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Nine years in court brings New York dairy vindication
Michigan farmers are protected from frivolous lawsuits by the Right-to-Farm Act.
There's nothing all that special about the Willet Dairy farm. Sure, it's big, by comparison to other dairies around Genoa, New York. And sure, it's probably too close to the bedroom community for sensitive noses.
Today, however, it's special because it beat a relentless attack from neighbors; persevered through nine years and hundreds of thousands of dollars in legal costs, and continues to milk cows. And it continues to pay property taxes that provide more than a third of the local funds in the Genoa town budget.
It's special this far west because the story of the Willet Dairy, while lengthy and complex, provides a lesson for Michigan farmers who may feel a little uncomfortable these days when neighbors move a bit too close.
"The main thing that this suit reinforces is the extreme importance of Right-to-Farm laws in every state," said Michigan Farm Bureau attorney Andy Kok. "Some angry neighbors and anti-farm groups have realized that litigation is an effective means of harassment, and that's just what Right-to-Farm laws are meant to protect farmers from."
The Willet Dairy suffered its first attack nine years ago, said Lyn Odell, the dairy's operations officer, facetiously, "because we're obnoxious and a CAFO. The original complaint," he said, "was that a neighbor had suffered brain damage due to bad air quality. There were also claims of health issues, noise, dust and that we'd stolen our neighbor's water."
At every turn, however, the lawsuit was thrown out of court, all the way to the New York Supreme Court. And after all was said and done, the court awarded the farm a small percentage of its attorney fees because the litigation was deemed frivolous.
That alone, despite the money and time that can never be recovered, is a victory, Odell said.
"The positive aspect of this is that the court said that the complainants and their attorneys should have realized that the suit was baseless, and it became a frivolous lawsuit," he said. "We're nothing special, but we're located too close to Ithaca, the land of green tree huggers. We're still fighting a state-level claim of nuisance and negligence, and we thought of going after the local media because of their (biased) coverage, but we just want to put it behind us now."
If the farm were in Michigan, Kok said, it would have been protected at least as well as it was in New York, since Michigan's Right-to-Farm law is considered among the best in the nation in defending farmers against unfounded nuisance lawsuits.
"Our Right-to-Farm Act provides significant protection to farmers," Kok said. "It protects against nuisance suits, as the New York rule did in this case, but the other claim here is that the farm was in violation of the Clean Water Act."
Facing such allegations, the farm has "repeatedly been reviewed by federal and state authorities," said a press release from the Northeast Dairy Producers Association (NDPA). "Regulators from the U.S. Environmental Protection Agency, the New York State Department of Environmental Conservation, the U.S. Army Corps of Engineers, state and local health departments, have all concluded that the dairy is in compliance with state and federal laws."
Simply by following the rules and practices outlined in its National Pollution Discharge Elimination System (NPDES) permit, the farm was given a legal shield, so to speak. The judge said as much in the district court decision that was upheld in all superior courts.
"The 'permit shield' embodied in (law) protects a Clean Water Act (CWA) permit holder from facing suits challenging the adequacy of its permit," the judge wrote in his decision. "...that is, compliance with an authorized permit is deemed compliance with CWA, so long as Willet Dairy was acting in accordance with its permit...."
Through the years of challenges, the farm needed the protection of both the permit and the state Right-to-Farm law, because where one leaves off, the other must kick in. That may make it seem as if the two protections are connected, but they are not, according to Elizabeth Dribusch, general counsel with the New York Farm Bureau.
"Through Right-to-Farm, the farm gets sound ag practices opinions, issued after the department of agriculture does an extensive review," she said. "If there were any pollution-related issues, there is not a true connection between Right-to-Farm and the (NPDES) permit."
Yet there is a connection when looking at it from another angle, because in Michigan, Kok said, as in New York, the Right-to-Farm law doesn't protect people who pollute. It is meant only to stop nuisance lawsuits against farmers who are acting within the law, not to protect bad actors.
What many lawyers and the NDPA seemed most excited about in the farm's legal victory was the return of attorney fees, which, compared to their expenses, was minimal.
"I think getting the fees back was more of a statement by the judge than anything else," Dribusch said. And even though Odell called the amount returned "meager," he said it was still precedent-setting.
Precedent-setting or not, the fee return is significant, Kok said.
"It is rare that a court will do that," he said. "It's completely discretionary on the judge's part. The judge has to decide if the suits were harassment and if they were frivolous, and then, what is the fair amount to give back. The $26,000 they got back seems like a slap in the face after spending nearly a million dollars in costs, but maybe the judge decided that individuals had brought the suit and didn't want to punish them with the full legal cost, which might bankrupt them. But that's just speculation."
Regardless of a judge's motivation, the lessons Michigan farmers can take home from the New York case, Kok said, are numerous.
"The biggest lesson, I think, is that legal challenges will continue, and when neighbors or anti-farm groups want to harass a farmer, the strongest protection for the farmer is compliance with the law and the permits. The next strongest protection is a strong Right-to-Farm act. But that doesn't mean you can just wave those two protections and the suits will go away, because people can still take you to court, and that will still cost you time and money and in some cases, reputation. But the encouraging thing is that now that returning some attorney fees has been ordered once, maybe the next court will consider that when frivolous and harassing cases are brought."
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