Will This Legal Challenge Do Away with Iowa’s Right to Farm Law?
by Diane Rosenberg
President and Executive Director - 2017 JFAN Fall/Winter Newsletter
A legal challenge to the remaining vestige of the Iowa Right to Farm law is currently before the Iowa Supreme Court. If the Court rules the way JFAN’s legal counsel David Sykes hopes, he says it could pack a punch in fighting infringing CAFOs in Iowa. Sykes is helping to lead the challenge with Des Moines litigation attorney Steve Wandro.
The Iowa Supreme Court challenge grew out of a court case in Batavia where 76 plaintiffs originally filed a lawsuit against Valley View Swine, LLC and its owners Nick, Shawn, and Jeff Adam for harms caused by their 10,000-head hog confinements in Wapello County.
That lawsuit was split into two cases. After much anticipation, the first case was heard in Wapello County last year but lost. The legal team comprised of Sykes, and out of state attorneys Charlie Speer and Richard Middleton modeled their approach on a two-mile strategy that was effective for Speer and Middleton in several other states. That didn’t work in Iowa, though, with the court indicating a complaining party had to live within one mile of a CAFO to have just cause. Speer and Middleton then withdrew from Iowa.
Sykes kept moving forward and developed a new legal team with attorney Steve Wandro, a successful and well-known litigator based in Des Moines. Wandro made a name for himself when his firm and four others won a $1.7 billion lawsuit for the State of Iowa against the tobacco industry in 1998.
Photo: Emmanuel Huybrechts
The new team revised its approach and currently has seven cases with approximately 50 individuals living one mile or less from a CAFO. “These cases are now factually similar to the CAFO case in Poweshiek County whose plaintiff won a $525,000 verdict that the Iowa Court of Appeals recently affirmed,” said Sykes.
Iowa Right to Farm Law Challenged
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One of those seven cases is the second half of the Batavia lawsuit, Honomichl v Valley View Swine, which is now before the Iowa Supreme Court with a challenge to the remaining vestige of the Iowa Right to Farm law (657.11 of the Iowa Code). All cases are on hold until the court rules on this challenge.
The Iowa Right to Farm law was enacted in 1982 to protect agricultural operations from nuisance lawsuits by affected neighbors. But in 1998, the Iowa Supreme Court declared the law unconstitutional if a complaining neighbor was there first because it denied the neighbor a legal remedy for the nuisance.
But here’s the caveat: the court left the door open for CAFO proponents to allege their case had a different fact pattern than the case in the ruling, allowing for an exception to be made.
Since then, defendants in CAFO nuisance cases have continued to argue that their case is one of those times when the law still pertains. Each time the courts ruled that it wasn’t.
Sykes and his legal team have challenged the constitutionality of the law on its face and hope to do away with that vestige forever when they make their oral arguments before the Iowa Supreme Court this fall.
“The remnant of the Right to Farm law is egregious,” says Sykes. The Iowa Association of Justice agrees, filing an Amicus Curiae Brief in support of the plaintiffs. “That is significant,” says Sykes. “We have a very strong argument. But is it a slam-dunk? No.”
Nonetheless, Sykes is cautiously optimistic that this will end the Right to Farm argument once and for all, eliminating an additional complexity in arguing nuisance lawsuit cases.
“Their ultimate ruling could have a significant impact on how CAFOs can be held accountable in Iowa for nuisance based activities that injure nearby neighbors,” he says. Once the high court rules, expected by the first quarter of 2018, the other cases will proceed.
In addition to Batavia, Sykes and Wandro are representing plaintiffs in Davis, Des Moines, Henry, Linn, and Louisa Counties. In September, Sykes also filed a new case against Jordan Morris in Jefferson County with another successful Des Moines litigation attorney, Brad Schroeder.
Is the New Iowa Nuisance Law Unconstitutional?
The Iowa legislature passed a new law this year limiting compensatory damages in CAFO nuisance lawsuits and making it more difficult to make arguments, dampening the ability of communities to protect themselves from CAFO harms. (657.11A of the Iowa Code) (See the 2017 Spring/Summer JFAN Newsletter to learn more about the new law.) The seven cases already in the system are probably not subject to the provisions of the new law.
“In my opinion, 657.11A is vulnerable to a constitutional challenge. It’s equally egregious as the remnant of the Right to Farm law as it deprives the injured parties the right to due process as guaranteed under the Iowa and US Constitutions,” says Sykes.
If the Iowa Supreme Court rules the way Sykes and Wandro hope, he expects there will be an opportunity to challenge the new law because the legal foundation will be laid.
“With the high court challenge to the remaining vestige of the Iowa Right to Farm law, followed by a likely challenge to the new law, there’s reason to hope that Iowa law may once again protect individuals’ right to enjoy one’s home free from the stench and hazards of CAFOs,” said Sykes.