Frequently Updated Questions: Hey, Paul Does Growing Hemp Qualify for the Right-to-Farm Defense?

Industrial hemp being grown in Pennsylvania (Photo by Will Parson/Chesapeake Bay Program)

The article is not a substitute for legal advice..

          The 2018 Farm Bill allows for more growers to grow industrial hemp. A farmer looking to add industrial hemp on fields creates the possibility of conflicts between neighboring landowners. The neighbors may not understand that industrial hemp is now legal to grow or other concerns. Industrial hemp is now a legal commodity and growers would potentially fall under Maryland’s right-to-farm (RTF) law. Industrial hemp growers would be eligible for the nuisance defense in the RTF law.

Right-to-Farm Law Overview

           RTF laws generally provide a qualifying agricultural operation a defense to a nuisance action brought by a neighbor. To fall under the RTF law, the farm must have been in operation for at least one year. This requirement does not mean growing hemp for one year but established for at least one year before claiming the defense. Maryland requires that the operation complies with existing federal, state, and local laws and regulations and that the operation not be conducted negligently. The operation must be an “agricultural operation” involved in either on-farm production, harvesting, or marketing of an agricultural product grown, raised, or cultivated by the grower, or be involved in the processing of an agricultural product (§ 5-403(a)(2)). 

           The law does not define an “agricultural product” in the state’s right-to-farm law, and the Maryland Court of Appeals has not addressed this issue. When interpreting “agricultural product” for the first time, a Maryland court would begin with the ordinary, everyday meaning of the language in the statute (Jackson, 2015). Definitions found online typically define agricultural product broadly to include most products grown on a farm for commercial purposes. Hemp seems to fit comfortably within that broad definition, but we would need a court to answer this question definitively.

Hemp and the Right-to-Farm Law

           Assuming hemp does fit within the state’s RTF law, what does this mean for someone growing hemp in Maryland? The RTF law would provide a defense to a nuisance claim that could be brought by a neighboring landowner. The hemp grower would be able to prevent claims of nuisance brought by a neighbor, as long as the grower is meeting the other requirements in the right-to-farm law.

           For example, Stacy is producing hemp legally and her neighbor, Charlie, learns Stacy is growing hemp. If Stacy produces the hemp in line with any potential permits, federal, state, or local laws and meets the other requirements in the right-to-farm law. Stacy should be able to use the RTF defense against Charlie’s potential nuisance claim.

Conclusion

           As we see more growers in the state start looking at industrial hemp as a new commodity to grow, we may see potential conflicts. Maryland’s right-to-farm law may provide a defense to nuisance claims brought by neighbors. To learn more about how Maryland’s RTF law operates, see this fact sheet.

References

Espina v. Jackson, 112 A.3d 442, 448 (Md. 2015).

Md. Code Ann., Cts. & Jud. Proc. 5-403 (2019).

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