Understanding Agricultural Liability: Maryland’s Right-to-Farm Law Can Limit Liability for Maryland Farmers and Commercial Fishing and Seafood Operators

Photo by Edwin Remsberg

By Paul Goeringer and Lori Lynch, Department of Agricultural and Resource Economics, College of Agriculture and Natural Resources, University of Maryland

Introduction

Many agricultural areas in Maryland have seen individuals moving in with no farm backgrounds and little understanding of farm operations. Commercial fishing and seafood operations in Maryland have had the same experience. Once there, the inexperienced residents find noises, insects, farm equipment on the roads, smells, and other normal characteristics of agricultural and commercial seafood life unexpected and objectionable, and then they complain. In response, Maryland introduced a Right-to-Farm (RTF) law in 1981. Recently, the state updated the state’s right-to-farm (RTF) law to shield qualifying agricultural, commercial fishing and seafood operations from nuisance suits.

All 50 states have a RTF law on the books. These laws typically shield agricultural operations from complaining nonfarm neighbors by limiting the scope of and providing a defense for nuisance actions brought against farms and other agricultural operations. Maryland has extended these protections to commercial seafood operations and watermen. Although there is no uniform RTF law, each state’s law provides the same general protection to agriculture. These protections come in the form of an affirmative defense: qualifying producers, fishermen, or seafood operations use this defense against private and public nuisance claims involving their operations. The defense works to safeguard existing operations from nuisance suits aimed at normal farm and seafood operations’ practices.

RTF Law Provides Affirmative Defense to “Nuisance” Suits

Maryland’s RTF law provides an affirmative defense to nuisance claims brought against Maryland agricultural and commercial seafood operations. An affirmative defense means a farmer or waterman who can demonstrate the use of good agricultural practices or good commercial fishing practices can defeat a claim regardless whether the claim is true. A nuisance is “[a] condition or situation (such as a loud noise or foul odor) that interferes with the use and enjoyment of property” (Black’s Law Dictionary, 2001). A nuisance can come in one of two forms: public or private. A public nuisance involves an activity or conduct which unreasonably interferes with the general public’s right to property; a public official usually brings a lawsuit to stop the public nuisance. A private nuisance would be a condition or situation which interferes with a private person’s enjoyment of their property.

For example, a farmer does not remove dead livestock from a stream, the deceased livestock begins to decompose, and this impacts a downstream city’s water supply; this would be an example of a public nuisance. A neighbor not wanting to use her deck because of the manure smell coming from the farm next door or from noises caused from pumps utilized by watermen, would be an example of a private nuisance.

Which Operations Does RTF Protect?

Maryland’s RTF law provides protections for agricultural, silvicultural, commercial fishing, and seafood operations. Agricultural operations are defined as any operation that:

1. Processes agricultural crops, or

2. Conducts the on-farm production, harvesting, or marketing of any agricultural, horticultural, silvicultural, apicultural, or aquacultural product grown, raised, or cultivated by the producer (§ 5–403(a)(1)).

Traditional agricultural operations, such as livestock, grain, fruit, or vegetable operations, or traditional forestry operations would in all likelihood fall under the RTF law.

Commercial fishing and seafood operations are defined as those operations “for the harvesting, storage, processing, marketing, sale, purchase, trade, or transport of any seafood product” (§ 5–403(a)(2)(i)). These operations include “the delivery, storage, and maintenance of equipment and supplies and charter boat fishing and related arrival and departure activities, equipment, and supplies” (§ 5–403(a)(2)(ii)).

RTF Law Only Protects Qualified Operations from Nuisance Suits

Even if an operation qualifies as an agricultural, commercial fishing or seafood operation, it must meet the statutory requirements to receive RTF protections.

First, the operation must have been in business for at least 365 days (1 year) or longer before a nuisance suit is brought. An operator may use business records or other evidence to show how long the operation has been operating to prove this fact.

