BY BRAD JOHNSTON, ESQ.
“The farmer has to
be an optimist or
he wouldn’t still
be a farmer.”
— Will Rogers
8 Nevada Lawyer
April 2015
Each growing season, agricultural operations face
daunting challenges that are beyond their control; the
weather, volatile commodity markets, labor shortages
and increased production costs due to government
regulation are just a few. Complicating matters further
is the fact that crops do not adhere to predetermined
schedules, so when a particular crop has a particular
need or is ready to be harvested, it does not care if it
is Saturday, Sunday, Labor Day or the middle of the
night. As a result, farms routinely work around the clock
when conditions allow or crop demands and planting
schedules require. Unfortunately, this often leads to
complaints from neighbors, and while these complaints
come in all forms, they are all generally based on some
allegation that a farming activity is interfering with
another’s property right.
Some of the more common
complaints relate to noise and
aesthetics. They include: the crop duster
woke me up at 5:30 a.m. when it flew
near my house to spray the fields; trucks
were hauling crops all night down the
highway; tractors were driving too
slowly on the highway; the swathers,
harvesters and tractors were running
all night with their lights shining in my
windows; portable toilets for the field
workers were stationed at the fields near
my house. Other complaints involve
dust blowing during windstorms and
the application of soil amendments
and pesticides that are perceived as
toxic. One might think that people
living in rural, agricultural areas would
be accustomed to such things and
understand they are a necessary part of
agricultural operations, but people often
move from cities to rural areas for their
agricultural settings, with little or no
farming knowledge, and then question
agricultural practices that have existed
for years. This invariably leads to
conflicts between property owners and
farmers: us vs. them, new vs. old, rural
vs. urban.
Many, and indeed most, of these
conflicts can be addressed by explaining
the nature of agricultural operations to
residents or making slight modifications
to agricultural practices when possible.
For example, residents can be informed
that baby lettuces, like spring mix and
other crops, are harvested at night when
it is cooler (rather than during the heat
of the day), because the practice results
in a better product. Crop dusters fly
early in the morning when the wind
is calm, because that limits the risk
of pesticides drifting to neighboring
properties. Farmers can also explain
that portable toilets and washing
facilities are needed in the fields, not
only for the workers’ convenience
but also for food safety reasons.
Farmers can (and often do) also offer
remedial measures when they are not
required to do so, in order to promote
good relations with neighboring
landowners and to address complaints.
Conflicts between farms and property
owners cannot, however, always be
resolved through education and some
form of minor accommodation, and
unfortunately litigation does occur.
Indeed, a Yerington onion grower was
once sued during the annual onion
harvest over onion skins blowing into
a resident’s yard. And, in a somewhat
similar case, a ditch company was sued
over its operation and maintenance of
an irrigation ditch that has run through
another’s property for more than 100
years. The issue in both cases was
relatively straightforward: could the
farmer and ditch company be held liable
for their agricultural operations? While
the courts answered this question in
the negative, dismissing both cases, the
basis for the decisions rested not in the
common law, but in Nevada’s and Lyon
County’s right to farm laws.
At common law, farmers facing
complaints from new neighbors and
encroaching development asserted
what is commonly known as the
“coming to the nuisance” defense.1 The
farmers would argue that those who
moved near existing farm operations
(or developers that encroached into
farming areas) could not assert nuisance
claims because the farming operations
were pre-existing, and the plaintiffs
came to the nuisance. While the courts
recognized that there was some validity
to this defense, it was not a complete
defense. Agricultural operations could
still be determined to be a nuisance and
enjoined, assuming the complaining
party indemnified the farmer.2 For
instance, a farmer could be required to
relocate its operations if the developer
that sought and obtained the injunction
paid the relocation expenses. Such
results were unacceptable to farmers
and policymakers wanting to protect
agricultural investments and preserve
continued on page 10
April 2015
Nevada Lawyer
9
continued from page 9
NEVADA’S RIGHT
TO FARM LAW
farmland. Accordingly, all 50 states
adopted what are known as right to farm
laws to provide farmers with a defense
to certain nuisance claims. Nevada’s
right to farm statute can be found at NRS
40.140(2), which is part of Nevada’s
nuisance statute.
To place Nevada’s right to farm
law in its proper context, it is necessary
to begin with the nuisance law. NRS
40.140(1)(a) states that “[a]nything
which is injurious to health, or indecent
and offensive to the senses, or an
obstruction to the free use of property,
so as to interfere with the comfortable
enjoyment of life or property … is
a nuisance.” The Nevada Supreme
Court addressed this statute in Sowers
v. Forest Hills Subdivision, 129 Nev.
