August 2014
Link to Text of Amendment
Introduction
In August 2014, Missouri adopted its latest Amendment to its
Bill of Rights, Article I, §35, known as the "Right to Farm." It
reads as follows:
That agriculture which provides
food, energy, health benefits, and security is the foundation and stabilizing
force of Missouri's economy. To protect this vital sector of Missouri's
economy, the right of farmers and ranchers to engage in farming and ranching
practices shall be forever guaranteed in this state, subject to duly authorized
powers, if any, conferred by article VI of the Constitution of Missouri.[1]
This amendment was put to vote on August 5, 2014, and passed
with 50.12% of the votes,[2] a
surprisingly low margin. It was
introduced on the ballot by House Joint Resolution Nos. 11 and 7 and sponsored
by Representative Bill Reiboldt in the Missouri House of Representatives.[3]
Legal Background
Missouri's Right to Farm Amendment has no previous versions,
specifically, but has statutory precursors. During the 1970s and 1980s, many
states passed similar statutory laws in response to social and demographic
shifts away from agricultural to more urban- and suburban-based populations,
and these became known as "right-to-farm" laws.[4] Missouri adopted such a law in 1982, RSMo.
§535.295. The main purpose behind these laws was to allow agricultural
operations and businesses protections from nuisance suits that had been on the
rise at the time.[5] These laws gave protections to unavoidable
consequences of agriculture, such as noise, odors, flies, dust, slow machinery
on the roads, and spraying of chemicals.
Missouri's previous right-to-farm bill provided that no
agricultural operation would be deemed a nuisance as long as it was in
operation for more than a year and it was not a nuisance at the beginning of
its operation.[6] Unlike the new amendment's broad and
ambiguous language, § 535.295 is more defined and limited in scope. For
example, the statute allows for expansion of current agricultural operations
and retention of its non-nuisance status as long as it is
"reasonable" and does not "create substantially adverse effect
upon the environment" or create public safety hazards or undue pollution
pressure on neighbors.[7] Additionally, the statute provides yet more
disincentive for suits against agricultural operations: if a nuisance action is
found frivolous by the court, the costs and expenses, including attorneys'
fees, would be recovered by the defendant.[8]
After 30 years of enforcement of this statute, with few
decisions or contestations regarding the statute,[9]
why would Missouri be so moved to go as far to pass a constitutional amendment?
While the actual political machinations of the Missouri House of
Representatives are beyond the scope of this summary, proponents of the bill
claimed that the constitutional amendment would promote jobs, increase revenue,
increase food supplies, and protect family farms from out-of-state animal
rights groups.[10] Opponents of the amendment argued that it
would hurt family farms, and that the amendment's vague and overbroad language
would realistically lead to greater protections and abuses for massive
corporate agricultural operations such as Chinese-owned Smithfield Foods.[11]
Potential
Legal Challenges
As the Right to Farm Amendment is brand new, no cases have
wrestled with the questions or ambiguities raised by such an amendment. The
amendment's effective language, " the right of farmers and ranchers to
engage in farming and ranching practices shall be forever guaranteed in this state,"
is so broad a concept that its meaning will certainly be litigated in the
future and more well-defined through judicial decision. Even with the caveat
that the amendment is under the restrictions found within local governments and
the executive of Missouri under art. IV, the amendment gives a much broader
protection to farming and ranching than RSMo. § 537.295.
One potential challenge right-to-farm laws have faced is
whether the statutory granting of protection from nuisance suits is effectively
the unconstitutional taking of property of adjacent owners. In Bormann v.
Board of Supervisors In and For Kossuth County,[12]
the Iowa Supreme Court found that its state's right-to-farm act provision
granting nuisance immunity to "agricultural areas" was effectively a
taking of property from neighbors to that area.[13] It reasoned that the protection from nuisance
actions was a property interest in the form of an easement, because the
immunity allows the agricultural area landowners from doing things which, if
not for the statute's protection, would be considered a nuisance.[14] Because this easement applies to the adjacent
property and the owners of such property were not justly compensated in any
way, it constituted a taking.[15] Other states, however, have rejected the arguments
that prevailed in Bormann, and concluded that statutes which provide
protection from nuisance suits are not unconstitutional takings--Idaho, Texas,
and Indiana have addressed this same issue more recently and came to a
different conclusion: nuisance protection statutes do not constitute a taking.[16] Regardless of how Missouri's Supreme Court
would rule on that particular issue, whether the protection from nuisance
actions constitutes an effective and unconstitutional taking, the newly passed
amendment might make such distinctions moot.
