Hog Farm Justice

COMMUNITIES SPLIT OVER "CAFOS"

By Blake Hurst

Pigs stink. That fact of life is accepted by all of us who grew up on farms. We went to school aft er we did the chores and ignored the jibes of the town kids because we knew that pigs helped pay the bills.

But times change, and so has agriculture. Pigs left the scene here in Atchison County, Missouri, as we all concentrated on growing crops and chasing government subsidies, enjoying winters without chores and the fact that our hair and shoes didn't smell. Th e changes have led our population to drop by 30 percent in the last two decades and by two-thirds in the last century. In 1920, our county had 100,000 pigs and 16,000 people. Th e last agriculture census didn't bother to count the pigs, and there are only 6,000 people left in our county.

The same trends are obvious across the Corn Belt, as small hog producers have left the industry in droves, and integrators have increased the size and scale of the remaining hog units now called CAFOs (concentrated animal feeding operations). From farms that might have 100 sows to units that house 5,800 mother pigs, the industry has changed. As it has, the confl ict between pig farmers and their neighbors has increased.

If my 4-H project of eight sows and 100 baby pigs made my schoolmates wrinkle their noses, imagine the smells around a concentration of nearly 6,000 sows and tens of thousands of baby pigs! As a result of huge open lagoons, manure spills of Herculean proportions, and environmental concerns caused by e coli bacteria and noxious odors, hog farms are viewed with revulsion by those who live nearby. A cottage industry of environmental organizations, small farm advocates, and animal rights groups has sprung up to oppose the siting of these large units, and Willie Nelson and Robert Kennedy Jr. are always available for a sound bite or an interview. One result is that Brazil is rapidly increasing hog production, as we've exported parts of our hog industry to places more willing to accept what we no longer will.

But there is more to the story. The main cause of the smell and pollution is also an increasingly valuable-and organic-source of the nitrogen, phosphorous, and potassium that our corn crop needs. And those hogs are some of our best customers. Even with the boom in ethanol production and the slow but steady increase in farm exports, domestic livestock producers are still the largest users of our corn and soybeans.

My family owns a farm we call the Martin place, where we raise corn and soybeans. Like most farms around here, it has an abandoned barn and empty lots. About a mile from the farm, a large producer of hogs is getting ready to build a 5,800-sow confinement unit. Nobody lives on the Martin place (all my family members' homes are several miles away), so we won't smell the hogs. But we will be close enough to accept manure from the barns. Worth about $10,000 per year, that manure will far outweigh any prospective loss in property value. But it is important that others, who may feel differently, have some recourse. A study by the University of Missouri found that the existence of a CAFO decreases property values of nearby farms by about $100 an acre (Mubarak, Johnson, and Miller 1999). A broader study (Palmquist, Roka, and Vukina 1997) found a 9 percent drop in home values caused by nearby CAFOs.

On the other hand, manure easements available to farmers near these facilities have been shown to increase rental rates. The facilities will buy the corn we raise and will increase local corn prices. The payroll is not large in absolute terms, but it will make a difference. Property taxes will accrue to the school district and other public entities, and local businesses will sell electricity, feed, and all the other things that a large farm must buy. The community really needs these benefits: I graduated with 65 kids in my high school class; my kids had about 30 in their classes; my grandson, 2, will have about 20 unless something changes.

A DILEMMA FOR ATCHISON

Now that our county is in an uproar over the prospective large hog operations, what should we do?

To begin with, hog farms are policed much more closely than they were when farms first started getting larger. They are regulated by the Environmental Protection Agency (which delegates authority to the state of Missouri), and the farm will have to obtain permits from the Missouri Department of Natural Resources as a CAFO. It must hire an engineer who will certify that construction meets state requirements.

The latest hog farms no longer use earthen lagoons, but store the manure in deep concrete pits underneath the buildings. The manure is injected into neighboring fields rather than spread on the ground. Both changes help control the odor and lessen the risk of manure washing into nearby streams.

But it is still hogs, and it still smells.

The traditional way of handling problems like smells is nuisance law. Plaintiffs could sue in the past, but farms were protected if plaintiffs had "come to the nuisance." That is, you couldn't move next to a feedlot and sue the farmer feeding cattle, because you knew what it smelled like when you moved there. Several prominent cases weakened the "come to the nuisance" protection, however.

RIGHTS TO FARM AND RIGHTS TO SUE

This opening of the gates to lawsuits led to the passage of state "right-to-farm" laws in the late 1970s, which granted farmers some protection from nuisance suits. Missouri's law, however, gives a oneyear window for nuisance suits, so a new facility would be vulnerable to suit from disgruntled neighbors.