Second, the operator must prove the operation complies with all applicable laws in order to benefit from the RTF defense. Again, this may be done with business records demonstrating compliance with all applicable federal, state, and local requirements. Operators should keep good business records to ensure they can prove compliance with the relevant laws and regulations, if needed. For more information on the importance of good business records to show compliance with applicable laws, see Understanding Agricultural Liability: Legal Risk Management Considerations (UME FS-995, 2015).

A qualifying agricultural, commercial fishing, or seafood operation which meets the second requirement can use the RTF law’s affirmative defense. With this defense, no private or public nuisance may be found for these operations based on sight, noise, odors, dust, or insects resulting from the operation (§ 5–403(c)(1)). The RTF defense also helps defeat claims the operation has interfered or is interfering with the right of others to use or enjoy their property (§ 5–403(c)(2)).

For example, Steve’s house is next to one of Charlie’s farm fields. Charlie applies manure as fertilizer and does the application in accordance with all federal, state, and local laws. The application also complied with his nutrient management plan. After the application, Steve finds the odor of the manure noxious. Steve files a lawsuit saying the odors from the farm interfere with his right to use his backyard due to the farm’s noxious smells, a private nuisance action, and asks the judge to stop Charlie from future manure applications. Because Charlie had applied the manure in compliance with all federal and state laws as well as his nutrient management plan (NMP), he can use the RTF’s affirmative defense to have the claim dismissed. If Charlie violated his NMP or the other laws, he would not be able to use the affirmative defense of the RTF. In this case, Steve’s nuisance suit could proceed.

Another example: Shannon’s house is next door to Justin’s commercial seafood operation. As a part of the operation, Justin routinely stores his gear (crab pots, fish nets, dredges, engines, etc.) outside. Shannon files a lawsuit against Justin claiming that Justin’s storing his gear outside impacts her use and enjoyment of her water view home, and asks the judge to have Justin clean up his property. If Justin is in compliance with all federal, state, and county laws and regulations, the RTF’s affirmative defense would allow Justin to seek dismissal of Shannon’s lawsuit.

Good Neighbor Relationships Can Limit Lawsuits and Costs

Even though the RTF’s affirmative defense helps avoid judgements against law-abiding qualifying operations, being willing to work with one’s neighbors can also help limit costly litigation. Non-agricultural or non-fishing neighbors may not understand that the location of their new house means unfamiliar odors and noises. The operator may in turn not understand the neighbor’s lack of knowledge of agricultural, commercial fishing, or seafood operations.

Looking at our earlier example, even if Charlie follows all existing laws and regulations and is able to use the affirmative defense, he would be better off if Steve did not file a suit in the first place. Say instead, Charlie had been neighborly with Steve. If Charlie discussed any concerns Steve had, and Steve felt comfortable discussing issues with Charlie, they might have been able to avoid Steve using the law to seek help.

For example, Charlie’s fertilizer had run-off into Steve’s Koi pond and killed some of the fish. Charlie could say he is not responsible for Steve’s fish dying and is not legally responsible to pay for them. Alternatively, Charlie could discuss the event with Steve and offer to help replace the fish. Then, when the odors from manure application occurred, Steve may have called Charlie to say he was having a party next week, and Charlie could postpone any further manure applications till after the party, rather than filing a lawsuit. (Or maybe Steve could ask Charlie to the party?) By working with Steve, Charlie created some good feelings between the neighbors. This might be worth much more than the amount he saved by claiming no responsibility for the fish.

Charlie created goodwill by taking these actions; thus, a lawsuit, the paperwork involved, and the bad feelings may have been avoided. Both farm and non-farm neighbors should look for opportunities to interact and develop personal relationships. These relationships will open lines of communication, may help make each person aware of the other’s needs, and may help find solutions without resorting to litigation.

For farmers’ advice to other farmers on how to communicate with your neighbors, see University of Maryland Extension Publication, Improving Neighbor Relations Farmers Advising Farmers and University of Maryland Extension Publication, Improving Neighbor Relations Living in a Rural Community.

