Environmental Law Section Blog: Land Use Conflicts Still Brewing: Wisconsin’s Right to Farm Law after 20 Years:

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  • Environmental Law Section Blog
    April
    09
    2018

    Land Use Conflicts Still Brewing: Wisconsin’s Right to Farm Law after 20 Years

    Tressie Kamp

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    Wisconsin's Right to Farm Law in its current form is now more than 20 years old and, from a legal perspective, largely untested. Tressie Kamp surveys Right to Farm Law updates in Wisconsin and other states since 2002.
    cows in a barn

    In recent years, land use conflicts between rural residents and large-scale livestock operations have increased with the growth in the size and number of large animal feeding operations.

    Industrial agriculture has grown dramatically since Wisconsin Lawyer magazine published an article in 2002 that explored the state’s Right to Farm Law.1 These conflicts follow the ongoing shift in our rural landscape from trademark red barns to large-scale livestock operations.

    The number of the state’s largest farms – those that require water pollution permits – are rapidly growing in number, from 87 permitted facilities in 2000 to nearly 300 facilities in 2014.2 At the same time, the number of Wisconsin dairy farms continues to drop.3

    Yet, little has changed in our state laws to reflect this shift in our agricultural landscape.

    Wisconsin’s Right to Farm Law

    Wisconsin’s Right to Farm Law, Wis. Stat. section 823.08, acknowledges that “development in rural areas and changes in agricultural technology, practices and scale of operation have increasingly tended to create conflicts between agricultural and other uses of land.”4

    Rather than attempt to resolve increasing conflicts, the law “establish[es] limits on the remedies available in those conflicts which reach the judicial system.”5

    More specifically, the law prohibits a judicial finding that an agricultural use or practice is a nuisance if two factors are met:

    1. the use or practice preceded plaintiff’s property use; and

    2. the use or practice does not present a substantial threat to public health or safety.6

    The law was established in 1982, but these two factors were added to the law in 1995. The law has remained static since that time.

    Tressie Kamp org tkamp midwestadvocates Tressie Kamp, Benjamin N. Cardozo 2010, is a staff attorney at Midwest Environmental Advocates Inc., Madison. Her practice focuses on agricultural law and policy, Clean Water Act enforcement, and other wetland and waterway permitting matters.

    The first factor represents a common “coming to the nuisance” provision; however, Wisconsin’s Right to Farm Law is somewhat unique in that it does not afford for potential relief even in the event of a significant change or expansion in the agricultural use or operation. For example, a rural resident accepts the risk of non-redress when moving near a farm with 100 head of cattle, even if the operation expands to thousands of cattle and operates at a scale that requires state water pollution and other permits.

    The second factor, which “un-shields” an agricultural use or practice from nuisance liability if it presents a substantial threat to public health or welfare, was intended in part to “avoid[] the possibility of a court finding that the statute is an unconstitutional taking of private property without compensation.”7

    Wisconsin’s Legislature was responding to an Iowa Supreme Court case that “invalidated the Iowa right-to-farm statute on the grounds that it did not allow the court to find even the most offensive and unreasonable agricultural activity to be a nuisance.”8

    These limitations expanded the common law “coming to the nuisance” doctrine, and further deterred nuisance actions against agricultural users by adding a one-way fee shifting provision. The statute requires a court to award legal fees and expenses to a defendant if the court concludes that an agricultural use or practice is not a nuisance as defined by the Right to Farm Law.9

    Interaction with the Livestock Facility Siting Law

    One of the stated purposes of the law is to prioritize the use of local government zoning powers over nuisance litigation to resolve agricultural-residential neighbor disputes.10

    That prioritization may have made sense in 1982 when the Right to Farm Law was enacted. In 2004, however, the state Legislature passed the Livestock Facility Siting Law11 in an attempt to streamline local approvals and standards for farm permits. The Livestock Facility Siting Law and its implementing regulations restrict the power of local governments to use zoning or protective ordinances to regulate land use and other common concerns that might result from proximity to a large-scale livestock operation.12

    The interaction of the Right to Farm and the Livestock Facility Siting Laws limits both private nuisance actions and local government authority as legal means by which to address nuisance and other potential impacts of livestock operations. Stuck between these two legal obstacles, residential-agricultural land use conflicts aren’t so much “brewing” as they are set to a long simmer that causes uncertain redress for residents that may experience detrimental health impacts,13 property value decline,14 or other impacts.

