In 2011, Missouri adopted a statute that looks to us like a slightly modified "right to farm" law:
The statute supplants the common law of private nuisance in actions in which the "alleged nuisance emanates from property primarily used for crop or animal production purposes." Unlike a common law private nuisance action, section 537.296 precludes recovery of non-economic damages for items such as loss of use and enjoyment, inconvenience, or discomfort caused by the nuisance. Instead, the statute only authorizes the recovery of economic damages in the form of diminution in the market value of the affected property as well as documented medical costs caused by the nuisance.
Under Missouri common law, nuisance claims arising from farming activities are considered temporary nuisances. A few days after the statute went live in 2011, Bohr Farms fired up what is known in the business as a "CAFO" (Concentrated Animal Feeding Operation). As you might expect, its neighbors were none too happy about the appearance of 4,000 hogs and the CAFO which "includes an on-site sewage disposal system as well as a system for composting deceased hogs."
They filed suit claiming the CAFO allowed odors, flies, and manure to enter their properties, and was a temporary nuisance. As the plaintiffs' counsel labeled it at oral argument, "the worst smell you have ever smelled in your entire life ... now imagine you cannot get away from it." The suit sought damages for the loss of the plaintiffs' use and enjoyment of their land, but did not seek recovery for the two forms of damages allowed by the statute.
The trial court granted summary judgment to the CAFO based on the statute, over the plaintiffs' objections that the legislature's taking away of common law elements of nuisance damages was a taking (among other things).
In Labrayere v. Bohr Farms, LLC, No. SC93816 (Apr. 14, 2015), the Missouri Supreme Court affirmed. The statute wasn't a "private taking" of the plaintiffs' rights to use and enjoyment of their land. In other words, the plaintiffs asserted the statute took their rights and gave them to another private party, Bohr Farms. The court concluded that although there was some private benefit, any taking was still public because the statute didn't delegate the power to create a nuisance to a private party. "To the contrary, the statute provides that a nuisance is unlawful and authorizes the party suffering a nuisance to recover damages." Slip op. at 7. The statute was designed to promote the agricultural industry, and this is like "economic development," a purpose which the Missouri courts have upheld as a public use.
The court also held that the statute wasn't a temporary regulatory taking. While it specifies the damages which plaintiffs can recover for a nuisance, it doesn't entirely eliminate the cause of action and allows recovery of rental value, which is how just compensation is measured for temporary takings:
By authorizing a plaintiff to recover the diminution in rental value in a temporary nuisance, section 537.296.2(2) provides for the constitutionally required just compensation in the event that the alleged temporary nuisance amounts to a temporary taking of private property. Therefore, Appellants have not met their burden of demonstrating that section 537.296.2(2) constitutes a taking for public use without just compensation.
Slip op. at 12 (footnote omitted).
The court also rejected the plaintiffs' due process, equal protection, separation of powers, and "special law" arguments.
A couple of noteworthy points, for those of us who deal with right to farm statutes and agricultural law:
- The opinion of the concurring judge cited Harry S. Truman: "'No man [or woman] should be allowed to be the [judge] who does not understand hogs, or hasn’t been around a manure pile.' I do, I have, and I concur in the principal opinion. Assuming the State has taken property by enacting § 537.296.2,2 it did so for public use and provided just compensation. But in my view, there has been no taking."
- At the 9:20 mark in the oral arguments, in response to the plaintiffs' lawyer's noting that one of the Supreme Court judges had grown up on a farm and thus understood about the smell from a hog farm, the judge noted that she had raised dairy cattle, "and they smelled like money."
Here are the briefs if you want more detail on each party's arguments:
- Plaintiffs' brief
- Bohr Farm brief
- Plaintiffs' reply brief
- AG's amicus brief
- Pork Producers and Missouri Farmers amicus brief
For more background on how this issue has played out in Missouri and why the legislature adopted the statute, see "Hog-farm lawsuits raise stink in Missouri."