November 17, 2000

'Right to Farm' law endangered

By Stephanie McMullen
TFB Staff Attorney

A ruling last May by a state district judge in a lawsuit involving two Texas Farm Bureau members could have negative, precedent-setting implications for Texas agriculture if the Court of Appeals in Austin decides the Texas Right To Farm Law is unconstitutional. That is why Texas Farm Bureau plans to file an amicus brief in support of the defendants when the case comes before the court some time next year.

In response to a complaint by a group of plaintiffs filed July, 1998, a state district court judge ordered a permanent injunction imposing harsh restrictions on the defendents in the suit, which, if allowed to stand, will essentially shut down their lamb-feeding operation on their family farm. A jury agreed with the plaintiffs that the defendants' animal feeding area posed a nuisance, but the jury found no evidence of malice or fraud. Jurors cited the defendants for negligence; said the feedlot was a nuisance which "obstructed normal flow of clean air to plaintiffs' land"; and assessed over $7,200 in damages for reduction in market value of the plaintiffs' adjacent property.

Subsequently, the judge decided to order the defendants to: (1) desist and refrain from operating their feedlot; (2) forbade them to feed hay or any other feed to livestock, or to wean lambs or other livestock, within 1,750 feet of the existing residence on the plaintiffs' property; and (3) remove all feeders, sheds, water troughs, water lines, wire fencing, feedlot pens, and overhead lights from the pens in the 10-acre trap adjacent to plaintiffs' property.

Decision's potential impact

Texas Farm Bureau believes the defendants' lamb-feeding operation comes under the protection of the Right To Farm Law. This law requires that any suit for nuisance must be brought within one year of commencement of operation, and the improved feedlot at issue commenced operation in March 1997.

The court's decision could have a broad impact on agricultural operations in our state if the law is construed narrowly or to be unconstitutional. Other courts can look at this decision in deciding other agricultural cases. The real issue is the potential effect on the Texas Right To Farm Law. If it should be struck down, it could mean that other farms and ranches could be at risk.

The plaintiffs alleged that the defendants exercised poor judgment by constructing a sheep feedlot 135 feet away from a house occupied by the plaintiffs' ranch foreman. The defendants' own home is on the same farm and is located about 500 feet from the feeding area where they have lived since 1976. They leased a 160-acre tract of land next to their home from 1985 until they purchased it in 1996. From 1986 on, they used the brush trap (in dispute) as a feeding area for sheep.

According to the defendants, in 1984, the plaintiffs' predecessor-in-title constructed a home approximately 150 feet from the western edge of their feeding operation. In 1994, the plaintiffs purchased the ranch, along with the home, which is now occupied by the ranch foreman and his family. In 1996, the defendants cleared the brush on the feeding area and in 1997 constructed the metal pens. Pens were in operation by March 1997.

The defendants are in a major sheep-growing area in West Texas, so this kind of operation is not uncommon. They have not been cited by any governmental agency for environmental violations. They made the necessary investment to follow suggestions of state agencies for improvement of their operation. It appears that the defendants have made a good faith effort to follow the law.

Policy supports `Right to Farm'

Texas Farm Bureau encourages its membership to be environmentally responsible and work with appropriate agencies in the planning of their operations as may be necessary. It is unfortunate that this lawsuit happens to involve two agricultural operations that are at odds. Farm Bureau interest and involvement in this matter is because Farm Bureau policy is strongly supportive of the Right to Farm law, which has been on the books since 1981. This case is the first major challenge to this law.