Win the battle lose the war. This may be the fate of 15 private property owners who recently won a jury verdict for $11 million dollars in compensatory damages affected by the gut wrenching smell of hog effluent caused by several large industrialized hog farm producers in Owens v. ContiGroup Companies. Losing the war may also be the fate of other property owners threatened by large-scale industrialized animal farming.
The hog farming operations in this case emitted numerous gases and chemicals such as hydrogen sulfide and ammonia, which became attached to dust particles that were carried by the wind causing an odor on adjoining properties. There was also a mobile spray gun that sprayed hog effluent about 300 feet in the air, which traveled with the wind to adjoining property. The land application of hog effluent left a pool of waste on the top of the soil creating odorous compounds in the air that went off site. The odor was worse when it rained. No wonder the jury returned a verdict for the adjoining farm property owners. Damages were based on the loss of the use and enjoyment of the property while the nuisance occurred. Since the nuisance could be abated, it was temporary allowing property owners to file additional claims for the continuation of the nuisance.
This case appears to have pushed over the hump state legislation sought by the big industrialized farm producers that languished for years. Apparently the results of this case really stuck in the craw of the Missouri legislature because within weeks after the Court of Appeals decision the legislature passed HB 209. This bill takes away the right to claim damages for the loss of the use and enjoyment of property affected by a temporary nuisance and limits the number of times a property owner can file a lawsuit for a temporary nuisance. HB 209 also limits damages for a temporary nuisance to the diminution in the fair rental value of the claimant’s property effectively taking away the right of property owners to claim damages based on the impact of the loss of the use and enjoyment of their property. The bill also provides that the sole measure of damages for a temporary nuisance is the loss of rental value. Startlingly HB 209 converts a temporary nuisance to a permanent nuisance, if there is a second claim for a temporary nuisance. The bottom line is that HB 209 effectively strips private property owners of their rights to be free from nuisances caused by large-scale industrialized livestock farming by limiting the measure of damages.
Under HB 209 adjoining property owners will forever be forced to breath and smell the stench from hogs and other livestock. How can this be? This is a government sanctioned land grab taking property rights from one person and giving these to another person to so they can pollute another person’s property. This is the taking of property for a private use, which is forbidden by the Missouri Constitution. HB 209 was vetoed by the Governor and is now back to the legislature, to determine if there is a 2/3rd majority to override the Governor’s veto. Based on the initial vote approving HB 209 it would appear that there is a 2/3 thirds majority sufficient to overrule the Governor’s veto.
HJR 3, also appears likely to pass the legislature apparently due to the momentum caused by this case. This bill if passed and approved by the voters would create a new constitutional right to raise livestock in a humane manner without the state imposing an undue economic burden on the right to raise livestock, which includes hogs if approved by the voters. It also prohibits the criminalizing of the welfare of any livestock unless the law is based on generally accepted scientific principles enacted by the General Assembly. What does this proposed constitutional amendment mean? For sure, HJR 3 would eliminate the ability to bring nuisance actions for the loss of the use and enjoyment of your property based on the stench caused by the odor of hog effluent as well as similar nuisance actions. Nuisance laws based on odor cannot be quantified since they are usually based on a subjective smell test. It would seem that the principle supporters of HJR 3 – big industrialized farm operators – had something very specific in mind not obvious by the language of the proposed amendment. Some authors have plumed this issue raising serious questions about the real intent behind the constitutional amendment concluding that the proposed test is a smoke screen much like the smoke screen used by big tobacco for years to obscure the real impact of smoking.
Other questions remain about the intent of HJR No. 3. For example, what is livestock? The breadth of the definition of livestock would surprise you. While it includes hogs, does it also include dogs? Certainly the ordinary dictionary definition of livestock could include dogs. One of the most obvious strikes again HJR 3 is the fact that the amendment would apply statewide including urban areas. Most municipalities prohibit and criminalize the raising of livestock unless the property is properly zoned. The proposal to amend the constitution has far-reaching implications. Scientific American recently noted the potential threat of pandemics from pig and chicken farming. The idea of a constitutional amendment giving every citizen a right to raise pigs anywhere in the state or in any number seems far-fetched but believe it or not we are one step away from submitting this to the voters. The proposed constitutional amendment is a blunt instrument that will impact every citizen in this state who is concerned about the raising of livestock particularly in areas where it is clearly inappropriate. HJR3 sure looks a lot like a pig with lipstick.
When the General Assembly considers whether or not to override the Governor’s veto with respect to HB 209 and if the voters consider the constitutional amendment proposed by HJR 3 it is important to remember that the nuisance claims are the last bastion protecting the rights of property owners living next to animal feed operations, which may cause pollution. Missouri has limited the right of counties to zone by prohibiting laws that regulate farm buildings and structures for animals including the number of animals. In addition, Missouri grandfathers livestock operations if the livestock operations do not create a nuisance for one year. Federal laws as well as state laws are insufficient to protect the environment from large-scale industrial livestock operations.
As we look at the landscape of inadequate regulations of large-scale industrial livestock farming and the possibility that the nuisance laws will be made ineffective we are reminded of the following statement from George Orwell’s, Animal Farm: ”No question now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.”
(©) 2011 Howard Wright