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How to prevent a livestock nuisance case

By Darcy Dougherty Maulsby - Farm News staff writer | Jan 5, 2021

By DARCY DOUGHERTY MAULSBY

yettergirl@yahoo.com

NEMAHA — If there’s one thing most livestock nuisance cases have in common, it’s the complaints expressed by people who are angry with the farmer. That farm stinks. I can’t stand to be outside. I can’t enjoy spending time on my deck. I can’t invite guests over to my place. The flies are terrible.

With all the challenges of the last year, how about some good news, especially if you’re a livestock producer?

“We’ve done very well in Iowa regarding ag nuisance cases in recent years,” said Eldon McAfee, legal counsel for the Iowa Cattlemen’s Association (ICA).

From 1994 to 2019, 14 livestock nuisance lawsuits came to trial. Ten of these cases involved swine operations. Six verdicts found a nuisance, while four found no nuisance. Three of the cases involved cattle operations. No verdicts found a nuisance in those cases, McAfee said. One case involved grain handling and drying, with a verdict finding a nuisance.

Plaintiffs in nuisance lawsuits often cite livestock odor, flies, noise and/or the unreasonable interference with the use and enjoyment of their property. In the past few years, however, juries have found no nuisance and awarded no money in a number of livestock cases in Iowa.

Consider the case of Lympus & Fitzgerald versus Brayton & Higgins, which occurred in Buchanan County in northeast Iowa. At issue was a concrete open feedlot with a concrete runoff control basin. There were three plaintiffs and two residences involved in this case, which involved an 800-head feedlot. Each residence was located 500 feet north of the feedlot. On January 17, 2019, a jury found no nuisance, and no money was awarded.

“What’s the difference with more favorable outcomes lately for livestock producers in nuisance cases?” asked McAfee, the keynote speaker at the Seth Smith farm east of Nemaha during an ICA farm tour in August. “We can speculate, but it appears that farmers are doing a better job of siting barns and livestock facilities. We hope this trend continues.”

Fair jurors are essential

Juries have also sided with pork producers in a number of Iowa cases in recent years. The case of Lappe, Bergthold & Sternas versus AWP Pork, LLC, Solar Feeders, LLC, Bill Huber and Kansas-Smith Farms, LLCresulted in a jury trial in southeast Iowa. At issue were three 4,992-head swine finishers.

There were six plaintiffs and three residences, including one located 1.04 miles northwest of the hog site, one located 1.66 miles north and one located 1.5 miles to the northeast of the hog site.

“The plaintiffs claimed the mice were terrible after the hog barns went in,” McAfee said.

After sitting through three weeks of testimony, a Henry County jury on February 20, 2019, found no nuisance and awarded no money.

Credible witnesses are vital to winning a lawsuit. Fact witnesses can include parties to the case, family and friends, and independent third parties. Expert witnesses can range from odor monitoring and modeling to property appraisers. In the Buchanan County case, one of the witnesses for the farm was the rural mail carrier, said McAfee, who was raised on a farm near Atlantic and worked as a dairy farmer by Solon and later by North English, Iowa, early in his career.

While credible witnesses are essential in a jury trial, so are fair juries.

“It’s very important to our industry to have fair juries,” said McAfee, who added that an ag nuisance case involving a swine finishing operation in Linn County is slated for a jury trial on January 24, 2022.

Protection for producers

It’s worth noting that standard farm liability policies normally don’t cover ag nuisance cases.

“You should always check with your insurance company, however, and/or an attorney as you address these issues,” McAfee said.

Environmental policies are available. These can provide coverage for ag nuisance claims, as well as coverage for legal costs and other costs of defense.

“Insurance is a contract,” McAfee said. “Carefully review the policy terms to make sure there is coverage for odor nuisance claims. Also, check with the company about their experience with nuisance cases and how the cases will be defended.”

McAfee also offered these steps to help avoid an ag nuisance lawsuit:

– Select an acceptable location, where adequate separation distances and favorable topography exists. Also consider the patterns of the prevailing winds.

– Plant tree buffers. Include existing trees, if possible, and plant fast-growing trees planted with slower growing species.

– Focus on livestock building ventilation management and options for controlling odor.

– Properly manage manure storage facilities and manure application practices.

– Keep livestock buildings and pens clean.

– Handle mortalities in a way that limits potential issues with neighbor relations. Think out of sight, out of mind. “In the nuisance cases I’ve been involved with, the handling of mortality issues is a lightning-rod issue,” McAfee said. “Pay particular attention to keeping a good cover on things.”

–“https://ogden_images.s3.amazonaws.com/www.farm-news.com/images/2021/01/05223855/Eldon-McAfee-Seth-Smith-ICA-field-day-Aug-2020-Nemaha-765×500.jpg” alt=”” width=”765″ height=”500″ class=”alignnone size-medium wp-image-543083″ /> Remain respectful of neighbors. “Do what you can to foster better neighbor relations and communication,” McAfee said.

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