Adv. Op. 9, 294 P.3d 427 (2013), when
it reviewed a district court’s finding
that a wind turbine in a residential area
constituted a nuisance. The court first
noted that lawful activity may constitute
a nuisance when it is conducted at
a location that necessarily tends to
damage another’s property. The court
explained: “To sustain a claim for
private nuisance, an interference with
one’s use and enjoyment of land must
be both substantial and unreasonable.”
The court then defined substantial and
unreasonable interference. Substantial
interference occurs when a normal
person living in the community
10 Nevada Lawyer
April 2015
would consider the alleged nuisance
“definitively offensive, seriously
annoying or intolerable.” Unreasonable
interference occurs when “the gravity
of the harm outweighs the social value
of the activity alleged to cause the
harm.” Lawful activity can accordingly
constitute a nuisance under Nevada
law, even in the absence of harm to
the public, if the activity is definitively
offensive to a normal person and the
value of the activity is outweighed by
the harm it causes. Simply put, a private
right of action for nuisance can exist
without any injury or harm to the public.
This standard does not, however,
apply to agricultural activity. NRS
40.140(2)(a) creates an exception to
the general definition of nuisance,
stating: “It is presumed (a) That
an agricultural activity conducted
on farmland, consistent with good
agricultural practice and established
before surrounding nonagricultural
activities is reasonable. Such activity
does not constitute a nuisance unless
the activity has a substantial adverse
effect on the public health or safety.”
NRS 40.104(2)(b) then defines good
agricultural practice as agricultural
activity that does not violate federal,
state or local law, ordinance or
regulation. Lawful agricultural activity
that pre-dates another property use is,
accordingly, not a nuisance unless it has
a substantial adverse effect on public
health or safety. Property owners may
not, therefore, claim that an existing
agricultural activity is a nuisance
under NRS 40.140(1) or Sowers
simply because it interferes with the
comfortable enjoyment of their private
property. They must show that the
agricultural activity has a substantial
adverse effect on the health or safety
of the public. Under Sowers, this likely
means that a property owner must
show a definitive, serious or intolerable
effect on the public’s health or safety
that outweighs the social value of the
agricultural activity. In other words,
agricultural activity, unlike other lawful
activity in Nevada, must amount to
a public nuisance that outweighs the
social value of the agricultural practice
to be actionable under Nevada’s right to
farm law.
At least one rural Nevada county
has expanded on Nevada’s right to
farm law by adopting its own right
to farm ordinance in its development
code. Specifically, Lyon County has
adopted a right to farm ordinance,
providing, like NRS 40.104(2), that
agricultural operations conducted in
a manner consistent with industry
standards shall not “become or be a
nuisance, private or public, due to
any changed condition of the use of
adjacent land.”3 Importantly, Lyon
County has gone further and has
expressly determined that the economic
and social benefits of farming activities
offset any inconvenience they may
have. As a result, plaintiffs challenging
farming activities in Lyon County have
the additional burden of overcoming
the county’s express findings with
respect to the social and economic
value of agriculture. Lyon County also
mandates that certain disclosures be
made when real property is sold, to
place future property owners on notice
of Nevada’s and Lyon County’s right
to farm laws. Thus, individuals moving
to Lyon County’s agricultural areas
have actual rather than constructive
knowledge of Nevada’s right to
farm law, which can be a further
impediment to any legal action.
The practical implications of
Nevada’s right to farm law (and similar
local laws) are clear. A property owner
seeking to challenge an existing
farming operation by claiming it is a
nuisance must overcome heightened
pleading and evidentiary burdens that
other property owners do not. Farmers
are wise to conduct their operations
within the confines of industry standards
and accepted farming practices, to avail
themselves of the protections set forth in
Nevada’s right to farm law. In practice,
then, onion skins blowing from an
onion field into an adjacent lawn during
the onion harvest is a consequence of
living in Mason Valley,
not an actionable nuisance.
Similarly, living with the operation and
maintenance of an existing irrigation
ditch that runs through your property is
a consequence of living near irrigated
farmland, not a basis for a lawsuit.
Those individuals seeking refuge in
a rural farming community should
accordingly understand the nature of the
operations that surround them and the
protections those operations enjoy under
Nevada’s right to farm law.
1.
2.
3.
See 4 Am. Law of Zoning, Right to Farm
Laws, § 33:5.
See id. (discussing Spur Indus. v. Del
Webb Dev, Co., 108 Ariz. 178, 494 P.2d
700 (1972)).
Lyon County Code 15.01.11.
BRAD JOHNSTON is a solo
practitioner in Yerington and
the former general counsel
of Peri & Sons Farms, Inc.
Prior to moving to Yerington,
Johnston was a partner at
Holland & Hart in Reno.
He has represented, and
continues to represent,
several farmers and ranchers
in Nevada on issues involving
their agricultural operations.
Engineers, Architects, Scientists & Fire Investigators
April 2015
Nevada Lawyer
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