Senate committee weighs S.45 to expand "right-to-farm" protections, adds mediation requirement

Senate Judiciary Committee members and witnesses on Feb. 13 discussed S.45, a proposal to strengthen Vermont's "right-to-farm" protections by limiting certain nuisance and trespass suits against agricultural operations and adding a required mediation step before litigation.

The bill sponsor, Senator Douglas, described the measure as aimed at "provid[ing] civil litigation protection for farmers when they are operating in a normal fashion," saying the change would give farmers "peace of mind" and help keep smaller farms from bankruptcy. He and other supporters said Vermont's current law is weaker than statutes in states such as Kentucky, Michigan and Oregon.

The bill would widen statutory protections for agricultural activities conducted in conformity with applicable permits, accepted practices and state water-quality requirements, and would require a complainant to attempt state mediation before filing suit. Michael Grady, interim legislative counsel, told the committee that many other states provide broader, sometimes near‑absolute, protections for farms — citing examples in Kentucky, Michigan and Oregon where compliance with customary agricultural practices or zoning often bars nuisance or trespass claims.

Plaintiff‑side attorney Adam Negrasse (Association for Justice) cautioned the committee that the proposal ‘‘jumps to, if you follow these practices, as a matter of law, you can't be questioned’’ and flagged two concerns: (1) the bill's expansion to trespass claims (for example, where material or pollution from a farm crosses a property line), and (2) the potential for closing courthouse access where fact‑specific disputes would otherwise be resolved by judges or juries.

Committee members pressed witnesses on several implementation points. Witnesses and counsel said: - Mediation is required under S.45 before a nuisance suit proceeds, but the bill does not specify who pays mediator fees or the exact mechanics of cost‑sharing. That detail was "not specified" during the hearing. - The bill uses language protecting agricultural activities that are "conducted in a manner consistent with proper and accepted customs and standards followed by similar operators." Several speakers said that standard is intentionally broad and typically would be resolved in litigation with competing expert testimony; a judge or jury would ultimately decide whether particular acts met that standard. - State water‑quality requirements and permits (referred to in testimony as the state's nutrient management and related rules, including a "5 90" plan referenced in the hearing) remain a key threshold: compliance with such regulatory requirements was described as one factor that weighs toward protection.

Members also discussed what counts as a "farm" or "agricultural activity." Testimony noted existing statutory definitions and regulatory thresholds — such as livestock counts or producing $2,000 or more in agricultural sales from a property — that can trigger regulatory oversight. Committee members raised examples including small backyard operations and the possibility that a change of operations (for example, adding a packing operation or new equipment) could alter whether an activity is protected.

Speakers used local court cases to illustrate consequences. Counsel described an Addison County case (referred to in testimony as Tricuts v. Fox) in which subsurface tile drainage increased flow into a neighbor's stream and was treated as a trespass in the court's ruling; witnesses said S.45 would reduce or remove that avenue of civil recovery where similar conduct met the bill's protections. Witnesses also noted the historical caution that Vermont's current law was shaped in part to avoid takings litigation that arose under earlier versions of other states' statutes.

Committee members asked the legislative team to consider clarifying: who bears mediation costs, how the bill treats trespass versus nuisance claims, precise definitions of protected agricultural activities, and whether local zoning or a farm's location should affect statutory protections. Several members suggested inviting the Agency of Agriculture or its general counsel as a witness to address on‑the‑ground regulatory thresholds and enforcement practices.

The committee did not take formal action on S.45 at the hearing. Members said they remain open to further work on the bill and to hearing both environmental advocates and farm representatives at a future meeting.