Too close for comfort: protecting agriculture in an urban age: Labrayere v. Bohr Farms, LLC.

• Author: Gibson, Maggie
• Position: NOTE

1. INTRODUCTION

   Every American has a daily, intimate, and continuous relationship with agriculture. For most people, this takes the form of the food they eat and the clothes they wear. For others, it extends to the work they do every day to produce these things. But what happens when agriculture gets too close for comfort? Many urbanites, and even other farmers, deal with this problem on a daily basis when neighboring farms create a nuisance to them and their property. This problem occurs all over the country but has recently become an especially hot topic in Missouri. The recent passage of the Right to Farm amendment will affect this issue, but another, often overlooked, development in this struggle was the ruling in Labrayere v. Bohr Farms and the court's interpretation of Missouri Revised Statutes section 537.296.

   Part II of this Note introduces issues in Labrayere v. Bohr Farms, the instant case that upheld agricultural protections against nuisance damages. Part III of this Note presents some of the historical trends that led to the court's decision in Labrayere. It also examines Missouri's closely related Right to Farm constitutional amendment. Finally, in Part IV, the court's reasoning is dissected and future implications of the decision are considered.

2. FACTS AND HOLDINGS

   Bohr Farms owns and operates a Concentrated Animal Feeding Operation ("CAFO"). (1) It began this operation in September of 2011 with an operating capacity of more than 4000 hogs. (2) Cargill Pork LLC owns the hogs and contracted with Bohr Farms to raise them. (3) The operation site includes a sewage disposal system and a composting system for dead hogs. (4) Several surrounding landowners and other individuals ("landowners") filed suit for damages relating to temporary nuisance, negligence, and conspiracy because of the odors coming from Bohr Farms. (5) They alleged offensive odors, hazardous substances, particulates, flies, manure, and pathogens had come onto their property from the CAFO. (6) The damages for the temporary nuisance charge came solely from the landowners' loss of use and enjoyment of their property, not from medical expenses or loss of property value. (7) The landowners also alleged that Bohr Farms was operating negligently. Cargill was included in the suit because the landowners believed it to be vicariously liable for Bohr Farms's nuisance and negligence. (8) The landowners also alleged that Cargill and Bohr Farms were involved in a conspiracy to cause the odors. (9) The circuit court entered summary judgment for Bohr Farms because the landowners were barred from asserting a claim for loss of use and enjoyment damages under section 537.296. (10) The circuit court found that section 537.296 was constitutional and that it did not authorize a damage award for the loss of use and enjoyment of the landowners' property. (11) The court went on to deny recovery on both the negligence and civil conspiracy claims. (12) The landowners appealed to the Supreme Court of Missouri, arguing, inter alia, that section 537.296 was unconstitutional. (13) The landowners argued seven claims on appeal. First, they argued that section 537.296 was unconstitutional because it authorized a private taking. (14) Second, the plaintiffs contended that section 537.296 was unconstitutional because it allowed a taking for public use and did not require just compensation. (15) Third, they claimed that section 537.296 was unconstitutional because it violated both the state and federal constitutions' Equal Protection Clauses. (16) Fourth, the plaintiffs argued that section 537.296 was unconstitutional be cause it denied substantive due process. (17) Fifth, they contended that section 537.296 violated the separation of powers under the Missouri Constitution because it defined "standing," usurping the judiciary's role. (18) Sixth, the plaintiffs claimed that section 537.296 violated the open courts provision of the Missouri Constitution. (19) Seventh, they argued that section 537.296 was a special law and therefore violated the prohibition of special laws in the Missouri Constitution. (20) Because it found neither a taking without proper compensation nor a violation of equal protection, the Supreme Court of Missouri held that section 537.296 was constitutional. (21) III. LEGAL BACKGROUND There are several important issues in this case that are discussed in relation to section 537.296. This case was the first to narrowly challenge section 537.296. (22) However, the doctrines discussed in relation to this statute, including eminent domain and equal protection, have significant independent legal histories, as will be discussed in this Part. This Part begins with a discussion of the actual