North Carolina Developing New Approach to Award of Attorney Fees in Right to Farm Law

Posted:  July 19, 2013

The topic of nuisance and right to farm statutes has been red hot over the past couple of years, including a very recent legislative development in North Carolina.  In addition, several states, such as Missouri, have updated their right to farm statutes to strengthen the protection that they provide to agricultural operators.

For media requests or other inquiries on states' right to farm laws, contact Center Staff Attorney Rusty Rumley at rrumley@uark.edu.  For more information on right to farm statutes, please visit the National Agricultural Law Center 50-state compilation of states' right to farm laws here as well as the Center's Urban Encroachment Reading Room here

Every state has enacted a right to farm law, the provisions of which can vary widely from one state to another.  These laws are designed to provide an affirmative defense to qualified agricultural operations from certain nuisance lawsuits that may be brought against them.  One clause commonly found in many states' right to farm statutes deals with the recovery of attorney fees and other associated court costs.  

States that currently include provisions for the recovery of attorney fees address the issue differently.  In the past, there have been three basic categories that states could fall under.  The first group includes those states that do not specifically address the issue of attorney fees in nuisance suits against agricultural operations.  The second group includes those states that provide discretion for a court to award attorney fees to the farmer in certain circumstances, such as a finding that a nuisance suit was frivolous.  The final group includes states, such as Texas, that include an automatic award of attorney fees if the farmer successfully asserts the right to farm statute as an affirmative defense to a nuisance action.

Recently, the North Carolina legislature enacted a bill that, once signed by the Governor, will add a brand new wrinkle to attorney fee provisions appearing in a right to farm statute.  In North Carolina, this new bill contains the following language: 


In a nuisance action against an agricultural or forestry operation, the court shall award costs and expenses, including reasonable attorneys' fees, to:
 
(1) The agricultural or forestry operation when the court finds the operation was not a nuisance and the nuisance action was frivolous or malicious; or

(2) The plaintiff when the court finds the agricultural or forestry operation was a nuisance and the operation asserted an affirmative defense in the nuisance action that was frivolous and malicious.

This new approach concerning the awarding of attorney fees may prove particularly interesting since it has been reported that nearly 600 “farm nuisance disputes” were filed in North Carolina less than two weeks ago according to this news article.