Tree fruit industry groups are alarmed by an appeals court decision that could impact the right to farm.
In 1991, Michael Taylor bought an apple orchard in Yakima, Washington. In 1997, he removed the trees and planted cherry trees. Four years later, when the trees came into production, he started using cherry guns to scare away birds. Jim Davis, who lived next to the orchard, sued Taylor, claiming that the cherry guns were a nuisance. The Yakima County Superior Court ruled in favor of the grower, saying the practice was protected from nuisance suits because the orchard was there before the house.
But this spring, the Washington State Appeals Court reversed the County Superior Court decision, stating that the specific practice, not just the existence of the farm, must predate the housing development for it to be protected under the right-to-farm laws.
Miles Kohl, manager of the Yakima Valley Growers-Shippers Association, said that the appeals court’s interpretation of the right-to-farm law could mean that any new activity, even if it is a normal or accepted farming practice, may not be protected, and this could have significant impacts on agriculture. It would mean that any new practice (such as the use of cherry guns or overhead sprinklers) or new product (a new pesticide or machinery that operates 24 hours a day) could constitute a nuisance.
In another recent case, Yakima beekeeper Eric Olson was sued by a neighbor who complained that Olson’s bees were a nuisance on their property. Given the appellate court decision in the Taylor case, Yakima County Superior Court Judge James Hutton dismissed the right-to-farm defense, stating that Olson’s beekeeping activities were not protected from nuisance lawsuits because the agricultural activity had changed from hay production to bee yard after the neighbor’s house was built, even though the site where the house was built was previously a bee yard. The judge sent the two sides to mediation.
Kohl said the Growers-Shippers Association is working with legal counsel in both suits to ensure that the interests of agriculture are represented. The Taylor case has been appealed to the Washington State Supreme Court, and the association plans to file an amicus brief as a party to the case.
The state law covering agricultural practices and nuisance suits (RCW 7.438.305) states that agricultural activities conducted on farmland, if consistent with good agricultural practices and “established prior to surrounding nonagricultural activities,” shall not be found to constitute a nuisance unless the activity has a substantial adverse effect on public health and safety.
“What we think the legislature intended to do is say if an orchard operation was there, and they spray and they do things that are normal, you really can’t file a complaint against them,” Kohl said.
The new interpretation would limit a farmer’s ability to change commodities in order to adjust to the marketplace, which was what Taylor did when switching from apples to cherries, he said.
Kohl said agriculture needs to work with the Washington State legislature to make sure the statute protects farmers, because legislators he’s talked to didn’t intend the law to cover specific agricultural practices, but meant agricultural practices in general.
Jim Hazen, executive director of the Washington State Horticultural Association, said his association will be involved if the issue comes up at the next Washington State legislative session.
“It has huge implications,” he said.
Hazen worries about the precedent the cases set and said the parameters around the right to farm need to be better defined. He points out that the environment has changed since the right-to-farm laws were put in place. Today, there is far more urban encroachment into agricultural areas.
“We’ve turned over a lot more farmland and are now growing houses where back in the 1990s we didn’t even think about it,” he said. “We’re a different state than we were in the 1990s, and encroachment is not slowing down. The population of the state is going to increase, and not all those people are going to live in Seattle, Tacoma, or Spokane. They’re going to live in the suburbs.”
Growth management efforts have contributed to the problem, he added, because they have created pockets in rural areas where urban people want to live in a country setting.
Most residents moving into urban areas have no experience of farming and don’t understand the complexities and strategies involved in growing high quality produce for the consumer, he said.