Manure Manager

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Manure related nuisance lawsuits


March 31, 2008
By Eldon McAfee

Topics

In the May/June 2005 issue of
Manure Manager, we covered management practices that livestock
producers may implement to minimize the risk of a nuisance lawsuit. 

In the May/June 2005 issue of Manure Manager, we covered management practices that livestock producers may implement to minimize the risk of a nuisance lawsuit. 

As noted in that article, the legal standard for nuisance is very subjective and a livestock operation that may be no problem for some neighbors may be considered a nuisance to others. The article emphasized that courts may find an operation to be a nuisance even though the producer meets or exceeds all applicable environmental and other requirements, and uses the best available technology. 

We noted that there is no single “silver bullet” to avoid nuisance lawsuits, and livestock producers cannot be certain which steps they take will help avoid a nuisance suit. Therefore, producers must take all reasonable steps available to them to try to minimize the impact of their operations on neighbors and minimize the risk of a nuisance lawsuit.

In this article, we’ll look at if a nuisance suit is filed and goes to trial, just how a judge or jury determines if a livestock operation is a nuisance. We’ll also look at the types of damages that may be awarded by the court if it is determined that the operation is a nuisance.

Producers are sometimes surprised that a nuisance suit may be filed even before a livestock operation is populated. This type of lawsuit is called an “anticipatory nuisance” and in many states a court will not grant an injunction blocking construction of an operation as an anticipated nuisance unless “it clearly appears a nuisance will necessarily result.” 

In 2005 an Iowa district court judge refused to grant an injunction requested by a group of neighbors to stop construction of a 5,400-sow farrow-to-wean operation.  The judge ruled that the neighbors did not prove that a nuisance “will clearly and necessarily result from the operation of the facility as presently approved.” The plaintiffs in this case alleged—by their own testimony and through expert testimony—that the operation would reduce their property values, cause groundwater contamination, produce odor that would be a nuisance, and cause health problems. The livestock producer presented evidence, including expert testimony, that disputed all of these claims. 

The judge ruled that: (1) there was conflicting evidence regarding declining property values so the court could not rule that such a decline would “necessarily or certainly” occur; (2) concerns regarding groundwater contamination were “speculative and remote”; (3) while odors will be produced by the operation, the evidence showed that with proper management, the operation “need not necessarily constitute a nuisance”; and (4) there was no “credible evidence that a serious health threat is posed to normal individuals one or more miles away.” 

The judge concluded by noting that this decision does not protect the sow operation from liability for nuisance if it is ruled to be a nuisance after it is in operation. This case has been appealed to the Iowa Supreme Court.

On the other hand, in a 1999 case the Georgia Supreme Court agreed with the district court’s order halting the construction of a 22,800-head swine operation with anaerobic and aerobic lagoons. Neighbors objecting to the proposed hog operation claimed that the operation “would result in groundwater and aquifer contamination as well as impairment of air quality.”

The court ruled that the evidence was sufficient to warrant the trial court’s ruling finding “that the construction and operation of the proposed hog breeding facility would, with reasonable certainty, constitute a nuisance causing the plaintiffs irreparable harm.”
Any discussion of nuisance lawsuits must begin with a look at the factors a judge or jury considers in deciding if an operation is a nuisance. Generally, those factors are: 
1. Priority in time or location. That is, who was there first, the plaintiff or the livestock operation? If the livestock operation was in place before the plaintiff moved to the residence, the plaintiff is considered by the court as “coming to the nuisance.” This is an important factor in favor of the livestock producer, but it does not mean the producer will automatically win the case. The judge or jury will also look at the other two factors. In addition, a producer may lose this priority if the operation is expanded later. To date, very few Iowa livestock nuisance cases involve hog operations that have priority in time or location.

