Farmer describes years-long nuisance suit as Agency of Agriculture backs S.45 changes to right-to-farm law

At a Judiciary Committee hearing, Hampton farmer Gerard Borstevout described more than five years of litigation with a neighboring property owner and urged lawmakers to strengthen the state’s right-to-farm protections through S.45.

Borstevout said the suit grew from complaints he said centered on tile drainage, water on the neighbor’s property, and occasional manure odor. “If farmers are doing things correctly, they should have some protection from nuisance and trespass lawsuits,” Borstevout said. He told the committee his family has spent “hundreds of thousands of dollars” defending the farm and faces a court-ordered review and potential fines if he cannot show water is no longer discharging from tile outlets.

The testimony came as Steve Collier, representing the Agency of Agriculture, told the committee the existing statute is “really poorly done” and that S.45 would be a modest but important correction. “The way that this defense was set up is that the defense has to be proven by the farmer,” Collier said, describing how the current arrangement places the initial evidentiary burden on farmers rather than on the party bringing a nuisance claim. Collier also cited recent agricultural trends he said underscore the stakes: he told the panel the number of dairy farms fell from 649 to 439 in the five years beginning in 2020, a loss he described as about 32 percent.

Why it matters: Witnesses told the committee that litigation—regardless of an eventual court ruling—poses an existential financial risk for farm operations. Borstevout said a judge’s injunction in his case turned on contested findings about whether his farm’s drainage and modern, reduced-till practices met the law’s protections. Collier warned that ambiguous statutory language forces farmers into expensive, protracted discovery and trial to prove a negative (that they are complying with required practices).

Key details from testimony

- Borstevout said his family purchased a farmstead and 1,500 acres adjacent to the neighbor’s property, then invested in manure pits, subsurface tile drainage and other improvements. He told the committee the family now farms about 2,700 acres (roughly 1,000 acres of grass and alfalfa and 1,700 acres of corn).

- The neighbor, Borstevout said, collected photos, video and drone footage over several years and later presented an expert’s critique; the neighbor sought to impose its own standards and inspections. Borstevout said the neighbor had offered to buy part of the property, negotiations failed, and litigation followed.

- Collier said the agency supports S.45’s text because it would align statutory nuisance protections with the state’s required agricultural practices (chapter 215, title 6) and pesticide rules, and shift the initial burden of proof away from farmers. He explained that required agricultural practices and pesticide rules are specific, enforceable standards that a plaintiff or court could use to narrow disputes.

- Collier said the current law asks farmers to prove they met broad, ambiguous standards (for example, compliance with unspecified federal, state or local rules and “accepted customs”), which can force farmers into costly expert-driven litigation. He said the agency can present factual findings to courts but typically does not provide the kind of conclusive expert testimony the statute currently demands of defendants.

Senate action and next steps

Collier told the committee that the Senate advanced S.45 and that the bill passed the Senate “overwhelmingly,” which he described as a 25–5 vote in his remarks. Committee members asked about practical limits and about how courts would apply standards such as “generally accepted agricultural practices.” The committee scheduled additional testimony; staff indicated Collier and agency witnesses will be asked to return for further questions.

Ending

Committee members frequently interjected with clarifying questions; several expressed concern that the current law places farmers at financial and regulatory risk. The committee will continue testimony on S.45 at a later date and invited the Agency of Agriculture to provide further detail and evidence to help the panel evaluate the bill’s language and likely effects.