by Hannah Dankbar and Gary Taylor

Labrayere v. Bohr Farms
Missouri Supreme Court, April 14, 2015

Multiple landowners filed suit against Cargill Pork LLC and Bohr Farms alleging damages for temporary nuisance, negligence and conspiracy due to odors coming from a concentrated feeding animal operation (CAFO) owned and operated by Bohr Farms. The landowners who filed the complaint claimed that they lost the use and enjoyment of their property.  Neither rental value nor medical conditions were issues raised by the landowners in this case. The circuit court found that Bohr Farms was not responsible for paying damages.

In 2011 section 537.296 went into effect. This statute supersedes common law related to actions that result in an alleged nuisance coming from a property that is used primarily for crop or animal production. This statute prohibits non-economic damage recovery for items such as loss of use and enjoyment of property, inconvenience or discomfort that the agricultural nuisance caused, and allows recovery only for a diminished market value of property and documented medical costs.  Only a few days after the statute was passed Bohr Farms began their CAFO operation that can feed 4,000 hogs. Bohr owns and operates the CAFO and Cargill owns the hogs. The CAFO includes an on-site sewage disposal system as well as a system for composting deceased hogs. The plaintiffs raised seven constitutional issues. Appellants claimed that section 537.296 is unconstitutional for seven reasons.

Constitutional Claims

1. Section 537.296 impermissibly authorized an unconstitutional private taking.  Plaintiffs argued that the statute, “effectively provide[s] the right of eminent domain to private companies.” The Court stated that, “The fact that private parties benefit from a taking does not eliminate the public character of the taking so long as there is some benefit to any considerable number of the public.”  A use is public if it reasonably likely to create some advantage or benefit for the public.  The Court noted that the statute did not authorize any private party to create a nuisance.
2. Section 537.296 authorized a taking without requiring just compensation. Under the statute all nuisance claims following the initial temporary nuisance claim are to be considered a permanent nuisance. The plaintiffs claimed that this essentially grants an easement for the respondent to interfere with the full use and enjoyment of their land. The court found this argument was not ripe because the appellants were only seeking relief for a temporary nuisance in this case. The court noted that the statute specifically allowed the recovery of damages for loss in rental value of impacted property when a temporary nuisance was present.  That satisfied the constitutionally required just compensation when a temporary nuisance amounts to a temporary taking.
3. Section 537.296 violated the plaintiffs’ constitutional right of equal protection. The plaintiffs claimed that the statute creates a suspect class of “rural landowners and residents” and therefore the statute should have to withstand strict scrutiny. Historically, rural landowners have not been oppressed and the statute benefits rural landowners who use their land for agricultural purposes, so there is no suspect class. The argument related to the fundamental right to property conflicts with the established right of the state to confiscate property to “substantially advance a legitimate state interest.” Therefore, the statute only has to withstand the rational basis test. The Court presumes the state has a rational basis for this statute and the appellants had to demonstrate a “clear showing of arbitrariness and irrationality” before the statute can be declared unconstitutional.
4. Section 237.296 violates due process. This argument relied on a finding that a fundamental right had been violated, but the Court already determined there was no fundamental right violated.
5. Section 537.296 violates separation of powers. The appellants claimed that the statue requiring a person to have “ownership interest” in order to have standing is a judicial decision that the legislature did not have the power to make. Nobody in this case was denied standing because of this, and none of the plaintiffs were injured as a result of this part of the statute. The court will not rule on hypothetical questions of standing.
6. Section 537.296 violates the open courts clause. Article I, section 14 of the Missouri Constitution guarantees “the right to pursue in the courts the causes of actions the substantive law recognizes.” The plaintiffs’ asserted that the statute denied access to the court to “lawful possessors and occupiers of land”; however, the plaintiffs did not claim that the statute restricts access to the courts, so they did not have an argument to support this claim.
7. Section 537.296 is an unconstitutional special law. Finally, plaintiffs argued that this statute “benefits only the corporate farming industry.” Article III, section 40 of the Missouri Constitution does not allow the legislature to enact “special laws” when a general law will work. Special laws, “includes less than all who are similarly situated… but a law is not a special if it applies to all of the given class alike and the classification is make on a reasonable basis.” The court said that the landowners that can take advantage of the statute could change, as could the land uses.  The open-ended classification, the Court noted, was reasonable because it advanced the legitimate state purpose of promoting the agricultural economy.

Plaintiffs argued that, according to a negligence or conspiracy cause of action, they should receive “use and enjoyment” recovery. They also argued that there are not enough facts to demonstrate that Cargill was not vicariously liable for Bohr’s alleged negligence. The statute allows people to recover non-economic “use and enjoyment” damages only if their negligence and conspiracy claims are “independent of a claim of nuisance.” The court found that Appellants’ negligence, conspiracy and vicarious liability claims were not “independent of a claim of nuisance” because those claims were dependent on the nuisance claims.

The ruling of the circuit court was upheld.