RETURNING RIGHT-TO-FARM LAWS TO THEIR ROOTS.

• Author: Malanson, Joseph

INTRODUCTION

In 2014, some unlikely culprits--four chickens--generated negative headlines for then-Iowa Congressman Bruce Braley, who was in the midst of a close campaign for an open United States Senate seat. (1) After neighbor Pauline Hampton's chickens roamed onto the Braleys' property, the Braleys filed a formal complaint with the neighborhood homeowners association and allegedly threatened to sue. (2) If the Braleys had done so, questions of the scale of Hampton's operation, how long she had had the chickens, and whether the Braleys or the chickens were in the neighborhood first would have been key considerations. Similar disputes between neighbors over agricultural land uses play out across America. This Note will focus on one attempt to manage these disputes: right-to-farm (RTF) laws.

This Note proceeds in six parts. Part I continues to introduce the tension between urban and rural land uses, the importance of understanding it, and the mechanism of RTF laws that legislatures have adopted to mitigate it. Part I goes on to explain how different states design their RTF laws and considers previous scholarly treatment of RTF laws. This Note is indebted to the pre-existing literature on RTF laws, and recognizes and aims to contribute to some of these existing critiques and proposals: First, in Part II, this Note aims to add concreteness to the literature's critique of RTF laws by focusing on two particular ways in which RTF laws have improperly expanded immunity from nuisance liability and by delving into illustrative case law demonstrating how these expansions operate in practice. (3) In doing so, this Note will show how certain veins of RTF laws have become particularly unmoored from RTF laws' origins as codifications of the coming-to-the-nuisance doctrine. (4)

In Part III, this Note then offers a concrete policy for returning RTF laws to their roots, ensuring agricultural operations are better held accountable for their effects on their communities. The Note cites a particular vein of RTF laws, namely Washington's, focusing on desirable provisions, as an existing model for all states to consider adopting. (5) It recommends revising RTF laws with even greater textual specificity than Washington's so they only protect established agricultural operations facing urbanizing pressures. (6) It also proposes revising RTF laws so that an operation that substantially changes its nature loses its immunity. In addition to legislative reform, this Note's proposal also encourages jurists to consider the legislative intent and history behind RTF laws to better partner with legislatures in achieving their goals, echoing and defending Professor Andrew Reinert's argument on judicial interpretation. (7)

This Note will then argue in Part IV that this model best accommodates the literature's critique of RTF laws. While sharing some of these critiques, this Note approaches the literature with the perspective that reform of RTF laws is more likely than abolition. Therefore, it aims to answer but also temper some of the critiques by fleshing out two primary justifications supporting this reform: it restores the coming-to-the-nuisance doctrine's importance in RTF laws--thus honoring parties' expectations and property for-personhood interests--and it reduces the economic inefficiency generated by RTF laws. In doing so, it draws on arguments from property theory, sociology, and economics to demonstrate why this Note's proposal strikes a healthy balance between the competing policy concerns RTF laws involve. (8) Part V considers public policy implications of implementing this reform. The Note then concludes.

1. ORIGIN OF RTF LAWS

   1. American Agriculture in the 21st Century

      Agriculture has been and is a mainstay of the American economy. At the heart of the American agricultural industry are America's farms. Millions of Americans work on farms, and agriculture- and food-related industries support millions more jobs. (9) The output of America's farms accounts for $132 billion of America's gross national product, and enables other sectors of the American economy including food service, textiles, apparel, and leather manufacturing. (10) Less directly but no less importantly, farms support jobs in machinery manufacturing and construction, and farmers and ranchers invest in their own communities. (11) The political controversy over the effects of recent tariffs targeting America's agriculture industry speaks again to the continued economic importance of the industry, especially to America's rural communities. (12) The agriculture industry also influences how America's land is used and conserved as over half of America's land is devoted to agricultural production. (13)

