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Stricter ‘Right to Farm’ proposal called a ‘solution searching for a problem’

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Stricter ‘Right to Farm’ proposal called a ‘solution searching for a problem’

Testifiers say it favors Costco and other out-of-state corporations at the expense of rural Nebraskans’ rights

BY: PAUL HAMMEL – FEBRUARY 14, 2023

Two complexes of 12 chicken barns each are visible across a farm field in Butler County. The barns, which hold more than 47,000 chickens each, raise broilers that end up as Costco rotisserie chicken. (Paul Hammel/Nebraska Examiner)

LINCOLN — A proposal to further limit nuisance lawsuits against large agricultural operations was criticized over and over Tuesday as nullifying all such lawsuits and as a “solution in search of a problem.”

“There is not a nuisance lawsuit problem in Nebraska,” said Lincoln attorney Jonathan Urbom.

He and others testified that Legislative Bill 662, a tightening up of the state’s Right to Farm Act, would “immunize” agricultural operations from virtually all nuisance lawsuits.

Testifiers told members of the Legislature’s Agriculture Committee that they were aware of no nuisance lawsuits being filed against farming operations since the last time the Right to Farm Act was amended in 2019.

Susanne Haas, a lawyer and farmer from Washington County, testified against changes to the state’s Right to Farm Act. (Paul Hammel/Nebraska Examiner)

“LB 662 does not protect family farmers, it protects industrial entities like Costco,” said Susanne Haas, a lawyer and farmer from Washington County, who testified with a baby in her lap.

The bill was introduced by State Sen. Beau Ballard of Lincoln, in conjunction with Lincoln Premium Poultry, which operates the plant in Fremont that processes chickens that Costco raises, through contracts, at dozens of farms across eastern Nebraska and western Iowa.

‘Preventative measure’

Ballard described his bill as a “preventative measure” that would prevent nuisance lawsuits from out-of-state entities that have plagued large livestock confinement operations in other states, citing North Carolina, Kansas and Iowa.

State Sen. Beau Ballard of Lincoln (Zach Wendling/Nebraska Examiner)

“Agriculture is our number one economic driver and we need to protect it,” Ballard said.

National headlines were generated in 2018 after a federal judge awarded $50 million to 10 residents living near a huge hog farms run by a subsidiary of Smithfield Farms. The residents had sued, claiming that stench and flies from the hog sites were an unbearable nuisance.

In response, North Carolina passed a “Right to Farm” bill in 2018 that is nearly identical to the proposal in Nebraska.

LB 662 would limit nuisance lawsuits by:

  • Requiring that only those living within a half a mile of a farm can file such a lawsuit.
  • Limit lawsuits to only the “majority” owner of nearby properties, thus eliminating renters or minority owners.
  • Reducing the statute of limitations from filing a nuisance suit from two years to one.
  • Disqualifying lawsuits if an operation was in “material compliance” with existing laws and was operating in a manner “consistent with commonly accepted” practices (which critics said was vague).
  • Blocking lawsuits in the event of a change in ownership, increase in size or change in farming operations.

That last clause, according to Nebraska College of Law Professor Anthony Shutz, would bar a lawsuit if a farmer switched from growing corn and beans to raising “10 thousand head of fat hogs next to you with a lagoon.”

Goes too far

“That goes a little far,” Schutz said.

Jonathan Leo, an environmental lawyer based in Omaha, testified that LB 662 would severely limit a landowner’s rights to file a nuisance lawsuit. (Paul Hammel/Nebraska Examiner)

Nebraska’s Right to Farm Act was initially passed to protect existing farming operations from lawsuits filed by “city slickers” who moved in next door to discover that farming generates dust and odors.

But some rural landowners testified Tuesday that it was industrial farms that were encroaching on their homes in rural areas and that the bill violated their constitutional right to defend their fresh air and clean water.

‘Anti-American’

“This isn’t just anti-Nebraskan, it’s anti-American,” said Nancy Meyer of rural Saunders County, who complained of an “eye-burning stench” from a nearby chicken farm and the need to install a reverse-osmosis system to remove nitrates from their well water.

Al Davis of the Sierra Club of Nebraska said that offensive odors can travel three to seven miles away. Other opponents of LB 662 said it can take years for a nuisance to develop, such as contamination of drinking water.

Testifying in support of the bill were representatives of Lincoln Premium Poultry and the Nebraska Farm Bureau.

Jessica Kolterman of Lincoln Premium Poultry, which processes chickens in Fremont for Costco, said that Nebraska’s current Right to Farm Act doesn’t adequately protect ag producers from nuisance lawsuits, so LB 662 is needed.

Ag under attack

Kolterman said agriculture is under attack from various forces, including those who want to ban meat to those who don’t understand agriculture.

She said the farmers who contract to grow chickens for Costco must follow standards that ensure environmental stewardship and animal welfare. They can lose their contracts if they don’t comply, she said.

But John Hansen of the Nebraska Farmers Union, who opposed LB 662, said the chicken firm had broken its promise to hire only family farmers to grow their broilers.

According to a 2019 report by the website Food & Power, at least 132 of 520 chicken barns expected to be built in Nebraska to supply Costco are owned by one North Carolina private equity firm, led by Jody Murphey.

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PAUL HAMMEL

Senior Reporter Paul Hammel has covered the Nebraska Legislature and Nebraska state government for decades. He started his career reporting for the Omaha Sun and later, editing the Papillion Times group in suburban Omaha. He joined the Lincoln Journal-Star as a sports enterprise reporter, and then a roving reporter covering southeast Nebraska. In 1990, he was hired by the Omaha World-Herald as a legislative reporter. Later, for 15 years, he roamed the state covering all kinds of news and feature stories. In the past decade, he served as chief of the Lincoln Bureau and enterprise reporter. Paul has won awards for reporting from Great Plains Journalism, the Associated Press, Nebraska Newspaper Association and Suburban Newspapers of America. A native of Ralston, Nebraska, he is vice president of the John G. Neihardt Foundation, a member of the Nebraska Hop Growers and a volunteer caretaker of Irvingdale Park in Lincoln.