Creating an 'Undeveloped Lands Protection Act' for Farmlands, Forests, and Natural Areas
Centner, Terence J., Duke Environmental Law & Policy Forum
Under nuisance law, bothersome activities conducted on farmlands, forests, and natural areas are being enjoined. The cessation of activities on these lands is sometimes detrimental to the ecology of an area or the continued economic viability of agronomic pursuits. As a result, some of our nation's farmlands, forests, and natural areas are unnecessarily being lost to development. Because positive attributes of undeveloped areas are undervalued, the environmental community might lend support to owners of these lands in the form of a more forceful defense against nuisance lawsuits. Drawing upon an economy of nature, new legislation called an "Undeveloped Lands Protection Act" is proposed. Ecological and civic-societal objectives are incorporated in a legislative proposal that would offer owners of undeveloped lands greater protection against nuisance lawsuits. The anti-nuisance legislative response is intended to foster a debate that will lead to greater protection for our natural resources.
The farm community and agribusiness firms have long championed right-to-farm legislation to preclude nuisance lawsuits from adversely affecting their activities and businesses (see Appendix 1).' Agriculture was recognized as different from other business activities and deserving of special dispensation. (2) The protection in many early right-to-farm laws was to cover the growing and harvesting of crops, the feeding, breeding, and management of livestock, and other agricultural and horticultural uses. (3) Some laws sought to preserve farmland from urban sprawl. (4) Over the subsequent decades, right-to-farm laws were amended to expand protection to business and service activities including marketing operations and processors. (5)
The scope of many right-to-farm laws suggests that farm organizations and agribusiness firms have been successful in achieving special legislative dispensation for agriculture. (6) The anti-nuisance exception, moreover, benefits agriculture and society. (7) Simultaneously, right-to-farm laws may cause producers to be less sensitive to neighbors' rights, (8) reduce the efficient allocation of land use entitlements, (9) intrude on the property rights of neighbors, (10) and protect operations that contribute to the degradation of rural landscapes. (11) While modern nuisance law has moved toward flexible mediation by courts, (12) right-to-farm laws rely on wrongfulness of land use. (13) The laws may also constitute a significant obstacle to common law remedies against farms (14) or to local governments' ability to regulate land use options. (15)
Over the years, right-to-farm laws have faced a number of challenges, (16) with the most significant being constitutional challenges that the laws go too far in denigrating the rights of others. (17) The Supreme Court of Iowa found Iowa Code section 352.11 (18) unconstitutional in Bormann v. Board of Supervisors (19) and Iowa Code section 657.11 (20) unconstitutional in Gacke v. Pork Xtra, L.L.C. (21) Although the decisions are based on the Iowa Constitution (22) and distinguished from other right-to-farm laws, the precedents should concern other states. (23) People unhappy with the anti-nuisance protection accorded by right-to-farm laws could initiate lawsuits based upon the constitutional concerns enumerated in Bormann and Gacke. (24) Given the importance of right-to-farm laws to agricultural business operations, an alternate approach might be advisable.
This article presents an "Undeveloped Lands Protection Act," (ULPA) a new anti-nuisance paradigm for the protection of lands used as farmland, forestry, and natural areas. (25) Drawing upon an economy of nature, ecological and civic-societal objectives are incorporated into ULPA, a uniform act that supplements existing right-to-farm legislation by offering special protection for natural resources. (26) The distinction is that the current anti-nuisance protection for marketplace investments may not provide sufficient protection for natural resources. …