Additional right-to-farm protections proposed

The Agriculture Committee heard testimony Feb. 14 on a bill that would further restrict nuisance lawsuits against Nebraska agricultural operations.

Lincoln Sen. Beau Ballard, sponsor of LB662, said agricultural operations are “under constant attack” by environmental and animal rights groups, some of them from outside Nebraska. He said those groups have used nuisance lawsuits in other states as a tool to shut down similar operations.

“My goal with LB662 is not to prevent nuisance lawsuits but to rather narrowly tailor the law to better protect agricultural operations from the time and cost of frivolous lawsuits while maintaining an avenue for valid claims,” Ballard said.

Under the bill, which would update the Nebraska Right to Farm Act, no person could file a nuisance action against an agricultural operation unless:
• the person owns a majority interest in the real property affected by the agricultural operation and such real property is located within one-half mile of the agricultural operation; and
• the agricultural operation has “materially violated” an applicable federal, state or local law.

Currently, a farm or public grain warehouse — both of which would be redefined as an “agricultural operation” under LB662 — cannot be found to be a public or private nuisance if it existed before a change in the land use or occupancy of land in its locality and would not have been considered a nuisance before the change.

Under Ballard’s proposal, an agricultural operation could not be found to be a nuisance if it is “being conducted in a manner consistent with commonly accepted agricultural practices.” A change in ownership, increase in size, employment of new technology, change in the type of farm product produced and certain other conditions or activities also could not be grounds for a nuisance lawsuit under the bill’s provisions.

LB662 also would shorten the time that a property owner could file a nuisance lawsuit from two years to one.

Jessica Kolterman testified in support of the bill on behalf of Lincoln Premium Poultry, saying current law is “not as tight as it could be” in protecting agricultural operations from nuisance lawsuits.

Nebraska producers are “constantly attacked from different directions,” she said, including by those who do not want certain types of agricultural operations near their residence, are opposed to certain types of agriculture or do not understand how their food is produced.

Jonathan Leo, an environmental and administrative law attorney, testified in opposition to LB662. He said the proposal would eliminate the right to seek legal recourse for a “vast swath” of Nebraskans, including small farmers and rural residents who are unable to enjoy their property because of a nuisance.

As written, Leo said, the bill would deny standing to minority property owners, as well as lessees and renters, and “frustrate almost completely” county setback ordinances intended to ensure that large livestock operations are located a certain distance away from sensitive sites such as churches and hospitals.

Unless an out-of-state entity purchases property next to a Nebraska agricultural operation, he added, it would be “almost impossible” for the entity to succeed in a nuisance lawsuit.

Also in opposition was Jane Egan, a resident of southwestern Lancaster County. Egan said she and a group of neighbors and activists sued the county planning department, county board members and Lincoln Premium Poultry in an attempt to stop the county from approving a permit for the Costco subsidiary to build four large chicken barns near their residences.

After the Nebraska Supreme Court upheld the decision to issue the permit, she said, the group later successfully lobbied the county board to develop new zoning regulations for concentrated animal feeding operations, or CAFOs.

Egan said LB662 is intended to protect CAFO operators from accountability when they become a nuisance to nearby property owners. No nuisance lawsuit has been filed against a CAFO owner since 2019 when lawmakers established the current two-year window, she added.

Anthony Schutz, a professor at the Nebraska College of Law who specializes in agricultural and land use law, gave neutral testimony on the bill on his own behalf. He said the absence of nuisance lawsuits would put more pressure on counties to update, maintain and enforce their zoning systems.

The committee took no immediate action on LB662.