Nebraska bill aims to protect farmers from nuisance lawsuits
Environmentalists say measure ‘shuts down’ almost all legal complaints about foul odors, other problems
Dozens of chicken barns, like this complex southwest of David City, Nebraska were built in Butler County to supply broilers for Costco. The county became a popular location because it has no zoning ordinances. (Paul Hammel/Nebraska Examiner)
LINCOLN — A proposed revision to Nebraska’s “right to farm” law, promoted as increasing protections for farmers, is being condemned by environmentalists as a way to eliminate nearly all nuisance lawsuits.
Under Legislative Bill 662, introduced Wednesday by State Sen. Beau Ballard of Lincoln, only landowners who live within a half-mile of agricultural operation, and only those nearby landowners who have a majority interest in their land, could file nuisance lawsuits against an ag operation.
In addition, such lawsuits would have to be filed within one year, rather than within two years as in the current law. Lawsuits would be disallowed if an operation was utilizing “commonly accepted” practices and was in “material compliance” with applicable laws and regulations.
The Nebraska bill is substantially similar to a proposal in South Dakota, where House Bill 1090 would require that a landowner live within one mile of an agricultural operation to file a nuisance lawsuit. The South Dakota version would also limit payouts in successful ag-related nuisance lawsuits to property value losses.
‘Eviscerates’ nuisance laws
The Nebraska proposal “eviscerates having nuisance laws,” according to Jonathan Leo, an environmental lawyer who lives in Omaha.
“The bill effectively shuts down almost all public and private nuisance lawsuits against ‘agricultural operations,’ ” Leo said.
Ballard, who was appointed to his post in December, disagrees.
“We appreciate the agricultural producers in our state and want to protect them to the best of our ability,” the senator said.
Ballard said the bill was inspired by concerns raised by large-scale chicken farms in his district, which extends into rural Lancaster County north and northwest of Lincoln.
Barns for Costco chickens
Dozens of new chicken-barn complexes have been built in recent years to provide broilers for Costco, which are processed by a plant in Fremont. It has provided an economic boost to some farmers and created new jobs, but it has also raised concerns about disposal of manure and dead chickens, and runoff into streams.
In 2021, a court ruling put a halt to plans to construct an eight-barn chicken farm holding up to 380,000 chickens near Raymond Central Junior-Senior High School over concerns about increased traffic and inadequate groundwater.
Last year, residents near David City complained about the foul odors and health concerns generated by rows of composted dead chickens, located within that city’s wellhead protection area for its drinking water wells.
In December, a report suggested that an increase in phosphorous and nitrogen in eastern Nebraska streams might be linked to the new chicken farms.
Ballard, however, said there should be more limits on who can file lawsuits.
“It should be only Nebraskans and neighbors who can file complaints,” he said.
But Leo, a leading critic of Nebraska’s regulation of large-scale livestock operations, said LB 662 would rule out renters or farmers who don’t have a majority stake in their operation from filing a nuisance lawsuit against a chicken farm, hog farm or cattle feedlot down the road.
Right to enjoy property
“The whole purpose of nuisance law is to provide relief to property occupiers,” Leo said. “They have a right to the use and quiet enjoyment of their property.”
Leo also objected to the clause that barred lawsuits if an operation was materially complying with regulations. Operations can be a nuisance, he said, even if they’re meeting government standards.
Edison McDonald of GC Resolve, which supports regenerative agriculture, said the bill might also rule out any local regulations against odor or runoff from ag facilities.
Contamination of waterways, he said, can extend more than a half mile, and it can take years before nitrate contamination of groundwater is detected.
In 2019, a similar effort to expand protections for farmers and the right to farm was supported by several farm groups. Officials with the Nebraska Farm Bureau and Alliance for the Future of Agriculture in Nebraska (AFAN) did not return messages left seeking comment on LB 662 on Friday afternoon.
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