    Limited Legal Precedent

    Wisconsin’s Right to Farm Law is one of the few in the nation to impose mandatory fee-shifting15 upon plaintiffs who bring unsuccessful private nuisance actions against an agricultural use or practice. This legal and financial risk may explain why only two published decisions,16 the most recent in 2000, have applied the Right to Farm Law.

    A 1988 Court of Appeals case analyzed whether a drainage district was protected by the Right to Farm Law after undamming caused soil erosion and other impacts on nearby private farmlands.17 The court found that the drainage district was not protected as an agricultural use or operation, though most of their land was used for growing produce.18 The case was ultimately dismissed because the district performed quasi-judicial functions and was entitled to statutory immunity.19

    A 2000 Court of Appeals decision applied the Right to Farm Law and required a plaintiff to pay actual attorney fees after bringing an unsuccessful, flooding-related nuisance complaint against a neighboring cranberry bog.20 The decision was based on two court findings: the first a failure to establish causation; and the second a finding that the cranberry bog owner was reasonably using water.21

    An ongoing Green County Circuit Court case alleged that a hog animal feeding operation caused health impacts and other harm to the neighboring plaintiffs. The alleged causes of action included trespass, and negligence, and plaintiffs requested a declaration that such impacts amount to a substantial threat to public health and safety.22 Plaintiffs’ alternative argument was that the Right to Farm Law is an unconstitutional, uncompensated taking.23 A motion to dismiss avoided substantive analysis of the Right to Farm Law, finding that a takings claim was not ripe without litigation to determine whether the law provided “nuisance immunity” to a hog feeding operation.24

    Legal Actions in Other States

    The Green County case reflects a national trend of challenging the constitutionality of Right to Farm Laws. Plaintiffs have failed in many of these challenges, including cases in Idaho,25 Indiana,26 Michigan,27 Minnesota,28 and Texas.29

    Most of these cases were unsuccessful, but in Iowa several cases determined that the Iowa Right to Farm Law was unconstitutional as applied. Two of those decisions, in 200430 and 2016,31 were based on residential owners using and improving their property before construction of the animal feeding operation at issue.32 Also significant was the finding that the plaintiffs were not animal feeding operation owners who themselves could benefit from the Right to Farm Law.33 

    More recently, a U.S. District Court judge in North Carolina found that Right to Farm immunity was not an appropriate affirmative defense for a swine operation.34 The decision found in part that “for the right-to-farm law to apply, it must be on account of changed conditions in the locality outside the agricultural operation that the agricultural operation has become a nuisance.”35 The case will proceed to a substantive analysis of whether or not certain animal feeding operations are causing nuisance conditions for their neighbors.

    The utility of this case for Wisconsin residents is questionable, because it relied on statutory language that limits nuisance immunity to situations where neighbors came to the nuisance, and this language is not explicitly incorporated into Wisconsin’s Right to Farm Law.

    Conclusion

    More than 20 years after enactment of Wisconsin’s Right to Farm Law in its current form, limited legal precedent still creates unpredictability for livestock operations as well as their residential neighbors. Adding to this unpredictability, local governments and the court system are constrained by state laws from robustly resolving land use disputes between livestock operations and Wisconsin’s rural residents.

    The interplay between these laws provides a fascinating case study of how Wisconsinites, our elected officials, and our regulatory agencies attempt to balance our agricultural needs with our deep roots in protecting property rights and local government authority.

