Coffee Chat with Eldon - A Nuisance Case Discussion - Eldon McAfee, Brick Gentry Law Firm, and Drew Mogler, Public Policy Director for the Iowa Pork Producers Association, from the 2020 Iowa Pork Congress, held January 22 - 23, 2020, Des Moines, IA, USA.

1. NUISANCE CASE
DISCUSSION & LEGAL
ISSUES UPDATE
IOWA PORK PRODUCERS ASSOC.
IOWA PORK CONGRESS
January 22, 2020
Eldon McAfee
Julie Vyskocil
Erin Herbold Swalwell
Brick Gentry, PC

2. CONTENTS
l Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . Slide 3
l DNR Rules
l DNR-EPA Workplan . . . . . . . . . . . . . . . Slide 11
l Manure Control Lawsuit . . . . . . . . . . . . . Slide 13
l Animal Capacity . . . . . . . . . . . . . . . . . . . Slide 14
l New Common Ownership Def. . . . . . . . . Slide 26
l Winter Manure Application . . . . . . . . . . . Slide 28
l Misc. DNR Rules . . . . . . . . . . . . . . . . . . Slide 34
l ICCI & Food & Water Watch v. Iowa. . . . . . Slide 42
l Iowa Ag-Fraud Law . . . . . . . . . . . . . . . . . . . Slide 43
l Iowa Ag-Trespass Law . . . . . . . . . . . . . . . . Slide 46
l County Zoning & Regulation of Ag. . . . . . . . Slide 50
2

3. 2019 IOWA AG NUISANCE
JURY VERDICTS
l Lympus & Fitzgerald v. Brayton & Higgins
l Buchanan County, jury verdict 1/17/19
l 800 head cattle concrete open feedlot with
concrete runoff control basin
l 3 plaintiffs, 2 residences, each 500 ft. north
of the feedlot
l Judge ruled 657.11 AFO nuisance defense
was constitutional under the three-factor
analysis of 2018 Iowa Supreme Court
decision
l Jury found no nuisance, $0 awarded
3

4. 2019 IOWA AG NUISANCE
JURY VERDICTS
l Lappe, Bergthold & Sternas v. AWP Pork, LLC,
Solar Feeders, LLC, Bill Huber & Kansas-
Smith Farms, LLC
l Henry Co., jury verdict 2/20/19
l Three, 4,992 head swine finishers
l 6 plaintiffs, 3 residences, 1.04 mi northwest,
1.66 mi. north, & 1.5 mi northeast
l Jury found no nuisance, $0 awarded
l Judge would have applied 657.11A nuisance
defense for Kansas-Smith Farms if jury
would have found a nuisance
4

5. IOWA AG NUISANCE CASES
l 1994 to 2019 - 14 cases to trial
l 10 swine – 6 verdicts finding a nuisance, 4 no
nuisance
l 3 cattle – no verdicts finding a nuisance
l 1 grain handing & drying – verdict finding a nuisance
l 1994 to 2004 – 7 trials
l 6 swine, 1 grain handling & drying
l 6 verdicts finding a nuisance, 1 case judge denied
attempt to prohibit construction of swine operation
l 2008 to 2019 – 7 trials
l 4 swine –3 verdicts finding no nuisance, 1 nuisance
l 3 cattle – no verdicts finding a nuisance
l Last 3 trials (2016 & 2019 (2)) no nuisance
5

6. IOWA AG NUISANCE CASES
Cases currently pending:
1. Iowa Co. - swine finishing – jury trial 2/18/20
2. Jefferson Co. – swine finishing – jury trial 6/2/20
3. Linn Co. – swine finishing - jury trial – 7/13/20
4. U.S. District Court, Northern District – swine finishing -
manure application - RCRA, CWA, DNR MMP
regulation, DNR regulation of air emissions, Iowa
drainage law, nuisance, & trespass)
5. Mitchell Co. – cattle feedlot runoff – Iowa Appeals Court
ruled on 8/17/19 that alleged feedlot runoff nuisance
was temporary & abatable & therefore statute of
limitations had not expired – that ruling is on further
appeal to the Iowa Supreme Court
6