RTF Defense Doesn’t Apply in Cases of Negligence or Trespass

Maryland’s RTF law only provides a defense against nuisance claims, not a general defense to all claims against an agricultural, commercial fishing, or seafood operation. If a federal, state, or local government is enforcing applicable laws against a qualifying operation, the RTF law will not apply (§ 5–403(b)(1)(i)). Operators cannot use this defense when they are violating any federal, state, or local government permits issued to the operation (§ 5–403(b)(1)(ii)).

For example, if a poultry producer violated her Clean Water Act discharge permit, the RTF law would not provide a defense for this violation. In this case, the poultry producer can be fined and required to meet the discharge limits. Similarly, if an agricultural operation is required to have a nutrient management plan and has not fully and demonstrably implemented it, the operator would not be able to use the RTF defense in a nuisance suit (§ 5–403(b)(2)).

This exclusion also applies for failure to comply with federal, state, and local health, environmental, and zoning requirements (§ 5–403(b)(1)(iii)). For example, Maryland requires all concentrated animal-feeding operations (CAFOs) be built no less than half a mile of a school, park, or summer camp. If a farmer diversified and constructed a CAFO within a quarter-mile from a school, he could not use the RTF law as a defense when the school’s Parent-Teacher Association or a public official asks that this CAFO be closed.

The RTF law will not provide a defense when the claim is negligence against the qualifying operation (§ 5–403(b)(1)(iv)). Legally, negligence means a person or business failed to exercise a standard of care which society would expect from a reasonably prudent person. For example, Charlie has cattle on his farm and they have frequently been getting out into the road between Charlie’s pasture and Steve’s house. Charlie has not taken the time to repair the fences to prevent the cattle’s escape. On Steve’s way home from work one day, he crashes his car into one of Charlie’s cattle. Steve may file a claim of negligence against Charlie after the accident. The standard of care expected of Charlie is to keep his cattle enclosed safely on his farm which includes maintaining and keeping his fences in good repair. Since Charlie has not repaired the fences despite the repeated evidence that his cattle have been getting out, he would be unable to use the Maryland’s RTF law for his defense. Charlie would most likely be liable for repairing Steve’s car and any other damages.

RTF laws also do not provide a defense against claims of trespass. Trespass is unlawful intrusion which interferes with a person’s exclusive right to use their property. Looking at our previous example, Charlie’s cattle cross onto Steve’s property to use his pond for water without permission. The moment these cattle cross onto Steve’s property, they are trespassing because they are interfering with Steve’s exclusive right to use his property. Steve can call local law enforcement in this case and the RTF law could not be used to defend Charlie who is liable for his cattle’s behavior.

Before Bringing a Nuisance Suit, File With the County ARB

Before a nuisance suit can be brought to court, the complaining party (Steve) must file with the local agency authorized to hear a nuisance complaint against agricultural or commercial fishing or seafood operations (§ 5–403(e)(2)). This local agency reviews the complaint and makes an official recommendation.

For agricultural operations, most Maryland counties have established a county agricultural reconciliation board (ARB) to hear these suits. These boards are typically five county residents with a mix of both agricultural and non-agricultural backgrounds; membership requirements vary by county. The ARBs conduct hearings in an informal manner, i.e., not under the same strict rules as a formal courtroom. This informality can reduce litigation expenses, provide win-win solutions, and allow quicker resolutions of a nuisance suit.

If there is no local ARB authorized to hear a nuisance complaint against an agricultural operation, then the complaint is referred to the State Agricultural Mediation Program, known as the Maryland Agricultural Conflict Resolution Service (ACReS), for mediation. If mediation fails and ACReS certifies that mediation has concluded, Steve may then file the nuisance suit in the appropriate Circuit Court.

This process of local review or mediation delays or avoids costly nuisance suits. Although RTF laws provide an affirmative defense to nuisance suits, the affirmative defense itself does not automatically stop the filing of a nuisance suit. Both parties must present evidence as to whether the defense applies in this case and a judge will rule on the evidence. Presenting evidence can be costly in money and time; an operator may suffer financial stress. In some cases, a few operations have been sold to finance court costs. By requiring nuisance suits to be heard first by a local board or state mediator, the Maryland RTF laws may reduce litigation costs and protect an operation’s financial status.

