By Ashley Ellixson and Paul Goeringer
This post should not be construed as legal advice.
Introduction
You often present us with questions looking to strengthen Maryland’s Right-to-Farm law or one of the county right-to-farm ordinances. Sometimes the questions relate to strengthening these laws in relationship to animal husbandry practices. For example, a cattle producer may have concerns that leaving young calves outside in the cold may draw complaints from neighbors or passersby. Should the producer look towards the right-to-farm laws for protection or the animal welfare law? Let’s look at what each law covers to see what could be the best avenue for the producer in this example.
Right-to-Farm Laws
Right-to-farm laws are a hot topic in the discussion of farm protection and agricultural policy today. Some states, like Missouri, are even taking these laws to the next level by including them in their state constitution. Even though many states, or even the Federal government, have not made farming a constitutional right, there are statutory right-to-farm laws in existence. A statutory right as written into law by local, state, or national government is secondary to higher constitutional laws. Right-to-farm laws generally provide immunity from nuisance actions brought against agricultural producers as a result of conditions created by their operation as long as certain requirements, stated by the statute, are fulfilled. Even though all 50 states have enacted some variation of a right-to-farm law, most require that the agricultural operation exist prior to other land uses.
For example, Maryland’s right-to-farm law essentially says that agricultural operations must be in existence for at least one year and comply with all Federal, state, and local health, zoning, environmental, and permit regulations in order to be exempt from a nuisance action. Delaware’s right-to-farm law has similar requirements as Maryland: be in existence one year or more, and comply with applicable state and Federal laws, regulations, and permits. These laws are not absolute, however. In order to use the right-to-farm law, farmers in most states, as with Maryland and Delaware, cannot be in violation of Federal, state, or local health, zoning, or environmental regulations.
What does this mean? This means, for example, that if a farm qualifies for protection against a nuisance suit under the right-to-farm law in Maryland for being in existence for at least one year but does not have a required discharge permit, this farm would not be protected by, nor be able to use, the Maryland right-to-farm law. It would be up to the trial court, however, to determine whether the farm would win or lose the nuisance lawsuit but the farm could not use the Maryland right-to-farm law for absolute protection.
Animal Welfare Statutes
Animal welfare statutes vary from state-to-state but are criminal statutes which define what will be considered cruelty to animals (all animals, not just farm animals). Animal welfare laws often exempt customary animal husbandry practices (more on that in a minute). In Maryland, the majority of animal welfare violations will be considered misdemeanors and not felonies.
Animal welfare laws rarely define on-farm treatment of animals, although recently some state laws have expressly banned certain animal husbandry practices. For example, Arizona, California, Colorado, Florida, Maine, Michigan, Ohio, Oregon, and Rhode Island have passed bans on gestation crates used in hog production. Most states often exempt customary and normal veterinary and animal husbandry practices from animal welfare statutes. For example, Maryland’s animal welfare statute specifically excludes dehorning, castration, tail docking, and limit feeding (§ 10-603(1)). This exclusion exists because in many cases certain animal husbandry practices could be viewed as cruel to the farm animal but have valid purposes in working to manage that animal.
At the same time that the animal welfare laws exempt customary and normal animal husbandry practices, the laws typically will not exclude other acts. No person (not just agricultural producers) may overload or overwork an animal, deprive the animal of necessary sustenance, or inflict unnecessary pain or suffering on the animal.
Differences Between the Two Laws
Right-to-farm laws and animal welfare statutes are commonly confused or used interchangeably. However, as you can now see, each set of laws protects and excludes entirely different areas of agriculture. For example, right-to-farm laws protect farms from nuisance lawsuits, while animal welfare statutes protect farms from alleged criminal violations involving animal husbandry practices regularly used in the agriculture industry. Confusion may come into play since both laws do in fact offer protections for agriculture practices, but as you can now see, right-to-farm laws do not cover animal husbandry practices while animal welfare statutes do.
To clarify this difference further, let’s look at two sample cases. Neighbor Fred lives in Maryland and doesn’t like the odor that constantly crosses his deck after rainy days. He decides to sue Farmer Mike for this nuisance. Farmer Mike could use the right-to-farm law and if he meets all of the requirements, protect his farm from this lawsuit. On the other hand, Neighbor Fred does not like the fact that Farmer Mike castrates his sheep. Neighbor Fred decides to report Farmer Mike to local law enforcement. Farmer Mike could point to the animal welfare statute in Maryland as a defense to castrating sheep because it is considered a customary and normal veterinary and animal husbandry practice.
Although confusion may exist between the two laws, you can see now that they offer different and unique protections. If you have additional questions on this topic, please reach out to either of us at anewhall@umd.edu or lgoering@umd.edu.
References
Maryland Animal Welfare Statutes, Md. Code Ann., Crim Law §§ 10-601 to 10-625 (West 2015).
Maryland Right-to-Farm Statute, Md. Code Ann., Cts and Jud. Proc. § 5-403.