In the July and December 2005 issues of the Iowa Pork Producer, we looked at how the courts determine if a livestock operation is causing a nuisance and if so, what damages may the operation be required to pay or what actions the operation may be required to take as part of the court’s order. In this article, we will cover what protections producers have against nuisance liability.

The first step in protecting against nuisance liability is to understand how courts determine if an operation is a nuisance and the potential liability if an operation is ruled to be a nuisance. We now need to look at options available to producers to protect against nuisance liability, including legal protections, as well as operation management and neighbor relations. In Part I of this series, we looked at management practices producers should consider to protect against nuisance liability. Because avoiding a nuisance dispute and lawsuit should be the goal of all producers, we will conclude these articles by again covering those practices.

Communication and mediation
As discussed in Part II of this series, before a nuisance lawsuit can be filed against an agricultural operation in Iowa, the party intending to file the lawsuit must first offer the producer the opportunity to mediate the dispute via the Iowa Mediation Service. Producers should utilize this process whenever possible. More importantly, producers should contact their neighbors as soon as possible to try and avoid disputes. Communication of the relevant facts to neighbors helps avoid unfounded perceptions, which can escalate into a dispute. While this approach may not always be successful, it helps establish a line of communication for possible resolution later on if a dispute does develop.

Nuisance insurance
Policies, or riders to policies that provide coverage for nuisance and other agricultural environmental claims are now available. Insurance policies are contracts and coverage for any type of liability, including nuisance, depends on the terms of the individual policy. For that reason, livestock producers interested in coverage for nuisance liability must review their policy. In general, because nuisance actions against livestock operations almost always involve odor, liability insurance protection for the livestock operator from general farm liability policies is usually not available because of exclusions in the policy, including the “pollution exclusion.” However, there are several examples in recent years in Iowa where a general farm liability policy (without special nuisance coverage) was found to provide coverage for a livestock nuisance lawsuit. In October 2005, a Sioux County judge ruled that a policy’s pollution exclusion did not prohibit coverage in a livestock odor nuisance case because the policy did not expressly include odor in the definition of pollutants. However, a Franklin County judge previously ruled that the same definition of pollutant did include odor and therefore excluded coverage for an odor nuisance suit.

The bottom line is that producers who are constructing or expanding an operation should check with their insurance agent and other advisors as soon as possible to determine if they have or can get coverage for a nuisance lawsuit. If a neighbor objects to an existing operation, a producer should also check to see if they have coverage. If the answer is no, producers should check with an attorney to determine if the insurance company’s interpretation should be challenged. In addition to determining if there is coverage, a producer must know what is covered. Coverage may include, subject to policy limits, attorneys’ fees and other court-related expenses, as well as any damages a court may award.

Right-to-Farm laws (nuisance defenses)
All 50 states have some type of law (some states including Iowa have more than one) that was enacted to protect farmers from nuisance lawsuits. Unfortunately for Iowa livestock producers, Iowa is the only state where courts have ruled that a right-to-farm law is unconstitutional. Without getting into the legal intricacies of the laws and the court decisions, as a result of a 2004 Iowa Supreme Court decision, Iowa livestock producers currently have nuisance protection from right-to-farm laws only if their operation existed before anyone who files a lawsuit moved to their properties. In that situation, to qualify for the nuisance defense, the alleged nuisance cannot result from a failure of the livestock operation to comply with federal or state law. In addition, the nuisance cannot be unreasonable, cannot occur for substantial periods of time, and the livestock operation must use “prudent generally accepted management practices reasonable for the operation.” Activities involved with livestock production are covered by the defense, including the treatment, disposal, transportation and application of manure.

The Iowa Supreme Court clearly indicated in its 2004 decision that one of Iowa’s right-to-farm laws, Iowa Code section 657.11 (and by implication, Iowa’s other two right-to-farm laws, Iowa Code sections 172D.2 and 357.11) would be constitutional if a neighbor moved to a residence after a livestock operation existed. It is not clear under what other circumstances the nuisance defense may be constitutional: (1) Neighbors who are tenants and do not own a residence? (2) Neighbors who purchased a residence shortly before a livestock farm goes into operation? (3) Neighbors who purchased a residence after, for example, a livestock farm is in operation but before the farmer expands the operation? and (4) An agricultural area formed under Iowa Code section 352.11 is in place when the neighbor purchases a residence and later a livestock operation or grain drying and handling facility is constructed?

