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Delmarva Farmer Columnists

 

Conflicts with neighbors an evolving issue for ag (Dec. 23, 2014)

Ag Law

By Kim Pardoe Manuelides, Saul Ewing LLP, Partner

In the early days, disputes between neighbors were resolved by negotiation or, frequently, brute force, but as human beings evolved rules of engagement and dispute resolution evolved as well.
Notions of what neighborly pursuits give rise to disputes have also evolved.
In the 1800s, good fences made good neighbors.
Today, good fences still make good neighbors, but not all things stay behind a good fence.
Odors, dust, run-off, flies, transporting across a farmer’s property line and onto a neighbor’s property may cause the neighbor offense.
In the extreme, the nature of the farm operation itself, whether it be a small farmer operating a feedlot for limited consumption or a large regulated CAFO, may give offense to the neighbor who has “moved out to the country” with romanticized notions of rural living.
As a person whose family did in fact “move out to the country” many years ago and having grown up happily within that community, I always wondered at the neighbors who took offense at farming operations that were there for all to see, hear, and, yes, smell all along, particularly those who took so much offense that they took legal action against those who lived and worked the land.
Starting in the early 1960s and continuing through the 1990s a series of lawsuits were brought against agricultural operators, mostly hog and poultry farmers, across the country.
In general those lawsuits alleged that farmers’ operations were a nuisance to the surrounding community.
The judgments in those suits in many instances resulted in the operations being closed down permanently, moved to another location, or essentially managed by the court.
As a result, the legislatures of all 50 states adopted what are now known as “Right to Farm” laws.
Those statutes generally provide a defense to the farmer against nuisance claims arising out of an agricultural operation.
A close look at those statutes reveals that they do not afford the farmer the protections they promise.
Most importantly, they do not in fact resolve the conflict that prompts the neighbor to seek legal action in the first place.
As a consequence, more frequently other means have been deployed recently to either compel the farmer to modify the farming operation or to cease operation altogether.
What in fact are the Right to Farm statutes? What protections do they afford? And what other legal tools are in neighbor’s toolbox? What changes could be made to state statutes to ensure that agriculture continues to be practiced within the Delmarva Peninsula?  
Like their sister states, Maryland, Virginia and Delaware have each adopted Right to Farm statutes.
Although their language varies, they each basically provide that an agricultural operation shall not be deemed a nuisance unless it is being conducted negligently (or in the case of Virginia, not in compliance with best management practices) or in violation of some other federal, state or local law.
Maryland and Delaware both also have essentially a one year statute of limitations, which affords additional protections against new neighbors bringing nuisance suits against existing operations.
In general, actions for nuisance allow two types of remedies, damages and/or requiring the party causing the nuisance to take some action to abate the offending situation.
By curtailing the nuisance action, general assemblies still left neighbors with the general right to seek damages arising out of agricultural operations, but not the right to cause the operation to change its practices or to cease operations altogether.
However, the exceptions in these statutes, specifically those pertaining to negligence and those compelling deference to local laws are problematic.
One purpose of adopting Right to Farm statutes, in addition attempting to preserve farms, was to get the courts out of the business of running farm operations by judicial dictate.
By stating that the operation is not a nuisance unless it is run negligently, the statutes still allow nuisance lawsuits to proceed simply by permitting the plaintiff neighbor to allege that the operation is being run in such a way that does not conform to a generalized standard of care.
That puts the court right back in the business of second-guessing farm operation decisions and management practices.
More insidiously, the Right to Farm protections are subjugated to local statutes.
As a general matter, it makes sense that the statutes do not attempt to trump federal law; as a legal matter, they generally cannot anyway.
It also makes sense that in offering a defense to one type of legal claim, nuisance, that the statutes do not attempt to trump other state laws, such as labor and employment, health, environmental regulations and so forth.
However, by subjugating the protection afforded by the statutes to local ordinance, the adopting states’ general assemblies left the farming community wide open to exactly the type of mischief they sought to avoid, only by a different means.
With the local ordinance exception in place, increasingly urbanized communities can, and in some instances are, simply amending their zoning codes to preclude or restrict farming operations.
As a consequence, rather than the farmer facing restriction or closure as a result of a nuisance lawsuit, the farmer faces closure as a result of a zoning code violation.
Same result that the nuisance action used to provide, simply a different path.
To its credit, the Virginia statute offers some, limited, relief.
Virginia specifically bars counties from adopting any ordinance that requires that a special exception or special use permit be obtained for any production agriculture or silviculture activity in an area that is zoned as an agricultural district.
In addition, the Virginia statute specifically provides that any and all ordinances of any unit of local government that would make operation of any agricultural operation a nuisance is null and void, unless the nuisance results from an improper or negligent operation.
Again, however, the negligence language offers an exception that potentially swallows the rule.
States, such as Missouri for example, have attempted to address the issue though amendment to their state’s constitutions.
There have been calls for similar action in Maryland, Virginia and Delaware.
Insofar as state constitutional rights may take precedence over local ordinances, a constitutional amendment may — and I emphasize may — solve the problem of local jurisdictions making an end-run around the Right to Farm statute by adopting measures that interfere with agriculture operations.
However, a simpler, less dramatic, and perhaps more politically feasible measure would be to amend the state statutes in such a way that local health, environmental, and zoning laws are subject to the rights of existing agricultural operations to continue as such.
That leaves the negligence or standard of care issues within the Right to Farm statutes, however.
In addition, rather than requiring that the relief afforded by the Right to Farm statutes be conditioned upon the farm operation not be conducted negligently or in Virginia’s case in accordance with best management practices (a standard higher than negligence), the statutes could limit the protection to agricultural operations that are in compliance with state and federal health and environmental laws.
It is unlikely that in this political climate state legislatures would simply eliminate the standard of care altogether.
However, amending the standard of care necessary for the statutory relief by striking the negligence or best practices language and inserting compliance with other state and federal laws as a prerequisite to claiming relief against nuisance suits is a compromise.
Such compromise language would leave the neighbor with a right to complain about egregious operations, which the neighbor should have, but not the right to quibble
(Editor’s note: Kim (Pardoe) Manuelides is a partner in the law firm of Saul Ewing, LLP, who focusses her practice on solving legal issues and concerns of the agricultural community.)