These right-to-farm laws do restrict the rights of property owners near farming operations-but not completely. At least that is what the Supreme Court of Iowa found in the 1998 case Bormann v. Board of Supervisors. Iowa's right-to-farm law allowed for the establishment of an "agricultural area" which, once established, gave nearly blanket immunity from nuisance suits. The Bormanns, farmers in the area, and their farming neighbors petitioned to establish such a district, received the designation, and were promptly sued. In the ensuing appeal, the Iowa court made several findings.

First, the court found that Iowa law had indeed given the Bormanns a right to farm, essentially, an easement that allowed the passage of odors onto their neighbors' property. Second, the court found that the easement was a protected property right. And, third, the granting of the easement was a "taking" under the Fifth and Fourteenth Amendments and so compensation was owed the plaintiffs. In this case, no compensation was ordered, since the case was a test and no nuisance existed. The case has been cited since, however, and the protection that right-to-farm laws give farmers has been considerably reduced as a result.

A case decided in Iowa since Bormann that arrives at a decision that seems fair to all parties, Gacke v. Pork Xtra, L.L.C., was a nuisance suit filed by the Gackes against a neighboring hog operation. The court applied Bormann and agreed that there was a taking. But the court also found, following U.S. Supreme Court precedent, that the Iowa legislature did have the ability to limit legal actions against agriculture operations. So the court awarded damages to the Gackes for the loss of value of their property, but did not allow punitive damages or grant an injunction to close down the CAFO. The Gackes were made whole, and the CAFO was allowed to continue as an existing business.

COUNTY HEALTH ORDINANCES

Other attempts to restrict hog farms have been tried. One is to keep them out through zoning, but Missouri law does not allow that. About a decade ago, a state senator in Missouri, Harold Caskey, had the inspiration to regulate hog farms through county health ordinances. Counties have always used health ordinances for public sanitation and the like, but until then they had never been used to regulate agriculture. Fourteen counties in Missouri now have health ordinances aimed at animal agriculture, and only one of those counties has ever issued a permit for a new or expanded livestock facility.

Opponents of the CAFO in our county are lobbying the county commission for this kind of health ordinance. We'll no doubt be inundated with outside groups who both favor and oppose the ordinance, and the fight will pit neighbor against neighbor. It won't be much fun.

Opponents like their chances with the county commission, as emotion often carries the day and they don't want to subject their case to the rigor of a court by filing a nuisance suit. When a health ordinance is passed, the CAFO owners just move elsewhere.

In my view, the siting of hog farms is a decision best made on a case-by-case basis, and that can only occur justly if suing against nuisance is effective. The proper siting of a CAFO is highly dependent upon local conditions. The traditional land use in the area, the distance from neighbors, the distance from streams, the soil types, and the reputation of the owner should all be considered by the court. In our county, for example, it would matter to the court that we are not rapidly urbanizing. Only four building permits were issued in our entire county last year.

Missouri's right-to-farm law needs to be amended so that the courts or arbitrators can hear both sides and decide whether a CAFO is a nuisance. If neighboring property owners suffer a loss in property value, that cost should be borne by the person causing the loss. If the neighbors feel that the facility would be a nuisance, then injunctive relief should be sought before construction begins.

At the same time, hog farmers need some protection from large punitive judgments. Without that protection, we'll rapidly move hog production offshore. Agriculture is the lifeblood of places like Atchison County, Missouri. There are places where hog farms shouldn't go, and the law and custom should take that into account. But there are still places that can host these facilities with little risk and many benefits to the surrounding communities. The best way to solve these conflicts is still the traditional way, with the use of common law nuisance to allocate the various rights between the competing interests.

REFERENCES

Mubarak, Hamed, Thomas G. Johnson, and Kathleen K. Miller. 1999. The Impacts of Animal Feeding Operations on Rural Land Values. Report R-99-02 (Executive Summary). Columbia, MO: College of Agriculture, University of Missouri-Columbia, May.

Palmquist, Raymond B., Fritz M. Roka, and Tomislav Vukina. 1997. Hog Operations, Environmental Effects and Residential Property Values. Land Economics 73(February): 114-124.

CASES CITED

Bormann v. Board of Supervisors, 584 N.W.2d 309 (Sup. Ct., Iowa, 1998).

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

Blake Hurst, a contributing writer for the American Enterprise, grows flowers, corn, and soybeans in northwest Missouri with his wife Julie. He appreciates the information provided for this article by Roger Meiners, Andrew Morriss, and Bruce Yandle.

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