Right-to-Farm Law Does Not Protect Landowner From Nuisance Caused by Septage Lagoons

 

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Farmland in Alaska by Michael Hayes via flickr.com

 

The article is not a substitute for legal advice. 

Today, I want to highlight a recent right-to-farm law decision out of Alaska. The Supreme Court of Alaska, in Riddle v. Lanser, held that the state’s right-to-farm law did not protect a landowner who was storing septage on agricultural property. Many readers might be thinking that this is a bad time for right-to-farm laws, especially after the jury verdict involving a North Carolina hog farm, but this case highlights that right-to-farm laws do not protect those not really involved in agriculture before becoming a nuisance.

Background

Robert Riddle bought 500-plus acres of farmland near Fairbanks, Alaska in 2005. After purchasing, he began to clear the property, put fences up, established roads, and began to use the farmland for livestock and to grow potatoes, oats, hay, and wheat. At the same time as purchasing the farmland, Riddle owned a company that pumped private septic tanks in Alaska. On the farmland, Riddle put in 5 septage lagoons to store septage from his other business.

To apply the septage onto the farmland, Riddle had to receive the proper federal, state and local approvals. In applying for these approvals, he agreed to put into certain practices to limit odors from being released and impacting neighbors. Riddle also was granted a conditional use permit by his local borough that allowed for the application of biosolids, but the primary use of the farmland, had to be agricultural and the biosolids could only support the agricultural use. Around 2010, Riddle began to accept additional septage on the farmland from another company. In 2011, he sought to be able to construct additional septage storage on the farmland but did not disclose that he already had storage on the property. In approving the additional storage, Riddle agreed the use of septage had to support the primary use of agricultural.

In 2007, Lanser subdivided a property neighboring Riddle’s farmland. He had expressed concerns at the hearing when Riddle was granted the conditional use permit. Around 2010, Lanser began to make requests to Riddle to control odors coming from Riddle’s septage lagoons. Lanser and other neighbors began to report Riddle’s farmland for odors to state agricultural officials.

 

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Musk Ox Farm in Alaska by Jimmy Emerson, DVM via flickr.com

In 2011, Lanser sued Riddle in state court (along with the state department of agriculture). In 2013, the trial court determined that it was unclear how much septage Riddle had stored on the property because he had not kept records. Riddle had taken in around 9.8 million gallons of septage from another septage company between 2010 to 2012.

 

At trial, it was determined Riddle had not begun to apply the biosolids to his farmland till 2010 (he had been storing biosolids from 2005 to 2010 on the property). Riddle argued he had to wait till 2010 because he was waiting to accumulate enough biosolid to apply to his farmland and that weather conditions had prevented his ability to apply biosolids. The trial court also determined that Riddle was violating his permits by composting septage on the farmland. The trial court also found that the smells intensified in 2010 when Riddle began to accept additional septage on the farmland.

The trial court determined that Lanser proved that Riddle’s septage lagoons were a private nuisance. Riddle, according to the court, knew that this odor would interfere with neighbors’ uses and enjoyment of their properties because Riddle admitted this in the permitting process and agreed to take certain steps to prevent odors. He had not taken any of the steps to prevent odors.

Finally, the trial court concluded that Riddle was not shielded by the right-to-farm law since the property was not an agricultural facility. According to the court, Riddle had never sold a crop and had received no income from farming. To the court, Riddle was more of a hobby farmer than an actual farmer. The lagoons were not operated in conjunction or incident to the farming activity. The court pointed out at some point the lagoons might operate in conjunction to a farming activity, but the right-to-farm law protects current farming activities that become nuisances not future activities. Riddle was ordered to abate the nuisance, and Riddle appealed.

Supreme Court of Alaska Decision

On appeal, Riddle argued the lagoons were not a nuisance, and if they were a nuisance then the right-to,-farm law provides Riddle with a defense. The supreme court determined that the trial court had not been wrong in determining the lagoons to be a nuisance. There was testimony to show the impact of the smells from the lagoons on Lanser’s properties. It was the storage that caused the nuisance and not the application of biosolids according to the court.

The supreme court agreed with the trial court on the right-to-farm defense. Evidence showed that Riddle had not intended to use the septage as fertilizers until the lagoons became a nuisance and Lanser began to complain about the odors. Right-to-farm laws, according to the court, are not intended to provide defenses in situations like this: Riddle had no intent to use the septage in a commercial agricultural capacity till the lagoons became a nuisance.

To be protected by the right-to-farm law, when Riddle began to store septage on the farmland, he would have needed to be applying it on the farmland as a biosolid fertilizer and attempting to produce a crop. Right-to-farm laws protect established agricultural activities that were not nuisances when established then become a nuisance.

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A farm with a view in Alaska by Sarah Hurst via flickr.com

Here, Riddle tried to turn a nuisance into an agricultural activity. Riddle tried to argue that earlier farming activities he did back when he bought the farmland should shield him, but again the problem: Riddle never used the lagoons as a part of this agricultural activity. The supreme court affirmed the decision of the trial court that the lagoons were a nuisance and the right-to-farm law did not provide a defense to Riddle.

 

Why Care?

This case highlights when a right-to-farm law might not apply to related agricultural activities. As the court highlights, this case would have been different if Riddle had only farmed the property and used the stored septage as fertilizer from the start. Both courts seem to be saying that if Riddle had only been using the stored biosolids in conjunction with a farming operation, he would have gained the right-to-farm as a defense.

The other issue that this case highlights is the need to follow your permits and do not lie to government officials in permit applications. I cut out portions of this from my summary, but in this case, Riddle had told the officials one thing and had done another thing. He had claimed to be putting in processes to control odors; he had not. He had been permitted to store septage on the property as a secondary activity to the agricultural activities.

Finally, he had failed to disclose that he already had septage lagoons on the property when he sought to build additional septage lagoons in 2010. Both courts, point out that even if Riddle could get in compliance the regulators might not believe him since he had been less than truthful over the years. In a state like Maryland, this alone would have sunk Riddle’s chances of using the right-to-farm law as a defense to a nuisance suit. Maryland’s right-to-farm law requires that you be complying with all applicable federal, state, and local laws, permits, and ordinances.

The takeaway point: farms need to pay attention to the language in their right-to-farm laws to make sure the farm has the ability to use the law as a defense in a possible nuisance suit. Understanding how the law operates can save you finding yourself in Riddle’s situation. To learn about Maryland’s law, click here.

References

Riddle v. Lanser, 2018 WL 1661600, No. S-15780 (Alaska April 6, 2018).

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