Senate Judiciary reviews S.45 changes that shift nuisance burden and limit trespass protection for farms

The Senate Judiciary Committee on May 20 reviewed S.45, legislation that would revise Chapter 195 (the state's Right-to-Farm law) to change when agricultural activities qualify for nuisance protection and to narrow some protections for farms.

Michael Green, legislative counsel, walked the committee through differences between the Senate- and House-passed texts. He said the House version retains the bill's core finding that ordinary farming activities generally should not be treated as nuisances but adds several new qualifications, including a requirement that a person asserting protection be in "good standing" with enforcement authorities and that certain concentrated animal feeding operations subject to corrective-action permitting cannot claim protection under generally accepted agricultural practices.

The committee heard that the House text removes any reference to trespass protection that had appeared in the Senate version. "There's no protection for trespass in the House-passed version," Green said. He added that the House also clarified the plaintiff's burden: a plaintiff must prove by a preponderance of the evidence that the challenged agricultural activity is not conducted in accordance with generally accepted agricultural practices (GAAP) in order to overcome the statutory nuisance protection.

Green described the new "good standing" concept introduced in the House language. Under that definition, a person conducting the agricultural activity that forms the basis of a nuisance claim would not be eligible for statutory nuisance protection if they have an active, unresolved enforcement violation that has reached a final order with the Agency of Natural Resources (ANR) or the Agency of Agriculture. "The concept here is don't reward a farmer who's engaged in bad behavior with nuisance protection for that bad behavior," Green said, adding that reaching a final order is rare: "I've only known of 2 in, like, about the last 15 years."

The committee discussed how the House language treats farms subject to federal or state corrective-action orders and permitting requirements. Green said that where applicable, a farm that requires a corrective-action permit (discussed in the hearing as a permit tied to concentrated animal feeding operations) would not be able to rely solely on the GAAP standard for nuisance protection; compliance with the corrective-action permit or other permitting regimes would be determinative.

Members also focused on wording that would allow a plaintiff to defeat nuisance protection by showing a "substantial adverse effect on health, safety, or welfare" or a "noxious and significant interference with the use and enjoyment of neighboring property." Committee members asked whether the House's "noxious and significant interference" language raises the evidentiary threshold compared with existing law. Green said the phrasing is "a step up" from the current standard and that courts would treat it as an evidence-based inquiry that could require expert and witness testimony.

Several senators questioned whether the bill would broaden protection for new or changed farm uses. Green said the bill clarifies that a farm can change its use or begin a new agricultural activity and still qualify for statutory protection, which differs from the existing law's requirement that activities typically predate neighboring uses.

Committee members noted the House version removes trespass from the statutory protections in the Senate text and restores a clause that directs courts to interpret the chapter consistent with its policy purpose (a liberal-construction clause). Mediation prior to suit remained unchanged in the House text, aside from the removal of trespass.

No formal votes or committee actions were taken during the session. Senators asked for additional information and indicated continued debate on whether the House amendments strike the right balance between protecting agricultural operations and preserving remedies for neighbors claiming health or property harms.