This is not a substitute for legal advice. See here for the site’s reposting policy.
As I have written in the past, right-to-farm laws provide a defense to a nuisance suit. Although I hope none of you will ever need to use this defense, it is worth taking a moment to consider proactive steps you could be taking to develop a record demonstrating you meet the defense requirements. Such actions may include developing written policies, keeping written records, considering new technology, and working with your neighbors. Each of these is a way to help demonstrate you meet the requirements for using the right-to-farm law defense.
Develop Written Policies
Developing written policies and procedures for handling regular work is always recommended for a farm operation. Along with the policies and procedures, create checklists to help employees and yourself understand what needs to be done to complete that regular work on the operation. If the operation has a permit, ensure these policies, procedures, and checklists align with the permit.
For example, let’s consider yours is a poultry operation that includes a cropping operation. If poultry litter will be applied on the cropland, develop policies and procedures around how to land applications will take place in line with state permits. These policies and practices create checklists of what should be completed every time before a land application occurs. Doing all of this will help keep long-term employees, new employees, and even you informed of what should be done each time and potentially prevent you from cutting corners.
Keep Good Written Records
Many of you are probably already required to keep records of when applications of nutrients occur based on state law. If you are not, this is something you should consider. If there is a lawsuit, written records will help a jury understand what you are doing on the operation. Written records can often help demonstrate that you are following the law, nutrient management plan, or permit and help you build a stronger case that your operation is not a nuisance. Lack of records, especially in those states which do not require them, could cause a jury or others to believe you have something to hide, such as over-applying nutrients or not following your established practices.
Consider New Technology
It would help if you considered keeping up with the latest technology. Technology does cost money, so think about what will work best for your operation. And when considering technology, think about existing issues on your operation. Are you concerned about neighbors complaining about odors from your farm? Consider researching the issue to see what technology could be utilized and why it may or may not work for your operation. Keep records of your final decision regarding the technology. The records will allow you to demonstrate down the road your decision-making process.
Talk to Your Neighbors
Reach out to your neighbors and tell them to contact you if they have concerns. If the concerns are odors, communicate with them about days you will apply nutrients to prevent the odors impacting a family gathering the neighbor might have planned. If the neighbors have concerns about what is going on with the operation, utilize information from Extension or the appropriate state agencies to show that the operation is operating within the law.
No one can prevent a lawsuit, but taking proactive steps can ensure you have developed records that could help the operation demonstrate that the right-to-farm law applies. For more information, see this fact sheet covering Maryland’s right-to-farm law (https://go.umd.edu/RTFMD), this fact sheet covering agricultural mediation programs (https://go.umd.edu/AgMediation), and finally, this fact sheet covering other legal risk management strategies (http://go.umd.edu/Liability).