Memories and a look forward (Dec. 23, 2014)

Field Notes

By Ed Kee, Secretary of Agriculture, Delaware

I’ve been involved in Delaware agriculture at many levels since 1968 — as a teenage farm worker, farm manager at Nassau Orchards in the 1970s, an Extension agent and crop specialist for 30 years, agricultural manager at Hanover Foods for a year, and now in this job as a Delaware secretary of agriculture for six years.
That’s 47 years of working with farmers and trying my best to serve agriculture. It creates great memories and for some reason they seem to flood back at year’s end.
Here are just a few:
The first is a Delaware classic.
I had the great fortune to work with Dave Woodward when we served as county agents in Kent County, Del. Dave really believed that our mission was to help farmer’s grow better crops, save on costs, or both. He was working with a farmer I’ll call Homer.
Homer was old-school and although he was very careful with taking soil tests, he chose to use the fertilizer company recommendations instead of those from the university, which often called for lower amounts of fertilizer. Finally, one year, Homer decided to trust Dave, motivated to do so because he had faith in Dave, but also because he faced rising fertilizer costs. After harvest that fall, Homer called Dave up and asked him to come on out to the farm. When Dave arrived, Homer said, “Dave, I’d like you to meet my brand new pick-up, which I’ve named Dave in your honor.
“I saved so much money on fertilizer and grew such a good crop, I could buy a new truck and I’ve named it Dave.”
Our Dave was speechless.  
One of the joys of being around and in agriculture all these years has been meeting so many great people, especially those from the generation that survived the Great Depression of the 1930s and World War II. A lot of the professors at the university were World II veterans. UD faculty members like Bill Mitchell, Vernon Fisher, Dale Brey and Dean Bill McDaniel all served on the front lines, as did Jim Baxter, who came home to farm near Georgetown. Bill Mitchell, long-time state agronomist, was actually shot down behind Japanese lines in Burma, but managed to walk his way back to safety with the help of native villagers. That generation, my father’s peers, proclaimed to be the “Greatest Generation” made huge sacrifices for my generation — the baby boomers.
So what can my generation do for the next? There has been a whole cadre of baby boomers, both farmers and agricultural professionals, who have made huge contributions to Delaware agriculture. Several worked together to develop the Delaware Young Farmers program, started in 2010. To date, it has helped 25 young people buy their first farm. This totals over 2,000 acres of land, land that is permanently preserved by virtue of being in the program. At a recent country wedding, several older farmers came up and paid compliments to the program. One said, “This is a great statement for the future of farming in Delaware, and I wish it was around when I was starting out.”
It was rewarding to hear the older generation express support for helping the next generation.
Farming and agriculture is about a lot of things – soil, seeds, rain, fertilizer, birds, cows and a lot more. But it is really about people and each generation looking out for the next one.
It’s about great people who care.

