Summary of a Recent
Judicial Development in
Animal Feeding Operations

Iowa Supreme Court Rebuffs Proposed CAFO Neighbor's
Cause of Action in Anticipated Nuisance

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

The Supreme Court of Iowa, in Simpson v. Kollasch, 749 N.W.2d 671 (Iowa 2008), affirmed the district court's decision, holding that the appellant neighbors of two proposed hog confinement facilities (CAFOs) failed to meet their evidentiary burden of proof for a cause of action in anticipated nuisance.

Background

Appellees (CAFO operators) filed two permit applications with the Iowa Department of Natural Resources (DNR) to construct CAFOs approximately two miles apart. Id. at 672. The manure would be stored under the facilities and spread once each year on nearby farmland. Id. Appellees published notice of their intent to build the two CAFOs, and a public meeting was held at which the County Board of Supervisors submitted a list of concerns to DNR. Id. DNR rejected the concerns, but before the permits were issued, appellants filed the case at bar alleging nuisance and anticipatory nuisance. Id. The district court granted partial summary judgment in favor of appellees and dismissed the nuisance and anticipatory nuisance claims, because the court found that that the appellants failed to meet their burden of proof. Id. Appellants appealed. Id.

Arguments

Appellants alleged that the district court erred by: 1) only considering one of the proposed CAFO facilities, 2) considering DNR standards and regulations to prove that appellees were in compliance, and 3) concluding that the one sow facility addressed by the court would not necessarily constitute a nuisance. Id. at 673.

Appellees claimed that the district court was correct in finding that appellants failed to meet their burden of proof and noted that appellees should bring their nuisance claim if their concerns are realized once the CAFO is in operation. Id.

Analysis and Holdings

Because appellees had no plans to construct the second CAFO facility, the court held that it would be entirely speculative to make a ruling on the facility. Id. at 674. In the future, if appellants planned to build the second CAFO facility, they would need to obtain a new construction permit from DNR. Id. Until then, any causes of action involving the second CAFO facility were moot. Id.

The district court had allowed appellees to present evidence of compliance with DNR standards and regulations. Id. Although compliance with the standards and regulations is not a defense to a nuisance claim, the court held that the evidence was relevant to show that a nuisance would not necessarily result from the operation. Id.

On the issue of anticipatory nuisance, the court stated, "an anticipated nuisance will not be enjoined unless it clearly appears a nuisance will necessarily result from the act . . . it is sought to enjoin. Relief will usually be denied until a nuisance has been committed where the thing sought to be enjoined may or may not become such, depending on its use or other circumstances." Id. at 675. The court stated that the standard is "clear and convincing evidence." Id. Applying this standard, the court held that with careful and diligent operation, the CAFO facility need not be a nuisance. Id. Although appellants' concerns had some merit, they failed to meet their burden of proof for an anticipatory nuisance. Id.

The case was decided on March 28, 2008.