Right to farm Constitutional Amendment

On August 5, 2014 the voters of the State of Missouri will vote on whether or not to adopt a constitutional amendment to forever guarantee that farmers and ranchers have the right to engage in farming and ranching practices by adding section 35 through the Missouri Constitution (the “Amendment”), which reads as follows:

“That agriculture which provides food, energy, health benefits, and security is foundation and stabilizing force of Missouri’s economy. To protect this vital sector of Missouri’s economy, the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state, subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.”

Voters will be asked to vote yes or no on the following question:

“Shall the Missouri Constitution be amended to ensure that the right of Missouri citizens to engage in agricultural production and ranching practices shall not be infringed?”

Questions – What are the implications with respect to the adoption of this Amendment? How do voters make an informed decision as to whether or not to vote for or against this Amendment? What are the legal consequences if the Amendment is adopted and will there be unintended consequences? Perhaps even more important is the question of whether or not it is good policy to include in the Bill of Rights of the Missouri Constitution “the right of farmers and ranchers to engage in farming and ranching practices.”

Answering these questions is no easy task because piercing through the fog of sound bites and political rhetoric is difficult. Determining if there is a hidden agenda is even harder and more important because if the Amendment is adopted it will be nearly impossible to change the Constitution.

Voters get to decide

To determine the validity of the claims made by leading proponents  of the Amendment – the Missouri Farm Bureau and Missouri Farmers Care – I have reviewed statements they have posted on their site, reviewed several law review articles and Missouri case law and have to the extent possible provided links to these sources of information (except law review articles that are not on-line) so that the reader has the full benefit of the original document.

Legal implications 

Vagueness –  The proponents,  argue that the Amendment is vague and will require interpretation by the courts. Highlighting this point is the fact that there is no historical basis for interpreting a constitutional right to engage in farming and ranching practices since only North Dakota has adopted a farm rights amendment to its constitution guaranteeing it’s citizens a constitutional right to farm and there have been no appellate court cases to date interpreting the North Dakota constitutional amendment.

In order to sidestep  the question of uncertainty  the proponents  of the Amendment state that it will be interpreted like other constitutional provisions in the Bill of Rights. A perspective  about the right to farm – on the  Missouri Farm Bureau Website supporting the amendment – provided by Brent Hayden, a lawyer from Columbia, Missouri states that: “The Right to Farm amendment, if passed, will make farming and ranching a right in Missouri, similar in scope and protection to the speech, religion and gun rights already in Missouri’s Constitution.” I agree with the statement that the right to farm Amendment will be interpreted like the right of free speech, freedom of religion and the right to bear arms contained in the Missouri Bill of Rights.  With  that in mind voters need to sit up and take notice.  

The interpretation of the constitutional right of free speech, religion and the right to bear arms strongly suggests that the proposed right to farm and ranch  Amendment will be nearly absolute. Inclusion in the Bill of Rights gives the Amendment special status over other provisions in the Missouri Constitution. The language in the  Bill of Rights of the Missouri Constitution with respect to the right of  free speech (“no law shall impair”), freedom of religion (“a natural and indefeasible right” nor shall  “beliefs be infringed”) and  the right to bear arms (“shall not be questioned”) makes these rights nearly absolute although it must be recognized that there are limits but these limits are the exception and are narrowly defined.    The rule of statutory construction is to liberally construe rights in the Missouri Bill of Rights against infringement by law. Ask yourself whether or not the General Assembly can adopt laws, which limit  free speech,  freedom of religion or the right to bear arms? Limitations on the right of free speech,   freedom of religion and the right to bear arms have only been upheld in rare and unusual cases.

The not so secret hidden agenda

Power of local government limited – Proponents of the Amendment argue that  it is    “… subject to duly authorized powers, if any, conferred by article VI of the Constitution of Missouri.” (emphasis added)    So what does “if any”  mean?  One tip is that the drafter’s were not willing to even concede in the Amendment that any powers are granted by article VI by adding the phrase “if any”  in order to avoid and interpretation of  the amendment that all words must be given meaning. The  “if any” phrase is intended to give the drafter’s of the Amendment an argument  that article VI  confers no power otherwise why is this language included in the Amendment?  The exception for duly authorized powers in  article VI  of the Missouri Constitution are basically meaningless because  the state can always limit the power of local government. 

