Request By:
Thomas H. Bugg, Hickman County Attorney; Greg Pruitt, Hickman County Judge/Executive; Bill Graves, Ballard County Judge/Executive; J. D. Williams, Calloway County Judge/Executive; Vicki Ray, Assistant Calloway County Attorney; John Roberts, Carlisle County Judge/Executive; Roy Davis, Carlisle County Magistrate; Harold Garrison, Fulton County Judge/Executive; Leanna Puckett, Assistant Fulton County Attorney; Tony Smith, Graves County Judge/Executive; Gayle Robbins, Graves County Attorney; Mike Miller, Marshall County Judge/Executive; Jeff Edwards, Marshall County Attorney; Danny Orazine, McCracken County Judge/Executive; Dan Boaz, McCracken County Attorney
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ross T. Carter, Assistant Attorney General
Opinion of the Attorney General
Escalating concern over plans to establish industrial-scale hog operations in western Kentucky has prompted some local officials to request that the Attorney General render an opinion on the regulation of these activities. The tenor of the questions presented implicates KRS 413.072, sometimes called the Kentucky Right to Farm Act. We have chosen to respond to all requests in this one opinion. The question that we address in this opinion is:
Does KRS 413.072 prohibit local governments from regulating, by zoning or other means, industrial-scale hog operations?
Our answer is no; we do not believe that local governments are precluded from regulating operations of the type generating the current controversy.
1. Enactment of KRS 413.072
As originally enacted in 1980, KRS 413.072 dealt with nuisance actions and the ability of local governments to abate agricultural nuisances. The statute was intended to protect existing farms from being regulated or litigated out of existence by encroachment of suburban areas. "When non-agricultural land uses extend into agricultural areas," subsection 1 says, "agricultural operations often become the subject of nuisance suits. . . . It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance. "
Before we proceed any further with our analysis of KRS 413.072, it must be said that the Attorney General fully appreciates the difficulties inherent in legislative draftsmanship. The burden of succinctly expressing the thought of the majority is a heavy one, especially so when regular sessions of the General Assembly are short and infrequent. It is far more difficult to draft a statute than to criticize it. When we criticize KRS 413.072, as we must, we do not discredit the process that created it.
Subsection 2 of the original statute said, "No agricultural operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions in or about the locality thereof after the same has been in operation for more than one (1) year, when such operation was not a nuisance at the time the operation began." We do not know exactly what this means; it is not clear whether "the same has been in operation for more than one (1) year" refers to the overall agricultural operation or to the changed conditions at the agricultural operation. For example, if a farmer grows soybeans in a manner that is not a nuisance, and two years later stops growing soybeans and starts feeding hogs, presumably the hog raising constitutes a separate agricultural operation that would be subject to nuisance abatement (although this is by no means clear). If however the farmer started by feeding ten pigs without creating a nuisance and two years later expanded to feed a thousand, we do not know whether the new operation is merely a "changed condition" that is exempt from nuisance abatement or whether the large operation is a different agricultural operation that could be regulated. One can easily imagine other answerless questions, such as an increase from ten pigs to a thousand that occurs over a span of years.
Subsection 2 contains another ambiguity. Despite persistent rereading of the statute, we cannot discern whether the legislature intended to regulate all nuisance actions or only those relating to changed conditions. A judicious pruning of the language reveals that at its core the statute says that no agricultural operation shall be a nuisance "by any changed conditions" after one year has passed. This prompts us to wonder about nuisance actions that do not result from changed conditions. If KRS 413.072 is a statute of repose rather than of limitation--that is, if it limits a plaintiff's right of action before the cause of action accrues rather than after--then it raises constitutional considerations that imperil its validity. McCollum v Sisters of Charity, Ky, 799 SW 2d 15 (1990). It takes little imagination to envision a bacterial infection that takes more than one year to reach a neighbor's household. We do not know whether KRS 413.072 would bar an action based on that contamination.
The statute included the following language restricting local regulation of agricultural operations: "Any and all ordinances of any unit of local government now in effect or hereafter adopted that would make the operation of any such agricultural operation or its appurtenances a nuisance or providing for abatement thereof as a nuisance in the circumstances set forth in this section are and shall be null and void." The phrase "in the circumstances set forth in this section" is not perfectly clear, but we construe it as adopting from subsection 2 the provision that nuisance actions or regulations are barred after the facility has been in operation more than one year. The ambiguities in subsection 2 are of course adopted as well.
2. Amendment of KRS 413.072
In 1996 the General Assembly dramatically extended the scope of KRS 413.072. No longer does it apply only to abatement of nuisances; the statute now covers any legal action, and its stated purpose is to clarify the circumstances in which agricultural operations may be "interfered with by local ordinances or actions." KRS 413.072(1). Thus, where subsection 2 formerly said, "No agricultural operation or any of its appurtenances shall be or become a nuisance, private or public, by any changed conditions . . .," it now says, "No agricultural or silvicultural operation or any of its appurtenances shall be or become a nuisance or trespass, private or public, or be in violation of any zoning ordinance, or be subject to any ordinance that would restrict the right of the operator of the agricultural or silvicultural operation to utilize normal and accepted practices, by any changed conditions . . . ."
