Hooray for Iowa farmers/rural citizens! The Iowa Supreme Court handed CAFO neighbors a significant victory yesterday in a ruling striking down Iowa's prohibition against 'nuisance suits' by CAFO neighbors. Below is the Des Moines Register story from this morning's paper, followed by the Register's editorial about the ruling. Lyle Krewson Sierra Club Iowa Chapter Lobbyist Sierra Club CDC Organizer ___________________________________________________ Lyle R. Krewson Sierra Club Conservation Organizer 6403 Aurora Avenue #3 Des Moines, IA 50322-2862 515/276-8947 515/238-7113 - cel [log in to unmask] ___________________________________________________ Crime/Courts High court: Neighbors may sue hog farmer Justices backed a couple who suffered when a confinement was built nearby. Weblink: http://DesMoinesRegister.com/apps/pbcs.dll/article?AID=/20040617/NEWS01/4061 70355/1002 By FRANK SANTIAGO and PERRY BEEMAN REGISTER STAFF WRITER June 17, 2004 ------------------------------------------------------------------------ A state law that shields a Sioux County hog operation from nuisance lawsuits violates the rights of a neighboring farm couple who complained of odors, the Iowa Supreme Court ruled Wednesday. Legal authorities said the ruling has broad implications and gives new hope to Iowa property owners and conservationists who have fought large livestock feeding operations for more than a decade. The ruling means "if you live in your house, and the nuisance moves to you, you have a case," said Thomas Lipps of Algona, who represented the farm couple. "If the nuisance is there and you move to the nuisance, the confinement operation gets the protection of the law. "The person who is there first rules." An industry lawyer, however, said the decision is an isolated defeat. Eldon McAfee, attorney for the Iowa Pork Producers Association, called Wednesday's ruling "regrettable . . . but the court said it had no opinion if it applied in other circumstances." "For the industry, it gives us some hope there is some room for a nuisance defense on a case-by-case basis," McAfee said. "This case is telling producers that while it may not be a positive for a blanket nuisance defense, it is even more important to continue to manage practices." Joseph and Linda Gacke sued Pork Xtra, a 4,000-hog operation built in 1996 across the road from the farm where they had lived since 1974. They sued for emotional distress and claimed the odors and chemical emissions from the operation reduced the value of their property. A judge in 2002 awarded them $100,000. The Supreme Court threw out the award Wednesday and ordered a new trial. The court ruled that some evidence at the first trial should not have been allowed. The lawsuit will go back to trial, but the Gackes will now be armed with the court's ruling that their rights were violated. "We're pleased to have a decision that breathes new life into the right to enjoy and possess property. This is a big win for us," said Rand Wilson of the Iowa Civil Liberties Union, who also represented the couple. In a statement issued through their lawyer, the Gackes said they are pleased with the outcome. "If these factory farms are state-of-the-art as these companies and their front organizations often claim, then let the absentee investors build them by their own homes," they said. "These laws immunizing large livestock confinements from accountability encourage unethical practices and cheap engineering designs that do nothing to control toxic odor emissions." Disputes over hog confinements have spawned numerous lawsuits by Iowans who say they've too long been powerless in the fight to stop the spread of large-scale animal production. Paul Lasley, a rural sociologist at Iowa State University since 1981, called it "the most divisive issue in Iowa agriculture in my professional career." The threat of litigation is relatively new. Pork producers had long been protected from lawsuits by the state's "right-to-farm" laws, until the Iowa Supreme Court struck down some of those protections in 1998. Wednesday's 17-page ruling, written by Justice Marsha Ternus, said the 1999 law that barred the Gackes from suing Pork Xtra "constitutes an unreasonable exercise of the state's police power." All the justices agreed except J. L. Larson and David Wiggins, who took no part in the ruling. "The plaintiffs' inalienable right to possess their property . . . includes their right to use and enjoy it," the ruling said. Neil Hamilton, director of the Drake University Agricultural Law Center, said the Sioux County case is the first in which the court applied the state Constitution's inalienable rights clause to immunity in a nuisance case. Wilson, of the civil liberties union, said the ruling sends a message to animal feeding operators. "Just as the government can't take away your right to use property itself, it can't allow others to take that right away," he said. "If you examine the nuisance laws, you'll see that in the Industrial Age the absolute right to be free from nuisances became eroded to make room for industry. This ruling was an example of a court finally pulling back and saying there's a limit on how much industry and big players can be given a free ride." Larry Ginter of Rhodes, a member of the nonprofit Iowa Citizens for Community