In addition,  making the amendment subject to  article VI, which   pertains to cities, counties and special districts is misleading because  by law the General Assembly can  limit the power  of local government.  In addition,  every well-versed municipal lawyer knows that statutory cities and counties are generally not conferred any rights by article VI.  Home rule cities and counties have the right to adopt laws provided they are not inconsistent with the Missouri Constitution or state law. Local  laws that conflict with state law are invalid.  Claims by the proponents of the Amendment  that local government will continue to have the power to regulate and things won’t change are simply empty promises that cannot be kept.

Missouri Supreme Court – gets to decide meaning

Power of the General Assembly may be limited –  The language   “subject to duly authorized powers” in article VI of the Missouri Constitution,  is important because it implies  that other provisions of the Missouri Constitution such as article III, section 1,  (power  of the General Assembly to  legislate) would be  subservient to the  constitutional right of farming and ranching. As a consequence laws  adopted  by the General Assembly, which prohibit or limit farming or ranching  by the General Assembly could be invalidated because  the Bill of Rights  trumps state law and nearly every other constitutional provision that is not in the Bill of Rights.  A  state law that limited  the right to free speech, freedom of religion or the right to bear arms would be found to be invalid in a New York minute. It is hard to imagine why the Amendment guaranteeing the right to farming and ranching would be treated any differently. In fact, the proponents state that the amendment would be treated like the right to free speech, religion and the right to bear arms. 

The Amendment may abolish the right to bring a common-law nuisance action for pollution of  property when it is caused by forming or ranching operations.   The proposed  Amendment did not occur in a vacuum. As discussed in an earlier Post on my blog in May of 2011 a court decision affirming a jury verdict awarding $11 million in compensatory damages to 15 adjoining property owners against a hog farm run as a Concentrated Animal Farm Operation (CAFO) set the General Assembly on fire with an immediate reaction to protect farmers from common-law nuisance actions resulting in the passage of HB 209, which was vetoed by Governor Nixon. HB 209, was a complete overreach by the General Assembly for the reasons noted in my May Post of 2011.

Ultimately a compromise was reached to deal with some of the concerns  by the General Assembly adopting a law, which the Governor signed. This matter continued to simmer leading the General Assembly in 2014 to adopt a  HJR submitting to the voters the Amendment to the Bill of Rights in the Missouri Constitution establishing farming and ranching as a fundamental constitutional right. 

Constitutional Amendment

Several state courts have held that state statutes, which limit the right to bring a common law nuisance action against a farming operation that is creating a common law nuisance is an unconstitutional taking. When the Iowa Supreme Court declared state legislation, which prohibited common-law nuisance actions as a taking in a farm state like  Iowa farm groups sit up and take notice. Certainly, the proponents of the Amendment would argue that the constitutional Amendment if approved bars common-law nuisance actions. In addition,  you can expect that the proponents will argue that the Amendment validates section 537.295 RSMO., which allows an expansion of  a farm  cattle operation once it has been in operation for at least one year is  no longer a taking of private property without compensation.  

History is important in understanding the purpose of the Amendment. It is no secret that the proponents have  proposed the Amendment because of the above history and the concern that a court might invalidate any effort by the General  Assembly to adopt laws which limit the right to bring a common law nuisance action.  

The  public policy question  –  No one argues with the proposition that farming and ranching is extremely important. The public policy question does not center on that question. The critical question is whether or not inclusion in the Constitution of the State of Missouri as part of the Bill of Rights is appropriate and whether or not its inclusion will limit the ability of to adjust to future threats from farming and ranching operations that may have a very severe impact on the environment.

Large Industrialized Pig Farm

What is the history with respect to the failure of civilizations to adjust to changes in the environment? A summary   in Wikipedia of  “Collapse: How Societies Choose to Fail or Succeed,” by Jared Diamond demonstrates many of the principal causes for failure of a society include: destruction of forestation and habitat, erosion,  salinization and soil fertility losses, overhunting and introduction  of species on native species and the  introduction of toxins in the environment.   Does anyone remember the dust bowl of the 1930s? The location of a  hog farm that is operated in northern Arkansas  as a concentrated animal feed operation  (CAFO) in karst topography – within several miles  of the Buffalo River – tells the real story about big farming and their concern with the environment.

Our elected representatives should be able to deal with changes to the environment without being hamstrung by constitutional amendment that can only be changed by the voters. Be assured, once this Amendment is adopted it will be in the Missouri Constitution forever.  State government needs the flexibility to act when the environment is threatened.

Howard Wright @ 2014