NC Right To Farm Act Is Not A Taking Of Nuisance Claims

In Rural Empowerment Ass'n for Community Help v. North Carolina, No. COA 21-175-1 (Dec. 21, 2021), the North Carolina Court of Appeals, the plaintiffs have a beef with hogs. Specifically, nearby hog farms that they allege are nuisances (see this story for a report on porky goings-on in NC). 

They want to sue, but they can't. North Carolina likes the local pork industry. North Carolina has a Right to Farm Act that limits the ability to sue for a common law nuisance. See here for more on RTF Acts, generally.

The plaintiffs sued to invalidate the Act, claiming the statute violates their rights under the N.C. Constitution's law of the land clause, and their "fundamental right to property."

NC's law of the land clause is the "equivalent of the Fourteenth Amendment's Due Process Clause in the Constitution of the United States." Slip op. at 11. An invalid exercise of police power. And you know how far substantive due process challenges to regulations usually get, don't you? Not far in most cases because of the rational basis test. The court of appeals didn't have much trouble concluding that yes, the Right to Farm Act is within the State's police power:

Our State’s long-asserted interest in promoting and preserving agriculture, forestry, horticulture, livestock, and animal husbandry activities and production within North Carolina clearly rests within the scope of the State’s police power. ... [The Right to Farm Act is] intended to promote agricultural and forestry activities and production in North Carolina by defining and limiting nuisance claims from agricultural, forestry, and related operations. ... The asserted and purported interference in the statute with the enjoyment of property is reasonable and clearly rests within the General Assembly’s enumerated powers. By passage of an act with the signature of the Governor of North Carolina, the General Assembly can modify or amend the common law or amend, replace, or repeal a state statute. See Pinkham v. Unborn Child. of Jather Pinkham, 227 N.C. 72, 78, 40 S.E.2d 690, 694 (1946) (“It is said that no person has a vested right in a continuance of the common or statute law. It follows, generally speaking, a right created solely by the statute may be taken away by its repeal or by new legislation.” (citation omitted)).

Limiting potential nuisance liability from agricultural, forestry, and related operations helps ensure the State’s stated goal to protect agricultural activities in North Carolina and to encourage the availability and continued “production of food, fiber, and other products.”

Slip op. at 13-14 (some citations omitted).

The plaintiffs' takings claim (labeled a "fundamental right  to property" claim) didn't fare any better. See slip op. at 15 ("Plaintiffs assert the limitations imposed on a cause of action for nuisance violates their fundamental right to enjoy their property, citing Kirby v. N.C. Dep’t of Transp., 368 N.C. 847, 786 S.E.2d 919, 921 (2016)).

Here, unlike Kirby, Plaintiffs’ have not alleged an inverse condemnation has occurred or any other kind of governmental taking by eminent domain. Plaintiffs assert these statutes facially violates their prospective fundamental right to property, which we above hold are facially constitutional under the Law of the Land Clause and the Due Process clause.

Slip op. at 15.

That's a pretty summary analysis, but an outcome in line with other courts that come to the same conclusion. See here, for example. Other courts take a more tailored approach. See here for more on that. 

Will this case go further up the appellate chain? Stay tuned.  

Finally, what's the deal with the classic vid above? It's there because we appreciate creative plaintiff/association names. Here, "Rural Empowerment Association for Community Help" or "REACH." I see what you did there. Good one, REACH. But as much as we appreciate REACH, it still can't quite touch what we think is the best plaintiff association acronym, AIR = Association of Irritated Residents.

Rural Empowerment Ass'n for Community Help v. North Carolina, No. COA 21-175-1 (N.C. App. Dec. 21, 2021)