Manure-related nuisance law suits—living with the threat
By Eldon McAfee
By Eldon McAfee
Unfortunately, environmental litigation against livestock producers has become more prevalent in recent years.
Unfortunately, environmental litigation against livestock producers has become more prevalent in recent years. From government enforcement of environmental regulations to nuisance lawsuits brought by neighbors, livestock producers need to be aware of the threat of litigation and adopt strategies to manage the risk, like they do market prices and other business risks. Let’s take a look at nuisance lawsuits and the steps that should be taken to minimize the risk of being involved in such a lawsuit.
Agricultural nuisances may result from odor, noise, lights, dust, or insects—with most nuisance cases arising from odor concerns. In a legal sense, nuisance means conduct of one person that is unreasonable, causes annoyance, inconvenience, discomfort, or damage to others in the legitimate use and enjoyment of their property. While neighbors are expected to endure some level of inconvenience, courts sometimes struggle with determining the point at which odor and other interferences become a nuisance. Nuisance law is very subjective and a livestock operation that may be no problem for some neighbors may be considered a nuisance for others. That is why there is no magic solution to avoiding nuisance lawsuits.
Producers must also understand that an operation meeting all environmental regulations may nonetheless be found to be a nuisance. This is because while
nuisance results from conduct, nuisance is a condition—not an action. Thus, a
producer may be liable for nuisance even though the producer meets or exceeds all applicable environmental, zoning and other requirements and uses the best available technology.
To determine if a nuisance exists, judges or juries normally consider the following factors:
- Priority in time or location, ie, who was there first? Those who move to an area after an operation has already begun are known as “coming to the nuisance.” However, a producer may lose this priority if the operation is expanded later.
- The nature or character of the neighborhood. Is the livestock operation in an agricultural area or is it close to areas of residential or other non-agricultural uses?
- The nature of the activity being complained about. To be a nuisance, the odors, etc, must be unreasonable and any personal discomfort must be substantial.
Obviously, the best approach is to take all reasonable steps to avoid a nuisance suit, rather than defending a suit once it is filed. To minimize the potential of being sued for nuisance, livestock producers should:
- Make every attempt to get to know neighbors.
- Realistically assess the situation with neighbors before building or expanding their operation.
- Listen to and sincerely respond to neighbor concerns—even if they seem unfounded or beyond the producer’s control at the time. Consider all reasonable suggestions to address the concerns. Rejection of suggestions without investigating the feasibility will appear as indifference or arrogance.
- Meet with concerned neighbors to explain your operation. Participate in mediation if requested by neighbors. Never give up trying to resolve the situation.
- Be aware of and comply with—or better yet exceed—all legal requirements for the operation.
- Design and construct the operation to minimize its impact on neighbors. This includes locating as far from neighbors and public areas as possible, designing sites that are not visible to neighbors, and utilizing the latest design technology to minimize odor (eg, tree shelter belts).
- Work with advisors, such as a manure management specialist, attorney, and entomologist, to design and site your operation to minimize impact on neighbors.
- Stay current on new technologies and management practices to minimize odor, flies, etc. Attend meetings and seminars on these topics.
- Use best management practices including keeping facilities as clean as possible, making sure manure storage structures are being operated according to current industry standards, and using products that reduce odor and flies in buildings and manure storage.
- Direct inject or incorporate manure within a short period of time following application. If manure must be applied and soil conditions will not allow injection or incorporation, contact neighbors beforehand and let them know your dilemma and why you can’t inject or incorporate this time.
- Avoid applying manure near neighbors, if possible. Notify neighbors prior to applying manure and offer to postpone application if neighbors have special activities planned.
- Apply manure when wind, temperature and other weather conditions are less likely to cause odor to reach neighbors.
- Apply manure as few times as possible throughout the year. This is a major advantage for newer confinement operations that have enough storage capacity to allow manure to be applied once each year.
- Avoid manure on roads and, as much as possible, avoid leaving mud, etc, on roads. If neighbors live on gravel roads, offer to pay for application of products to keep dust down.
- If more land is needed for manure application, consider offering the manure to neighboring farmers.
- Although many producers are not interested in owning residential property, consider purchasing acreages that are for sale near your operation. The residence can either be rented out or re-sold with a deed restriction establishing a nuisance easement or covenant.
- Require all manure applicators, input suppliers, livestock haulers, etc, to follow good neighbor practices, such as not driving too fast. Inform employees about good neighbor practices and make sure they follow them.
With the subjectivity of nuisance suits, producers cannot be certain which steps they take will help avoid a nuisance suit. But a common thread among producers who have been sued for nuisance is a feeling of failure simply because a lawsuit was filed against them. The fact is that in some cases being a good neighbor and operating responsibly may not be enough to avoid problems with neighbors. However, producers must take reasonable steps to try to minimize the impact of their operations on neighbors. To do otherwise is simply asking for trouble.
In a later article we will cover the types of damages courts award in nuisance cases and how protection from these court damage awards is available, including nuisance insurance and right-to-farm laws.
Eldon McAfee is an attorney with Beving, Swanson & Forrest, PC, Des Moines, Iowa.