Understanding Agricultural Liability: Legal Risk Management Considerations (FS-995)

A lot has been written in Maryland and other states on preventing lawsuits. University of Maryland Extension and Pennsylvania State University have series of fact sheets where farmers give their peers advice on getting along with neighbors, “educating” new neighbors who have never lived near a farm operation, and addressing other conflicts involving agricultural issues (Fuchs et al., 2007 & 2007 and Kelsey et al., 1997, 1997, & 2008).

Professor Neil Hamilton discusses strategies for being a good neighbor in Chapter 5 of A Livestock Producer’s Legal Guide To: Nuisance, Land Use Control and Environmental Law (Hamilton, 1992). Dr. Ritz, a poultry scientist with the University of Georgia Cooperative Extension, has developed a guide to reducing conflicts between poultry farmers and their neighbors (Ritz, 2010). These authors discuss the importance of working with your neighbors as one way of avoiding potential litigation.

You may need to help educate some of your neighbors who may not be knowledgeable about agriculture or how a farm operates. Be prepared to answer their questions thoughtfully and provide them with useful information (such as University of Maryland Extension fact sheets, publications from the Maryland Department of Agriculture, etc). Helping your neighbors understand how you operate your business and why you utilize certain practices may put many of them at ease.

Working with your neighbors is one way of avoiding potential litigation.

Examples of ways to educate your neighbors about your agricultural operation include: 

• Hosting neighbors for a potluck/ barbeque on your farm;
• Allowing them to walk around your operation (but keeping them out of areas that would be unsafe);
• Sending out news updates through social media (such as Twitter or Facebook) that keep neighbors up-to-date on the type and duration of your current activities;
• Letting neighbors know how long you expect to be spraying herbicides under ideal conditions and whether they should keep their pets or children indoors during the spraying;
• Holding a meeting to explain any proposed expansion of your operation to your neighbors, how it could potentially impact them, plans to lessen those effects, and listening to any thoughts they may have on the expansion.

These are just some suggestions on ways to work with your neighbors; you may have other thoughts. Working to be a good neighbor can help avoid potential lawsuits over misunderstandings.

Good recordkeeping can be critical when refuting claims that your operation is a nuisance or in violation of required permits. Things to consider including in your records are:

• dates of fertilizer and other chemical application, the chemical used, application rates, and rationales for applications;
• pictures showing pest issues before applications of herbicides or pesticides;
• permit applications and copies;
• formal and informal communications with the permitting authorities; and
• copies of recent soil and water tests.

Maintaining all records in a central safe location, such as a fireproof safe, safety deposit box, and/or electronic files with backups will allow you and your attorney to quickly begin planning your defense if claims should arise. Your records should include date-stamped photos of your operation that show conditions before you took action. These photos can help justify your decisions with regard to issues such as weed or insect infestations. Take advantage of digital camera or cellphone technology and keep a visual record to support the paper or electronic record of activities on the farm.

It can be stressful to be involved in an ongoing lawsuit or enforcement action. Being diligent in your recordkeeping and having the records easily accessible to you and your attorney is one way to help alleviate some stress associated with the pending legal action.

This fact sheet includes a worksheet to help you begin to develop a recordkeeping system (Appendix A). Use the worksheet to keep a record of when tillage operations and spraying occurred, as well as what you sprayed, the quantity per acre, and your reasons for taking the action.

For example, before you spray your corn with Roundup© to control weeds, you should document and photograph the weeds you observed, record the date you sprayed, and that you sprayed Roundup©, noting the quantity per acre used. Because pesticide drift is sometimes a problem, you could also document the wind direction and speed on the day you sprayed.
 

Appendix A: Agricultural Activities Recordkeeping Worksheet

Use this worksheet to record activities such as spraying chemicals, applying fertilizers, removing litter from poultry houses, etc. It is always better to over-record than under-record farm actions. This worksheet may not match every activity so you can add columns as needed or develop your own worksheet. Store your worksheets in a fireproof safe and/or store them digitally in Dropbox or Google Drive.

Example

Download Appendix A (PDF)

Complying with permit, regulation and statute requirements related to your operation is a good defense to many claims. Using Maryland’s Right-to-Farm law as a defense for a nuisance suit requires that an agricultural operation be in compliance with applicable federal, State, and local health, environmental, zoning, and permit requirements (Md. Code. Cts. & Jud. Proc. § 5-403(c)). For more information see, Goeringer and Lynch, Understanding Agricultural Liability: Maryland’s Right-to-Farm Law (2013).

Violating federal, State, and local environmental statutes, regulations, or permits is asking for trouble. Having good records can help prove you are in compliance with all environmental duties and provide you with a good defense to claims that you violated the law or your permits.
 