7. AG NUISANCE CASES
Steps to help to avoid lawsuit
l Location: separation distance, prevailing winds &
topography
l Tree buffers: existing trees and fast growing
trees planted with slower growing species
l Building ventilation management
l Management of manure storage and application
l Clean livestock, buildings and lots
l Mortality handling
l Overall operational environmental management,
including neighbor awareness, communication
and relations
7

8. AG NUISANCE CASES
Protection for producer
l Insurance
l Standard farm liability policies normally don’t cover –
but producer should always check with their
insurance company and/or an attorney
l Environmental policies available
l Coverage provided for odor nuisance claims
l Coverage for legal and other costs of defense
l Insurance is a contract - carefully review the policy
terms to make sure there is coverage for odor
nuisance claims
l Check with company as to experience with nuisance
cases and how the cases will be defended
8

9. AG NUISANCE CASES
Protection for producer
Animal Feeding Operations Nuisance
Defense, Iowa Code §657.11
l Not a nuisance unless plaintiffs can prove:
l AFO did not comply with applicable law;
or
l AFO did not use generally accepted mgt
practices and unreasonably and for
substantial periods of time interfered with
the person’s comfortable use and
enjoyment of the person’s life or property
9

10. AG NUISANCE CASES
Protection for producer
2017 Iowa Legislation: Iowa Code §657.11A
l New protection in addition to 657.11
l If use generally utilized mgt practices & comply with
applicable law (can’t be habitual violator), if ruled to be a
nuisance (or interference with use and enjoyment of life
or property under any other cause of action):
l Will be permanent & not temporary/continuing
nuisance
l Compensatory damages cannot exceed:
l Decrease in fair market value of property
l Damages for medical condition
l Special damages (annoyance & loss of use and
enjoyment of property) of not more than 1 ½ times
decrease in property FMV plus medical damages
10

11. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
l On April 3, 2019 EPA responded to
ICCI, Sierra Club & Environmental
Integrity Project regarding their
2007 Petition to withdraw the
NPDES permit program for
livestock operations from DNR
l EPA determined the allegations do
not warrant withdrawal
11

12. DNR – EPA WORKPLAN
DNR REGULATION OF CAFOs
lDNR not required to issue NPDES permits
to confinement operations
l Iowa law requires containment of manure
l DNR requiring the cause of any
accidental discharges be corrected
lAny unknown animal feeding operations had
been vetted by DNR as of 12/31/18 and will
be assessed
l Of those assessed by 7/31/18, 99.4%
were not required to be regulated and the
.6% were not discharging to a water of
the state
12

13. “A confinement feeding operation shall retain all manure
produced by the operation between periods of manure
disposal. . . .”
l Lawsuit by 4 NE Iowa residents alleging that DNR must
regulate air emissions from CFOs based on this law
l Polk Co. judge dismissed the lawsuit:
l “459.311(1) is a water quality provision. It requires
producers to ‘retain all manure’ in a manner that will
not pollute the state’s waters. It is not an air quality
provision. It does not regulate ‘air emissions from hog
confinements.”
l Appeal to the Iowa Supreme Court was dismissed
DNR – MANURE CONTROL-459.311
13

14. ANIMAL CAPACITY Animal weight
capacity (AWC) and animal unit capacity (AUC)
l If the CFO was constructed before 3/1/03 and
not expanded since, use animal weight capacity
(AWC) for DNR regulations
l If the CFO was constructed before 3/1/03 and
expanded since, use AWC for separation
distances but AUC for other DNR regs
l AWC: the maximum number of animals confined
at any time in a confinement operation multiplied
by the average weight during a production cycle
14

15. ANIMAL CAPACITY
Animal weight capacity and animal unit capacity
l If the CFO was constructed after 3/1/03, use
animal unit capacity (AUC) for DNR
regulations
l AUC: maximum number of animals maintained
at any one time in a confinement operation
multiplied by the animal unit factor
l Swine animal unit factor
l .4 – swine weighing more than 55 pounds
l .1 – swine weighing between 15 & 55
15

16. ANIMAL CAPACITY Animal unit capacity
– double-stocking, over-stocking, etc.
l Example: 2,400 hd wean-to-finish site
(960 AUC) double stocked with weaned
pigs with 2,400 hd moved off-site for
finishing
lAUC:
l Nursery phase: 4,800 x .1 = 480
l Finishing phase:2,400 x .4 = 960
l AUC for site is 960
16

