Lawmakers Hear Testimony Opposing Expansion of Vermont's Right-to-Farm Law to Trespass

Lawmakers on the Judiciary Committee heard more than two hours of testimony on S.45, a bill that would extend Vermont's right-to-farm protections to trespass claims, with witnesses saying the change could prevent property owners from stopping physical invasions and may trigger constitutional takings claims.

The issue was illustrated repeatedly with one high-profile case, known in testimony as Airy Point, where trial exhibits and a judge's findings described subsurface drainage installed on an uphill farm that defendants say increased the volume and velocity of water onto a neighboring property, producing erosion and brown plumes that reached Lake Champlain. Merrill Bent, the attorney describing that case, told the committee the flows caused a "permanent physical invasion" of his client's land and presented trial evidence of phosphorus and E. coli in runoff.

Those facts mattered because S.45 would, for the first time in Vermont's statute, extend right-to-farm protections from nuisance claims to include trespass. That expansion, witnesses said, is doctrinally significant: nuisance addresses unreasonable interference with use and enjoyment of land, while trespass protects the owner's right to exclude others from physical invasions. Professor John Ochevarria, of the Vermont Law and Graduate School, told the committee the bill's trespass language could amount to a government authorization of physical occupation, which he said commonly gives rise to a categorical takings claim requiring compensation.

"I strongly recommend that the committee not extend the right to farm law to trespass," Ochevarria said, testifying that such a change could routinely "subject Vermont taxpayers to serious unanticipated financial liabilities" and would undermine long-held constitutional protections.

Merrill Bent, who described himself as the managing director of a Manchester, Vt., law firm and counsel for the plaintiff in the Airy Point litigation, said the trial court (Judge Mary Teachout's order) had analyzed multiple statutory elements and concluded that the farm's tile drainage system created channelization and erosion beyond normal rainfall effects. Bent said his clients sought injunctive relief, not money damages, and that his firm had offered mitigation plans developed by a Cornell expert that the farm declined to implement.

"The point is not that you can't use [tile drains]. The point is that you need to use them in a way that doesn't externalize your costs onto somebody else," Bent said.

Conservation Law Foundation staff attorney Scott Sanderson urged the committee to retain the existing balance in Vermont's right-to-farm law, saying nuisance and trespass suits against farms are "extremely rare" and that S.45 would remove tools neighbors now use when their health, safety or property are harmed. Sanderson also noted federal scrutiny of state farm oversight: he referenced an EPA notice that Vermont was failing to implement the Clean Water Act on farms and warned that expanding statutory immunities while regulatory enforcement is under question could leave harmed residents without remedy.

Committee members asked multiple procedural questions: whether S.45 would prevent parties from filing suit (witnesses agreed it would not stop filings but could shift burdens), how a pre-suit mediation requirement would affect access to courts, and whether the bill would change the scope of evidence required in discovery. Committee staff and counsel also confirmed that because the Airy Point litigation produced an injunction, an amendment to the statute could prompt a post-trial motion (a Rule 60-style equity motion) asking a court to revisit relief based on a change in the law.

Witnesses who oppose the trespass expansion framed their argument around three points: (1) trespass is qualitatively different from nuisance because it protects the right to exclude and so raises takings issues if the state prevents enforcement; (2) the factual record in the Airy Point case, while compelling, is an outlier and does not demonstrate a widespread problem that requires statutory immunity; and (3) adding trespass to the statute would reduce neighbors' ability to seek timely injunctive relief to stop ongoing physical invasions, especially where regulatory enforcement is incomplete.

Proponents of updating right-to-farm law were not represented in the portion of the hearing covered by this transcript. Committee members said they would hold further hearings, plan to consult legislative counsel, and expected additional witnesses in later sessions.

For now, the Judiciary Committee scheduled follow-up testimony next week and signaled further technical work on S.45's drafting and the interplay between statutory changes and pending court proceedings.