Unfortunately, the 1996 amendment did not clarify the ambiguity regarding the one-year time period; worse, the amendment failed to update the phrase "when the operation was not a nuisance at the time the operation began." That is, while the statute overall deals with subjects other than nuisances, such as zoning, the one-year time period--whatever it means--continues to apply only to nuisances. To illustrate this anomaly, if we trim the statute to show only what it says about zoning, we read this: "No agricultural or silvicultural operation . . . shall be . . . in violation of any zoning ordinance . . . when the operation was not a nuisance at the time the operation began." Any lawyer knows that the law of zoning and the law of nuisance are two separate subjects, and we are at a loss to explain how or why the two were conjoined in the current version of KRS 413.072 .
Our final criticism of KRS 413.072 concerns subsection 7. The former version of that subsection invalidated local ordinances pertaining to nuisance "in the circumstance set forth in this section." That inarticulate language remains, and the statute now applies not only to nuisance ordinances but to trespass and zoning ordinances as well. The consequences of this amendment are enormous. One can make a very plausible case that the General Assembly has repealed virtually all agricultural zoning provisions in the Commonwealth. If agricultural zoning must be based on the law of nuisance, as we pointed out in the preceding paragraph, then few if any agricultural zoning ordinances escape the indiscriminate sweep of KRS 413.072(7).
3. A reasonable interpretation of KRS 413.072
While grounds for questioning the constitutionality of KRS 413.072 come readily to mind, we are not inclined to condemn a statute that can be saved by a reasonable construction. We are in total sympathy with the motives that impelled the original adoption of the act in 1980. Throughout the recorded history of Kentucky, and indeed even before that, the word "farm" has been synonymous with "small farm" or "family farm. " Like ancient heirlooms our farms deserve protection from the forces tending to break that which is irreplaceable. If a farm was begun far from the madding crowd, its inhabitants should be allowed to keep the noiseless tenor of their way though a city spring up around them.
Although much remains to be said about exactly what KRS 413.072 does, we expect that such instruction will come from the courts, who unlike the Attorney General are binding arbiters. In this opinion we need only examine the relationship between the statute and the industrial-scale hog operations looming in western Kentucky.
We will focus on subsection 3, which provides a definition of "agricultural operation." The first sentence of the subsection says:
For the purposes of this section, "agricultural operation" includes, but is not limited to, any facility for the production of crops, livestock, equine, poultry, livestock products, poultry products, horticultural products, and any generally accepted, reasonable, and prudent method for the operation of a farm to obtain a monetary profit that complies with applicable laws and administrative regulations, and is performed in a reasonable and prudent manner customary among farm operators.
We wonder why the drafters included any language after the words crops and livestock, those two words covering the universe of agricultural operations. Excepting microbes, all life on earth is divided into two kingdoms, plant and animal, and there is no agricultural product that is not classifiable as either crop or livestock. With a precision that does not characterize the remainder of the statute, the drafters clarified that the statute also covers equine, poultry, livestock products, poultry products, and horticultural products. If the universe of agricultural operations were exhausted after crops and livestock, it is absolutely exhausted after the addition of those specific items. Yet the statute goes on to describe in a general sort of way other "method[s] for the operation of a farm" that also fall within the meaning of "agricultural operation." Those additional words must mean something, although it is impossible to think of a farming operation that the definition has not already included.
Every word in a statute must be given meaning if possible. Brooks v Meyers, Ky, 279 SW 2d 764, 766 (1955). Given the many interpretive problems one encounters in dealing with KRS 413.072, we do not think it illogical to conclude that the words in question, rather than purporting to extend that which cannot be extended, instead provide some delineation of the overall scope of the definition. That is to say, the expression "agricultural operation" means the production of crops or livestock by any generally accepted, reasonable, and prudent method that is performed in a reasonable and prudent manner customary among farm operators.
This view is supported by other references within the statute. Subsection 2 refers to "normal and accepted practices." Subsection 5 refers to "generally accepted technologies." We believe that it does no violence to the legislative intent to construe the statute as protecting only those operations that are generally accepted, reasonable, and prudent. In fact, such a construction is necessary to prevent the perversion of legislative intent into a protection for odd or disturbing practices. To take an extreme example, cloning, once a fantasy, has now been accomplished with the cloning of sheep in Scotland. Although that scientific achievement qualifies literally as the production of livestock, cloning is not a generally accepted, reasonable, and prudent agricultural operation and does not merit the protection of KRS 413.072.
