Matt Berger, Gislason & Hunter LLP

Matt Berger, agriculture attorney for Gislason & Hunter, LLP, spoke on protecting yourself from activists and nuisance lawsuits while speaking at the Minnesota State Cattlemen’s Association annual meeting.

ALEXANDRIA, Minn. – A nuisance lawsuit is not a contrived lawsuit that doesn’t concern you. A nuisance lawsuit, in fact, could very well mean someone is suing you because they see you as the nuisance.

For farm families that have lived and worked on the same farms for decades, the idea that they are a nuisance may seem preposterous, but the world has changed in this aspect.

Manure odor – linked to the smell of money for previous generations – doesn’t have that reference for many people now. They are much more likely to plug their noses and head indoors.

So in today’s world, how do you keep someone from suing you while you are simply trying to make a living on the farm?

Matt Berger, agriculture attorney for Gislason & Hunter, LLP, spoke on protecting yourself from activists and nuisance lawsuits while speaking at the Minnesota State Cattlemen’s Association annual meeting. He began by explaining the definition of a nuisance lawsuit.

The definition includes “anything that is injurious to health or indecent or offensive to the senses or an obstruction to the free use of property so as to interfere with comfortable enjoyment of life or property,” Berger said.

Breaking this definition apart, Berger said the first item to think about is, “a nuisance condition exists.” Although the word is vague and open ended, nuisance can mean a condition that is harmful to the health of the neighboring property – so something that affects the physical health of a person. It also includes conditions that are indecent or offensive to a neighboring property owner’s senses.

“Obviously, what is indecent or offensive to one person may not be indecent or offensive at all to another,” he said. “One thing you should bear in mind as you are thinking about this is that the standard on this is the neighbor is offended. Does the neighbor deem whatever is happening – an odor, flies, traffic, whatever it is – do they deem it to be offensive?”

The standard calls for “a reasonable person” to deem the situation as offensive. If the case goes to the court, a jury determines whether or not the nuisance is offensive or not.

“Obviously that leaves a lot to chance – when you are in a courtroom – and a lot is beyond your control,” he said.

Berger said there are lists of nuisances that carry the most weight. These lists may include items like odor, emissions from air pollutants, adverse health conditions, bugs causing illness, flies, rats, noise or too much light.

Odor is a very difficult claim to negate, he said. That’s because gases are not always linked to odor. Neighbors may smell offensive odors without measurable gases being present.

“That leads people to be able to subjectively say, ‘The farm stinks,’ even if you have monitoring equipment that shows there is no hydrogen sulfide coming out,” he said.

Another element that must be present is the activity must materially and substantially interfere with the comfortable employment of life and property.

If someone is pumping manure on a regular workday, that’s not considered a nuisance. If the neighbor cannot open their windows of their home for 300 days a year because of manure smell, that is considered a nuisance.

When a jury is considering whether something is a nuisance, they look at what is being experienced on the neighboring property, and it is not the intentional act of causing odor – but the intention of doing an activity that causes the odor.

Berger said there are several types of nuisance claims and lawsuits.

Most importantly, farmers have some defenses to protect themselves should someone make a nuisance claim against them.

Every state, he said, has passed a right-to-farm law. This law states there are areas that are zoned or set aside as traditional ag areas.

“We’re going to protect those ag activities from people who move out to the country that aren’t used to the fresh country air, and decide they don’t like the smell of what you’ve been doing every day,” he said.

The law sets forth three requirements, and if these requirements are satisfied, and the farm has been in business at least two years or more, the farm is likely protected.

In addition to location in an agriculturally-zoned area, does the farm comply with the provisions of all applicable federal, state and local law regulations, rules, ordinance and permits? Another item is operating according to generally-accepted agricultural practice. If everyone in an area farms the same way – the farm is likely protected from nuisance claims.

Generally, farming operations are grandfathered in should the zoning laws change.

If a farm decides to expand, the operation has less protection during the first two years of operation. The law requires an additional burden on those who would make a claim, by stating if the farmer has met the other requirements, they are protected.

“Passing down the farm, son or daughter, son-in-law, daughter-in-law, niece or nephew, that is going to be protected,” he said. “If you have to take a year off for a medical condition or something like that, and then you resume, it doesn’t mean the two-year-clock starts all over again.”

Berger’s next part of the talk was about the value of relationships and communication. He encouraged farmers to pay attention to who is living on the neighboring properties, and take time to say hello.

It’s good to know what types of activities a neighbor likes to do outside and when they might have outdoor parties.

To have a plan for times to spread manure can help neighborly relations go a long way. If extra manure needs to be applied or there is another circumstance, letting the neighbor know the situation can help.

He also encouraged farmers to obtain waivers of consent from neighbors when looking at building new facilities. He reminded farmers that when they are building new facilities to look for remote locations and plan for the prevailing winds.

Berger said a new type of nuisance suit is being brought up, where the plaintiff is saying, “there wasn’t a nuisance when there was one barn, but now there are three barns, and all are responsible.”

Planting windbreaks and trees can go a long way to providing privacy to the farming operation. New technologies can help manage odor and provide benefits. Having a plan that deals with mortalities right away and correctly is another important farm practice.

Documentation of dates that manure was applied or other situations occurred can go a long way in court, and perhaps keep farmers out of court. That being said, Berger wants to remind farmers that lawyers will ask for and get email communications, Facebook posts, tweets or anything that is written down on social media.

The best policy, he said, is to converse with your neighbors.

“Maybe let them know, ‘We’re going to be applying manure the next few days and want you to be aware. If you have any issues, call me.’ It’s a lot easier to deal one-on-one with a neighbor on the tailgate of the pickup truck, than to have the neighbor call the lawyer and sue you.”