It is important to remember that attorneys have areas of specialization and they may not be competent to handle all legal issues. If you are a poultry farmer, select an attorney competent to handle claims that you violated any required environmental permits. Similarly, if you have a row crop operation, your attorney should be able to handle claims that your operation is a nuisance due to dust or drift from chemicals you are spraying. The attorney should know the proper specialists to begin testing to prove your farm was not causing the damage at the outset of the legal action rather than researching experts as the lawsuit or claim progresses.

Once a lawsuit has been filed and you have been served notice, a clock begins for you to respond to the allegations. Researching attorneys who specialize in certain areas such as agricultural nuisance and environmental compliance in advance of any legal issues will enable you to select from a pool of potential attorneys. Having the advance information will save the< initial steps of trying to locate potential lawyers when the clock is ticking for your response.

Just like other aspects of your farm operation, you can supervise your attorney’s actions and cost by insisting on good communication, prompt billing, and the right to approve projects (though at the same time, it is important not to micromanage your case).

Once you have identified potential lawyers, meet with them and schedule a litigation audit or check-up.

So how do you find attorneys who specialize in agriculture law? Pay attention to news accounts of agricultural lawsuits and note the lawyers representing the defendants. Ask other farmers if they know of attorneys who have experience with the issues you might be confronting. Contact the state or county bar association to ask about attorneys practicing in these areas. The American Agricultural Law Association, http://aglaw-assn.org/, is a national organization of attorneys specializing in different areas of agricultural law and may be a useful resource.

Once you have identified potential lawyers, meet with them and schedule a litigation audit or check-up. In many instances, working with a lawyer before a lawsuit or claim arises to identify areas of potential concern can help you avoid litigation. Your list of attorneys should be updated periodically so you have a current directory of legal specialists to contact if you are presented with a lawsuit. This can reduce some stress and allow you to quickly begin working with an attorney planning your defense.

If, unlike most farmers, you do not currently have some form of liability insurance on your operation, consider purchasing it from a local agent experienced with insuring agricultural operations. Whether reviewing a potential policy or your current one, work with an agent to determine if a policy provides any coverage or a duty to defend a nuisance claim, environmental violation claim, or other possible claims. A policy that covers these types of claims could lessen some of your financial burden of having the necessary cash reserves to pay for an attorney. If the policy does not cover potential nuisance, environmental, or other claims, you may want to purchase a rider or an umbrella liability policy from your local insurance agent.

• Fuchs, Kurt, S. Dill, L. Lynch, & J. Jones. Improving Neighbor Relations: Welcome to the Neighborhood. University of Maryland Extension, 2007.
   
• Fuchs, Kurt, S. Dill, L. Lynch, & J. Jones. Improve Neighbor Relations: Farmers Advise Farmers. University of Maryland Extension, 2007.
   
• Goeringer, P. and L. Lynch, Understanding Agricultural Liability: Maryland’s Right-to-Farm Law University of Maryland Fact Sheet, 2013.
   
• Hamilton, Neil D. A Livestock Producer’s Legal Guide to: Nuisance, Land Use Control, and Environmental Law. Des Moines: Drake Agricultural Law Center, 1992.
   
• Kelsey, Timothy W., C.A. Abdalla. “Community Conflicts over Agriculture, Land Use, and Natural Resources.” Finding Common Ground Series, Pennsylvania State University, 1997.
   
• Kelsey, Timothy W., C.A. Abdalla. “Good Neighbor Relations: Advice and Tips from Farmers.” Finding Common Ground Series, Pennsylvania State University, 2008.
   
• Kelsey, Timothy W., C.A. Abdalla. “Understanding Your Community’s Agriculture.” Finding Common Ground Series, Pennsylvania State University, 1997.
   
• Ritz, Casey W. Coexisting with Neighbors: A Poultry Farmer’s Guide. University of Georgia Cooperative Extension, 2010.
   
• Tunajek, Sandra. “Dealing with Litigation Stress Syndrome.” AANA NewsBulletin, July, 2007, pp. 22-23.

Paul would like to thank the following people for reviewing initial drafts and providing feedback:

• Mae Johnson, Program Director, Maryland Agricultural Conflict Resolution Service, Maryland Department of Agriculture.
• Kimberly A. Manuelides, Esq., Co-Chair Agriculture Law Section, Maryland State Bar Association.
• Mark Powell, Chief Marketing Service, Maryland Department of Agriculture.
• Susan A. Schneider, Director of the LL.M. Program in Agricultural and Food Law, University of Arkansas.
• Brooke Schumm III, Daneker, McIntire, Schumm, Prince, Manning & Widmann, PLC.
• Margaret Witherup, Gordon-Feinblatt LLC.