offensive nor does it afford the farmer or rancher a free hand to conduct operations. (A “Right to Farm” law in Iowa, which prohibited nuisance suits based upon agricultural operations, was recently struck down as unconstitutional.) Proper and constitutionally written laws merely afford the farmer or rancher another defense against the suit. The question, in many right to farm cases, will center on whether or not the farmer is using “generally accepted agricultural management practices.”
If you believe that the odors are unwarranted from the farm or ranch, you should research whether or not the farmer is using approved techniques for his operations. Your county extension agent, state department of environmental protection and county health department are resources for you to use. They can investigate your concerns. If there are health or environmental violations, the proper state officials can compel compliance. If there are simply better practices that could used by the farmer, the county extension agent will be able to suggest them and help the farmer implement the new practices. However, there are simply some aspects of farming and ranching that you may find offensive and there is no other less offensive way to conduct operations.
Whether it’s the racket that the chickens or more exotic birds make in the morning; the smell of the cattle feedlot; or, the prevalence of insects; there are simply some things that go with the territory. Personally, I am willing to put up with the annoyances that follow some agricultural practices. They are a small price to pay for not having to lock my front door, being able to leave the keys in my car’s ignition, knowing my daughter’s school is safe and having fresh air and water. There has never been a drive-by shooting in my town! I’ll gladly swat a few flies and smell the somewhat pungent odors of the cattle next door, in exchange for knowing that my family is safe and healthy.
The information provided in this column is based upon general principles of law and should not be relied upon in any manner. It is not the intent of this column, its author, publisher or the Fence Post to provide legal advice to any person. You should address specific legal questions to your family lawyer. In Wyoming, the State Bar can refer you to competent lawyers in your community by calling (307) 634-7823. In Colorado, call the Metropolitan Lawyer Referral Service at (303) 831-8000. Readers in Nebraska can receive referrals from the State Bar Association by calling 1-800-742-3005.