On February 12, 2018, the Iowa Supreme Court heard oral arguments in a case that will shape Iowa nuisance law, as it applies to animal feeding operations.
The Court will again analyze Iowa Code § 657.11, which was enacted in 1995 to protect agricultural producers “who manage their operations according to state and federal requirements from the costs of defending nuisance suits.” This will be the third time Iowa’s highest court has assessed the constitutionality of a statute protecting agricultural producers from nuisance lawsuits.
In Bormann v. Board of Supervisors, 584 N.W.2d 309 (Iowa 1998), the Court ruled that a different statute, Iowa Code § 352.11(a), was unconstitutional because it prevented landowners from seeking damages for the diminished value of their property caused by an agricultural nuisance. That statute generally provided that a farm operation located in an agricultural area “shall not be found to be a nuisance.” There were exceptions for nuisances resulting from violations to federal or state law. The Court in Bormann found that the immunity granted by the statute subjected neighboring landowners to a taking, without just compensation. The Court explained that the statute, in effect, granted an easement benefitting the agricultural operation and burdening the neighboring landowner, thus violating the Takings Clause of the Iowa and United States Constitutions.
After Bormann, the Iowa legislature modified the statute in 1998 to narrow the immunity from nuisance actions granted to agricultural producers. Specifically, Iowa Code § 657.11(2) provides that the immunity does not apply if the animal feeding operation “unreasonably and for substantial periods of time interfered with the person's comfortable use and enjoyment of the person's life or property” and the animal feeding operation failed to use “existing prudent generally accepted management practices reasonable for the operation.”
In 2004, § 657.11(2) came under fire in Gacke v. Pork Xtra, L.L.C., 684 N.W.2d 168 (Iowa 2004). In Gacke, defendants had erected two 2,000-head hog confinement buildings across the road from plaintiffs. The plaintiffs argued that the confinement operation decreased the value of their property and caused them personal injury and emotional distress. The Iowa Supreme Court first followed Bormann to rule that the statute created an easement and constituted a taking without just compensation in violation of the Iowa Constitution. The Court stated, “Whether the nuisance easement created by Iowa Code § 657.11(2) is based on a physical invasion of particulates from the confinement facilities or is viewed as an…invasion akin to the flying of aircraft over the land, it is a taking under Iowa's constitution.”
The Court then turned to the plaintiffs’ second argument that by denying property owners special damages for items such as annoyance and loss of enjoyment, the statute violated Iowa’s inalienable rights clause, Iowa Const. art. I, §1. That clause states, “All men are, by nature, free and equal, and have certain inalienable rights-among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.” The Court found that the plaintiffs' right to possess their property included their right to use and enjoy it. The Court noted that these rights are subject to reasonable regulation by the state in the exercise of its police power. The Court found that the legislature’s objective of promoting animal agriculture by protecting responsible producers from nuisance lawsuits was within the state’s police power. The Court ruled, however, that, as applied to the Gacke plaintiffs, the statute violated the inalienable rights clause. The Court reasoned that the plaintiffs bore the brunt of the undesirable impact of the statute without any corresponding benefit. As such, the court ruled that the statute was “unduly oppressive” to the plaintiffs and an unreasonable exercise of the state’s police power.
Fast forward to 2018. Since Gacke, the number of nuisance lawsuits filed against agricultural producers in Iowa has increased significantly. One plaintiff’s firm alone has had as many as 15 lawsuits pending at one time in nine different Iowa counties against agricultural operations. The lawsuits have involved hundreds of plaintiffs. One of those lawsuits is Honomichl v. Valley View Swine, the case recently heard by the Iowa Supreme Court.
The defendants in Honomichl include the owner of two animal feeding operations in Wapello County and the integrator and operator of the hogs finished in those units. The units were constructed in compliance with Iowa Department of Natural Resources permits and increased set-back requirements. The closest plaintiff to one unit is 3,527 feet away, and the closest plaintiff to the second unit is 3,802 feet away. The units began their operations in the late summer of 2013. Several months later, plaintiffs filed their initial nuisance action against the defendants. Since that time, multiple cases have been filed against these defendants and the composition of those cases has continued to change. Significantly, the plaintiffs in these cases were not seeking damages for diminished property values, only special damages for loss of use and enjoyment. The defendants sought summary judgment, arguing that Iowa Code § 657.11(2) granted them immunity from such lawsuits. The plaintiffs argued that the statute was unconstitutional, as applied to the plaintiffs. The district court sided with the plaintiffs, and the Iowa Supreme Court agreed to hear the case. The Court’s ultimate ruling will impact all pending agricultural nuisance cases in Iowa.
The defendants argue that § 657.11(2) is a valid exercise of the legislature’s police power because it protects the right to farm in Iowa by limiting economic damages available in nuisance suits. The defendants contend that “rigorous agricultural regulations” implemented since the Gacke decision, including significantly increased set-backs, have offered more protections to neighboring landowners. They argue that the inalienable rights clause “does not give Iowa farmers the ability to practice their trade without reasonable regulation imposed by the legislature any more than it gives their neighbors the rights to recover for lawful farming activity.” The defendants stress the importance of the $1.1 billion Iowa hog industry to the public and the significant burdens imposed by a “proliferation of frivolous nuisance lawsuits.” They note that Iowa Code § 657.11(2) does not prevent landowners from seeking damages for diminished value of their property at any time or for special damages if the animal feeding operation has operated in a negligent manner.
For their part, plaintiffs urge the Court to go further than it did in Gacke and declare Iowa Code § 657.11(2) unconstitutional on its face. They say that the statute violates the inalienable rights clause because it “unduly oppresses an individual’s right to use and enjoy property by denying her right to recover for an injury.” They also contend that striking the statute on its face would clarify the process and “create much needed certainty for all parties and the lower courts.” The plaintiffs argue that the changes in the regulatory framework for animal feeding operations since Gacke do not alter the constitutional analysis.
With oral arguments out of the way, the fate of the case (and many like it) is in the hands of the Iowa Supreme Court. An opinion should issue later in the year.
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