Senate Judiciary reviews S.45 shifting burden in 'right to farm' disputes

The Senate Judiciary Committee reviewed S.45, a proposal to change how Vermont law treats nuisance and trespass claims against agricultural operations by shifting the burden of proof to plaintiffs and adding a mediation requirement, Legislative Counsel Mike Grady told the panel.

The bill would replace the current rebuttable presumption protecting farms with language that, when an agricultural activity is conducted "in accordance with generally accepted agricultural practices," the activity "shall not be or become a nuisance or trespass." Grady said the draft defines those practices to include state water-quality requirements, the Agency of Agriculture pesticide rule and "practices conducted in a manner consistent with proper and accepted customs and standards followed by similar operators of agricultural activities in the state." He warned the precise content of those customs would be litigated until courts develop precedent.

Grady said the change reverses the current approach in which a farmer must show conformity with multiple criteria to obtain protection; under S.45, he said, "the burden of proving by preponderance of the evidence that the ag activity is not conducted in accordance with the generally accepted agricultural practices" would rest with the plaintiff. Grady added, "This bill isn't going to prevent litigation. It's going to provide farmers more protection in litigation."

Committee members pressed for clarifications on three topics: the legal difference between nuisance and trespass, how the trespass concept would apply to agricultural practices such as drifting pesticides or subsurface tile drainage, and how the bill would interact with wastewater/manure management rules.

On nuisance versus trespass, Grady explained that "nuisance is when an activity on a property negatively affects the use and enjoyment of the property by a neighbor," commonly shown by odors, noise, runoff or other interferences. He said trespass requires a physical incursion across a boundary — for example, livestock escaping onto another parcel or pesticide drift reaching a neighbor's land — and noted that some states' right-to-farm protections cover trespass while others do not.

The committee discussed examples where generally accepted agricultural practices would apply: land application of manure according to a nutrient-management plan required by state and federal standards, pesticide applications governed by the Agency of Agriculture rules, and routine fence maintenance to prevent livestock escapes. Grady said materials or conduct that fall outside agricultural activity — for example, dumping household trash — would not qualify for protection under the statute.

Members also discussed the bill's mediation requirement. Grady said the draft requires a plaintiff bringing a nuisance or trespass action to "provide the court with a sworn statement of an intent to resolve the dispute by mediation" and that the mediation would follow the Uniform Mediation Act; mediation would be nonbinding. The draft contemplates that a sworn statement showing an effort to mediate is a precondition to filing, but Grady acknowledged committee concerns about urgent or egregious actions that might require immediate court relief and said the bill could be revised to allow the court to order a temporary cessation of the activity if an appropriate standard were articulated.

Committee members asked staff to provide additional information, including how many states include trespass in their right-to-farm protections. No formal committee vote on S.45 was recorded in the transcript.

The committee discussion will continue when the bill returns to the panel; staff indicated they would draft clarifying language on mediation exceptions and related standards.