Unsafe sewage sludge or beneficial biosolids?: Liability, planning, and management issues regarding the land application of sewage treatment residuals

Boston College Environmental Affairs Law Review, Summer 1999 by Goldfarb, William, Krogmann, Uta

Some Right to Farm laws also protect farmers from lawsuits based on causes of action other than nuisance. Numerous states have also explicitly prohibited causes of action for negligent activity on the part of farmers.3 Thus, farmers can be protected from liability based on an interference with the use and enjoyment of another's land, whether the cause of interference is an unreasonable intentional action or an unintentional but negligent one.334 For example, the piling up of manure, which subsequently contaminates a neighbor's well and is clearly negligent, would be protected under these statutes.335

The exclusion of nuisance and negligence claims does not leave adjacent landowners without remedy, however. The above example of well pollution may constitute a continuing trespass, because it is a physical invasion by tangible matter. It is important to note that the model Right to Farm Acts, discussed above, do not provide protection against trespass actions by adjacent landowners.

Adjacent landowners may wish to facially challenge Right to Farm legislative protections. In the recent case of Bormann v. Board of Supervisors In and For Kossuth County, the Iowa Supreme Court held that Iowa's Right to Farm Act, which provides nuisance immunity to agricultural operations, was unconstitutional and invalid because it created a taking without just compensation.336 Where this leaves state nuisance protection for farmers is unclear. The court in Bormann held that the County Board of Supervisors' approval of a landowner's application for an agricultural area337 triggered the immunity provision in the state's Right to Farm Act and resulted in condemnation by nuisance of neighbors' properties without just compensation.338 The court held that the immunity resulted in the Board's taking of an easement in the neighbors' properties for the benefit of the applicant, by entitling the applicant to perform activities on its property that would constitute a nuisance, were it not for the easement.339 The court thus held that the legislature exceeded its authority by authorizing the use of property in such a way as to infringe on the rights of others by allowing the creation of a nuisance without just compensation.

Compare this ruling to Judge Jasen's dissent in Boomer et al. v. Atlantic Cement Co., in which he stated that the permanent impairment of private property for private purposes is not authorized in the absence of clearly demonstrated public benefit and use.340 According to Judge Jasen, private condemnation in the form of permanent damages should only be permitted when the public is served by the taking of the property.341 The Boomer dissent concluded that the promotion of the polluting cement company's interests had no public use or benefit.342 Did the Bormann court say much the same thing about Iowa's Right to Farm Statue? It can be argued that the easement created in Bormann did not solely benefit the applicant, but rather was a codification of the coming to the nuisance doctrine. The fact that it created an easement is not extraordinary. After all, many legislative enactments create easements. Perhaps what gave the court difficulty was the actual structure of Iowa's Right to Farm Act. Iowa's statute not only codified coming to the nuisance, but also provided protection to farming operations, regardless of when they were established or whether they had expanded.343 It is conceivable that the court was worried about parcels being deemed agricultural after established residential communities had already been built. If this is true, then Bormann's precedential effect may be limited.