Buchanan v. Simplot Feeders, Ltd. Partnership, 65298-8

• Decision Date: 19 March 1998
• Docket Number: No. 65298-8,65298-8
• Citation: 134 Wn.2d 673,952 P.2d 610
• Court: Washington Supreme Court
• Parties: Wayne Buchanan; and Donna Buchanan, Plaintiffs, v. SIMPLOT FEEDERS LIMITED PARTNERSHIP; and IBP, Inc., Defendants. Supreme Court of Washington, En Banc

Page 673

134 Wn.2d 673

952 P.2d 610

Certification From The United States District Court For The Eastern District Of Washington In Randy BUCHANAN Wayne Buchanan; and Donna Buchanan, Plaintiffs, v. SIMPLOT FEEDERS LIMITED PARTNERSHIP; and IBP, Inc., Defendants.

No. 65298-8.

Supreme Court of Washington En Banc.

Argued Oct. 21, 1997.

Decided March 19, 1998.

Bricklin & Gendler, David Mann, Seattle, for Plaintiffs.

Meyer, Fluegge & Tenney, Robert C. Tenney, Jerome R. Aiken, Yakima, Preston, Gates & Ellis, Marc C. Levy, Thomas Wolfendale, Seattle, for Defendants.

DOLLIVER, Justice.

The certified question in this case stems from the Buchanans' federal lawsuit against Defendants Simplot Feeders Limited Partnership (Simplot) and IBP, Inc. (IBP). The lawsuit complains of manure dust, flies, and odors allegedly emanating from Defendants' feedlot and meat processing plant adjacent to the Buchanans' farm.

Our summary of the facts behind this lawsuit is based solely on the parties' motions and pleadings. The following summary should not be construed as an endorsement of any of the parties' factual claims. The Buchanans own and operate a 320-acre farm near Pasco, Washington. They have farmed and lived on the land since 1961. When they purchased the property, the adjacent properties were primarily used as rangeland. In approximately 1969, a small cattle feeding operation opened on land to the southeast of the Buchanan farm. The Buchanans allege Simplot purchased the feedlot in fall 1992. The Simplot operation now allegedly covers over 580 acres of pens and holds over 40,000 cows. The Buchanans allege Simplot's operation of the lot since 1992 has resulted in a significant increase of flies and foul and obnoxious odors.

The Buchanans allege a small meat processing plant began operation on property to the southeast of the Buchanan farm on or about 1970. They allege IBP purchased and has operated the facility since 1976. The Buchanans claim IBP has significantly expanded its meat processing and rendering plant since 1993, adding a new, large wastewater storage lagoon, a new, large storage pond for brine, and several new "cookers." The Buchanans allege this expansion has resulted in a significant increase in foul and obnoxious odors crossing onto the Buchanans' farm and residence.

The Buchanans sued Simplot and IBP in federal court, alleging nuisance, trespass and negligence. Under the trespass action, the Buchanans complained of flies and manure dust which were damaging the Buchanans' crops. Under the nuisance claim, they complained of the foul and obnoxious odors.

As to the nuisance claim, Simplot and IBP argued to the federal court that their operations were exempt from nuisance suits under RCW 7.48.305, a "right-to-farm" statute. RCW 7.48.305 declares certain agricultural activities do not constitute a nuisance under certain conditions.

The Buchanans disputed Defendants' reliance on RCW 7.48.305. They argued to the federal court that the statute cannot apply since the Buchanan farm allegedly was in operation before Defendants' activities. The Buchanans then argued that, even if Defendants could rely upon RCW 7.48.305, the Buchanans could still seek damages in their nuisance action pursuant to a 1992 amendment to the statute. The Buchanans claim the 1992 amendment to RCW 7.48.305 changed the whole statute so as to prohibit just those nuisance actions where injunctive relief is sought.

The federal court issued an order partially granting Defendants' motions for summary judgment. The court dismissed some of the Buchanans' negligence and trespass claims, but it withheld ruling on the nuisance claim, finding there was "a question of interpretation of RCW ch. 7.48 on which there are no relevant Washington authorities." Pet. to Determine Certified Question of Law and Certified R. at 2. The federal court certified the following question:

Does the 1992 amendment to RCW § 7.48.305 which added the passage "Nothing in this section shall affect or impair any right to sue for damages" limit application of the balance of the section to actions seeking extraordinary relief?

Id.