    About the Author

    Tressie Kamp serves as the public interest representative for the State Bar of Wisconsin Environmental Law Section board of directors.

    This article was originally published on the State Bar of Wisconsin’s Environmental Law Section Blog. Visit the State Bar sections or the Environmental Law Section web pages to learn more about the benefits of section membership.

    Endnotes

    1 Brewing Land Use Conflicts: Wisconsin’s Right to Farm Law, Wisconsin Lawyer, December 2002.

    2 Wisconsin Department of Natural Resources, CAFO and CAFO WPDES permit statistics.

    3 See, e.g., Number of Wisconsin Dairy Farms Continues to Decline, Wisconsin Public Radio, Jan. 5, 2018, citing DATCP data, Wisconsin Milk Cow Herds by Type of Milk Produced.

    4 Wis. Stat. § 823.08(1).

    5 Id.

    6 Wis. Stat. § 823.08(3)(a).

    7 Wisconsin Legislative Council Legal Memorandum No. LM-2000-12, Wisconsin’s Right-to-Farm Law, Aug. 16, 2000.

    8Id.

    9 Wis. Stat. § 823.08(4)(b).

    10 Wis. Stat. § 823.08(3)(a).

    11 See Wis. Stat. § 93.09; see also implementing regulations at ATCP 51.

    12 See Wis. Stat. § 93.09; see also implementing regulations at ATCP 51.

    13 See Wisconsin Department of Health Services, Concentrated Animal Feeding Operations (CAFOs) and Public Health. For a case-specific study on health impacts, see Rock Prairie Dairy Rapid Health Impact Assessment.

    14 Jim Massey, “Tax Assessment lowered due to proximity to hog farm,” The Country Today, Nov. 16, 2016, at 1; see also Paul Srubas, Living near CAFO reduces property value, DOR rules, Wisconsin State Farmer, Nov. 27, 2017.

    15 Wis. Stat. § 823.08(4)(b).

    16 Timm v. Portage County Drainage Dist., 429 N.W.2d 512, 145 Wis.2d 743 (Ct. App. 1988); Zink v. Khwaja, 608 N.W.2d 394, 233 Wis.2d 691 (Ct. App. 2000).

    17 Timm v. Portage County Drainage Dist., 429 N.W.2d 512, 145 Wis.2d 743 (Ct. App. 1988).

    18 Id.

    19 Id.

    20 Zink v. Khwaja, 608 N.W.2d 394, 233 Wis.2d 691 (Ct. App. 2000).

    21 Id.

    22 Todd P. Knutson, et al., v. Evan R. Lemenager, et al., Decision on Motions to Dismiss in Case No. 17-CV-42.

    23 Id.

    24 Id.

    25 Moon v. North Idaho Farmers Ass’n, 140 Idaho 536, 96 P.3d 637 (2004).

    26 Lindsey v. DeGroot, 898 N.E.2d 1251 (2009).

    27 Vasko v. Dep't of Agr., No. 257534, 2006 WL 250949 (Mich. Ct. App. Feb. 2, 2006).

    28 Overgaard v. Rock Cty. Bd. of Comm'rs, No. CIVA.02-601(DWF/AJB), 2003 WL 21744235, at *7 (D. Minn. July 25, 2003).

    29 Barrera v. Hondo Creek Cattle Co., 132 S.W.3d 544 (Tex. App. 2004).

    30 Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168, 179 (Iowa 2004).

    31 McIlrath v. Prestige Farms of Iowa, LLC, 889 N.W.2d 700 (Table) (Iowa Ct. App 2016) (decision without published opinion).

    32 See supra, footnotes 27 and 28.

    33Id.

    34 Master Case No. 5:15-CV-0013-BR, Order Doc. 476, Nov. 8, 2017 (E.D.N.C., W. Div.) (on file with author).

    35 Id. at p. 9.





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