Updated: Apr 7, 2021
This post should not be intended as legal advice. See here for the site’s reposting policy.
I realize Wisconsin is a long way from Maryland (though we are in the Big 10 together now!). But a recent Wisconsin Court of Appeals decision highlights issues that can arise when cities try to regulate agricultural practices. The town of Trempealeau, WI adopted an ordinance requiring anyone wishing to use a scare gun within the town limits to obtain a permit. To receive the permit, the applicant had to agree to certain conditions:
Only use the guns between 6 am and 8 pm and between July 1 and October 1;
Could not operate within 300 feet of a residence (unless written permission was obtained from the resident); and
Use at a 45 degree from the property line.
Mr. Klein had traditionally used scare guns to keep birds from destroying his corn crop. Klein received a permit but was cited for discharging at an angle under 45 degrees from the neighboring property line. He challenged the citation for a number of reasons, including that the ordinance was preempted by Wisconsin’s right-to-farm law.
Klein’s family had used scare guns on the property since 1962 and the neighbor complaining about the use had moved in 2011. The family had used scare guns on the property to reduce damage from birds and had yield histories to show that scare guns did reduce damage.
From the city’s perspective, residents had petitioned the town to limit the use of scare guns. Based on input from experts, the town had set the use of scare guns based on when birds were likely to do the most damage to corn. The town had limited scare gun use to the times of day when birds are likely to be eating and set the required angle based on input from farmers in the area.
Without going into specifics on Wisconsin’s Right-to-Farm law, Klein’s argument was that before the town could regulate the use, the town was required to prove that use of scare guns is a nuisance. Klein also argued that the state’s right-to-farm law preempted the scare gun ordinance. The court of appeals disagreed with Klein on both counts.
Looking at the first argument, the court held that the right-to-farm law only applies in nuisance suits and does not create a standard for towns to first find a practice to be a nuisance before regulating. With the second argument, the court held that the right-to-farm law only applied in nuisance lawsuits and did not limit local power to regulate agricultural practices. The ordinance actually is designed to help protect farmers from nuisance lawsuits and is consistent with the right-to-farm law.
Practices such as using scare guns are valid in agriculture but can cause issues with neighboring landowners. From the facts in the case, the town took the time to determine from experts when the use of scare guns should be utilized to protect producers’ crops and to minimize disturbances to neighbors. In the court’s mind, this was exactly what right-to-farm laws encourage, the town’s developing ordinances that allow agricultural practices while limiting disturbances to neighbors who may bring a nuisance suit.
This case also highlights what Ashley and I have each posted on over the past year: right-to-farm laws are limited in scope, and they only protect producers against nuisance suits. Right-to-farm laws will not always protect against actions that limit agricultural practices.
For additional information on right-to-farm laws, click on the right-to-farm tag below. You can also check out this publication by Lori Lynch and myself: Understanding Agricultural Liability: Maryland’s Right-to-Farm Law.