During the 1970's and early 1980's, every state except South Dakota enacted what are generally referred to as right-to-farm statutes. Neil D. Hamilton & David Bolte, Nuisance Law and Livestock Production in the United States: A Fifty-State Analysis, 10 J. Agric. Tax'n & L. 99, 101 (1988). Right-to-farm statutes were created to address a growing concern that too much farmland was being overtaken by urban sprawl. Margaret Rosso Grossman & Thomas G. Fischer, Protecting the Right to Farm: Statutory Limits on Nuisance Actions Against the Farmer, Wis. L.Rev. 95, 97 (1983) (hereinafter Grossman & Fischer). As more urban dwellers moved into agricultural areas, nuisance lawsuits by those urbanites threatened the existence of many farms. Nuisance suits frustrated farming operations and encouraged farmers to sell to developers, continuing the cycle. Id.

Most of the right-to-farm statutes adopted across the country codified the common law defense of "coming to the nuisance." Grossman & Fischer at 118. Plaintiffs who purchase or improve property, after the establishment of a local nuisance activity, have "come to the nuisance." While this fact did not absolutely bar the plaintiff's nuisance action, it was one factor to be considered in whether to grant the plaintiff relief. Restatement (Second) of Torts § 840D (1977)

The Washington State Legislature embraced the right-to-farm issue in 1979, when it passed an act entitled "Agricultural Activities--Protection from Nuisance Lawsuits." Laws of 1979, ch. 122 (codified at RCW 7.48.300-.310 & .905). We will refer to this legislation as the Right-to-Farm Act, or the Act. The Legislature attempted to amend RCW 7.48.305 in 1991, but the Governor vetoed the legislation. See Laws of 1991, ch. 317, § 1 (vetoed by the Governor); see also Governor's Veto Letter, reprinted in 52d Wash. State Leg., House Journal 3944-45 (1991). In 1992 the Legislature passed nearly the same amendments to RCW 7.48.305. This time, the law was signed by the Governor and enacted. Laws of 1992, ch. 151, § 1. Part of the new law added the following sentence to RCW 7.48.305: "Nothing in this section shall affect or impair any right to sue for damages." Laws of 1992, ch. 151, § 1 (underlining omitted). The certified question from the federal court questions the effect of this damages sentence on the remainder of the statute.

Before we address the certified question, we must comment on the distinct, yet related, question of whether Defendants may properly rely on the Right-to-Farm Act in defense of this nuisance action. The Buchanans argued to the federal court that the nuisance exemption cannot be raised as a defense by Defendants:

The Right to Farm Act was intended to protect existing farms from the pressures associated with urbanization. Urbanization is not at issue in this case. Instead, it is the Buchanan family farm that is being forced out by the expanding cattle feedlot and industrial-like beef processing facility. The Right to Farm Act neither expressly nor impliedly applies to this situation.

Pls.' Resp. to Def.'s Mot. for Summ. J. at 4. The Buchanans further argued RCW 7.48.305 applies only to the following situation:

[I]f a farm or agricultural activity pre-exists at a particular location and then a non-farm activity, such as a residential community, moves into the area, the non-farm activity is precluded from bringing an action for nuisance against the pre-existing farm.

Pls.' Resp. at 6. Since the Buchanan farm allegedly does not constitute "encroaching urbanization," and since the Buchanans' farm was allegedly in operation before Defendants' activities giving rise to the nuisance, the Buchanans argued the Defendants should not be able to raise RCW 7.48.305 as a defense.

In their memoranda submitted to the federal court, Simplot and IBP argued they can rely on RCW 7.48.305. They claimed the only time a farm is not exempt from a nuisance suit under the statute is if the farm locates in preexisting urban areas. Simplot and IBP assert their activities were established before any surrounding nonagricultural activities, allowing them to rely on RCW 7.48.305 as a defense. The record shows no indication of any nonagricultural activities existing in the area.

The certified question does not raise the issue of whether Defendants may rely on the Right-to-Farm Act, and we observe that the federal court has yet to rule on the question. We also note there is no case law clarifying the issue of who exactly may raise the Right-to-Farm Act as a defense. Given the lack of authority on the issue, we feel compelled to discuss the scope of RCW 7.48.305. While the issue is not directly before this court, we feel the following analysis will be helpful to the federal court's pending resolution of the matter.

As written, RCW 7.48.305 is not very structured. The statute provides:

Notwithstanding any other provision of this chapter, agricultural activities conducted on farmland and forest practices, if consistent with good agricultural and forest practices and established prior to surrounding nonagricultural and nonforestry activities, are presumed to be reasonable and shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on the public health and safety.

If those agricultural activities and forest practices are undertaken in conformity with all applicable laws and rules, the activities are presumed to be good agricultural and forest practices not adversely affecting the public health and safety for purposes of this section and RCW 7.48.300. An agricultural activity that is in conformity with such laws and rules shall not be restricted as to the hours of the day or day or days of the week during which it may be conducted.

Nothing in this section shall affect or impair any right to sue for damages.

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