This article was first published on March 8, 2023, as part of the Department of Agricultural Economics series, Cornhusker Economics.
Two bills have been introduced in the 2023 legislative session dealing with fundamental agricultural law questions: LB 591, dealing with farmland leases, and LB 662, dealing with livestock nuisance lawsuits. A third bill deals with weather station funding. While school funding and property tax relief take center stage in the 2023 Unicameral, LB 591 and LB 662 address foundational Nebraska agricultural law issues and are worth discussing.
Unwritten agricultural lease termination notice deadline (LB 591) Nebraska court cases indicate that oral (unwritten) leases of cropland can be terminated by six months notice prior to the beginning of the next lease year. With Nebraska oral leases beginning March 1, the deadline for terminating an oral cropland lease is the previous Sept. 1. LB 591, introduced by Sen. Brian Hardin of Gering, would change the deadline for oral lease termination notice from Sept. 1 to Jan. 1, reducing lease termination notice from six months in advance to three. The bill would apply this to all agricultural land, including presumably pasture which has not to date been (in this writer’s opinion) subject to any termination notice requirement.
Commentary
Coming up with a single lease year and termination deadline that works well for spring-planted crops, fall-planted crops, multi-year crops such as alfalfa, and pasture (among others) is impossible – the growing seasons are all different, and leases for annual crops would have different considerations than those for crops like alfalfa. These issues can be (and are) addressed through an appropriate written lease. But many Nebraska farm leases are between family members or neighbors and are based on a handshake rather than a written lease. The apparent issue that may have prompted LB 591 – completing the fall harvest of a spring-planted crop before the proposed Jan. 1 lease termination decision is made by the landlord – can easily be addressed through a written lease.
LB 591 was heard by the Agriculture Committee on Jan. 31. No committee action has been taken as of this writing. Because of the legal and practical challenges associated with a legislatively established oral lease termination deadline that would affect various agricultural situations, it would be appropriate to consider an interim legislative study of this issue before the 2024 legislative session if the committee decides to proceed with the bill.
Nebraska Right to Farm Act amendments (LB 662) Under current Nebraska law, neighbors who are negatively affected by a livestock operation (typically manure odors) may sue within two years of the alleged nuisance occurring. With the advent of large livestock feeding operations beginning at least in the 1980s, several successful nuisance lawsuits have been brought against livestock operations constituting a nuisance where the persons filing the lawsuits predated the offending livestock operation.
LB 662, introduced by Sen. Beau Ballard of Lincoln, is intended (according to the introducer’s statement of intent) to protect livestock operations from “frivolous” lawsuits. In fact, LB 662 would make it almost impossible to bring any lawsuit (frivolous or genuine) against livestock operations potentially constituting a nuisance.
First, the plaintiff in the nuisance lawsuit would be required to live within half a mile of the agricultural operation. This would exclude most neighbors and would arguably constitute an unconstitutional taking of their common law property rights.
Second, if the agricultural operation is using commonly accepted agricultural practices or is in compliance with all state, local, and federal regulations, it could not be sued. Odor reduction practices could be required by county zoning requirements or state environmental permitting requirements, but are not in widespread use and are not yet commonly accepted within the animal agriculture community. The threat of a nuisance lawsuit by a neighbor is today the most prominent legal reason livestock producers employ manure odor reduction practices.
Third, if the alleged nuisance is the result (among other things) of a change in the size of the operation or change in the type of farm product produced (e.g., changing from a cash grain operation to cash grain and poultry), the operation could not be sued. So, if a livestock operation that did not originally constitute a nuisance doubled or tripled in size, the enlarged operation would be protected from a nuisance lawsuit regardless of how bad the nuisance is.
Finally, lawsuits against agricultural operations would need to be filed within one year of the alleged nuisance’s initial occurrence. For decades, the period for filing a nuisance lawsuit was four years, reduced to two a few years ago.
Source: unl.edu
Categories: Nebraska, Government & Policy, Livestock