Have you ever heard the term, “smells like money”? Under the ever-changing economic landscape affecting farmers throughout the country, many are looking to diversify their agricultural operation from an exclusive row-crop operation to include livestock production. Obviously, a livestock or poultry production farm can significantly change the outdoor patio dining experience of a neighbor downwind. So, can the farmer safely change his or her operation and not risk an immediate complaint from a neighbor? Farmers looking to change or expand their business into different types of agriculture can breathe a sigh of relief, as many Midwestern states reviewed have created protections under Right-to-Farm-Act (RTFA) laws.
Midwestern states surveyed who have enacted RTFA laws to protect the farmers’ desired change in operations include Indiana, Wisconsin, Kansas and Missouri. Wisconsin, for example, goes as far to protect a change in agricultural use or practice even if that change can be said to contribute to a “nuisance.” In Missouri, the only caution to farmers who wish to change or modify operations is that it must not “adversely affect the environment or public health and safety.”
States such as Nebraska and Illinois seem to be silent on the issue of a change in operation, leaving many farmers in the dark. However, farmers have strong arguments for expanding operations because the RTFA was intended to protect, preserve and encourage agricultural operations. A lens into how litigation could play out in states silent on these issues can be seen within recent Indiana litigation. In 2019, Indiana faced challenges to specific RTFA legislation, which litigants argued to be unconstitutional through various means, including that the legislation amounted to an unconstitutional taking of the challengers’ land by preventing them from enjoying their properties. The Indiana Court of Appeals upheld the RTFA law and amendment in question, stating that neighbors who knowingly move to “farm country” should reasonably expect that a farm could change from row crop to pig farm in an instant, thus preventing a nuisance claim from moving forward. None of the constitutional challenge arguments held any water with the Court.
In comparison, Iowa farmers are not so lucky, as neighbors can constitutionally challenge the RTFA and may, in fact, succeed if the challenging neighbor resided on his or her property long before any animal operations began (or were expanded) and spent resources improving their property. These windows of opportunity for Iowa farm neighbors who don’t care for the “smell of money” create many questions for farmers looking to save or enhance their operation by diversifying.
RTFA’s protections appear to be flexible to achieve the purpose of encouraging and preserving the American farmer’s livelihood.
Written with the assistance of Victoria Thornton, a summer associate in the Husch Blackwell LLP Omaha, Nebraska office.
