This is not a substitute for legal advice.
I am back again, highlighting another court decision covering a state’s right-to-farm law and the use of scare guns. In Mississippi, two producers began using propane cannon scare guns to prevent deer from eating their cotton and soybean crops during the summer months. The propane cannons created loud noises, and the neighbors’ ensuing lawsuit tried to prevent the two producers from using the cannons, claiming nuisance. The trial court agreed with the two producers that the state’s right-to-farm law barred the nuisance claim, and the Supreme Court of Mississippi recently upheld the trial court’s ruling, in Briggs v. Hughes.
In 2018, neighbors of Penn and Hughes, two producers who farmed cropland near the neighbors, brought a nuisance suit against Penn and Hughes to prevent the use of propane cannons. The neighbors complained that the loud noise from the cannons impacted the use and enjoyment of the neighbors’ properties.
At the trial, the court never reached the issue of the propane cannons being a nuisance. The court found that the state’s right-to-farm law barred the neighbors’ lawsuit. Mississippi’s right-to-farm law requires the agricultural operation to exist for at least one year to gain the defense against nuisance claims. The trial court determined that the two producers had utilized propane cannons for more than a year before the lawsuit. At the same time, the trial court determined that using the propane cannons were best management practices in compliance with state and federal permits, additional requirements in the state’s right-to-farm law. The neighbors appealed this decision.
Supreme Court of Mississippi Decision
On appeal, the first issue the court dealt with is whether the trial court erred in determining how the law applies to changes in operations adding new practices. The neighbors argued that the Mississippi legislature did not create blanket protection for operations adding new practices on a farm, and the court should look at when the practice began to be used. The court disagreed with this view of the state’s right-to-farm law. To the court, the legislature changed the law in 2009 to remove language supporting the neighbors’ arguments. Before the changes, the law required the court to take into account that “the conditions or circumstances alleged to constitute a nuisance [must] have existed substantially unchanged since the established date of operation.” (Briggs, ¶ 13). Looking at the language now, the court only has to determine if it complies with all applicable state and federal permits.
One judge concurred with the decision but would have come out differently on the issue of how to apply the language in the state’s right-to-farm law. To this judge, the language required the court to look at when the exact agricultural activity (in this case, the use of the propane cannons) began, and not when the overall agricultural operation began. This judge also held that this view had been adopted by other jurisdictions as well, including Texas, Washington, and Idaho. The majority rejected this view because the language of those three state laws was different from Mississippi’s.
The court then turned to the question raised by the neighbors that the use of propane cannons was not a best management practice. The neighbors argued that expert testimony demonstrated that propane cannons would become less effective over time and that the propane cannons could not be a best practice because they are not always practical. The question is not whether the practice is always practical, but whether the practice follows best agricultural management practices. Here expert testimony showed that propane cannons were used appropriately for pest control, and the court refused to reverse the lower court’s finding.
The court also rejected the neighbors’ arguments that the two producers violated a Mississippi criminal statute making it a crime to willfully disturb the peace with an explosion of gunpowder or other explosive substance or through a loud or unusual noise. The court disagreed because the trial court had found no evidence that the two producers willfully intended to disturb the neighbors.
Finally, the neighbors argued that the trial court’s interpretation of the right-to-farm law violated the neighbors’ rights to due process under both the U.S. and state constitutions. The court disagreed, highlighting again that the interpretation was within the meaning of the statute. At the same time, the court highlighted that state constitutional challenges require the state’s attorney general to be notified and given a chance to intervene on the question of constitutionality. That was not done here, so the neighbors could not challenge the constitutionality of the law. The state supreme court upheld the lower court’s decision and did not find an error in the decision.
Although you might think this is a different outcome than the decision in Klein, both outcomes can be explained. In Klein, the issue was that the town was changing zoning ordinances to prevent the use of scare guns, with no claim that scare guns were a nuisance requiring the application of the right-to-farm law. In this Briggs v Hughes case, the neighbors complained of a nuisance caused by the scare guns/propane cannons, and the court applied the right-to-farm law to prevent the nuisance suit.
This case shows that when an agricultural practice is claimed as a nuisance, the court will look at how to apply the language of the right-to-farm law to determine if that practice is protected. To learn about Maryland’s right-to-farm law, see https://go.umd.edu/RTFMD.
Briggs v. Hughes, No. 2019-CA-00838-SCT, 2021 WL 1807322 (Miss. May 6, 2021)