Iowa Supreme Court Overrules Key Ag Nuisance Case

On June 30, 2022, the Iowa Supreme Court, in a 4-3 decision, overruled 18-year-old precedent to find that Iowa’s right to farm statute, Iowa Code § 657.11, does not violate the inalienable rights clause of the Iowa Constitution. This decision generally restores statutory immunity from nuisance lawsuits seeking special damages for many animal feeding operations. Garrison v. New Fashion Pork LLP, No. 21–0652 (Iowa 2022).

Facts

Since 1972, the plaintiff owned 300 acres of farmland in northern Iowa. He lived on the property and raised up to 1,000 head of sheep on this land for many years. As part of his farming operation, the plaintiff maintained a manure compost pile. The plaintiff and his family also owned and rented an additional 620 acres upon which the renters sometimes applied manure.

In 2015, New Fashion Pork (NFP), one of the defendants, started operating a CAFO one-half mile from the plaintiff’s property. The CAFO was permitted to hold 4,400 to 8,800 hogs, depending upon their weight. The other defendant, BWT Holdings, is a subsidiary of NFP that disposes of manure on property adjacent to the plaintiff’s property.

From 2016 to 2020, the plaintiff began documenting the number of days he could smell the CAFO from his property. He estimated that he could smell the odor more than 100 days of the year, sometimes all day. He alleged that the odor interfered with his enjoyment of working outdoors, going on walks around his property, and his sleep. To reduce the odor, NFP took several steps, such as adjusting the placement of pit fans and installing a first-of-its-kind electrostatic precipitating fence. The plaintiff also took regular water samples from a stream crossing his property in an attempt to demonstrate rising nitrate levels.

Federal and State Lawsuits

In 2018, the plaintiff filed a federal lawsuit against the defendants, alleging violations of the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and multiple state laws. The district court granted summary judgment for the defendants, finding that the plaintiff had shown no “genuine issue of material fact as to any current and ongoing violations of RCRA and the CWA.” Having dismissed the federal claims, the court refused to exercise supplemental jurisdiction over the plaintiff’s state law nuisance, trespass, and drainage claims. In 2020, the plaintiff filed a state court action in Emmet County asserting these claims.

The state trial court granted summary judgment to the defendants on all claims. The court found that the plaintiff failed to raise a genuine issue of material fact to support the trespass and drainage claims. Without expert testimony tying the defendants’ alleged misapplication or over-application of manure to the nitrate levels in the plaintiff’s stream, the court ruled that the plaintiff could not meet his burden to prove that any trespass or drainage violation caused any injury. The plaintiff also failed to produce any evidence to show that his property was damaged by increased drainage or excess nitrate.

The trial court next held an evidentiary hearing to apply the three-part “Gacke test.” After the hearing, the court determined that the statutory immunity afforded by Iowa Code § 657.11(2), (5) was constitutional, as applied to the plaintiff because the plaintiff himself received “some benefit” from the statute. The plaintiff appealed, and the Iowa Supreme Court retained the appeal.

Supreme Court Decision

On appeal, the Iowa Supreme Court affirmed the summary judgment[1] in favor of the defendants. The Court then went a step further to transform Iowa nuisance law by overruling Gacke v. Pork Xtra, L.L.C.’s controversial three-part test under the inalienable rights clause, article I, section 1 of the Iowa Constitution. 684 N.W.2d 168, 177–79 (Iowa 2004).

Legal Background

Iowa Code § 657.11(2), the immunity statute at issue, states that an animal feeding operation “shall not be found to be a public or private nuisance” and “shall not be found to interfere with another person’s comfortable use and enjoyment of the person’s life or property under any other cause of action.” The statute, however, provides that this immunity does not apply if the plaintiff proves that his or her injury is caused by:

• The failure of the defendant to comply with a federal  or state statute, regulation, or rule OR
• Both of the following: (1) The animal feeding operation unreasonably and for substantial periods of time interfered with the person’s comfortable use and enjoyment of life or property AND (2) The animal feeding operation failed to use existing prudent generally accepted management practices reasonable for the operation