Discussion
It is way too early to determine what impact this amendment
will have and whether its passage was a good or bad idea. Undoubtedly, agriculture is a dominant force
in the Missouri economy and its continuation as a profitable industry is of
vital importance to the state and its citizens.
The fervent debate and divide over this amendment, specifically within
the agricultural industry itself, indicates that the amendment will have a
significant impact on future agricultural business decisions and developments.
Only North Dakota has a similar constitutional amendment,[17]
and even its language is more specific and limited in its protections than
Missouri's amendment.[18] The ambiguity of Missouri's amendment has the
potential to either cause massive confusion and uncertainty in the courts for
years, or to be so vague a concept that it is rendered ineffective. Additionally, the amendment is still subject
to powers authorized under article IV, which will likely limit its expansive
proposition that all farming and ranching practices will be protected until the
end of time.
- Justin Moody
[1] Mo.
Const. art. I, § 35.
[2] Missouri
Secretary of State Official Results, available at:
enrarchives.sos.mo.gov/enrnet/default.aspx.
[3]
Constitutional Amendment Proposed--Agriculture, 2013 Mo. Legis. Serv. Hs. Jt.
Res. 11 & 7 (Vernon's).
[4] See
Iowa Code Ann. § 352.1 (1993); Kan. Stat. Ann. § 2-3201 (1982); Neb. Rev. Stat.
§ 2-4403 (1982); National Agricultural Law Center "State's Right-to-Farm
Statutes," available at:
nationalaglawcenter.org/state-compilations/right-to-farm/.
[5] RSMo. §
535.295(1) states: "No agricultural operation or any of its appurtenances
shall be deemed to be a nuisance, private or public, by any changed conditions
in the locality thereof after the facility has been in operation for more than
one year, when the facility was not a
nuisance at the time the operation began...."
[6] Id.
[7] Id.
[8] §
537.295(5).
[9] See City
of Perryville v. Brewer, 376 S.W.3d 691 (Mo. Ct. App. 2012).
[10] Elizabeth
Crisp, "Legislature Sends 'Right to Farm' to Missouri Voters," St.
Louis Post Dispatch, May 14, 2013, available at:
http://www.stltoday.com/news/local/govt-and-politics/elizabeth-crisp/legislature-sends-right-to-farm-to-missouri-voters/article_c9e4baa4-fd66-5fb4-adb6-d21f4375d5c2.html;
Brett Wessler, "Right to Farm Clears Hurdle, Ready for November
Ballot," Drovers CattleNetwork, May 14, 2013, available at:
http://www.cattlenetwork.com/cattle-news/207436521.html.
[11] Richard
R. Oswald, "Missouri Amendment Could Hurt Family Farms," St. Louis Post Dispatch, Feb. 3, 2014,
available at:
http://www.stltoday.com/news/opinion/columns/missouri-amendment-could-hurt-family-farms/article_817e34b5-2913-5a3b-a7f6-b8c31d12e297.html.
[12] 584
N.W.2d 309 (Iowa 1998).
[13] Id.
[14] Id.
at 316.
[15] Id.
at 321.
[16] See
Moon v. North Idaho Farmers Ass'n, 140 Idaho 536 (2004) (distinguishing the
difference in Idaho law between "damage" to a property and
"taking" in that taking requires a full loss of use of the land or
actual possession); Barrera v. Hondo Creek Cattle Co., 132 S.W.3d 544 (Tex.
App. 2004); Lindsey v. DeGroot, 898 N.E.2d 1251 (Ind. Ct. App. 2009)
[17] "The right of farmers
and ranchers to engage in modern farming and ranching practices shall be
forever guaranteed in this state. No law shall be enacted which abridges the
right of farmers and ranchers to employ agricultural technology, modern
livestock production, and ranching practices." N.D. Const. art. XI, § 29.
[18]
Missouri's amendment makes no mention of "modern" practices or even
any technological advances as the North Dakota amendment does. North Dakota's
amendment seems to get to the heart of the debate: use of genetically modified
crops and industrial farm practices that some deem unethical -- this topic is
beyond the scope of this summary.
