Resolved: That the United States should substantially change its federal agricultural policy.

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Source: Successful Farming, Feb 2000 v98 i2 pS102.

Title: When good fences don't make good neighbors.(laws and legal cases
that affect farmers)(Brief Article)
Author: Cheryl Tevis

Full Text COPYRIGHT 2000 Meredith Corporation

It takes more than a good fence to separate nuisance issues

It's been one year since Iowa's Agricultural Area Law was declared unconstitutional in the case of Bormann v. Board of Supervisors for Kossuth County.

The landmark 7-0 decision stated that ag areas or zones "amounts to a commandeering of valuable property rights without compensating the owners and sacrificing those rights for the economic advantage of a few."

The case was appealed to the U.S. Supreme Court, which allowed the ruling to stand.

Farm organizations railed against the ruling, predicting the demise of right-to-farm laws in all 50 states. Rural neighbors gained hope that they would have more clout in the courts.

Today neither outcome prevails. Nuisance lawsuits have been filed in New York, Michigan, Utah, Kansas, Nebraska, and West Virginia.

Law upheld in Michigan

Last March, a judge upheld the constitutionality of the Michigan Right-to-Farm Act, ruling against neighbors fighting an expanded 4,000-head beef operation near Breckenridge.

"All evidence says that modern agriculture must grow to be competitive and economically viable," wrote Judge Randy Tahvonen. "The Stonemans' decision to consolidate and expand is financially prudent, financially sound and environmentally practical."

Under Michigan's act, Stoneman Cattle, Inc., operated by four brothers, adopted voluntary Generally Accepted Agricultural and Management Practices. The Stonemans were awarded $77,338 in legal fees.

Legal authorities such as Neil Harl, Iowa State University, point out that this trial decision lacks the stature of Bormann, which was an appellate decision. The case has not been affirmed by an appeal.

Two neighbors in nearby Algansee Township, Michigan, recently won a lawsuit against a hog producer, using a township zoning ordinance prohibiting creation of dust, noise, and odor that leaves property lines. Michigan's law requires farmers to comply with town-ship ordinances to gain protection.

As a result, House File 4777 and S. 205 have been introduced to stop township ordinances from preempting state or federal laws.

Distinctions are important

"Iowa law offered blanket protection from nuisance lawsuits, but Michigan's protection is based on following Generally Accepted Agricultural Management Practices," says Jack Laurie, Michigan Farm Bureau president.

Iowa still has two other laws containing nuisance protection for live-stock producers. "It's still not known how the Bormann case will affect these laws," says Roger McEowen, associate professor of ag economics, Kansas State University.

He argues that right-to-farm laws, enacted in the late 1970s and early 1980s to protect farmers from objections to odor, dust or noise, differ.

The "taking" argument in Bormann is based on the Fifth Amendment, providing that property not be taken for public use without compensation.

"Right-to-farm laws likely do not create a property right to produce odors over adjacent property," McEowen says. "I don't feel that these laws are in jeopardy."

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