Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Retroactive Application of
Right to Farm Law Denied

Sean Brister
National AgLaw Center Graduate Assistant

In a private nuisance action brought by a business owner against a neighboring grain elevator, the Supreme Court of Nebraska has refused to retroactively apply amendments to the state's right to farm statute that became effective more than a year after the filing of the action and would have exempted the grain elevator from such a nuisance suit. Soukop v. ConAgra, Inc., 653 N.W.2d 655 (Neb. 2002). The court determined that the amendments could not be retroactively applied because the state legislature did not clearly express the intention that the amendments be applied retroactively. See id. at 657-58.

On March 14, 1997, Lloyd Soukop filed a private nuisance against ConAgra, Inc., and Peavey Grain Company, Inc. (Peavey) in the Hall County district court. See id. at 656. Soukop owned a used car lot approximately one block from the grain elevator operated by Peavey. See id. Soukop alleged that "grain dust, chaff, and other materials" discharged from the elevator settled on his inventory of used cars. See id. He also alleged that discharges from the grain elevator caused him to experience a loss of sales and diminished profits. See id. Soukop requested damages and injunctive relief. See id. Peavey denied that discharges from the elevator constituted a nuisance and asserted multiple affirmative defenses. See id.

Peavey filed a motion for summary judgment on June 4, 2001. See id. The county district court granted the motion, stating that § 2-4403 of the Nebraska Right to Farm Act as amended by L.B. 1193 in 1998 governed the dispute. See id. As a result of the 1998 amendment, § 2-4403 currently provides the following, with the language added by L.B. 1193 italicized:

A farm or farm operation or a public grain warehouse or public grain warehouse operation shall not be found to be a public or private nuisance if the farm or farm operation or a public grain warehouse or public grain warehouse operation existed before a change in the land use or occupancy of land in and about the locality of such farm or farm operation or a public grain warehouse or public grain warehouse operation and before such change in land use or occupancy of land the farm or farm operation or a public grain warehouse or public grain warehouse operation would not have been a nuisance.

Id. at 657 (quoting Neb. Rev. Stat. § 2-4403 (Cum. Supp. 2002)).

The county district court noted that the grain elevator was built in 1936 and that Peavey had operated it since 1975 without any nuisance action being filed against it or any written complaint about its operation being received. See id. at 656. The court also noted that Soukop had been a landowner near the elevator since 1967, but had only operated his used car lot since 1981. See id. In addition, the court noted that there was no evidence that the grain elevator was a nuisance prior to the change in use of Soukop's land. See id. Based on these facts, the county district court ruled that Peavey was entitled to judgment as a matter of law pursuant to § 2-4403. See id.

Soukop appealed the county district court's decision, arguing that § 2-4403 should not have been applied retroactively. See id. The Nebraska Supreme Court moved the case to its docket on its own motion and reversed the district court's decision. See id.

The court began its analysis by reviewing the amended right to farm statute. See id. at 657. It noted that the amendment became effective July 15, 1998, more than a year after Soukop filed his action. See id. Soukop argued that his action was governed by the pre-1998 statute that only protected a "'farm or farm operation.'" Id. (quoting Neb. Rev. Stat. § 2-4403 (Reissue 1997)). Thus, Soukop argued that Peavey's grain elevator did not fall within the statutory protections. See id. The court noted that there was no dispute that the grain elevator was a "'public grain warehouse or public grain warehouse operation'" and not a "'farm or farm operation.'" Id. (quoting Neb. Rev. Stat. § 2-4403 (Cum. Supp. 2002)).

The court explained that "substantive statutes are generally not given retroactive effect unless the Legislature has clearly expressed an intention that the new statute is to be applied retroactively." Id. (citing In re Interest of Clifford M. et al., 626 N.W.2d 549 (Neb. 2001)(additional citations omitted)). The court stated that the 1998 amendment would not govern Soukop's action unless the legislature clearly intended that it should operate retroactively. See id.

The court explained that in Abbou v. Papio-Missouri River NRD, 571 N.W.2d 302 (Neb. 1997), it found clear legislative intent for the amended statute in that case to apply retroactively in the language of the statute itself and not in the legislative history. See id. It also explained that in Young v. Dodge Cty. Bd. of Supervisors, 493 N.W.2d 160 (Neb. 1992), and In re Interest of J.M.N., 464 N.W.2d 811 (Neb. 1991), it declined to apply an amended statute retroactively because no language clearly evidenced such intent by the legislature. Id. (citations omitted). The court stated that "[t]he common thread of each of the above-cited cases is that an inquiry as to whether the Legislature intended retroactive application of a statute began and ended with an examination of the words on the face of the statute." Id. at 658.

The court concluded that after examination of § 2-4403 as amended in 1998, there was no clear legislative intent to apply the amended statute retroactively. See id. Thus, it ruled that the pre-1998 version of § 2-4403 governed Soukop's action and that the county district court erred when it granted summary judgment in favor of Peavey. See id. It reversed the county district court's decision and remanded the matter for further proceedings. See id.

The case was decided on December 6, 2002; this summary was posted April, 2003