The Iowa Legislature passed Iowa Code § 657.11 in 1995 to protect agricultural producers “who manage their operations according to state and federal requirements from the costs of defending nuisance suits.” In 2004, the Iowa Supreme Court declared Iowa Code § 657.11(2) unconstitutional, as applied to plaintiffs living across the road from two hog confinements.  In Gacke,[2] the Court considered the plaintiffs’ argument that by denying property owners special damages for items such as annoyance and loss of enjoyment, § 657.11(2) violated Iowa’s inalienable rights clause, Iowa Const. art. I, §1, which 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 first determined that the law was a valid exercise of the state police power, even though individual producers, and not the public, were the direct beneficiaries of the statutory immunity. The law was in the public interest, the Court determined, because of the important role animal agriculture plays in the overall Iowa economy.

The Gacke Court then found, however, that to survive an inalienable rights clause challenge, this statutory immunity must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. To make this determination, the Court fashioned a novel three-part test. The Court held that Iowa Code § 657.11(2) would violate the inalienable rights clause, as applied to specific plaintiffs, if the plaintiffs could show that they:

• Received no particular benefit from the nuisance immunity granted to their neighbors other than that inuring to the public in general,
• Sustained significant hardship, AND
• Resided on their property long before any animal operation was commenced on neighboring land and had spent considerable sums of money in improvements to their property prior to construction of the defendant’s facilities.

In the wake of Gacke, every district court faced with the question determined that § 657.11(2) was unconstitutional “as applied” to specific plaintiffs. Relying on Gacke, these courts did not engage in extensive fact-finding or consider facts or changes to the regulatory scheme governing CAFOs since Gacke. Rather, the courts summarily declared the immunity statute unconstitutional, as applied.

Then, in 2018, another case came before the Iowa Supreme Court. In Honomichl v. Valley View Swine, LLC, 914 N.W.2d 223, 235–36 (Iowa 2018), the Court again considered the propriety of Gacke.  In Honomichl, the Court rejected the plaintiffs’ request to declare the immunity statute unconstitutional on its face, but also declined the defendants’ invitation to overrule Gacke. Instead, the Court reaffirmed, but reshaped, the application of the Gacke test. The Court ruled that plaintiffs must demonstrate that they meet all three prongs of the test and that because this was an “inherently fact-specific” inquiry, that proof would generally require a trial on the merits, or at least an evidentiary pretrial hearing.

Relying on Honomichl, the trial court in New Fashion Pork held an evidentiary hearing before ruling that statutory immunity was constitutional, as applied to the plaintiff. Specifically, the court found that the plaintiff, as a livestock producer, also received a particular benefit from the immunity statute.

Majority Opinion

It is against this backdrop that on June 30, 2022, the Iowa Supreme Court reached its 4-3 decision to overrule Gacke’s long-standing three-part test.  Writing for the majority, Justice Waterman urged that Gacke was an “outlier” as compared to other Iowa decisions and decisions from other states. The Court noted that all 50 states have right-to-farm laws that provide farmers with various forms of statutory immunity from nuisance claims similar to Iowa Code § 657.11(2).  Iowa, the Court stated, is the “only state to hold that the statutory immunity available under its right-to-farm law is unconstitutional in any manner.”

The Court went on to explain that this appeal itself demonstrated that the three-part test, “created out of ‘whole cloth,’” merely engenders unnecessary litigation and is difficult to administer. The Court noted that neither Gacke nor Honomichl cited authority to support the Gacke framework. The Court argued that Gacke was wrongly decided because prior and subsequent Supreme Court decisions have made clear that challenges under the inalienable rights clause to regulatory statutes must be adjudicated under the highly deferential rational basis test. Courts are to “give the legislature the deference it is due under the Iowa Constitution.” Statutes, the Court continued, are cloaked with a presumption of constitutionality. The Court stated that Gacke erred by “flouting our traditional deferential review of legislation affecting tort law and property rights.” For these reasons, the Court overruled Gacke’s three-part test under the inalienable rights clause and instead applied rational basis review.[3]

The Court explained that to adjudicate claims under Iowa’s inalienable rights clause, when no fundamental right or suspect class is at issue, courts should apply rational basis review to decide if there is a reasonable fit between the means used to advance the government interest and the interest itself. Here, the Court reasoned that protecting and promoting livestock production is a legitimate state interest, and granting partial immunity from nuisance suits is a proper means to that end.