17. ANIMAL CAPACITY Animal unit capacity
– double-stocking, over-stocking, etc.
l Must double or over-stocked pigs be moved
before any pigs reach 55 pounds? Or before the
average weight of the pigs on-site is 55 pounds?
l Neither because the AUC calculation is based
on the number of pigs weighing more than 55
pounds and the no. weighing 55 pounds or less
l Safest approach to ensure compliance may be
to remove all overstock pigs before any reach
55 pounds, HOWEVER, AUC law allows some
of the pigs to weigh more than 55 pounds if
some weigh 55 pounds or less
17

18. ANIMAL CAPACITY
Animal unit capacity – double-stocking, etc.
l AUC calculation:
l 2,400 hd wean-to-finish site (960 AUC)double-stocked
l No more than 1,600 can weigh more than 55 pounds
before the double-stocked one-half must be moved off
site (1,600 x .4 = 640 au’s & 3,200 x .1 = 320 au’s for
a total of 960 au’s)
l Works out to a factor of .333 (i.e., to determine the
maximum number of head that can weigh more than
55 pounds before reaching AUC, multiply the total
number on-site while double stocked by a factor of
.333)
l Triple stocked factor is .111
l Producers must account for the additional manure from
additional stocking of weaned pigs in their MMP
18

19. ANIMAL CAPACITY Animal unit capacity
– double-stocking, over-stocking, etc.
l Options (other than reducing capacities) if exceeding animal
weight or unit capacity:
l If built below 500 AUC, and now more than 500 AUC but less
than 1,000 AUC:
l Get MMP and CDS and meet required separation
distances
l To have CDS, must meet DNR concrete standards
l If built above 500 AUC but below 1,000 AUC, and now more
than 1,000 AUC:
l Get construction permit (already have CDS) – must meet
matrix if county requires matrix and meet required
increased separation distances
l If have construction permit but exceeding permit capacities:
l Get new construction permit with increased capacity –
must meet matrix if county requires matrix and meet
required separation distances
19

20. Iowa Code 459.201(1):
“Two or more animal feeding
operations under common ownership
or management are deemed to be a
single animal feeding operation if they
are adjacent or utilize a common
system for manure storage. . . .”
CONFINEMENT OPERATIONS
One or two?
20

21. CONFINEMENT OPERATIONS
One or two?
l To determine if a permit or manure management plan
is required, and if concrete standards apply:
l Two CFO’s are one operation when:
l At least one of the two is constructed after 5/21/98
l There is common ownership or management, and
l They are adjacent; or
l Utilize a common area or system for manure
disposal (common area or system for manure
disposal does not include fields in MMP or
anaerobic digesters)
l Adjacent – CFO’s within:
l 1,250 feet if the combined AUC is <1,000
l 2,500 feet if the combined AUC is >1,000
21

22. CONFINEMENT OPERATIONS
One or two?
l To determine required separation distances:
l Two CFO’s are considered to be one operation when:
l At least one of the two is constructed after 3/21/96
l There is common ownership or management, and
l They are adjacent
l Adjacent – CFO’s within:
l 1,250 feet if the combined AUC is <3,000 for finishing
or nursery (<1,250 AUC for farrow-gest. or <2,700
AUC for farrow to fin.)
l 1,500 ft. if the combined AUC is >3,000 but <5,000 for
finishing or nursery (>1,250 but <2,000 AUC for
farrow-gest. or >2,700 but <5,400 AUC for farrow to
fin.)
l 2,500 feet if the combined AUC is >5,000 for finishing
or nursery (>2,000 AUC for farrow-gest. or >5,400
AUC for farrow to fin.)
22

23. Common management - DNR rule def.:
"means significant control by an individual
of the management of the day-to-day
operations of each of two or more
confinement feeding operations. “Common
management” does not include control
over a contract livestock facility by a
contractor, as defined in Iowa Code
section 202.1.”
CONFINEMENT OPERATIONS
One or two?
23

24. Common management, DNR factors:
l Who has control over day-to-day decisions
regarding animal management?
l Who decides when and for what reason to contact
a veterinarian?
l Who makes adjustments to feed rations, water,
etc.
l Who is in charge of the daily management &
maintenance (e.g., orders mowing, snow removal,
vermin control, feed, or handles carcass disposal,
etc.)
CONFINEMENT OPERATIONS
One or two?
24