laws at issue here--section 537.296 and article I, section 35 of the Missouri Constitution, commonly known as the "Right to Farm" amendment. Next, it examines the legal theory of eminent domain. The last section of this Part discusses equal protection. A. Section 537.296 and the Right to Farm Amendment Section 537.296 became effective on August 28, 2011. (23) This statute limits private nuisance damages when an agricultural enterprise causes the nuisance. (24) Section 537.296.2 only allows compensatory damages when the cause of the nuisance is animal or crop production on land used primarily for that purpose. (25) Permanent nuisance damages are measured by the fair market value reduction of the property caused by the nuisance. (26) Temporary nuisance damages are measured by the "diminution in the fair rental value" of the property due to the nuisance. (27) Only documented medical conditions caused by the nuisance are permitted to receive compensatory damages. (28) Any judgment for a landowner's permanent nuisance claim binds all successor landowners to the remedy awarded. (29) The only people who have standing to bring a private nuisance action against property primarily used for animal or crop production are those who have an ownership interest in the affected property. (30) The statute does not prohibit a person from receiving damages for discomfort, annoyance, sickness, or emotional distress, so long as those damages are awarded based on some other cause of action, independent of the nuisance claim. (31) So, for example, a farmer who accidentally ran through a neighbor's fence with his tractor, hitting and injuring his neighbor, could still be liable for damages based on a negligence or similar claim. In the intervening time between the passage of section 537.296 and the Labrayere case, Missouri voters passed a Right to Farm amendment. This amendment was created in response to new limits on agriculture being imposed in other states. (32) In the months leading up to the vote, there was much debate over the proposed amendment, even within the farming community. (33) While many farmers thought this amendment would protect their industry, some believed it favored and protected corporate farms while hurting small and family farms because they saw this amendment as a way for corporate farms to insulate themselves from environmental and animal welfare regulations. (34) The vote, held in August 2014, was very close, with the amendment passing with 50.1 percent of voters in support. In June 2015, the Supreme Court of Missouri heard a challenge to the wording of the amendment on the ballot, and it upheld the amendment. (35) After its passage, the Right to Farm amendment became part of the Missouri Constitution as article I, section 35. (36) The new amendment states: That agriculture which provides food, energy, health benefits, and security is the foundation and stabilizing force of Missouri's economy. To protect this vital sector of Missouri's economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri. (37) While all fifty states have some type of a Right to Farm statute, Missouri became the second state to pass such a constitutional amendment. (38) This amendment was not referenced in the Labrayere decision because it went into effect during the appeal process of the instant case. (39) B. Eminent Domain Eminent domain was a major issue in the Labrayere decision. The landowners maintained that the limitation on nuisance damages under section 537.296 amounted to a taking of their land. (40) The landowners argued that the statute violates Missouri's eminent domain laws. (41) Eminent domain has long been a hot topic in Missouri, particularly in regards to agricultural land. (42) The Supreme Court of Missouri has found a legitimate state interest in regulating and maintaining agriculture within the state. (43) The court held that the state legislature can pass laws regulating land used for agriculture to protect the "traditional farming community." (44) In practice, this rationale has been applied broadly--in 1988, it was used to uphold a statute that forced foreign corporations to sell farmland in order to keep Missouri farms owned by Missouri families. (45) The state's interest in Missouri's agricultural economy is important when it comes to the exercise of eminent domain because it opens the door to an eminent domain argument when agricultural use infringes on others' property rights. The Supreme Court of Missouri has ruled that the state does not itself have to take property in an eminent domain action. Instead, it can delegate the eminent domain power to a municipality or another government subdivision. (46) As long as a "considerable number" of the public is benefitted, the purpose of public use is considered fulfilled. (47) Not every member of the public has to be benefitted, and not...