Liability Is Blowin’ in the Wind … or Is It?

A look at feedlots and their downwind neighbors.

By Mary H. Barkley and Chris Brown

Anyone who has spent more than a day in West Texas or the Panhandle is familiar with the dust storm. Combine that with the fact that the Great Plains are home to 80 percent of the nation’s feedlots, which house approximately 8.2 million cattle.¹ Is there a problem?

Complaints vary regarding Texas’ feedlots. A study by Andrew McEachran, at the time a doctoral student in environmental technology at North Carolina State University, and Texas Tech University faculty adviser and co-author Philip Smith has found that the treatment of cattle with antibiotics may result in the development of antibiotic resistant bacteria downwind of the feedlots.²

Historically, legal claims related to feedlots have been nuisance and negligence based. In one, a ranch owner sued the owners of an adjacent feedlot housing 5,800 sheep on a 10-acre parcel in McCulloch County—the case spanned five years, including two extended appeals.³

Texas courts have taken a broad view of what constitutes a nuisance. In Aguilar v. Trujillo, the 8th Court of Appeals in El Paso stated that nuisance is a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use or enjoy it.⁴ Among the potential remedies for a nuisance claim are monetary damages, including diminution to market value and personal injury damages if a person can show health decline as a result of the nuisance, and injunctive relief.⁵ Exemplary damages are also available under certain circumstances.⁶

A cause of action for “trespass by air contaminant” has been recognized, at least in dicta, by the Supreme Court of Texas in Town of Dish v. Atmos Energy Corporation.⁷ Section 75.002(h) of the Texas Civil Practice and Remedies Code⁸ provides that “an owner, lessee, or occupant of real property in this state is liable for trespass as a result of migration or transport of any air contaminant, as defined in Section 382.003(2), Health and Safety Code,⁹ other than odor, only upon a showing of actual and substantial damages by a plaintiff in a civil action.”¹⁰ “Air contaminant” is defined as “particulate matter, radioactive material, dust, fumes, gas, mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural.”¹¹ Damages available for trespass include diminution in the value of the trespassed land, intrinsic value in some circumstances, and exemplary damages if the trespass is found to be “malicious” or “willful.”¹²

Owners and operators of agricultural businesses, however, are not without defenses to lawsuits that may be brought against them based in nuisance or trespass. The Texas Legislature has specifically promulgated two defenses applicable to such suits.

Right to Farm Act
The Texas Right to Farm Act,¹³ enacted by the Texas Legislature in 1981, is a robust defense available to agricultural operators and demonstrates the state’s commitment to the agricultural industry.

As stated in the act, it is the policy of Texas to “conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products.”¹⁴ Specifically, the purpose of the act is to “reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be regulated or considered to be a nuisance.”¹⁵

The act applies to all agricultural operations, which include: cultivating the soil; producing crops for human food, animal feed, planting seed, or fiber; floriculture; viticulture; horticulture; silviculture; wildlife management; raising or keeping livestock or poultry; and planting cover crops or leaving land idle for participation in government programs or as part of crop or livestock rotation procedure.¹⁶

The act, as written, seeks to bar nuisance claims brought against agricultural operations. The act provides that “no nuisance action may be brought against an agricultural operation that has lawfully been in operation for one year or more prior to the date on which the action is brought, if the conditions or circumstances complained of as constituting the basis for the nuisance action have existed substantially unchanged since the established date of operation.”¹⁷

Statute of Limitations
The two-year statute of limitations also provides a relatively simple defense to nuisance and trespass claims. In Town of Dish v. Atmos Energy Corporation,¹⁸ a case dealing with claims of trespass by air contaminant in addition to nuisance, town residents asserted claims against owners of four natural gas compressor stations and a metering station related to noise and odor emanating from these facilities. The Texas Supreme Court held that the two-year statute of limitations applied to these claims and reinstated the trial court’s take-nothing judgment based on a limitations bar.¹⁹ When a claim is based on trespass by air contaminant, such a claim accrues once “known injury begins.” Claims for nuisance normally do not accrue when a potential source is under construction, but once operations begin and interference occurs, limitations run against a nuisance claim just as any other.²⁰ Accordingly, because the residents started complaining about the noise as early as 2006 and the last compressor station came online in 2008 and the town did not file suit until 2011, the claims were barred by the two-year limitations period.²¹

As agricultural production grows and urbanization continues, landowners and agricultural businesses may face continuing challenges in land use. Whatever the wind may bring, growth on both sides is wonderful news for the Texas economy.^TBJ

MARY H. BARKLEY is a partner in Cantey Hanger in Fort Worth, where she focuses on litigation, appellate work, and eminent domain/property rights. She is a member of the Texas Bar Journal Board of Editors.

CHRIS BROWN is an associate with Cantey Hanger in Fort Worth, where he focuses on eminent domain/property rights, litigation, and construction law.

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