Nuisance Lawsuits On the Rise

The number of “nuisance lawsuits” is definitely growing in Iowa, where pork producers don't have to be in violation of state environmental laws to be sued.

There is a disturbing trend developing in the Hawkeye State. It's the subjective bent that if you decide a hog operation smells too much, or in your view, plans to build one are going to cause you discomfort, or lower your property values, you simply take that operation to court.

The trend is disturbing for several reasons, says Des Moines, IA, attorney Eldon L. McAfee. First, since 1990, the only agricultural businesses in the state being charged with these nuisance lawsuits are hog operations. And second, a growing number of the operations being sued are facing stiff penalties for things beyond their control.

Plaintiffs across the number one hog state are being awarded large damage settlements for personal pain and suffering, and reductions in property values based solely on personal appraisals by the owners (see Table 1, page 20).

Also, Iowa is currently the only state that does not protect its citizens against nuisance lawsuits.

The Iowa Supreme Court ruled that nuisance defense was unconstitutional in 1998. That decision, which has been appealed, spawned the recent proliferation of nuisance lawsuits listed in Table 1, of which several more were settled out of court or are pending, he says.

McAfee, who often defends pork producers in these legal matters, outlined the nuts and bolts of nuisance cases in a recent speech at the Iowa Pork Congress.

Risk Factors

By definition, nuisance cases involve interference with a person's comfort and enjoyment of their property.

A judge or jury must weigh three factors in assessing a nuisance:

First, decide who was there first, the operation or the neighbor. McAfee says he has yet to defend a case where the producer was defined as being there first. That's because the law in Iowa holds that any changes or updates to an operation take away its claim to being there first.

Second, weigh the nature of the area in question. You'd think if the area is heavily agricultural, it would favor the producer. But unfortunately, the courts generally haven't viewed confinement as the traditional way of raising hogs, he notes. “The courts have found that is not normal for an agricultural area. But I think they are wrong and are failing to recognize the changing way in which we raise livestock,” he declares.

The third factor deals with the nature of the activity. Odor by far drives most complaints. But all hog operations generate some odor. The challenge is to establish if the odor represents an unreasonable interference.

McAfee declares: “Juries have to understand, and we have to educate the public on behalf of the industry, that a nuisance does not mean just some low level of hog odor. It has to be a substantial interference.”

The Iowa Supreme Court has ruled that determining whether odors are definitely offensive must be based on the “normal person standard.” This standard refers to those persons of ordinary sensibilities in that locality. Often, a judge or jury will look to testimony from witnesses not involved in the lawsuit, such as neighbors or people who regularly visit the area.

Injunctions

Persons filing nuisance lawsuits almost always ask that hog operations be immediately shut down, or construction be halted, he says. But that has never happened in Iowa.

The closest has been the lawsuit in 1990 of Sayre vs. Iowa State University (ISU). In that case, a judge did not close the operation, but required the ISU swine research farm to install a cover on an outside slurry storage tank, and, ruled that manure from the operation be injected instead of surface applied, says McAfee.

A new brand of injunction is starting to crop up in some Iowa nuisance lawsuits. Parties are trying to stop construction even before it starts. Iowa courts have traditionally required that there be evidence presented that a nuisance will necessarily result, McAfee continues.

First Punitive Case

One of the most troubling nuisance suits is the one filed against Iowa Select Farms, says McAfee. It is the first time that a judge or jury has imposed punitive damages ($32 million) on a swine operation in Iowa.

Punitive cases are designed by law to punish in cases where there is a reckless disregard for the rights of others. A jury is supposed to adhere to a very high standard while evaluating the conduct of the defendants in this type of matter.

Post-trial motions are being heard in the Iowa Select case, which has asked the district court to reduce or set aside its findings.

A key question in those post-trial motions is expected to go to the heart of the latest suits: how do you award punitive damages when an operation is in full compliance with Iowa law?

Avoiding Lawsuits

Iowa attorney Eldon McAfee says there is no foolproof way to stay out of legal trouble with your neighbors. However, he offers these tips to avoid legal action:

• Know your neighbors. Meet with them. Sincerely respond to any of their concerns.
• Meet or exceed all legal requirements.
• Design and construct your operation to minimize the impact on neighbors.
• Stay current on new technology and management practices.
• Use management practices to reduce odor.
• Inject or incorporate manure, including end rows where injection equipment may leave manure on top of the ground.
• Apply manure as far from concerned neighbors as possible.
• Avoid manure, mud, etc. on roads as much as possible.
• Notify neighbors before manure application.
• Consider wind, temperature and other weather conditions when applying manure.
• Apply manure as few times as possible.
• If more land is need for application, consider offering manure to neighbors.
• Consider ownership of neighboring residences or purchasing and reselling with nuisance covenants.
• Keep good records.