Check Your County’s RTF Ordinance for Protected Activities

Each of Maryland’s 23 counties has its own RTF ordinance in their county codes. These RTF ordinances vary from county-to-county. Agricultural, commercial fishing, and seafood operations should check the county code for each county in which they operate. These county RTF ordinances work with the state’s RTF law to define the parameters of those activities protected in each county.

Twenty-two of Maryland’s 23 counties have adopted similar language in their county RTF ordinances (“common county RTF ordinance”). This common county RTF ordinance states that if the agricultural operation is conducted in accordance with “generally accepted agricultural management practices” (GAAMPs), it will be protected from nuisance suits. Governmental agencies such as the local soil conservation district or University of Maryland Extension have defined these GAAMPS. For cases where a governmental agency has not authorized any GAAMPs, the practice(s) in question is presumed by the ARB or ACReS to be GAAMP, although this presumption may be rebutted with evidence that the practice is not generally accepted.

For example, assume no governmental agency has set a recommended buffer zone from a stream when spraying a pesticide, but area farmers commonly use a 20-foot buffer zone. If a farmer is using a 10-foot buffer zone in this situation, the farmer’s practice of a 10-foot buffer would presumably be GAAMP. If the neighbor presented evidence showing most other farmers in the county actually use 20-foot buffer zones, the RTF law may not provide a defense to the neighbor’s nuisance suit.

The requirement to utilize GAAMPs as well as comply with all applicable laws creates some safeguards under both county and state RTF laws. Under Maryland’s RTF law, a producer must comply with all applicable laws, permits, and other requirements. Compliance assumes a producer is utilizing GAAMPs authorized by governmental agencies. Using GAAMPs will help to ensure compliance with all applicable laws, permits, and other requirements. The common county RTF ordinance also mirrors the state RTF law by requiring nuisance suits to be brought to a county ARB before a final decision is issued. State and county RTF laws work together to create protections for Maryland producers and other citizens.

In many Maryland counties, RTF ordinances require a nuisance suit involving claims affecting public health be filed with the county Health Department, rather than the county’s ARB or the state’s ACReS program. The county Health Department reviews and decides if the agricultural operation is a nuisance to public health. The county’s ARB hears all the non-public health related nuisance claims.

County RTF ordinances may require that when a house or property is sold or transferred, the existence of the RTF ordinance must be disclosed. The notice informs the new owners of the existing RTF law and ordinances in the state and county. This disclosure educates the people potentially purchasing property, leasing with an option to purchase, or leasing in a residential area that they must co-exist with neighboring agricultural, commercial fishing, or seafood operations.

Putting It All Together

When a neighboring landowner believes he/she has a claim against a farming or seafood operation, how should he/she proceed? The neighboring landowner needs to consider the nature of the claim against the operation. For example, Nancy lives next door to Anne, who operates poultry houses. During the summer months, Nancy notices large flies on her property and believes the flies are coming from Anne’s poultry operation next-door. The flies make it impossible for Nancy to use her outdoor spaces during the summer, so Nancy decides to bring a lawsuit against Anne for causing a private nuisance. Before Nancy or her attorney files any nuisance suit in court, Nancy would need to file a complaint with her county’s ARB. This board would review the complaint and attempt to work out a fair solution to the problem. Remember, this is one important feature of Maryland’s RTF law: a court cannot hear a nuisance claim against a farmer until the county ARB issues a decision on the claim.

If Nancy does not first bring the claim before the county ARB, then Anne’s attorney should file the appropriate motions to have this process play out first. Until the county ARB decides on the complaint, a Maryland court cannot properly hear a nuisance suit against a farm. As mentioned before, allowing the county ARB or the ACReS program to hear the claim first could resolve disputes outside of the court system, saving money, avoiding bad feelings, and permitting productive and agreeable outcomes.

