MAAC Workshop January 11, 2014

1. MAAC WorkshopJanuary 11, 2014 Smith Vocational School, Northampton Bob Ritchie Esq. Brad Mitchell, Mass Farm Bureau Frank Di Luna Esq.

2. Nuisance "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word nuisance.“ William Prosser, The Law of Torts, 4th ed

3. Nuisance • In tort law, a type of wrong. A wrong arising from the unreasonable, improper, indecent, or unlawful use of property to the annoyance or damage of another, or the general public. • In tort law, a type of wrong. A wrong arising from the unreasonable, improper, indecent, or unlawful use of property to the annoyance or damage of another, or the general public.

4. Private Nuisance • A private nuisance is an interference with a person's interest in the use and enjoyment of his land.

5. Public Nuisance • A public nuisance is an interference with the common right of the general public or an indefinite number of persons; an unreasonable interference with the health, safety, peace, or comfort of the community.

6. Nuisance • ALM GL ch. 49, § 21 (2013)§ 21. Spite Fence; Definition; Deemed to be Private Nuisance; Remedy.A fence or other structure in the nature of a fence which unnecessarily exceeds six feet in height and is maliciously erected or maintained for the purpose of annoying the owners or occupants of adjoining property shall be deemed a private nuisance. Any such owner or occupant injured in the comfort or enjoyment of his estate thereby may have an action of tort for damages under chapter two hundred and forty-three.

7. Nuisances • ALM GL ch. 111, § 125A (2013)§ 125A. Nuisances and Causes of Sickness -- Farms and Farm Operations -- Abatement; Appeal; Procedure.If, in the opinion of the board of health, a farm or the operation thereof constitutes a nuisance, any action taken by said board to abate or cause to be abated said nuisance under sections one hundred and twenty-two, one hundred and twenty-three and one hundred and twenty-five shall, notwithstanding any provisions thereof to the contrary, be subject to the provisions of this section; provided, however, that the odor from the normal maintenance of livestock or the spreading of manure upon agricultural and horticultural or farming lands, or noise from livestock or farm equipment used in normal, generally acceptable farming procedures or from plowing or cultivation operations upon agricultural and horticultural or farming lands shall not be deemed to constitute a nuisance.In the case of any such nuisance a written notice of an order to abate the same within ten days after receipt of such notice shall first be given as provided in section one hundred and twenty-four. If no petition for review is filed as herein provided, or upon final order of the court, said board may then proceed as provided in said sections one hundred and twenty-two, one hundred and twenty-three and one hundred and twenty-five, or in the order of the court. If the owner or operator of said farm within said ten days shall file a petition for a review of such order in the district court for the district in which the farm lies, the operation of said order shall be suspended, pending the order of the court. Upon the filing of such petition the court shall give notice thereof to said board, shall hear all pertinent evidence and determine the facts, and upon the facts as so determined review said order and affirm, annul, alter or modify the same as justice may require. The parties shall have the same rights of appeal on questions of law as in other civil cases in the district courts.

8. Piggeries • ALM GL ch. 111, § 143 (2013)§ 143. Nuisance and Harmful Trades -- Site Assignment.No trade or employment which may result in a nuisance or be harmful to the inhabitants, injurious to their estates, dangerous to the public health, or may be attended by noisome and injurious odors shall be established in a city or town except in such a location as may be assigned by the board of health thereof after a public hearing has been held thereon, subject to the provisions of chapter forty A and such board of health may prohibit the exercise thereof within the limits of the city or town or in places not so assigned, in any event. Such assignments shall be entered in the records of the city or town, and may be revoked when the board shall think proper.The department of environmental protection shall advise, upon request, the board of health of a city or town previous to the assignment of places for the exercise of any trade or employment referred to in this section, and any person, including persons in control of any public land, aggrieved by the action of the board of health in assigning certain places for the exercise of any trade or employment referred to in this section may, within sixty days, appeal from the assignment of the board of health to the department and said department may, after a hearing rescind, modify or amend such assignment.Notwithstanding any provision in section one hundred and twenty-five A of this chapter, this section shall apply to the operations of piggeries.

9. Private Nuisance • ALM GL ch. 243, § 6 (2013)§ 6. Nuisance Actions Against Farming Operations.No action in nuisance may be maintained against any person or entity resulting from the operation of a farm or any ancillary or related activities thereof, if said operation is an ordinary aspect of said farming operation or ancillary or related activity; provided, however, that said farm shall have been in operation for more than one year. This section shall not apply if the nuisance is determined to exist as the result of negligent conduct or actions inconsistent with generally accepted agricultural practices. For the purposes of this section, "agriculture" and "farming" shall be as defined in section one A of chapter one hundred and twenty-eight.

10. Farming and Agriculture Defined • ALM GL ch. 128, § 1A (2013)§ 1A. Farming and Agriculture Defined. "Farming" or "agriculture" shall include farming in all of its branches and the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural, aquacultural, floricultural or horticultural commodities, the growing and harvesting of forest products upon forest land, the raising of livestock including horses, the keeping of horses as a commercial enterprise, the keeping and raising of poultry, swine, cattle and other domesticated animals used for food purposes, bees, fur-bearing animals, and any forestry or lumbering operations, performed by a farmer, who is hereby defined as one engaged in agriculture or farming as herein defined, or on a farm as an incident to or in conjunction with such farming operations, including preparations for market, delivery to storage or to market or to carriers for transportation to market.

