• Paul Goeringer

Right-to-Farm Law Does Not Protect Landowner From Nuisance Caused by Septage Lagoons

Updated: Jun 29


Cabbage field in Alaska with people out working in the fields and mountains in the background. Image by Sarah Hurst via flickr.com

The article is not a substitute for legal advice. See here for the site’s reposting policy.


Today, I want to highlight a recent right-to-farm law decision out of Alaska. The Supreme Court of Alaska, in Riddle v. Lanser, held that the state’s right-to-farm law did not protect a landowner storing septage on agricultural property. Many readers might be thinking this is a bad time for right-to-farm laws, especially after a recent jury verdict involving a North Carolina hog farm, but this Alaskan case highlights the fact that right-to-farm laws do not protect those not really involved in agriculture before becoming a “nuisance.”


Background

Robert Riddle bought 500-plus acres of farmland near Fairbanks, Alaska in 2005. After the purchase, he began to clear the property, put fences up, established roads, and began to use the farmland for livestock and to grow potatoes, oats, hay, and wheat. At the same time, Riddle owned a company which pumped private septic tanks in Alaska. On the farmland, Riddle put in five septage lagoons to store septage from this other business.

To apply the septage onto the farmland, Riddle had to receive the proper federal, state, and local approvals. In applying for these approvals, he agreed to use certain practices to limit odors being released and impacting neighbors. Riddle also was granted a conditional use permit by his local borough allowing him to apply biosolids, but the permit required that the primary use of the farmland had to be agricultural so the biosolids could only support the agricultural use. Around 2010, Riddle began to accept additional septage on the farmland from another company. In 2011, he sought approval to construct additional septage storage on the farmland but did not disclose that he already had storage on the property. In getting approval for the additional storage, Riddle agreed the use of septage had to support the primary agricultural use.

In 2007, Eric Lanser subdivided a property neighboring Riddle’s farmland. He had expressed concerns at the hearing granting Riddle the conditional use permit. Around 2010, Lanser began to ask Riddle to control odors coming from the septage lagoons. Lanser and other neighbors began to report Riddle’s farmland for odors to state agricultural officials.


Farm in Alaska showing a cabless Ford tractor. Image by Sarah Hurst via flickr.com

In 2011, Lanser sued Riddle in state court along with the state department of agriculture. The 2013 trial court determined it was unclear how much septage Riddle had stored on the property because he had not kept records. The court did know, however, that Riddle had taken in around 9.8 million gallons of septage from another septage company from 2010-2012.

At trial, it was determined Riddle had not begun to apply the biosolids to his farmland till 2010; he had been storing biosolids from 2005-2010 on the property. Riddle argued he had to wait till 2010 because he needed to accumulate enough biosolid to apply to his farmland and that weather conditions had prevented his ability to apply biosolids. The trial court also determined that Riddle was violating his permits by composting septage on the farmland, and that the smells intensified in 2010 when Riddle began to accept additional septage.

The trial court determined that Lanser proved that Riddle’s septage lagoons were a private nuisance. According to the court, Riddle knew this odor would interfere with neighbors’ uses and enjoyment of their properties because he admitted this during the permitting process and agreed to take certain steps to prevent odors — all steps he had failed to actually take.

Finally, the trial court concluded that Riddle was not shielded by the right-to-farm law since the property was not an agricultural facility. According to the court, Riddle had never sold a crop nor received income from farming. To the court, Riddle was more of a hobby farmer than an actual farmer. The lagoons were not operated in conjunction or incident to the farming activity. The court pointed out that while at some point the lagoons might operate in conjunction to a farming activity, the right-to-farm law protects current farming activities which become nuisances, not future activities. Riddle was ordered to abate the nuisance, which he appealed.


Supreme Court of Alaska Decision

On appeal, Riddle argued the lagoons were not a nuisance, and even if they were, the right-to-farm law provided a defense. The supreme court determined that the trial court had not been wrong in finding the lagoons to be a nuisance. There was testimony to show the impact of the smells from Lanser’s lagoons. It was the storage that caused the nuisance and not the application of biosolids, according to the court.

The supreme court agreed with the trial court about the right-to-farm defense. Evidence showed that Riddle had not intended to use the septage as fertilizers until the lagoons became a nuisance and Lanser began to complain about the odors. Right-to-farm laws, according to the court, are not intended to provide defenses in situations like this: Riddle had no intent to use the septage in a commercial agricultural capacity till the lagoons became a nuisance.

To be protected by the right-to-farm law, Riddle would have needed to be applying the stored septage on the farmland as a biosolid fertilizer from the beginning, and attempting to produce a crop. Right-to-farm laws protect established agricultural activities which were not nuisances when established but then became a nuisance. Here, Riddle tried to turn a nuisance into an agricultural activity. Riddle tried to argue that former farming activities he did back when he bought the farmland should shield him, but again the problem was Riddle never used the lagoons as a part of this agricultural activity. The supreme court affirmed the decision of the trial court that the lagoons were a nuisance and the right-to-farm law did not provide a defense to Riddle.

Why Care?


Field of broccoli by Travis via flickr.com

This case highlights when a right-to-farm law might not apply to related agricultural activities. As the court highlights, this case would have been different if Riddle had farmed the property and used the stored septage as fertilizer from the start. Both courts seem to be saying that if Riddle had only been using the stored biosolids in conjunction with a farming operation, he could have used the right-to-farm law as a defense.

The other issue this case highlights is the need to follow your permits and not to lie to government officials on permit applications. Riddle had told the officials one thing on his application and then done another thing. He claimed to be putting in processes to control odors but he had not. He had been permitted to store septage on the property as a secondary activity to the agricultural activities.

Finally, he failed to disclose that he already had septage lagoons on the property when he sought to build additional septage lagoons in 2010. Both courts point out that even if Riddle could get in compliance, the regulators might not believe him since he had been less than truthful over the years. In a state like Maryland, this alone would have sunk Riddle’s chances of using the right-to-farm law as a defense to a nuisance suit. Maryland’s right-to-farm law requires you to comply with all applicable federal, state, and local laws, permits, and ordinances.

The takeaway point: farmers need to pay attention to the language in the right-to-farm laws to make sure their farm can actually use the law as a defense in a possible nuisance suit. Understanding how the law operates can save you finding yourself in Riddle’s situation. To learn more about Maryland’s law, see https://go.umd.edu/RTFMD.

References

Riddle v. Lanser, 2018 WL 1661600, No. S-15780 (Alaska April 6, 2018).

#righttofarmlaw #lagoons #RighttoFarm #Alaska #septage

COPYRIGHT © 2014 - 2020.  BEFORE REPOSTING ANY ARTICLE, LOOK AT OUR REPOSTING POLICY, SEE ABOUT PAGE.

University programs, activities, and facilities are available to all without regard to race, color, sex, gender identity or expression, sexual orientation, marital status, age, national origin, political affiliation, physical or mental disability, religion, protected veteran status, genetic information, personal appearance, or any other legally protected class. If you need a reasonable accommodation to participate in any event or activity, please contact lgoering@umd.edu