25. Common management, DNR factors:
l Who owns or pays for utilities (e.g., rural or
well water, electric and gas service, trash
service, etc.)?
l Who contracts with manure applicators and/or
removal facilities?
l Who is named in or is otherwise the signatory
for contracts with the livestock integrator
company?
CONFINEMENT OPERATIONS
One or two?
25

26. Common ownership – new DNR rule definition
adopted by EPC effective Feb. 19, 2020:
"means the ownership of an animal feeding
operation as a sole proprietor, or a ten percent
ownership interest held by a person, in each of two
or more animal feeding operations as a joint tenant,
tenant in common, shareholder, partner, member,
beneficiary, or other equity interest holder. The
ownership interest is a common ownership interest
when it is held directly, indirectly through a spouse
or dependent child, or both.”
CONFINEMENT OPERATIONS
One or two?
26

27. Common ownership – new DNR rule definition:
lGrandfather clause: Animal feeding operation
structures constructed before Feb. 19, 2020
are subject to the previous majority ownership
interest rule definition
lDry bedded confinement operations (swine or
cattle) are subject to the majority ownership
interest definition in Iowa Code 459B.103
lOpen feedlots are subject to the current
majority ownership interest definition in DNR
rule 65.100(1)
CONFINEMENT OPERATIONS
One or two?
27

28. MANURE APPLICATION – DNR RULES
On snow or frozen ground
l Does not apply to:
l Manure from open feedlot operations
l Dry manure (can’t be pumped & doesn’t flow
under pressure) (frozen liquid manure does
not qualify as dry manure)
l Liquid manure from confinement operations
using formed storage with less than 500
animal units
l Liquid manure injected or incorporated on
the same date of application
28

29. MANURE APPLICATION – DNR RULES
On snow or frozen ground
l No surface application of liquid manure from a
confinement operation on
l Snow covered ground from Dec. 21 to Ap. 1
l Frozen ground from Feb. 1 to April 1
except in an emergency
l Frozen ground
l Impermeable to soil moisture
l Does not include ground frozen only in
top 2” or less
l Snow covered ground
l At least 1” of snow or ½” of ice
29

30. MANURE APPLICATION – DNR RULES
On snow or frozen ground
l An emergency is when there is an
immediate need to apply manure
due to unforeseen circumstances
beyond the producer’s control
l Includes, but is not limited to:
lnatural disaster
lunusual weather conditions, or
lequipment or structural failure
30

31. MANURE APPLICATION – DNR RULES
On snow or frozen ground
l To apply liquid manure on frozen or snow covered
ground due to an emergency, a producer must:
l Telephone DNR field office before application -
2010 rule: caller must give:
l Owner’s name & facility ID No.
l Reason for emergency app. & app. Date
l Estimate of gallons to be applied & fields in
MMP to be applied on
l Apply the manure on land identified in the MMP
– either in the original MMP or the next updated
MMP submitted to DNR after the manure is
applied
l Apply the manure on land with a P Index 2 or
less
31

32. MANURE APPLICATION – DNR RULES
On snow or frozen ground
l To apply liquid manure on frozen or snow covered ground
due to an emergency, a producer must:
l During manure application and for 2 weeks after, block
any surface tile intake on land in the MMP & down grade
l Properly manage the manure storage structure
l For structures built after July 1, 2009, have at least 180
days of storage
l For CFOs with structures built after May 26, 2009, and
without alternatives to manure application, have
sufficient storage capacity to retain manure generated
from Dec. 21 to Ap. 1 under normal circumstances in
order to properly account for the volume of manure to be
stored.
l For CFOs with no structures built after May 26, 2009,
DNR will accept insufficient manure storage capacity as
a reason for emergency application.
32

33. MANURE APPLICATION – DNR RULES
On snow or frozen ground
l Other considerations:
l Remember Iowa law requirement that manure
must be applied so as to not cause water
pollution
l Does it comply with EQIP requirements?
l Will it impact federal NPDES permit
requirements?
l If the operation has a master matrix and took
points for injection or incorporation of manure
(item 26(e)), to surface apply because of an
emergency producer must obtain written
approval for a waiver from a DNR field office
l Contact DNR as soon as possible for
assistance, even if not required by law
l Community and neighbor relations
33

