Recent Nuisance Suits Involving Farms Highlight Why Farms Should Understand How a Right-to-Farm Defense Operates

Cover Crop Agriculture in Frederick County, Md.

Liquid manure being applied by a tractor a field in Maryland.  Photo by Matt Rath/Chesapeake Bay Program

This article should not be considered legal advice.

Over the course of 2018, you have probably seen the stories involving nuisance suits brought by neighboring landowners against hog farms in North Carolina, leading to large verdicts against Smithfield Foods. Similar lawsuits are going on around the country involving neighbors claiming nearby hog farms are nuisances. In many cases, the state’s right-to-farm law should provide a possible defense to the farm, but the farm needs to meet all the requirements in the right-to-farm law to use the defense. Understanding the requirements can assist in maintaining the right-to-farm defense.

Right-to-farm laws provide an affirmative defense to farms when sued for a nuisance. A nuisance is a condition or activity interfering with a neighbor’s use and enjoyment of his or her property. A neighboring hog farm could potentially be a nuisance, for example, if the hog farm causes odors preventing the neighbor from using his or her home. A right-to-farm law could possibly provide a defense in this case. All 50 states have a version of a right-to-farm law, but those laws offer the defense only when the farm meets certain conditions.

Maryland’s right-to-farm law is unique in providing a defense to nuisance claims brought against agricultural, as well as commercial fishing, and seafood operations in the state. Operations need to be in business for at least one year and comply with all federal, state, and local laws and permits which apply to the operation. With the right-to-farm defense, an operation will not be considered a private or public nuisance based on sight, noise, odors, dust, or insects resulting from the operation. The right-to-farm defense also helps defeat claims that the operation has interfered or is interfering with the right of others to use or enjoy his or her property.

Maryland’s right-to-farm law requires before filing any nuisance suit in the district court; the neighbor complaining must first file to have the issue heard, either by the county’s agricultural reconciliation board if the county has established a county board or if not, by the Maryland Agricultural Conflict Resolution Service (ACReS). These boards typically consist of five county residents with a mix of both agricultural and nonagricultural backgrounds. Membership requirements vary by county. This informality can reduce litigation expenses, provide win-win solutions, and allow quicker resolution of a nuisance suit.

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Image of poultry houses in Georgia by USDA.

Maryland’s right-to-farm law includes counties’ rights to develop county right-to-farm ordinances. Twenty-two of Maryland’s 23 counties have adopted similar language in their county right-to-farm ordinances. This common ordinance states that if an agricultural operation uses “generally accepted agricultural management practices” (GAAMPs), the right-to-farm defense applies. Governmental agencies such as the local soil conservation district or the University of Maryland Extension have defined many GAAMPS. For cases where a governmental entity has not authorized any GAAMPs, the practice(s) in question is presumed to be GAAMP, but a neighbor can provide evidence to show that the practice is not generally accepted.

Maryland has not amended its law to provide guidance on how to handle changes in the operation. Nor is it clear how passing a Maryland farm on to the next generation would be treated. Would the new owners have to meet the one-year ownership requirement? What if the new owners’ family has been operating the farm for 200 years? What if the farm decides to diversify by adding in a poultry house; would the poultry house have to meet the one-year requirement or would it be grandfathered in with the rest of the operation? Each of these questions are common situations for Maryland farms, and the state’s right-to-farm law is currently unclear in how the defense would apply in those situations.

Right-to-farm laws provide farms a defense but only when the farm meets the law’s requirements. Recent nuisance suits from around the country highlight just how vital it is to understand the requirements. Maryland farms should pay attention to these requirements in both the state law and county ordinances to maintain the defense. At the same time, Maryland’s law may need updating to reflect growing issues with right-to-farm laws.

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