Farewell, thank you to the partnership team (Dec. 23, 2014)

Keeping the Farm

By Jon F. Hall, State Conservationist. Natural Resources Conservation Service, Maryland

As 2014 winds to a close, many of us take the time to reflect back on past accomplishments and plan for 2015. I want to take this opportunity to let you know that I am retiring from federal service after having worked as a conservationist for NRCS for over 41 years.
My career has taken me to many parts of our diverse country. But for the last 10 years, the Delmarva Peninsula has been my home, as I served as the NRCS State Conservationist in Delaware, Maryland and the District of Columbia.
I have thoroughly enjoyed working with the conservation partnership teams and witnessing first-hand the dedication of farmers, producers and partnership staff as we all worked together to improve natural resources in the Chesapeake Bay watershed. Not all leadership decisions are easy, but I strived to do the right things for the right reasons.
The essence of NRCS is underpinned by effective partnerships and many employees that give selflessly of their time and expertise. I want to acknowledge and thank you for your support of NRCS and conservation programs. I have had countless positive experiences, whether in a meeting room or farm visit, that have impacted my life in a memorable and meaningful way.
One of my most memorable experiences is working with staff, partners and customers and recognizing that it takes a group of very special people to commit to their jobs on a daily basis - even when the going gets tough. The customers who come into our service centers are individuals who voluntarily choose to seek us out because of our technical excellence, reliable delivery of service and financial assistance. I am proud to have worked towards the mission of “Helping People Help the Land.”
In closing, I am extremely grateful for the role that everyone has played throughout my career. I trust that Maryland’s next State Conservationist will receive your continued support.
Best wishes and thank you.
Looking Forward to 2015, I want to share with you NRCS’s national priorities for 2015 as discussed by NRCS Chief Jason Weller.
Our mission of “Helping People Help the Land” continues to guide our actions and the services we provide to Maryland farmers and forest land owners. To implement NRCS’s mission, the agency will pursue three key priorities:
1. Deliver excellent and innovative service
NRCS is the nation’s preeminent private lands conservation organization and our hallmark for 80 years has been our ability to deliver high-quality technical advice and voluntary conservation solutions for America’s farmers and communities.
The 2014 Farm Bill will invest $28 billion nationally over five years into voluntary, incentive-based conservation on agricultural lands. NRCS has an enormous opportunity to build upon excellent results from previous programs, such as the Environmental Quality Incentives Program and conservation easement programs, and new partnership programs like the Regional Conservation Partnership Program. While RCPP project selections are still being determined, we anticipate that Maryland farmers will see increased conservation opportunities.
2. Strengthen and modernize conservation delivery
NRCS’s scope and programmatic responsibility have grown significantly over the past two decades. NRCS is in the process of improving the delivery of services through Administrative Transformation. The agency is changing from 53 separate, decentralized (State) operating units to a consolidated, functionally-aligned, shared services model. NRCS Maryland will join the second wave of adoption slated for early 2015.
NRCS is developing new conservation business tools to streamline work, improve the customer service experience, and ultimately allow our conservation professionals to spend more time working in the field. The Conservation Delivery Streamlining Initiative will accelerate the rate of putting conservation on the ground. We can expect to see the Client Gateway, one of three components in CDSI, in use in Maryland in early 2015.
3. Enhance and expand NRCS’s scientific and technical capabilities
NRCS’s scientific and technical-based conservation practice standards drive “on-the-ground” solutions. Improving and expanding these capabilities will ensure that the agency remains a leader in the delivery of conservation services.
Through the Conservation Effects Assessment Project (CEAP), USDA has established that voluntary conservation actions are generating significant environmental benefits at multiple scales—on individual operations, in communities, and in large watersheds. In the Chesapeake Bay, the latest CEAP report shows that the voluntary, incentives-based conservation approach continues to be effective and conservation planning that incorporates targeting is essential for effectiveness and efficiency.
NRCS will continue to support CEAP studies and use the findings to guide conservation policy and program development and help farmers make more informed conservation decisions.
To learn more about NRCS programs and activities in Maryland, visit www.md.nrcs.usda.gov.