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Best nuisance lawsuit to prepare for is the one that never gets filed

National Hog Farmer/Ann Hess nhf-hess-eldonmcafee-ipc2020.jpg
Iowa attorney says producers can't let their guard down and must continue to keep up communication with neighbors.

Keep up the good work.

That's the message Eldon McAfee, attorney with Brick Gentry PC, told attendees this week at the Iowa Pork Congress in Des Moines, as he shared more information about two no-nuisance verdicts juries handed down in Iowa over the past year.

From 2008-19, there have been seven agricultural nuisance cases in Iowa. All three cases involving cattle returned verdicts finding no nuisance and only one of the four swine cases came back with a nuisance verdict. The no-nuisance verdict has been a positive trend for Iowa agriculture, but the attorney says he hopes to see fewer cases overall.

"What would be better than winning a nuisance lawsuit, not be in a nuisance lawsuit," McAfee says. "My point is the best nuisance lawsuit you can prepare for is the one that never gets filed."

While there is no guarantee that a producer won't end up in a nuisance lawsuit, the lawyer advises producers to consider the following steps when putting up a new barn.

  • Location: Consider separation distance, prevailing winds and topography.
  • Tree buffers: Use existing trees and plant fast-growing trees as well as slower-growing species.
  • Ventilation: Maintain proper building ventilation that will keep pigs comfortable and reduce odor.
  • Manure: Diligently manage manure storage and application.
  • Cleanliness: Keep livestock, buildings and lots clean.
  • Mortalities: Ensure proper handling of mortalities on the site.
  • Environment: Maintain operational environmental management, and this includes neighbor awareness, communication and relations.

Since most standard farm liability policies don't cover nuisance, McAfee suggests producers check with their insurance agents to see if there are environmental policies available that include coverage to cover odor nuisance claims as well as the legal fees and other costs of defense. It is also a good idea to check with the insurance company to see if they have any prior experience with nuisance cases and how those cases were defended.

Finally, McAfee says producers can't let their guard down and must continue to keep up communication with neighbors.

"Talk to all your neighbors, not just the ones that you are pretty sure that will be OK with it," McAfee says. "Nobody likes to talk to the neighbor that is not happy about it. Sometimes it pays dividends, sometimes it doesn't. Communicate with neighbors, even the ones not in your corner, so to speak."

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