34. An existing CFO may be expanded if:
l For a CFO constructed before 1/1/99, any construction or
expansion of a CFO structure complies with the distance
requirements applying to that structure as provided in DNR
Rule Table 6c
l For a CFO constructed on or after 1/1/99, but before
3/1/03, any construction or expansion of a CFO structure
complies with the distance requirements applying to that
structure as provided in DNR Rule Table 6a
l For a CFO constructed on or after 3/1/03, any construction
or expansion of a CFO structure complies with the distance
requirements applying to that structure as provided in DNR
Rule Table 6
CONFINEMENT OPERATIONS
Expansion - separation distances DNR 65.11(2)
34

35. Environmental Regulation Compliance
What if DNR interpretation of law is incorrect?
l 2004 Iowa Supreme Court case:
l Business required to get a solid waste
disposal permit even though DNR employee
initially incorrectly advised that a permit was
not required
l Court ruled DNR employee was acting in
good faith and within his duties even though
the employee made an erroneous
interpretation of the law
35

36. SEPARATION DISTANCE WAIVERS
DNR rule:
l Titleholder land where residence, etc. located
l Titleholder of the land where the CFO
structure is located
l Under such terms and conditions that the
parties negotiate (see new DNR rule on future
expansion)
l Must be recorded with county recorder where
the residence, etc. is located
Other issues:
l Properly notarized
l Verify legal descriptions & legal ownership
l Consider nuisance covenant
36

37. DNR RULES
Separation distance waivers:
l Waivers must be specific to the
construction or expansion for which the
application is submitted.
l Future construction or expansion may
only be included in the waiver if the
waiver includes specific language
describing the future construction or
expansion
37

38. l DNR Rule effective May 12, 1999: Human
sanitary waste shall not be discharged to a
manure storage structure or egg washwater
storage structure.
l “Human sanitary waste” means wastewater
derived from domestic uses including
bathroom and laundry facilities generating
wastewater from toilets, baths, showers,
lavatories and clothes washing.
DNR RULES
38

39. l DNR rules prohibit open burning of combustible
materials unless:
l DNR grants a variance
l Exemptions include:
l Trees and tree trimmings & landscape waste
l Recreational fires
l Residential waste
l Paper or plastic pesticide containers and seed
corn bags. Must be ¼ mile someone else’s
building, livestock area, wildlife area or water
source. Cannot exceed one day’s accumulation
or 50 pounds. If causes a nuisance, DNR may
order relocation of burning.
l Effect of rule: “Burn barrels” at livestock buildings are
prohibited.
DNR RULES
39

40. IOWA ENVIRONMENTAL
SELF AUDITS
l Initiated by business owner to determine
environmental compliance
l Benefits:
l Immunity from penalties if a violation discovered
during audit and promptly reported to DNR,
before DNR investigates
l Confidentiality of audit report
l No immunity from penalties if:
l DNR not properly notified
l Violations are intentional or result in injury to
persons, property or environment
l Substantial economic benefit giving violator a
clear economic advantage over competitors
40

41. Iowa Environmental Regulations Handbook
l In depth discussion and analysis of
environmental regulations, with practical
points for analysis and compliance
l DNR Construction Requirements
l DNR Manure Management
Requirements
l Example separation distance waivers &
manure agreement
l www.iowapork.org; Producer Resources;
Iowa Environmental Regulations Handbook
41

42. ICCI & Food & Water Watch v. State of
Iowa, DNR, EPC, NRC & IDALS
l Lawsuit filed Mar. 27, 2019, alleges Public Trust Doctrine –
l Alleges state has violated its duty to protect the Raccoon River
for the benefit of the public
l Polk County Jury
l Public trust doctrine violated
l Declare Iowa Nutrient Reduction Strategy legislation void
l Polk County Judge
l Require State to adopt a remedial plan to require ag nonpoint
sources and CAFOs to implement N and P limitations
l Moratorium on new and expanding CAFOs in Raccoon River
Watershed until remedial plan in place and monitoring data
show viable recreational and drinking water use
l Attorney General Filed Motion to Dismiss & Polk Co Judge
Denied the Motion – ordered lawsuit to proceed
l State applied for appeal to Iowa Supreme Court & Court granted
appeal of motion to dismiss
42

