▪ Protecting the Right to Farm

an earlier version of this post was published in Hawaii Agriculture magazine (April - June 2006)

Hawaii law protects the “right to farm,” but what does that mean? 

Can a farm's or ranch's neighbors complain about tractor noise, flies that may be attracted to livestock, the height of crops, or if spray drifts over their property?

Hawaii law, like the laws of many other states, contains a powerful legal tool to protect a farm against such claims: the Right to Farm Act, which prohibits certain tort claims against farmers and ranchers involving their use of their property.

Nuisance Lawsuits

Generally speaking, a property owner may sue neighboring landowners if his or her property is being used in a way that harms another’s property or the public.  These claims are known as “nuisance” lawsuits.

Typical claims in the agriculture context involve a neighbor complaining about odors, noise, dust, and insects, and other activities typical of farming operations.  And, unfair as it may seem, the result in a nuisance lawsuit is not governed by which landowner was there first

For example, a newly arrived neighbor might sue a nearby ranch claiming a nuisance, even if the ranch existed long before the neighbor purchased the property, and even if it was bought with the full awareness of the ranch’s operations.

The ability to bring a nuisance lawsuit is not set out in statutes or rules, but comes to us via the common law, or precedent-setting decisions by judges.  The Legislature, however, may supplant the common law by enacting statutes limiting the ability to file such lawsuits.

Constitutional Rights

The people of Hawaii recognize the importance of agriculture to our economy, our environment, and our lifestyle, and the Hawaii Constitution spells out the state’s express policy favoring agriculture and agricultural uses of land. 

In the Constitution, the State is commanded to “conserve and protect agricultural lands, promote diversified agriculture, increase agricultural self-sufficiency and assure the availability of agriculturally suitable lands.”

Reasonable Practices

In 1982, the Legislature recognized the potential threat to agriculture posed by nuisance lawsuits interfering with reasonable farm uses.  Implementing the constitutional mandate to “conserve and protect” agricultural lands, the Legislature enacted the Right to Farm Act, which bars nuisance lawsuits if certain conditions are met.

First, the protected activity must be a “farm operation.”   This is very broadly defined to include commercial agriculture, aquaculture, forestry, ranching and livestock, poultry, and beekeeping operations, among others. 

Also included within the definition of “farm operations” are accessory uses such roadside stands, machinery or irrigation pumps, chemical fertilizer and pesticide application, and labor operations

Second, the farming operation must use “generally accepted agriculture and management practices.”  In other words, if a farmer uses reasonable practices – as established by fellow farmers – those practices are protected.  The law also places the burden of proof on this issue on the person alleging the nuisance by creating a legal presumption that a farm is being operated reasonably according to industry standards.

The farming activity cannot be causing water pollution or flooding.  Also, the Act only limits nuisance claims by private parties, and does not prohibit the government from stopping farm operations that threaten the public health or safety. 

Right to Farm Act

If these conditions are met, the courts and all “public employees” – a term not defined but most likely meaning state and local government personnel and agency officials – are prohibited from determining that farming activity is a nuisance.   A farm that qualifies may operate normally without fear of being sued by neighbors.  As the Indiana Court of Appeals held when it determined that the Indiana Right to Farm Act protected a hog operation from a neighbor’s nuisance lawsuit about odors, “so long as the human race consumes pork, someone must tolerate the smell.”

As a final disincentive to nuisance lawsuits, the law also provides that if a farmer is frivolously sued for a nuisance despite the Right to Farm Act, the farmer may recover attorneys’ fees and costs.

In sum, the Hawaii Right to Farm Act allow the farmer – not neighbors or judges – to manage the farm.

   

Comments

[Kaya Bailey]

i have a question actually i am from Waianae High School and we have a farm here in Kapolei and it is called Aloun Farms. Aloun Farms is losing their land because they want to use that land for housing. So how can we protect Aloun Farms from losing their land?? Also can you give me details on things on why agriculture is important here in Hawaii if you know?

Thank you,
Kaya Bailey