Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Use of Dogs on Goat Farm Constitute
Acceptable "Farming Practice"

Gaby R. Jabbour
National AgLaw Center Research Assistant

Summary of Decision

In Hood River County v. Mazzara, 89 P.3d 1195 (Or. Ct. App. 2004), the Oregon Court of Appeals held that the Oregon Right-to-Farm Law, Or. Rev. Stat. § 30.935, precluded a determination that a farmer violated a county ordinance that prohibited an owner of dogs from allowing their dogs to become a public nuisance.

Background

Defendant Francis N. Mazzara operated a goat farm. See id. at 1197. Mazzara owned Kuvasz dogs, a breed that is traditionally used to guard livestock by barking at predators until the threat is gone or until a person investigates the situation. See id. The dogs have the ability to sense a predator when humans might not be aware of the its presence. See id. While Mazzara was away from her farm, a neighbor reported to authorities that one of her dogs had been barking for six hours. See id. A deputy investigated the report and cited Mazzara for violating a county ordinance that prohibited the owner of a dog from allowing the dog "'to become a public nuisance . . .' by '[d]isturb[ing] any person by frequent or prolonged noises[.]'" Id. (citations omitted). Mazzara argued to the trial court that the county ordinance was invalid as applied to her because the Oregon Right-to-Farm Law, Or. Rev. Stat. § 30.935 "immunizes farm practices from the application of local government ordinances." Id. The trial court rejected Mazzara's argument and assessed her with a $250 fine for violating the county ordinance. See id. Mazzara appealed this decision to the Oregon Court of Appeals. See id.

Arguments

Mazzara reasserted that the county ordinance was invalid as applied to her because Or. § 30.935 immunizes farm practices from the application of local government ordinances. See id. She also argued that "she used the dogs in her goat farming operation to guard livestock and that barking that otherwise would have constituted a nuisance was an essential part of that use." Id. Mazzara further contended that the trial court erred when it failed to enter judgment in her favor because she presented uncontradicted evidence that her use of the guardian dogs and their barking was a farm practice under the Oregon Right-to-Farm Law. See id.

Analysis and Holding

The court explained that § 30.936 provides that "'[a]ny local government . . . ordinance or regulation . . . that makes a farm practice a nuisance or trespass or provides for its abatement as a nuisance or trespass is invalid with respect to that farm practice for which no action or claim is allowed under [Or. Rev. Stat §] 30.936.'" Id. at 1196. It also explained that § 30.936 provides in relevant part that "'[n]o farming or forest practice on lands zoned for farm or forest use shall give rise to any private right of action or claim for relief based on nuisance or trespass.'" Id. The court further explained that a "farming practice" is defined as

"[A] mode of operation on a farm that: (a) Is or may be used on a farm of a similar nature; (b) Is a generally accepted, reasonable and prudent method for the operation of the farm to obtain a profit in money; (c) Is or may become a generally accepted, reasonable and prudent method in conjunction with farm use; (d) Complies with applicable laws; and (e) Is done is a reasonable and prudent manner."

Id. (quoting Or. Rev. Stat. § 30.930(2)).

The court noted that Mazzara presented evidence that her use of the dogs was a farm practice and that this was sufficient to raise the defense established in § 30.935. See id. at 1197. It also noted Mazzara's testimony that "she used the dogs in her goat farming operation to guard livestock and that barking that would otherwise have constituted a nuisance was an essential part of that use." Id. The court further noted that one of Mazzara's witnesses testified that "such use is not only a legitimate farming practice but a recommended one" and that such use was "reasonable and prudent." Id.

The court stated that the county "introduced no evidence that use of livestock guardian dogs was not a farming practice or that . . . [Mazarra] was not using her dogs in a generally accepted, reasonable, and prudent manner." Id. at 1198. See also id. (stating that "[o]nce defendant raised the defense, the county had the burden of disproving it.") (citation omitted). The court noted that "[t]he county focused on the fact that the dog barked for six hours, but it did not adduce any evidence that the dog was not in fact reacting to a predator or that barking of that duration could not, somehow, meet the definition of a farming practice." Id. The court concluded that "[c]ertainly six hours of barking would be disturbing to a neighbor. However, . . . [§] 30.935 provides that farming practices that would otherwise be a nuisance under county and local ordinances cannot be made illegal." Id. It further concluded that

The trial court disregarded uncontested facts that established . . . Mazzara's immunity, and in doing so it erred. Put another way, the court substituted its own opinion that six hours of dog barking could not be recognized [as a] farming practice when the uncontested testimony established that it can be and, in this case, it was.

Id. at 1199.

The case was decided on April 28, 2004; this summary was posted July 8, 2004.