43. IOWA AG-FRAUD LAW
l 2012 Iowa Ag-Fraud Law - criminal
misdemeanor penalties:
l Using false pretenses to obtain
access to an ag facility
l Making a false statement or
representation on a job application
to be employed at an ag facility
with the intent to commit an
unauthorized act
43

44. IOWA AG-FRAUD LAW
l Animal Legal Defense Fund, PETA, ICCI, Bailing
Out Benji & Center for Food Safety v. Iowa – U.S.
District Court
l On Jan. 9, 2019, the Court ruled:
l Iowa law unconstitutionally restricted free
speech
l No proof that law protected private property
from harm (economic or actual) or biosecurity
l Constitutional free speech protections
invalidate Iowa’s law that makes it a crime to
make a false statement or representation on a
job application to be employed at an ag facility
with the intent to commit an unauthorized act
l Case is on appeal to U.S. Court of Appeals 44

45. IDAHO AG-FRAUD LAW
ALDF v. Marsden
l Jan. 4, 2019 - Ninth Circuit Court of Appeals -
Idaho’s 2012 Interference with Ag Production Law
ruling:
l Constitutional – sections making it a crime to:
l Obtain employment by misrepresentation
with intent to cause economic injury
l Obtain records by misrepresentation
l Unconstitutional – sections making it a crime to:
l Enter an ag facility by non-employees by
misrepresentation
l Take an audio or video recording without
consent 45

46. IOWA AG-TRESPASS LAW
l 2017 Iowa Ag-Trespass Law - criminal
misdemeanor penalties:
l Using deception to gain access to or
employment at an ag production
facility with intent to cause physical or
economic harm or other injury to the
facility’s operations, animals, crop,
owner, personnel, equipment, building,
premises, business interest, or
customer.
46

47. IOWA AG-TRESPASS LAW
l Animal Legal Defense Fund, et. al. v. Iowa –
U.S. District Court
l On Dec. 2, 2019, the Court ruled:
l Granted motion for preliminary injunction
prohibiting Iowa from enforcing Ag-Trespass
Law while lawsuit proceeds
l Contrary to Idaho court decision, lies that
undercover investigators tell are about their
affiliation with animal rights groups, not
about their job qualifications and experience
and are therefore lies “associated with
nominal harms” and therefor protected as
Free Speech
47

48. IOWA AG-TRESPASS LAW
l ALDF et. al. v. Iowa – Dec. 2, 2019, the Court
ruled:
l Threat of harm to biosecurity was speculative
l Proof that biosecurity breaches occur is not
enough, there is no proof that biosecurity
breaches have occurred from “outsiders
using deception to gain access to or
employment at an agricultural production
facility with the intention of harming the
facility.”
l There are alternatives in Iowa law that will
protect biosecurity without violating the First
Amendment.
48

49. IOWA AG-TRESPASS LAW
l ALDF et. al. v. Iowa – Dec. 2, 2019, the Court ruled:
l Based on legislator statements during debate, at
least one purpose of the law is to prevent critical
coverage of the ag industry from undercover
investigations.
l Little proof to show that the law addresses issues
of public concern unrelated to suppression of free
speech
l “By contrast, the public benefits from people and
organizations exercising First Amendment rights
and educating the public about important issues
relating to animal abuse and safety at agricultural
production facilities. The public interest weighs in
favor of granting a preliminary injunction.”
49

50. IOWA COUNTY REGULATION OF
LIVESTOCK
l Farms exempt from county zoning under Iowa Code
exemption for agriculture
l Kuehl v. Cass Co. (1996 Iowa Supreme Court):
Livestock operations are exempt as agriculture
l Goodell v. Humboldt Co. (1998 Iowa Sup. Ct.):
County ordinances cannot regulate livestock
production
l 1998 legislation: Counties cannot adopt or enforce
ordinances regulating livestock production
l Worth Co. Friends of Ag v. Worth Co. (2004 Ia.
Sup. Ct.: County health ordinance invalidated –
legislature has left no room for county regulation of
agriculture
50