2. The nature or character of the neighborhood. The focus of this factor should be whether the livestock operation is in an agricultural area or close to residential or other non-agricultural uses. However, in a 1996 case the Iowa Supreme Court ruled that the nature of the area before the livestock producers started their 800-head finishing operation with an earthen manure storage basin “was typical for rural Iowa.” Thus, one task in any nuisance lawsuit is for the livestock producer to convince a judge or jury that confinement swine operations are typical for rural areas.

3. The nature of the activity being complained about. To be a nuisance, the odors, etc. must be unreasonable and any personal discomfort or annoyance must be substantial. Judges and juries have a difficult time in differentiating testimony about odors that are part of normal livestock production from those that are unreasonable, and therefore a nuisance. Courts have noted that when a plaintiff claims personal discomfort or annoyance, it is sometimes difficult to determine whether the odor on the plaintiff’s property is significant enough to constitute a nuisance. 

In determining whether odor from a livestock operation is significant enough to constitute a nuisance, a judge or jury may use “the normal person standard.”  Under this standard, courts have ruled: “If normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable, then the invasion is significant. If normal persons in that locality would not be substantially annoyed or disturbed by the situation, then the invasion is not a significant one, even though the idiosyncracies of the particular plaintiff may make it unendurable to him.” 

In essence, under the “normal person standard” a judge or jury must compare the testimony of the people who filed the lawsuit who may say they cannot live in their homes due to the odor with testimony from other witnesses from the area. If the other witnesses are considered “normal persons” by the court and testify that the odor is not objectionable or unreasonable, then there should be no nuisance even if the plaintiff testifies that it is “unendurable.” 

The difficulty for livestock producers is that no one but the plaintiff can testify about living at his or her residence. Even if the livestock producer lives closer to the operation, the testimony of the livestock producer and his or her family is often discounted. Unless other neighbors or individuals who live in or are frequently in the area testify contrary to those who filed the lawsuit, the normal person standard may not come into play.

If a judge or jury rules that a livestock operation has caused a nuisance for the plaintiff, then the judge and/or jury must decide the relief that will be awarded.

As previously discussed, if an injunction is requested, the judge and not the jury will decide if an injunction will be granted. In addition, the judge or jury will determine the amount, if any, of monetary damages that will be awarded. 
In general, courts may award three types of money damages in a nuisance case:
 
1. Decrease in market value of the plaintiff’s property. Iowa courts recognize proof of decrease in market value by an appraisal or by the testimony of the plaintiff. Thus, in many cases plaintiffs will not hire an expert appraiser but simply testify as to the value of their property themselves. While a judge or jury is required to receive that testimony, they are also required to consider the economic interest of the plaintiff, and they must also consider any expert testimony from the livestock producer’s appraiser. In cases involving ongoing and periodic nuisances such as manure application, loss in rental value of the plaintiff’s residence is used instead of loss in fair market value. 

2. Loss of the “comfortable use and enjoyment” of the plaintiff’s property.  These damages include damages for “personal inconvenience, annoyance, and discomfort” from the nuisance. Courts have noted that these damages “are not subject to any precise rule for ascertaining damages because these damages are not susceptible of exact measurement.”
 
3. Punitive damages. These damages are to go beyond compensating the plaintiff by punishing the defendant. Courts have ruled that to be subject to punitive damages in a nuisance case, a defendant “must create and persistently maintain [the nuisance] with reckless disregard for the rights of others.” 

When all circumstances surrounding a nuisance case are considered, it is clear that nuisance cases are difficult and expensive to defend, even if there is a positive outcome for the livestock producer. For these reasons alone, and as noted in the beginning of this article, it is imperative producers take all reasonable steps to try to minimize the impact of their operations on neighbors and minimize the risk of a nuisance lawsuit. 

In the next and final article in this series, we will once again review those steps and look at the protections available to defend against nuisance lawsuits, including nuisance insurance, statute of limitations and right-to-farm laws.
 
Eldon McAfee is an attorney with Beving, Swanson & Forrest, PC, Des Moines, Iowa.