August 27, 2004Client Alert

"Right To Farm Law" Challenges Persist

Two cases pending in Wisconsin indicate that opponents to Wisconsin's Right-to-Farm Law maintain the statute on their radar screen for attack. Generally speaking, Wisconsin's Right-to-Farm Law protects pre-existing agriculture producers who engage in normal agricultural activities from nuisance lawsuits provided that the producer's activities do not endanger public health and safety. Challenges to the Right-to-Farm Law have been consistently beaten back by producers and have resulted in the reward of attorneys fees to farmers from nuisance plaintiffs. However, the opposition appears undaunted and routinely includes a claim asserting that the protections provided to producers by the Right-to-Farm statute are unconstitutional. The argument is that the statute constitutes a governmental taking (without just compensation) of the plaintiff's right to bring a lawsuit to protect the plaintiff's right to the use and enjoyment of its property free from nuisance.

This same battle has been waged in Iowa although the Wisconsin statute is quite different from Iowa's as this article reveals. In June of this year, the Supreme Court of Iowa invalidated the Iowa Legislature's second attempt to protect the agricultural community from lawsuits affecting an agricultural producer's right to farm.

In 1993, the Iowa Legislature enacted Iowa Code § 352 for the purpose of preserving agricultural land. The Legislature acknowledged the necessity of "preserving the state's finite supply of agricultural land," and recognized that the "conversion of farmland to urban development, and other nonfarm uses, reduces future food production capabilities and may ultimately undermine agriculture as a major economic activity in Iowa." To this end, this statute provided that an owner of property zoned as an "agricultural area" would receive immunity from nuisance lawsuits.

This immunity was qualified in four instances. First, immunity did not apply to a nuisance resulting from a violation of a federal statute, regulation, state statute, or rule. Second, immunity was not applicable to a nuisance resulting from the negligent operation of the farm or farm operation. Third, there was no immunity from a nuisance suit because of an injury or damage to a person or property caused by the farm or farm operation before the creation of the agricultural area. Finally, there was no nuisance immunity "for an injury or damage sustained by the person [bringing the suit] because of the pollution or change in condition of the waters of a stream, the overflowing of the person's land, or excessive soil erosion into another person's land, unless the injury or damage is caused by an act of God."

The nuisance immunity portion of this statute (Iowa Code § 352.11(1)(a)) was challenged on constitutional grounds inBormann v. Board of Supervisors. In this case, the Kossuth County Board of Supervisors approved an application to designate a property owner's land as an "agricultural area" under Iowa Code § 352.6, triggering the nuisance immunity under § 352.11(1)(a). Several neighbors challenged the Board's decision, alleging that the nuisance immunity amounted to a taking of private property for public use without payment of just compensation, violating both the Fifth Amendment to the Federal Constitution as well as Article I Section 18 of the Iowa Constitution.

The Supreme Court of Iowa held that the nuisance immunity provision created an easement in the neighbor's property in favor of the agricultural producer's land. The court reasoned that the nuisance immunity "allows a property owner to do acts on their own land which, were it not for the easement, would constitute a nuisance." The court held that an easement such as this is a property interest subject to the requirements of the just compensation clauses of the federal and Iowa Constitutions. The court held that § 352.11(1)(a) was unconstitutional because it amounted to a taking without just compensation.

The Iowa legislature responded to Bormann by enacting Iowa Code § 657.11 in 1999, another attempt at a right-to-farm law. This statute provided nuisance immunity to operators of animal feeding operations. Like Iowa Code § 352.11(1)(a), there were exceptions to this immunity. The first exception in § 657.11 allowed a nuisance action if the operator failed to comply with any federal or state animal feeding operation law. This exception is practically identical to that in § 352.11(1)(b).

The second exception allows a nuisance suit to be maintained if the operation "unreasonably and for substantial periods of time" interferes with a person's use and enjoyment of property when the operator failed to use "existing prudent generally accepted management practices reasonable for the operation." It was with this second exception that the Legislature hoped to avoid a finding of the statute's unconstitutionality such as occurred in Bormann. Basically, this exception allowed any nuisance action to be brought against an animal feeding operation if it could be shown that the owner was not "reasonable" or "prudent" in running the operation.