11. Good Agricultural Practices (GAPs) • GAPs: The term Good Agricultural Practices (GAPs) can refer to any collection of specific methods, which when applied to agriculture, produces results that are in harmony with the values of the proponents of those practices. There are numerous competing definitions of what methods constitute “Good Agricultural Practices,” so whether a practice can be considered “good” will depend on the standards you are applying.

12. “Generally Accepted Agricultural Practices” • “Generally accepted agricultural practices” shall mean those practices which are feasible, lawful, inherent, customary, necessary, reasonable, normal, safe, and typical to the industry or unique to the commodity as they pertain to agricultural practices.

13. “Generally Accepted Agricultural Practices” • Those methods used in connection with agricultural or forestry operations which do not violate applicable federal, state or local laws or public health safety and welfare and which are generally accepted agricultural or forestry practices in the agriculture or forestry industry. • "Generally accepted agricultural or forestry practices" includes practices which are recognized as best management practices and those methods which are authorized by various governmental agencies, bureaus and departments, such as the Calvert County Cooperative Extension Service of the University of Maryland, and the like. • If no generally accepted agricultural or forestry practice exists or there is no method authorized by those agencies mentioned herein which govern a practice, the practice is presumed to be a generally accepted agricultural or forestry practice.

14. Best Management Practices • Agricultural BMPs are management, agronomic/vegetative and structural practices that permit economical and viable production while achieving the least possible adverse impact on the environment, including water quality. They also minimize possible adverse impacts on human, animal and plant health.

15. Best Management Practices • Best Management Practices prevent pollution from agricultural operations. • Plant nutrients, bacteria, sediment and agricultural chemicals can be controlled so that pollution of surface and ground water does not occur and limit the use for drinking, aquatic life and recreation. • Odor, vectors, and other nuisances can also be minimized by adequate BMPs.

16. BMP • Professional judgment is required to properly select BMPs for a particular farm or site. • It is not intended that all BMPs necessarily be applied to a particular situation.

17. BMPs and Normal Ag Practice • Frequently Referenced in Statute, Regulations and policy settings • “Generally Accepted Ag Practices” • MGL Chapter 111 • Equivalent to “Normal” • “Normal Maintenance and Improvement” • Ag Provisions of Wetlands Act • Zoning and 40aS3 • “Reasonably Regulate” • BMPs and Normal Ag Practices often Used Interchangeably • THIS IS NOT APPROPRIATE

18. Difference Between Normal and Best • You can get caught up in legal and policy discussions • But best to start is with common sense • The best place to get a common sense definition….

19. Any 6 Year Old

20. Trisuli’s Explanation of Best vs. Normal • Best – what we would like things to be like all of the time. • Normal – the way things are most of the time.

21. In Agriculture • Normal is the way most people farm. • Best is the way we would like to most people farm in order to protect air quality, water quality, animal health, wildlife, to minimize pesticides, and to avoid causing nuisances (noise, odor, etc.) • Sometimes they are the same, but not usually.

22. Best vs Normal Practice • Best Practices often Become Normal over time. Today’s BMPs in ag are often tomorrow’s normal practices. • Making BMPs into Normal Practices usually requires: • Finanical Assistance • Technical Assistance • Educational Assistance • Can do a lot of harm by pushing BMPs without this assistance.

23. Best vs Normal • In relatively rare situations it is acceptable to mandate Best • Typically where protecting a resource of particular importance demands higher protection • Only works though when financial, technical and educational assistance accompanies the requirement • Dairy Farms in Hudson River Valley and NYC Water

24. Not Always Easy to ID or Distinguish Best and Normal • Situation Specific • Changes over time • May vary between Region, or even farm • Resources • NRCS – Epitomizes making Best the norm. • Manufacturers Direction • Gov’t Agencies • Farm Bureau BMPs (mix of best and normal) • Local Farmers

25. Identifying BMPs and Normal Practice • Make sure that you are clear that you are asking what is “best” and “normal. • What is the need? • Establishing the farmer’s requirements under the law • “normal practices” • Mediation • May be an opportunity for Best

26. Just because you can do something… • …doesn’t mean that you should. • Equally true for regulators, government and farmers. • Wherever possible, the needs of the situation rather than the law should determine whether best or normal practices are employed: • cooperation • assistance

27. Bird Device Situation • Blueberry Farm using scare device • Neighbor Complaint • BOH asked for AgCom Adice • AgCom recommended netting • BOH issued order under nuisance authority to use netting

28. Bird Device Situation • BOH authority. AgCom gave bad advice. • Use of the bird device is a normal practice in MA. • Farmer had a right to use it. • Question of whether he was using it within the confines of “generally accepted practices” • Manufacturers directions • USDA Wildlife Control • UMASS Extension

29. Bird Device • Question of whether he was using it within the confines of “generally accepted practices” • Manufacturers directions • USDA Wildlife Control • UMASS Extension • Made recommendations. Did not answer whether it was “generally accepted practice” • Better situation for mediation than regulation.

30. Disclaimer The information contained herein constitutes educational material and not legal advice.