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Full Immunity from Liability Not Possible for New York Farmers

David Ganje Esq.

The modern farmer is very different from the one I knew when I was a child. Today’s farmers ‘enjoy’ certain legal protections for their operations. Many states, including New York, have laws that protect farmers from liability that grows out of the very act of farming; we call these laws “right to farm” statutes. But what is a right to farm law and what does it mean to the average farmer?

In principal, these statutes give farmers the basic right to conduct their operations without fear of lawsuits from neighbors who disapprove of living next to a farm. Imagine this scenario:

A new neighbor moves in next to a farmer’s hog operation that he has operated for a number of years. The neighbor complains about the smell (the smell of money) that wafts over from the farm to the neighbor’s property. The neighbor sues the farmer claiming that the hog farm is a nuisance. What happens?

Basic property law might consider the odor to be a nuisance because the smell may constitute “interference with the use or enjoyment of land.” Copart Indus., Inc. v. Consol. Edison Co. of N.Y., Inc., 41 N.Y.2d 564, 568-569 (1977) But under the right to farm act the neighbor’s case would be dismissed. Right to farm statutes provide liability protection for agricultural operations from nuisance lawsuits. Plainly, a person, as a farmer or rancher, has the “right to farm.”

New York’s “Right to Farm” statute is a little different from the approach other states have taken. The statute (N.Y. Agri. & Mkts. § 308) focuses on agricultural practices and is part of a law regarding the creation of agricultural districts. The law provides that an agricultural practice is not a private nuisance if the Commissioner of Agriculture and Markets deems the practice to be “sound.” Its applicability is limited to land designated as part of an agricultural district or land that is used in agricultural production that is subject to assessment by the Commissioner. The evaluation is conducted on a case by case basis.

The protections New York farmers receive under the “Right to Farm” statute are not absolute. An agricultural practice, even if the Commissioner has deemed it sound, still must avoid creating a public nuisance that causes harm to the health, safety, or welfare of the general public. This statute specifically states that farmers can still be found liable for personal injury and/or wrongful death stemming from a practice. The farmer is subject to other causes of action, including trespass and violation of other state and federal environmental laws. Thus, actions that result in water pollution or land overflow do not receive protection.

Proper legal management planning for any farm or ranch operation is one way to add a shield to environmental liability issues. In addition where the protection of right to farm statutes ends, insurance policies may pick up the slack. However, there could be trouble in the water for farmers who rely upon a general farm insurance policy.

A Wisconsin Supreme Court case has the potential to significantly alter the liability landscape for farmers all around the country. According to Wilson Mut. Ins. Co. v. Falk, bacteria from manure can now be considered a pollutant with regard to how it is classified in insurance policies. Therefore, damage caused by bacteria that comes from manure is excluded from coverage in many ‘standard form’ farm insurance policies. As problematic as this is to farmers’ liability, it is not a dramatic departure from existing case law. Indeed, many states, including New York, have already classified bacteria as a pollutant. In Wilson Mutual, the court took the next logical step and claimed that bacteria that was contained within manure was in fact classified as a pollutant.

State and federal courts in New York have already held that manure is a pollutant. See e.g. Concerned Area Residents v. Southview Farm, 834 F. Supp. 1410 (W.D.N.Y. 1993); Space v. Farm Family Mut. Ins. Co., 235 A.D.2d 797, 798-99 (3rd Dep’t 1997). Cases such as this show that manure itself is a pollutant, and Space points out that “the subsequent leachate of intentionally deposited waste materials has been held to fall within a . . . pollution exclusion.” Space, 235 A.D.2d at 798 (citing County of Columbia v Continental Ins. Co., 83 N.Y.2d 618 (1994)). In such a manner, the contents of manure, including bacteria, are already pollutants, but the New York court system has yet to specifically add bacteria from manure to the list.

Potentially, it could mean that the protection that farmers have come to expect from New York’s Right to Farm statute and the insurance they purchase do not adequately protect them. Here is another example:

A farmer has standard farm insurance. He liberally and often spreads manure over his field to fertilize his crops. A series of heavy rains early in the season cause the ground to be heavily saturated. Due to the sheer amount of water, the bacteria in the manure leaches into a ground well, thus contaminating it.

If the Wisconsin approach is adopted, this means that the farmer is liable for the damages that result from the contamination. First, the New York right to farm statute specifically excludes pollution from coverage. Second, if bacteria coming from manure is classified as a pollutant, then the damage cause by it is excluded form typical farm insurance policies.

The question becomes: how can a farmer and rancher make sure he or she is protected? Again, I hear the grumbling but good business planning, including good legal planning, is an ounce of protection which is cheaper than a pound of cure. Another possibility is to purchase an insurance policy that protects against this potential liability. Policies of this nature have already become available in Wisconsin. The market is responding to this shift in liability.

New York farmers should be aware of the potential liability they face. The New York Right to Farm statute certainly protects farmers from private nuisance claims, but that is as far as the protection affords. Insurance policies have sought to fill the gap. To be safe, farmers should seek advice from an attorney to make sure they are completely protected against whatever unanticipated issues await. This is not my grandfather’s operation. But as Thoreau said, never look back unless you plan on going that way.

David Ganje of Ganje Law Offices practices natural resources, environmental, and commercial law in New York.