Opinion: Living near a CAFO is a judicial and legislative nightmare

I was going to title this column “A master’s class in how not to win a CAFO nuisance lawsuit.” But that oversimplifies how the deck is stacked against people living near concentrated animal feeding operations — or CAFOs — and having any chance of receiving court relief.

The lawsuit — Jeannie Mae Barden, et. a. v Murphy-Brown LLC, a subsidiary of Smithfield Foods, Inc. — brought by 18 plaintiffs, alleged that Smithfield Foods’ large CAFO subsidiary Vestal Farms negligently handled pig poop. One by one, the plaintiffs listed their complaints. Among the extensive list:

That “juice” from hog trucks spills out onto the road and travels onto property.
That a foul smelling spray or mist emanates from the “hog fields” and settles on property and that flies are present.
That “little flying stuff” like “water” or “sewage” gets on the property when neighboring farms spray their crops.
That “hog dust” once landed on property many years ago.
Additionally, Barden specifically alleged that drippings from defendants’ trucks have trespassed on her property. And she has “specs” of liquid on her truck and states, “I know it don’t be rain.”

I’m sympathetic to the plaintiffs having to deal with the literal fallout from their CAFO neighbors. No one wants to live next to a CAFO. But at the end of the day, these kinds of nuisance/trespass lawsuits are almost impossible to win.

A plaintiff says my house is covered in flies and maggots. The CAFO replies, can you prove the flies come from my operation? A plaintiff says there’s a hog scent in the air. The CAFO replies, have you done any scientific analysis of said hog scent to prove it came from my business? Did you, dear plaintiff, collect and test any of the dust, film or grime to determine its composition and origin?

You get the idea.

In granting defendant’s motion for summary judgment, District Court Judge James C. Dever III summed up the mountain of evidence that plaintiffs have to climb to win:

“The record lacks evidence directly linking the substances allegedly trespassing on plaintiffs’ land with defendants’ operations… Although plaintiffs could have, for example, taken samples from the lagoon or the spray material emitted from Vestal Farms and compared it to samples from the grime and film on plaintiffs’ property, plaintiffs failed to do so. Plaintiffs also did not compare dust or liquid from defendants’ trucks to dust or splatter found on plaintiffs’ property. Instead, plaintiffs rely solely on speculation and conclusory allegations to support their claims that defendants caused these substances to enter their properties… Ultimately, even viewing the record in the light most favorable to plaintiffs, they have failed to provide sufficient evidence to create a genuine issue of material fact regarding their trespass claims.”

Even though the deck is heavily stacked in courts against plaintiffs, in recent years CAFOs have successfully lobbied state legislatures to minimize nuisance/trespass lawsuits from being filed. Right-to-farm laws specifically limit the circumstances under which agricultural operations can be sued, using the guise of encouraging improvement and development of land for food production.

As a way to further discourage nuisance/trespass lawsuits from being filed in the first place, right-to-farm laws also often allow the winning party to recover court costs from the loser. Defendant attorneys in the Jeannie Mae Barden, et. a. v Murphy-Brown LLC lawsuit wasted no time submitting a motion for payment.

The bottom line is that people living near CAFOs are being told by state lawmakers to “shut up and know your place.” And have almost zero chance of relief in the courts.

That’s a tragedy.