Right to Farm laws are hardly new. By the mid-1980s all 50 states had passed some version that aimed to protect farmers and keep the flow of food and fiber unencumbered by nuisance lawsuits.

The original Right to Farm laws typically deal with suits brought against farmers because of odor, noise, dust, and flies. There have even been suits brought because of slow-moving farm vehicles that delay traffic.

Currently, in some states, those laws are being backed up by a second round of legislative attempts to further define the rights of producers.

One related case worth watching is in eastern North Carolina where 588 complaints were filed in early July. The reason? Neighbors have grown weary and wary of a large Smithfield-owned hog operation that is storing waste in lagoons and applying manure on adjoining land.

More here and here.

One potential hang-up for the hundreds filing complaints is a new North Carolina law waiting for the governor’s signature. The law would require that if those bringing a nuisance suit lose, they must pay the farmer’s attorney fees.

Rusty Rumley, an attorney with the National Agricultural Law Center located at the University of Arkansas, says North Carolina’s approach is not novel. In the last couple of years, several states have either passed statutes or put in their constitutions amendments about protecting modern farming rights. Those are also known as ‘Right to Farm’ and have no connection with the original statutes which only deal with nuisance lawsuits.

Since those have the same name and are very different, it is confusing to many people – especially since there’s been action with both types recently.”

Rumley says there is not yet any case law on the newer Right to Farm laws. “We do not really know how those statutes will come into play because they are so new. They are written broadly and may affect legislative actions in the state that try to limit new or existing technologies or farming techniques. They may work well within the state; however, there are some questions about how they might affect a federal law restricting certain types of farming practices. Does the federal law trump the state law? It will be probably have to be evaluated on an issue by issue basis.

“Right now, though, those new ‘Right to Farm’ laws – enacted in North Dakota, and it will be on the ballot in Missouri in 2014 -- have been on the books for such a short period of time that there have not been any cases. So, we do not know what kind of impact they’ll have yet.”

Among Rumley’s other comments:

On the reasons ‘Right to Farm’ laws were passed in the 1970s and 1980s…

“There is an old legal doctrine called ‘coming to the nuisance.’ Basically, if you move in next to an ongoing operation (farming, manufacturing, etc.) then you may not be able to prevail in a nuisance lawsuit because you chose to move there.

“Prior to the 1970s, because ‘coming to the nuisance’ was not typically part of the statutory law, it was within the judges’ discretion of whether to recognize it or not.

“Then, in the 1970s and 1980s, all 50 states addressed this issue through ‘Right to Farm’ statutes. These statutes codified the ‘coming to the nuisance’ defense into statutory law. At that point, judges were compelled to consider that defense if the farmer was able to meet the elements required to use it.”

On differences of Right to Farm statutes between states…

“While all 50 states have the Right to Farm statutes, that doesn’t mean they are all identical.  Some are substantially different; others have only a couple of words of difference.

“Usually, if a farm has been in existence for a year, or two, and has been substantially unchanged, the farmer will be able to use a Right to Farm statute as a permanent defense against a neighbor suing for a nuisance action depending on the language of that state’s statute.

“There are all kinds of different permutations on what can and cannot happen under these cases. You can get into the weeds really quickly and many of these cases are fact-specific.”