The Court noted that the statute did not eliminate a plaintiff’s right to recover under a nuisance lawsuit altogether. Rather, neighboring property owners could recover for nuisance if the damage resulted from a CAFO’s failure to comply with a federal or state statute or regulation. They could also recover if the CAFO “unreasonably and for substantial periods of time interferes” with the plaintiff’s use of their property and the CAFO “failed to use existing prudent generally accepted management practices reasonable for the operation.” Additionally, the Court noted that this decision did not alter a plaintiff’s ability to recover for diminution in property value under a takings theory.

The Court further explained, “Balancing the competing interests of CAFO operators and their neighbors is a quintessentially legislative function involving policy choices our constitution places with the elected branches.” Voters may correct improvident decisions, the Court noted, through the democratic process. For these reasons, the Court ruled that Iowa Code § 657.11 survived rational basis review. As such, the defendants were entitled to statutory immunity, and the trial court correctly granted summary judgment to the defendants as to the nuisance claims. The Court also agreed that the district court properly granted summary judgment to the defendants on the drainage and trespass claims because the plaintiff had produced no evidence showing that any drainage or trespass violations caused damage to the plaintiff.   

Concurring Opinion

Justice Mansfield concurred in the judgment, but wrote separately to challenge the arguments of the dissenters. Specifically, he explained that common law did not provide individuals with rights that could not be changed by legislation. Rather, he stated that where common law and statutory law diverge, common law gives way to statutory law. The legislature has the authority, he argued, to change common law, and that is what it did with the immunity statute at issue in this case. Gacke, Justice Mansfield argued, improperly abandoned the prescribed rational basis review applicable to such exercises of legislative authority. The three-part test, he remarked, was something a “philosopher king might devise.” It had no limiting principle and bore no resemblance to a proper rational basis review.

Dissenting Opinions

Justice Appel and Justice McDonald wrote separate dissenting opinions. Justice Appel argued that overruling Gacke was inconsistent with stare decisis. He urged, “Oppression of a property owner like that which results from the operation of the immunity statute in this case should not be permitted because it invades the property interest protected by article I, section 1 of the Iowa Constitution.”  Justice Appel also disagreed that Iowa’s Gacke approach was an outlier. He distinguished the cases from other states and quipped, “The musings of the intermediate appellate court on these issues are mildly interesting but irrelevant to the application of a declaration of rights provision such as that contained in article I, section 1 of the Iowa Constitution to a statutory immunity issue.”

Justice McDonald’s dissent focused on the harm caused to neighbors by animal agriculture. He stated, “The keeping or production of animals that pollute the air is the prototypical infringement of private property by nuisance.” He continued, “When the legislature exercises its police powers to allow one person to profit by damaging, degrading, and destroying the property and property rights of another, the legislature has exceeded its constitutional authority.” He suggested that Iowa’s nuisance precedent was an outlier because Iowa’s statutory immunity statute “is an extreme deprivation of rights not even attempted in other jurisdictions.” He argued that the Iowa statute was per se unduly oppressive under the Gacke three-part test and per se unconstitutional.

Conclusion

This decision removes the necessity for a pre-trial “trial” in nuisance cases where the plaintiffs seek special damages. It should therefore reduce litigation expenses for plaintiffs and defendants alike. It does not remove a plaintiff’s right to damages if they can show that the defendants violated state or federal law or did not apply generally accepted management practices, leading to unreasonable and substantial interference with the plaintiff’s use and enjoyment of property. Additionally, New Fashion Pork does not change the portion of Gacke clarifying that statutory immunity is unconstitutional if it prevents property owners subjected to a nuisance from recovering damages for the diminution in value of their property. That question was not before the Court because the plaintiff did not preserve his right to review.