Updated: Jul 9, 2020
I am continuing the right-to-farm (RTF) law series today with a comparison of Maryland’s law with other states’ RTF laws. To recap, Ashley has provided an overview of what happened pre-RTF laws. For anyone interested in a good overview of pre-RTF law court decisions by state, please send me an email and I will send you a copy. Mae Johnson has provided you with an idea of what goes into mediating an action arising under Maryland’s RTF law. By the end, hopefully you will have a better grasp on how our RTF law operates and what sets it apart from other states’ RTF laws. If there are any other topics related to RTF laws in the state that you would like to see covered, please let us know through the Contact tab.
RTF laws generally provide, to a qualifying agricultural operation, an affirmative defense to a nuisance action brought by a third party. In in order to qualify for the RTF defense in many states, the agricultural operation must be complying with existing laws and regulations, utilizing best management practices, or not been operating in a negligent manner. The rationale for this is typically that we would like operations to be running at a certain level before we offer the operation the protection which the RTF law provides.
Maryland requires that the operation be in compliance with existing federal, state, and local laws and regulations and that the operation not be conducted in a negligent manner. Similarly, Delaware requires the operation be in compliance with existing laws and not be negligently managed. Virginia, on the other hand, requires at a minimum the farm be in compliance with existing laws and regulations and utilizing best management practices, and not being operated in a negligent manner. Illinois only requires that the operation not be negligently managed in order to gain the RTF law’s protections. Maryland is in line with other states in requiring a minimum threshold be met before gaining the RTF law’s protections.
Another feature of many states’ RTF laws is providing a statutory time period when nuisance claims against the operation should be brought; after that period has run out, the operation cannot be found a nuisance. Twenty-five states, including Maryland, allow operations in business for more than 1 year the protection against nuisance lawsuits, but only if the farm is meeting the minimum requirements.
Many state courts have found this statutory period of time to be a statute of repose — a statute which bars claims after a fixed period of time. In the case of RTF laws, nuisance claims would be barred against the operation after it has been in business for 1 or more years. A Maryland court has not ruled this provision to operate as a statute of repose, but could potentially decide to do so. But this fixed period operates as a timeframe for neighbors to become aware of any issues with the new operation and bring a nuisance claim quickly. This also provides agricultural operations with peace of mind; by meeting the minimum requirements and after operating for 1 year and 1 day (more than 1 year), the operation has some protections so that their business will not be considered a nuisance.
One final feature of RTF laws would be that many provide an attorneys fee provision for winning agricultural operations. In the majority of states, this attorneys fee provision is one sided and only benefits agricultural operations. Why is that? The thought generally has been that these provisions were necessary to deter neighbors from bringing unnecessary nuisance suits with the goal of driving an agricultural operation out of business. Maryland’s RTF law has no such provision, but states such as Arkansas, Illinois, Oklahoma, and Texas do.
One feature unique to Maryland’s RTF law, as discussed by Mae Johnson, is the fact that all nuisance claims involving agriculture operations need to be mediated first before a court would have jurisdiction to hear the claim. This is a feature that benefits agricultural operations and neighbors. Both parties are brought to the table, allowed to discuss the issues being raised by the neighbor, with the farmer given an opportunity to explain their practices, and potentially both parties can agree on how to resolve the nuisance claim.
The vast majority of states does not require mediation first, but allows claims to proceed first to court. If the RTF law applies, then the lawsuit is potentially dismissed with no opportunity for the farmer and neighbor(s) to discuss how to resolve issues productively. If the goal is to provide neighbors with an opportunity to openly discuss their issues with the agricultural operator outside of court, then Maryland has a good system.
So in the end, how does Maryland’s RTF law compare with other states? Well, like most laws, it’s not perfect. Similar to many states, Maryland, at a minimum, requires that an operation be in compliance with existing laws and regulations and not be negligently managed in order to qualify for the protections afforded by the RTF law. This is a good feature because it allows law-abiding producers to qualify for the RTF law’s protections. Negligently operated farms would not qualify for RTF law protections.
Finally, Maryland’s RTF law allows neighbors a place at the table to discuss practices with the agricultural operation. This is done in an informal setting of mediation, with trained mediators whose goal is to get the parties to talk to each other, and work out a win-win solution for both the farmer and neighbor(s). This solution will probably be a better solution for the neighbor than under another state’s RTF law which wouldn’t require mediation.
Could we change the RTF law and create a better RTF law? Potentially, but that may tip the balance too much towards either agricultural or non-agricultural interests. As it stands now, compared with other states’ RTF laws, Maryland has a law which at least allows all parties a chance to be heard.
If you would like to compare states’ RTF laws for yourself, please check out the National Agricultural Law Center’s compilation of RTF laws. Please let us know if you have other questions related to RTF laws.