If Nancy decides to bring a suit based on violations of other laws, regulations, ordinances (i.e. zoning, health, environmental), negligence, or trespass, the RTF law would not apply. Anne could not use RTF affirmative defense in this situation. Anne could defend herself by showing the appropriate business records to demonstrate her poultry operation complies with all applicable laws and regulations. If Nancy’s property was downhill of Anne, for example, and a large rain washed Anne’s poultry litter onto Nancy’s property causing the large flies to swarm there, this could be a trespass claim not protected by the RTF law. The same would be true if Anne’s negligence allowed a disease from the poultry operation to spread to the few chickens Nancy keeps on her property. The RTF law would provide no defense in these situations. It applies only in the limited case when nuisance is alleged.

Conclusion

Maryland’s RTF law, while limited in scope, can provide powerful protections in certain situations. Neighbors should consider working together and developing open lines of communication to limit disputes. When faced with a nuisance suit, however, an agricultural, commercial fishing, or seafood operation in business for at least one year and complying with all applicable federal, state, and local laws, ordinances, and permits will have a strong defense.

The state’s RTF law also requires either ARB review or review through the ACReS program of nuisance claims before the complainant can bring a lawsuit in court. This pre-court review minimizes litigation and insures that a producer with a defense avoids the higher litigation costs to prove that defense in court. Finally, providing information about Maryland’s RTF law and county RTF ordinances to potential new residents can insure that new neighbors understand these laws and how they protect the state’s agricultural, commercial fishing and seafood operations.

Note: This publication is intended to provide general information about legal issues and should not be construed as legal advice. It should not be cited or relied upon as legal authority. State laws vary and no attempt is made to discuss laws of states other than Maryland. For advice about how these issues might apply to your individual situation, consult an attorney.

Definitions

Affirmative Defense — is a defense that if the defendant can prove his or she qualifies to use it will disallow civil liability even if the defendant did the alleged acts.

Apiculture — is keeping bees on a large scale.

Commercial fishing or seafood operations — are operations for the harvesting, storage, processing, marketing, sale, purchase, trade, or transport of any fish or seafood product. These operations include delivery, storage, and maintenance of equipment and supplies and charter boat fishing and related arrival and departure activities, equipment, and supplies. § 5–403(a)(3)(i) to (ii).

Nuisance — is an offence, annoyance, trouble, or injury from the use of another’s property.

Silvicultural Operation — is implementing forestry practices, including establishment, composition, growth, and harvesting of trees. § 5–403(a)(4).

Copyright 2017. All rights reserved. Readers may make verbatim copies of this document for educational purposes by any means, provided that this copyright notice appears on all such copies.

Authored by:

Paul Goeringer, Extension Legal Specialist

Lori Lynch, Extension Economist

References

Centner, Terence J., Governments and Unconstitutional Takings: When Do Right-to-Farm Laws Go Too Far?, 33 B.C. ENVTL. AFF. L. R. 87 (2006), available at http://www.nationalaglawcenter.org/assets/articles/centner_righttofarm.pdf.

Dill, Shannon, Lori Lynch, & Jessica Jones, Improve Neighbor Relations, Farmers Advise Farmers, University of Maryland Extension Publication, L-279 (2005).

Goeringer, Paul and Lori Lynch, Understanding Agricultural Liability: Legal Risk Management Considerations. University of Maryland Extension (FS-995, 2015).

Kay, David, Maralyn Edid, Judith A. Saul, & Lee Telega, Farms, Communities, and Collaboration: A Guide to Resolving Farm-Neighbor Conflict, Maryland Farm Bureau Publication.

Maryland Department of Agriculture & Michael J. Chomel, Farm-Neighbors Conflicts in Maryland, available at http://mda.maryland.gov/Documents/rtf.pdf.

MD. CODE ANN., CTS. & JUD. PROC. § 5–403 (West 2017).

Extension Legal Specialist @UofMaryland posts do not represent my employer & retweets ≠ endorsements