Iowa livestock producers have limited protection, at best, from right-to-farm laws for nuisance lawsuits. More importantly — with or without this legal protection — producers must utilize good management practices to minimize liability for nuisance.

Statute of limitations
Statute of limitations is a legal doctrine that prohibits the filing of a lawsuit if the person filing the suit waits too long after the underlying event occurs. Iowa law provides that lawsuits claiming property damage must be filed within five years and claims for personal injury must be filed within two years. The Iowa Supreme Court has ruled that livestock odor nuisances are “permanent nuisances” in a legal sense. This means that once the applicable time period has passed, a lawsuit cannot be filed. The Iowa Supreme Court has not yet ruled whether claims for livestock odor nuisance are subject to a five-year or two-year statute of limitations. However, Iowa district courts have ruled and the rulings have been inconsistent. A Polk County judge ruled that the statute of limitations for all nuisance claims was five years. On the other hand, a Franklin County judge ruled in 2005 the statute of limitations for claims for loss of property value was five years, but two years for claims for personal inconvenience, annoyance and discomfort, physical and emotional pain and suffering, mental distress and fear of illness. Whatever the period of time, producers must be aware that an expansion of the operation or a significant change in management or other factors in the operation could start a new limitations period. Producers should use good management practices to minimize potential nuisance conditions both before and after the statute of limitations period that applies to their operation.

Contractual arrangements
Iowa courts have ruled that landlords renting out property (a concrete ready mix plant) and owners of livestock who contract with farmers to feed the livestock are liable for nuisance along with the tenant who operated the ready mix plant and the farmer who fed the livestock. At the same time, a Polk County judge ruled that the landlord of a farm where manure was being applied was not liable for an alleged nuisance from the manure application. This case is on appeal to the Iowa Supreme Court.

Like many other forms of legal liability, responsibility for nuisance liability in these situations can be dealt with in the lease or contract between the parties. Parties to a lease or contract cannot prevent a neighbor from filing suit against all of the parties. Parties to the lease or contract can only apportion liability between themselves if nuisance damages are ultimately awarded. Parties to a lease or other contract should discuss potential nuisance liability before the agreement is signed and clearly provide in the lease or contract the duties and liability of each party. While some might consider one party shifting nuisance liability to another party by contract to be unfair, as long as both parties are aware of the potential liabilities and understand the terms of the contract, it should be left to the parties to work this out in the contract. The key is that both parties read and fully understand the contract before it is signed. And finally, as with other protections discussed in this article, implementing appropriate management practices to minimize potential nuisance conditions should be the goal of all parties to a lease or contract.

Management practices
The most effective method of protecting against nuisance lawsuits is to implement management practices that minimize the impact of an operation on neighbors. Legal protections and communications with neighbors all depend upon taking steps to minimize odors and other potential nuisance conditions. The list of Best Management Practices accompanying this article appeared in Part I of this series and because of its importance, has been repeated for your convenience.

Above all, producers should not feel they are alone in dealing with objections from neighbors and in developing appropriate management practices. Organizations that can provide assistance include the Coalition to Support Iowa’s Farmers, individual agricultural organizations that formed the Coalition including the Iowa Pork Producers Association, and educational resources such as Iowa State University Extension.

As noted previously in this series, there is no single “silver bullet” to avoiding nuisance lawsuits and producers cannot be certain which steps they take will be successful. What works in one situation may or may not work in another. However, it is clear that producers must avoid thinking that a nuisance lawsuit could never happen to them. Likewise, producers must also avoid thinking that if a dispute arises, nothing they do will satisfy the neighbors complaining and therefore there is no use in even trying. Many producers have been successful in avoiding a nuisance lawsuit after neighbors have voiced their opposition, after neighbors have hired legal counsel, and even after the neighbors and their legal counsel have requested mediation. Whether an operation has never had a complaint or if there has been vigorous opposition, producers must take all reasonable steps available to them to try to minimize the impact of their operations on neighbors.
 
Best Management Practices
 
  • Make every attempt to get to know neighbors. Realistically assess the situation with neighbors before building or expanding an 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.
  • 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 (e.g., tree shelter belts and biofilters). Work with advisors, such as a manure management specialist, attorney or 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. Most are more than willing to pay careful attention to their activities if they know of your neighbor’s individual concerns. Inform employees about good neighbor practices and make sure they follow them.