By Ashley Ellixson
Last week, Paul posted an article discussing the idea of a constitutional right to farm, similar to having a constitutional right to life, liberty, and the pursuit of happiness. Even though many states, or even the federal government, have not made farming a constitutional right, there are statutory right-to-farm laws in existence.
A statutory right is a written law set out by local, state, or national government which bestows a right but is secondary to higher constitutional laws. Right-to-farm laws generally provide immunity from nuisance actions brought against agricultural producers as a result of conditions created by their operation as long as certain requirements, stated by the statute, are fulfilled. Even though all 50 states have enacted some variation of a right-to-farm law, most require that the agricultural operation exist prior to other land uses.
Here in Maryland, the statute states:
(a)(1) In this section, “agricultural operation” means an operation for the processing of agricultural crops or on-farm production, harvesting, or marketing of any agricultural, horticultural, silvicultural, aquacultural, or apicultural product that has been grown, raised, or cultivated by the farmer.
(2) Notwithstanding § 5-101 of the Natural Resources Article, “silvicultural operation” means implementation of forestry practices, including the establishment, composition, growth, and harvesting of trees.
Enforcement of health, environmental, zoning, or other laws
(b)(1) This section does not:
(i) Prohibit a federal, State, or local government from enforcing health, environmental, zoning, or any other applicable law;
(ii) Relieve any agricultural or silvicultural operation from the responsibility of complying with the terms of any applicable federal, State, and local permit required for the operation;
(iii) Relieve any agricultural or silvicultural operator from the responsibility to comply with any federal, State, or local health, environmental, and zoning requirement; or
(iv) Relieve any agricultural or silvicultural operation from liability for conducting an agricultural operation in a negligent manner.
(2) This section does not apply to any agricultural operation that is operating without a fully and demonstrably implemented nutrient management plan for nitrogen and phosphorus if otherwise required by law.
Operations in compliance with permit requirements
(c) If an agricultural operation or silvicultural operation has been under way for a period of 1 year or more and if the operation is in compliance with applicable federal, State, and local health, environmental, zoning, and permit requirements relating to any nuisance claim and is not conducted in a negligent manner:
(1) The operation, including any sight, noise, odors, dust, or insects resulting from the operation, may not be deemed to be a public or private nuisance; and
(2) A private action may not be sustained on the grounds that the operation interferes or has interfered with the use or enjoyment of other property, whether public or private.
Construction of section
(d)(1) This section does not create, and may not be construed as creating, a new cause of action or substantive legal right against a person who is engaged in an agricultural or silvicultural operation.
(2) This section does not affect, and may not be construed as affecting, any defenses available at common law to a defendant who is engaged in an agricultural or silvicultural operation and subject to an action for nuisance.
Prerequisites to nuisance actions
(e)(1) This subsection does not apply to an action brought by a government agency.
(2) If a local agency is authorized to hear a nuisance complaint against an agricultural operation, a person may not bring a nuisance action against an agricultural operation in any court until:
(i) The person has filed a complaint with the local agency; and
(ii) The local agency has made a decision or recommendation on the complaint.
(3) If there is no local agency authorized to hear a nuisance complaint against an agricultural operation, a person may not bring a nuisance action against an agricultural operation in any court until:
(i) The person has referred a complaint to the State Agricultural Mediation Program in the Department of Agriculture under Title 1, Subtitle 1A of the Agriculture Article; and
(ii) The Department certifies that mediation has been concluded.
MD CTS & JUD PRO § 5-403
In short, the Maryland right-to-farm law says that agricultural operations must be in existence for at least one year and comply with all federal, state, and local health, zoning, environmental and permit regulations in order to be exempt from a nuisance action against them.
To take a closer look at what a right-to-farm statute does in an actual situation, let’s consider Delaware’s recent issue with the proposed construction of two new poultry operations, which will be built in just over one square mile in southern Kent County, near Farmington. This area is currently a quiet rural neighborhood. However, the operations will house almost 1.5 million chickens at a time which means, as many of you know, all the activities that come with raising chickens as well; consequently the proposed farms are already ruffling some feathers in the quiet neighborhood. The separately owned poultry operations are set for one operation of 10 chicken houses and one of 20 chicken houses. So what does this mean for the poultry operations and would Delaware’s right to farm law apply, you may ask?
First, let’s consider Delaware’s right-to-farm statute:
No agricultural or forestal operation within this State which has been in operation for a period of more than 1 year shall be considered a nuisance, either public or private, as the result of a changed condition in or about the locality where such agricultural or forestal operation is located. For the purpose of this section, “agricultural operation” shall be defined as set forth in § 8141(a) of Title 10. In any nuisance action, public or private, against an agricultural operation or its principals or employees, including forestall activity, proof that the agricultural operation, including forestall activity, has existed for 1 year or more is an absolute defense to the nuisance action, if the operation is in compliance with all applicable state and federal laws, regulations, and permits. If the operation is in compliance with all applicable state and federal laws, regulations, and permits, it shall be presumed to be conducted in a manner consistent with good agricultural practice. No state or local law-enforcement agency may bring a criminal or civil action against an agricultural operation for an activity that is in compliance with all applicable state and federal laws, regulations, and permits.
DE ST TI 3 § 1401
Generally, Delaware’s right-to-farm law states the same requirements as Maryland: be in existence one year or more and comply with applicable state and federal laws, regulations, and permits. The area where the zoning board has approved the poultry houses is already an agricultural area with many other poultry operations in existence, so the operations fit under the statute unless, in theory, a nuisance suit is brought against them before the one-year mark. At that point, the courts will decide if the statute can be used to bar the suit. The main issue that other poultry producers and the quiet neighbors are concerned with is how large the operations will be considering they are commercial in nature, unlike surrounding operations. The Delaware statute is very broad in application since it does not address the fact that operations can expand, advance, and change, which will affect surrounding areas and activities performed on the operation.
Will those changes still allow the operations to fall under the right-to-farm protections? Right now, nobody has that answer. It appears that everyone involved, including Delaware’s Agriculture Secretary Ed Kee, is supportive of agriculture and its growth within the state. Nonetheless, will commercial producers continue to seek out Delaware because of its broad right-to-farm statute and change the agricultural environment within the state? We will have to wait and see how the situation plays out and keep everyone updated.