Thursday, October 18, 2018

Right-to-Farm: A right no more?

I’m surrounded by dairy farms.

Not only am I downwind from a sizable operation, but I also live right next door to a few hundred head of cattle.

Being immersed in their fragrance doesn’t bother me at all and, quite frankly, it smells like home to me. It’s an integral part of country living and the smell of slurries and feedlots means that my friends and neighbors are doing well in their quest to put food and beverages on kitchen tables across America.

Some folks aren’t so understanding of that.

Every once in a while city folk move into dairy country -- something becoming more common locally as Amherst creeps into Niagara County via residential sprawl in Pendleton and south Lockport -- and are taken aback by the smells. They weren’t raised in the country and were likely expecting to smell flowers, not animals and their waste, when they staked their claim.

I guarantee a good many of them have complained to their town officials or have waved a cursing fist at expanding barns.

Those complaints for the most part have had no teeth.

Our local farmers have been properly protected by Right-to-Farm (RTF) laws. The New York State constitution directs the state legislature to provide for the protection of agricultural lands, something that is manifested in sections 300 and 305 and 308 of New York Agricultural and Markets Law. Those standards allow for the formation of agricultural districts in which the operations of farms are protected from nuisance lawsuits (such as, smell is ruining the quality of life) as long as the state’s Agricultural Commissioner issues an opinion that a particular farming practice is sound.

Such protections have kept New York’s farms vibrant, active, and free of lawsuits that could hinder their growth if not outright destroy their businesses.

That might no longer be the case if what’s happening in North Carolina makes its way north.

Based on the outcomes of an initial trial in 2017 that found that a hog farm was liable for nuisance damages despite North Carolina’s extremely strong RTF laws, lawsuits have been filed a-plenty in the Tar Heel State against hog farming operations.

The trial lawyers have marketed their efforts specifically at Murphy-Brown, a subsidiary of Smithfield Foods (you go after the deep pockets first and for best results). There are 23 trials scheduled by more than 500 homeowners against Murphy-Brown, and 3 are already in the books that saw jury verdicts of $50 million, $25 million, and $473.5 million. Luckily for the farming operations, in those cases punitive damages were limited to “only” $3.25 million, $5 million and $94 million – significant sums nonetheless -- based on a payout cap made state law in 1995.

How are the plaintiffs wining, despite RTF? It was ruled in the first trial that there was a change in conditions – the specific pig farms weren’t in operation before some of the neighboring long-term residents had moved in, so the farms created an nuisance that was not pre-existing.

What does this mean for other states? More specifically, what does it mean for New York’s farmers and ranchers?

The Empire State’s defense of farmers are especially strong thanks to the creation of ag districts, the realm in which RTF exists, but if a small mom-and-pop farm doesn’t fall into the criteria (a district must be comprised of 500 acres by an owner or group of owners) it can be forced to close or alter operations due to perceived nuisances. In an era when a lot of people in my generation and those younger are starting up small farms to capitalize on the locavore movement, they are right in the sights of lawsuits.

More so, I would be concerned that some of the law firms that had success in North Carolina could see big victories in New York (where we don’t have a cap) based on the fact that New York trials in 1993 and 1997 ruled that manure is a pollutant. Those cases focused on animal feces that made it into waterways. But, one of those slick southern lawyers could bring a suit that jumps on that and says that if manure is a water pollutant then, by God, it must be polluting the air, too, creating a public health nuisance.

So, don’t be surprised if lawsuits against farming operations large and small become more common everywhere across this country after the successes that homeowners have had in North Carolina, regardless of the Right to Farm. 

It’s a scary thought.

I don’t know about you, but I like food. As a matter of fact, I need it. Thankfully, there are hardworking farmers out there who make that nourishment accessible, affordable, and healthy. Hurt them, and you hurt every one of us.

From the 22 October 2018 Greater Niagara Newspapers and Batavia Daily News

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