However, the Iowa Supreme Court invalidated this portion of the statute in its recent decision in Gacke v. Pork Xtra. The Court recognized that § 657.11 introduced the concept of reasonableness into the right-to-farm law. However, the Court refused to distinguish this right-to-farm statute from the former on this basis. The Court held that "the exception to immunity provided in § 657.11(2)(b) for the failure ?to use existing prudent generally accepted management practices reasonable for the operation' is analogous to a negligence standard."

Because the negligence exception to nuisance immunity in § 352.11(1)(a) did not save the statute from constituting a taking under Bormann, the Gacke court held "the reasonable-and-prudent-management-practices exception contained in § 657.11(2)(b) likewise does not prevent immunity afforded by that statute from constituting a taking." At this time in Iowa, no right-to-farm statute giving the agricultural community immunity from nuisance suits has survived a Constitutional takings challenge.

Wisconsin's right-to-farm law regarding nuisance suits is similar, though not identical, to the Iowa code. The similarities between these statutes are fairly general. Both lay out their legislative purpose of protecting agricultural production and technology, both provide that certain agricultural operations or practices ought to be immune from nuisance suits, and both provide exceptions to a blanket nuisance immunity. This is where the similarities end.

The first distinction between these statutes is that the Iowa version relates only to Animal Feeding Operations, which are confined areas in which animals are kept for a certain period of time. The Wisconsin law applies to actions taken against "agricultural uses or practices," which encompasses a broad spectrum of activities related to livestock, horticulture, and other farming activities. So, while Iowa's right-to-farm laws affected only a sector of the agricultural community, Wisconsin's right-to-farm statute has a much broader reach.

The second distinction lies in the exceptions to nuisance immunity. Because the Iowa Court so recently honed in on the exceptions to nuisance immunity to determine the constitutionality of the right-to-farm statute, it seems that these exceptions will be a point of contention in the event the existing lawsuits challenging Wisconsin's statute reach a judicial determination. What can be understood from Bormann and Gacke is that an exception to nuisance immunity that hinges on an agricultural operator's prudence and reasonableness is not enough to survive a constitutional challenge in Iowa. Wisconsin's right-to-farm statute contains no such provision. Rather, the exceptions to nuisance immunity require that an agricultural use 1) precede the use of the party bringing the nuisance suit; and 2) the agricultural use must not threaten public health or safety.

The first exception to nuisance immunity places a duty of reasonableness on the shoulders of the plaintiff who purchases property and should have known that the neighboring property contains an agricultural use. Under Wis. Stat. § 823.08(3)(a)(1), the new owner would be precluded from suing a neighboring agricultural use for nuisance, arguably because he/she "should have known" that the use and enjoyment of their property may be compromised by some sort of agricultural activity, and because the agricultural use "was there first." This protection applies even if the agricultural use changes or expands after the neighboring property is purchased by the plaintiff. In the Iowa version, the responsibility of diligence and reasonableness lies with the operator of the agricultural use, and as Gackedemonstrated, it alone could not withstand a constitutional challenge.

More importantly, the second exception to nuisance suit immunity under Wis. Stat. § 823.08(3)(a)(2) provides that an agricultural use is not immune from nuisance liability if it presents "a substantial threat to public health or safety." Like the first exception, this is not a part of Iowa's version of the right-to-farm statute. This exception may save Wisconsin's right-to-farm statute from being voided on constitutional grounds because it puts public health and safety concerns paramount to the interests of the agricultural producer. It is conceivable that, in some instances, certain agricultural nuisances may constitute a substantial threat to public safety and health. Indeed, the Wisconsin Supreme Court has held this in its famous Quality Egg Farm case. This exception gives both the landowners, public, and the court a way to address a true threat to public health and safety, making the application of Wisconsin's right-to-farm statute more flexible than Iowa's.

The third distinction is that the Wisconsin right-to-farm statute provides a host of affirmative and negative obligations upon a court if it finds that a nuisance exists under § 823.08. These duties include requesting public agencies to furnish the court with suggestions for practices suitable to mitigate the effects of the agricultural use, giving the agricultural use operator no less than one year to effectuate the court's order, and forbids the court from taking mitigating action that adversely affects the agricultural use at issue. The agency designated in the statute, the Wisconsin Department of Agriculture, Trade and Consumer Protection, is engaging in rulemaking currently to develop state standards to address some of these operational issues. Although this final distinction is unlikely to play a role in determining whether Wisconsin's right-to-farm statute is constitutional, it does give the court reason to pause and consider the merits of affording protection to agricultural uses.

For more information, please contact David A. Crass at or 608.283-2267.

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