For Immediate Release
Feb. 12, 2016
SANTA FE, N.M. – Senate Bill 72—a so-called “right to farm” bill—was approved by the New Mexico Senate on Wednesday Feb. 10 by a 29-11 vote, after the body rejected by 25-13 a one-word floor amendment that would have struck a balance in legal protections for agricultural operations and the rural families that live around them.
The bill purports to protect previously established farms from plaintiffs purposely moving next to a farm in order to bring a nuisance lawsuit against its operations. But in the same stroke, it severely limits a neighbor from seeking legal recourse for legitimate complaints if the neighboring small farm grows into a harmful industrial factory farm. Under the bill, in order for any nuisance claim to be brought, the preexisting farm must have changed in both “nature” (purpose or function) and “scope” (extent or capacity), creating a nearly impossibly high obstacle for a neighbor to try to find relief from genuine anguish and loss of use of their property. (1)
Senator Peter Wirth (D-Santa Fe) led an amendment to change a single word to balance the scales between farms and the people living around them: By changing “nature and scope” to “nature or scope,” the bill would retain its protection for previously existing farms from nuisance lawsuits by plaintiffs who “move to the nuisance,” while still ensuring that neighbors with rightful complaints, after a farm has substantially changed in a particular way, can have their day in court.
During floor debate, Senators opposing the Wirth amendment did not address how the bill language would or should be interpreted by a court, but instead focused on general claims that New Mexico dairies are overrun with nuisance lawsuits from plaintiffs who moved next to the dairy farms.
However, in ongoing litigation in three cases (Betty Gonzalez, et al. v. Del Oro Dairy, et al.; Kitty Pearson, et al. v. Rockview Dairy, et al.; and Roberto Escobedo Jr., et al. v. Del Norte Dairy, LLC, et al.) many of the plaintiffs lived in their respective homes since the 1950s, 1970s and 1980s—before at least some of the defendant dairies were established. Other plaintiffs moved to the area after a dairy farm (like Del Oro Dairy) was established, but over time the farm dramatically increased in size. Senate Bill 72 is specifically designed to stifle nuisance complaints from the latter type of plaintiff in the future.
f SB 72 passes as written, there are several scenarios where a nuisance claim—merely a chance for a court to examine the facts of the case—would be blocked, when common sense says a neighbor’s claim should be rightfully examined to determine whether the claim is legitimate and whether it can be equitably redressed.
For example, if a neighbor moved next to a small family dairy farm, and that farm later turned into an enormous dairy factory farm causing very real problems, a court could too easily say a nuisance claim is automatically barred because the facility only changed in scope but not nature.
New Mexico is presently the eighth largest milk producer in the country, and most of these animals are raised on industrial factory farms, cramped and confined in filthy conditions. Many of these animals never feel grass under their feet or sun on their backs. These factory farms often put the smaller, more environmentally friendly and animal welfare-minded family farms at a commercial disadvantage. The noxious odors, noise, hordes of flies, and waste seepage that result from factory farm conditions are horrible for surrounding communities, and these unbearable conditions give rise to legitimate nuisance complaints. Nuisance lawsuits are virtually the only recourse many rural families in New Mexico have to protect themselves when factory farms dramatically diminish their quality of lives.
Senate Bill 72 now moves to the House of Representatives for consideration, but has been assigned to only one committee—House Agriculture, Water & Wildlife, hearing the bill this morning, Friday Feb. 12—while avoiding what should be a vigorous legal review in the House Judiciary Committee.
NOTES:
1. SB 72’s proposed additional language to New Mexico’s current Right to Farm law is as follows: “No cause of action based upon nuisance may be brought by a person whose claim arose following the purchase, lease or rental of property proximate to a previously established agricultural operation or agricultural facility, except when such previously established agricultural operation or agricultural facility has substantially changed in the nature and scope of its operations.” (Emphasis added.)
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