The year 2008 may have marked a “turn of the tide” when it comes to nuisance lawsuits filed against Iowa livestock operations, says Eldon McAfee, Des Moines, IA, attorney for Beving, Swanson & Forrest, P.C.
Speaking at the Iowa Pork Congress in Des Moines in late January, he reports that all three Iowa nuisance cases that went to trial this past year turned out in favor of the defendants — the livestock producers.
In one case, a Polk County (Des Moines area) jury found that spreading hog manure was not a nuisance. And the jury rejected a claim by the plantiffs that spreading manure caused permanent brain injury to their daughter.
McAfee says a second case in Cedar County (eastern Iowa), was a very important precedent. A jury not only found that a 100-cow, dry-lot calf operation wasn't an environmental nuisance, but also awarded the defendants $30,000 for “limitation or loss to their cattle business” due to the plantiff's “use of the legal process for an improper purpose.”
The third case involved a hog farmer in Lyon County (northwest Iowa) suing a nearby cattle feedlot for nuisance from odor and effluent runoff. The jury found that the feedlot, runoff basin and center pivot irrigation system were not an odor nuisance.
However, the court did award $40,000 to the plantiff for manure and snow melt runoff from a large 2007 snowstorm, that resulted in runoff from a farm field where solid manure had been applied, being diverted into the plantiff's property and basement.
In a fourth case in Kossuth County (northwest Iowa), a nuisance suit was filed before construction of a hog operation, alleging that a nuisance “will necessarily result” and an injunction should be granted prohibiting construction. The Iowa Supreme Court denied the request.
“These results are very good news for Iowa livestock producers. Although these operations, like all livestock operations, produced some odor, the juries found that they were not a nuisance.”
He declares: “These cases illustrate that it is critical that all livestock producers use odor-reducing management practices to minimize the impact on neighbors.”
Standard farm liability policies normally don't cover nuisance suits against livestock, McAfee says. But the producer should always check with the insurance company and/or his/her attorney for an answer.
Environmental policies are available that provide coverage for claims and the cost of defense in court.
But don't overlook steps to avoid a lawsuit — even if you have nuisance insurance, McAfee adds.
Key features of protection include:
Location. Provide proper separation distance between farms when building and allow for prevailing winds.
Tree buffers. Complement existing or slower-growing trees by planting fast-growing trees to provide visual screening around your farmstead.
Biofilters. A number of commercial or self-designed products can be installed to filter air exhausted from livestock buildings and reduce odor.
Clean pigs and buildings. “Research has shown that a lot of odor can come from above the slats, so providing good ventilation keeps pigs comfortable so they are cleaner and produce less odor,” he points out.
Manure treatments and additives. Search out products that may be of benefit with manure pit management.
Timing of manure pit agitation and application. Plan activities when they have the least impact on neighbors.