   2. Burgeoning Urban-Rural Tension

      Despite the continued importance of America's farms and ranches to shaping our economy and geography, urbanization has often forced them into retreat--and litigation. In the mid-twentieth century, 63 percent of American land was used for agricultural purposes. (14) In 2012, it had lowered to 52 percent. (15) In contrast, "[u]rban land ... has nearly tripled in area since 1949 " (16) Urbanization puts farms under pressure. New residents, unused to living near farms, may find rural life less than idyllic; nuisance suits against agricultural operations are certainly nothing new. (17)

      A landmark case exposing the tension between urbanization and established rural uses comes from Maricopa County, Arizona: Spur Industries, Inc. v. Del E. Webb Development Co. (18) Farmers had established themselves in the area in the early twentieth century, and the surrounding communities were initially agriculturally oriented. (19) Cattle feeding was a particularly popular operation. (20) But the agricultural orientation of Maricopa County did not last. In the 1950s and 60s, real estate developer Del Webb began buying thousands of acres in Maricopa County, including ranch land, to construct the Sun City retirement community. (21) But development hit a snag: Spur Industries, a feedlot operator with over twenty thousand cattle. (22) The odors and flies generated by the feedlot drifted into Sun City, prompting complaints from new owners and hesitation from potential purchasers. (23) Webb sued, alleging that Spur was a public nuisance that rendered over a thousand of his lots "unfit" for development. (24) Although Spur maintained a lawful feedlot operation, (25) the Arizona Supreme Court found that Spur was "both a public and a private nuisance" and affirmed the trial court's order enjoining its operations. (26) Even though the court ordered Spur to move its operations, it recognized that Spur was not at fault. (27) Webb knew of the area's agricultural character when he started building, and the court found that "[i]n such an area plaintiffs cannot complain that legitimate agricultural pursuits are being carried on in the vicinity." (28) Recognizing both the public's need for relief and Webb's role in creating the problem, the Arizona Supreme Court ordered Webb to indemnify Spur for its costs of moving or shutting down. (29) This judicial balancing is one approach to resolving what occurs when one comes to a nuisance (30) but other approaches soon sprang up.

   3. Right-to-Farm Laws: A Solution?

      States and municipalities have attempted to mitigate the tensions between urbanization and existing rural land uses, such as those in Spur, with a variety of land use policies, such as agricultural districting (31) and agricultural zoning. (32) However, due to weaknesses with each approach, (33) states sought a new approach: RTF laws. (34) North Carolina and Washington were the first states to pass versions of RTF laws on March 26, 1979. (35) Now, all fifty states have adopted RTF laws (36) and a couple states have even amended their constitutions to enshrine farming as a constitutional right. (37) In reference to RTF statutes, one commentator has determined that "[a]long with property tax breaks, they are by far the most ubiquitous farmland protection program in this country." (38)

      Some commentators consider North Carolina's RTF law (39) a model statute. (40) It provides sweeping protection to agricultural land users, protecting "any facility for the production for commercial purposes of crops, livestock, poultry, livestock products, or poultry products." (41) Further, an agricultural or forestry operation which has been established for longer than a year and was not a nuisance when it began operating may not become a nuisance no matter how nearby land uses change (42) It keeps this immunity unless the operation undergoes a "fundamental change." (43) Yet proving that a fundamental change has occurred is difficult because the statute provides that changes in size and type of operation, and new technology use do not constitute fundamental changes. (44) The statute also nullifies and voids "[a]ny and all ordinances of any unit of local government" that would make the agricultural operation a nuisance. (45)

      As states have adopted RTF laws, some states have adhered closely to North Carolina's model (46) while others vary in protectiveness and how an operation qualifies for immunity from nuisance liability. For example, Mississippi offers an extremely protective statute: an agricultural operation which proves it has been in existence for one year or more receives an "absolute defense" from nuisance actions. (47) The statute does not even provide a potential plaintiff the option to plead that a fundamental change has occurred as one can in North Carolina. In contrast, Connecticut's statute immunizes agricultural operations from nuisance actions in only five instances. (48) While these instances are broad and likely encompass the most common complaints against agricultural operations, limiting immunity to only defined instances is still more restrictive than the immunity North Carolina or Mississippi's statutes provide. (49)

      The statutes also diverge in determining how an...