Improvement, said the decision will force bad operators to think twice - and could result in more lawsuits. "It's not going to drive family farmers out of business, I can tell you that," said Ginter, who raised hogs for 36 years. "It's going to make the big boys who are the bad actors sweat. And they should sweat." Ginter said he told lawmakers in 1995 that they made a mistake when they moved to protect hog farms from nuisance lawsuits. "They wouldn't listen to us," he said Wednesday. "We knew it was unconstitutional." Kendall Thu, an anthropology professor at Northern Illinois University who has studied the community effects of confinements, predicted Wednesday's decision would be good for all involved. "I think it's good news for neighbors who need some sort of recourse when all else fails," said Thu, who as a former University of Iowa researcher found that confinement neighbors report elevated rates of lung, noise and eye problems. "It's also good news for the majority of pork producers who, despite all the hoopla, aren't nuisances to their neighbors. "The pork industry will say that this is another wound in their backside, and that there will be additional trivial suits and that they'll . . . have another reason to leave for other states," he said. Liz Gilbert of Iowa Falls, who lives near several large confinements in Hardin County, said she doubts the ruling will trigger a flood of lawsuits. "People who sue face ostracism in the community," the longtime opponent of large-scale hog confinements said. "If you have a business, you get boycotted. If you have children, they can be harassed." ------------------------------------------------------------------------ Editorials Livestock operators are on notice: Neighbors must be respected. Weblink: http://DesMoinesRegister.com/apps/pbcs.dll/article?AID=/20040617/OPINION03/4 06170323/1035/OPINION By REGISTER EDITORIAL BOARD June 17, 2004 ------------------------------------------------------------------------ An Iowa Supreme Court ruling Wednesday regarding hog lots is a victory for the neighbors. All over Iowa. The decision found a state law barring nuisance lawsuits against livestock operations is unconstitutional, though it sent the case back to Sioux County District Court for retrial. A retrial is called for because the district court erred in admission of hearsay evidence, said the opinion written by Justice Marsha Ternus. That, however, does not appear to substantially undermine the claims of Joseph and Linda Gacke. The Gackes have lived on their farmstead near Rock Valley since 1974. In 1995, they bought and moved a Victorian farmhouse to the property. In 1996, Pork Xtra built two hog confinement buildings across the road, about 1,300 feet north of the Gackes, housing 4,000 hogs. In 2000, the Gackes sued, alleging Pork Xtra had created a nuisance, making their lives miserable and damaging the value of their property. Pork Xtra's defense? That it was protected by the state nuisance law, which says: "An animal feeding operation . . . shall not be found to be a public or private nuisance under this chapter or under principles of common law. . . ." Pork Xtra also said it was not a nuisance, that the odor wasn't that bad. In August 2001, a Sioux County district judge determined the state law prohibiting nuisance lawsuits was unconstitutional. A few months later, another judge decided Pork Xtra's operation was a nuisance because of noxious odors. For reducing the value of the Gackes' property, the court awarded $50,000. As compensation for past inconvenience, emotional distress, and pain and suffering - so-called special damages - $46,500. The Supreme Court concluded the law barring nuisance lawsuits violates the Iowa Constitution "to the extent it deprives property owners of a remedy for the taking of their property resulting from a nuisance created by an animal feeding operation." It was unequivocal about this. The court also found the law unconstitutional under the circumstances of the Gackes' case based on their inalienable right to enjoy their property. Those circumstances include having been there first, and having put a lot of money into improvements. Especially interesting, the Supreme Court insisted on Pork Xtra being held responsible for future damages, if the retrial finds the company will continue to operate as a nuisance. Livestock producers have to be nervous. "Because of the case-by-case nature of the court's decision here [regarding special damages], it reinforces and makes it even more important for producers to utilize generally accepted practices to reduce odor and other potential [problems]," said Eldon McAfee, a lawyer who represents Pork Xtra. He also is an attorney for the Iowa Pork Producers Association and the Iowa Poultry Association. No matter what happens at retrial, the Supreme Court's ruling should mean producers will think harder about where they site animal-feeding operations and how to manage odor so nearby residents' lives aren't ruined by the stench. Iowa needs to promote a strong livestock industry, but not so zealously that it tramples on the most basic rights of neighbors. The Iowa Supreme Court has now made that clear. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - To get off the IOWA-TOPICS list, send any message to: [log in to unmask]