Media hype of a recent jury verdict in a nuisance lawsuit involving 10 neighbors pitted against Smithfield Foods, Inc. over alleged odor complaints from a 15,000 head contract hog facility owned and operated by Kinlaw Farms in North Carolina may have many Michigan livestock farmers pondering the obvious. Could it happen here in Michigan?
While it’s a logical question, Michigan Farm Bureau Government Relations and Right to Farm Specialist Matt Kapp said there are significant differences between the two state’s respective Right-to-Farm (RTF) laws, which should help prevent similar legal challenges in Michigan, thanks to proactive thinking and legislation that balances concerns of producers and their neighbors.
“While North Carolina does have a Right-to-Farm law, it does not have Generally Accepted Agricultural Management Practices (GAAMPs) set in place for new and expanding livestock operations, as we do here in Michigan,” Kapp said. “The whole point of Michigan having a site selection GAAMP for new and expanding livestock operations is to prevent and address potential conflict before the facility is even built.”
According to Kapp, North Carolina’s lack of a RTF siting GAAMP is compounded by what appears to be a lack of clarified responsible management practices outside of basic permitting requirements.
“In Michigan, it is extremely rare to have conflict with a livestock facility after animals are brought in,” Kapp said, noting that most conflicts in Michigan occur before actual construction begins or animals actually arrive.
“I would argue this is because Michigan’s site selection GAAMPs are working in siting livestock farms in appropriate locations,” he said.
Protection under North Carolina’s RTF law is afforded to producers only after the livestock facility has been in operation for more than a year, Kapp said, meaning even if a new livestock facility was not a nuisance at the time the operation began, it could still be considered a nuisance if new homes or local conditions change within the first year of operation.
“In Michigan, if a livestock farm is built and is conforming to all applicable GAAMPs, the farmer is immediately eligible for RTF protection,” Kapp said. “Again, the whole point of Michigan’s RTF site selection GAAMP is to prevent conflict before construction.”
In denouncing the North Carolina settlement, American Farm Bureau Federation President Zippy Duvall questioned why the jury wasn’t allowed to visit the farm or hear evidence about actual odor measurements before awarding millions of dollars in damages for so-called nuisance odors.
“It is worrisome that a misled jury has set a dangerous precedent that will motivate more greed-driven lawsuits against additional livestock farmers,” Duvall said. “We’re hopeful this verdict will successfully be overturned on appeal.”
A smell worse than hogs?
Keira Lombardo, Senior Vice President of Corporate Affairs for Smithfield Foods, said the lawsuit was nothing more than a money grab by a big litigation machine, claiming the plaintiffs’ original lawyers promised potential plaintiffs a big payday.
“Those lawyers were condemned by a North Carolina state court for unethical practices,” Lombardo said. “Plaintiffs’ counsel at trial relied heavily on anti-agriculture, anti-corporate rhetoric rather than the real facts in the case. These practices are abuses of our legal system, and we will continue to fight them.”
According to Lombardo, the trial was flawed when key evidence was excluded by the court, illustrating the “fundamental unfairness” of the court proceedings, including denial of Smithfield’s request that the jury be allowed to visit the sites of the alleged nuisance, including a visit to Plaintiffs’ properties and Kinlaw Farms.
“We were also precluded from introducing objective measurements of odor based on odor testing conducted on the Kinlaw Farm and on land between the farm and Plaintiffs’ properties through our expert Dr. Pam Dalton,” Lombardo said. “Yet, plaintiffs’ counsel was permitted to argue repeatedly that we had never conducted any testing at the farm.”
In contrast, Lombardo said the plaintiffs were allowed to offer expert testimony on odor nuisance from a putative expert, Dr. Shane Rogers, who, unlike Dr. Dalton, did not make any actual odor measurements.
“We were also precluded from mentioning plaintiffs’ past claims, including that plaintiffs had previously sued the grower, but in the closing statement, plaintiffs’ counsel was permitted to argue repeatedly that plaintiffs did not sue the grower because they “didn’t think it was right” to sue Mr. Kinlaw,” Lombardo claimed which also misled the jury.
According to Lombardo, Smithfield was precluded from mentioning plaintiffs’ previous dismissal of their injunctive relief claims (i.e. non-monetary claims demanding that Mr. Kinlaw make changes to his farm), but Plaintiffs’ counsel was permitted to argue repeatedly to the jury that they were seeking “change” through the imposition of a large damages award.
“We are extremely disappointed by the verdict. We believe the outcome would have been different if the court had allowed the jury to visit the plaintiffs’ properties and the Kinlaw farm and hear additional vital evidence, especially the results of our expert’s odor-monitoring tests.”
According to Lombardo, Kinlaw Farms operates 12 finishing units spread over three different locations and has been in full compliance with its state permit and relevant laws and regulations governing swine operations in North Carolina and is regularly inspected by state environmental officials.
Evidence entered by Smithfield during the trial also demonstrated that surrounding properties, including new homes, a multimillion dollar horse farm, which is the site of numerous horse shows, weddings and other outdoor activities, have been established since the Kinlaw Farms hog operation began.