Our conclusion is also supported by the statement of intent in subsection 1 of the statute. It says, "It is the declared policy of the commonwealth to conserve, protect, and encourage the development and improvement of its agricultural land and silvicultural land for the production of food, timber, and other agricultural and silvicultural products." We think it significant that the very first sentence of the statute relates the purpose of the legislation to land. The word "agriculture," after all, derives from the Latin ager, field, and cultura, cultivate. It is the cultivation and management of our land for agricultural operations that the legislature sought to protect, not the laboratories of science or the concrete buildings of manufacturing industries.
4. Description of industrial-scale hog operations
The information in this section was derived from materials submitted to us and our own inspection of readily available documents.
Called by various names--industrial hog farm, mega-farm, industrial-scale farm --the operation we will describe hardly deserves to be called a farm at all. An industrial-scale hog operation is less a farm than a manufacturing facility. Gone is the bucolic image of the lowing herd winding slowly o'er the lea. Gone is the symbiosis between farmer and land. For the most part, condition of the land is immaterial on an industrial-scale hog operation; the operation could be carried out effectively on a shingle of solid rock. In fact, it is apparently the availability of former strip mines in western Kentucky that has drawn operators to this state.
Production of hogs occurs in three buildings: sow unit, nursery, and finishing floor. A sow unit like the one proposed by Buckman Farms, LLC houses over 5,000 sows. An operation planned for Hopkins County will initially house 24,000 sows, with production rising to half a million hogs by 1999. Pigs remain in the sow unit 16 to 18 days, then move to the nursery for 52 days, and then move to the finishing floors for 16 to 20 weeks.
Hogs produce two to four times as much waste as humans. Industrial hog waste is collected into a huge open pond called a lagoon --a euphemism for cesspool--where the waste is broken down by microbial action. Waste is periodically removed from the lagoon and sprayed on fields as a fertilizer.
The history of hog lagoons has not been reassuring to those living downwind or downstream. North Carolina, the nation's second leading hog producer (the state has more hogs than people), has been plagued by a series of lagoon ruptures. In 1991 a ten-acre lagoon ruptured, sending tons of water into a nearby creek. In 1995, an eight-acre lagoon gave way. In one hour, 22 million gallons of hog feces and urine flowed into the New River. The total volume of spilled hog waste in North Carolina in 1995 was three times the amount of oil spilled by the Exxon Valdez. More than 10 million fish were killed, a 17-mile stretch of the Neuse River was closed, and 365,000 acres of coastal wetland were closed to shellfish harvesting.
In addition to spills, there are leaks. A report from North Carolina State University estimated that perhaps half the lagoons in North Carolina are leaking badly enough to contaminate groundwater.
And in addition to spills and leaks, there is ammonia released into the atmosphere. An operation with 1400 mature hogs will produce a ton of airborne ammonia a year.
The effects of these contaminants remain for years. It takes twenty years after removal of animals for contaminant levels to decrease, and another twenty years for the groundwater to clear. Given the notorious volatility of the hog market, one cannot assume that today's highly profitable corporations will remain viable long enough to insure complete rehabilitation of the lagoons and surrounding land.
Some evidence indicates that traditional farmers cannot compete with industrial-scale hog operations. In North Carolina in 1984, there were 2.2 million hogs and 20,000 farms. Eight years later, the hog population had doubled but the number of farms dropped to 8,000.
5. Application of KRS 413.072 to industrial-scale hog operations
We said in section 3 that for purposes of KRS 413.072, an agricultural operation is one that represents a generally accepted, reasonable, and prudent method that is performed in a reasonable and prudent manner customary among farm operators. In this section we evaluate industrial-scale hog operations against that standard.
Whether industrial-scale hog operations are conducted in a reasonable and prudent manner can be disputed. However, time is of the essence for local officials who must decide how to protect the interests of their communities, and we are therefore compelled to provide our opinion based on the evidence we have gathered. The experience of North Carolina persuades us that the practice of industrial-scale hog farming is neither reasonable nor prudent. In our state, an agricultural disaster is one that strikes the agricultural community, usually from acts of nature. In North Carolina, an agricultural disaster has come to signify a disaster that strikes the community at large from acts of an agricultural producer. We do not believe that any industrial process that, intentionally or not, dumps tons of animal waste into rivers and streams can be called reasonable or prudent.
Nor do we believe that such operations are, in this state, accepted and customary. We have observed a high level of community opposition to these massive hog operations. Already one altercation has resulted in bloodshed. The dispute is not between farmers and suburbanites; many farmers are as much opposed to industrial-scale hog operations as other residents. A recent news article quoted one farmer as saying, "People are packing guns. It's got everybody tensed up."
Subsection 1 of KRS 413.072 states, "It is the purpose of this section to reduce the loss to the state of its agricultural and silvicultural resources . . . ." The placement on a former strip mine of an industrial-scale hog operation with its obligatory lagoon does not qualify in our view as an agricultural resource. It is rather an industrial operation producing industrial waste.
We trust that this opinion will enable local officials to act responsibly so that the recent violence in western Kentucky does not prove to be a "prologue to the omen coming on."