Pulled Pork: How North Carolina Lawmakers have Pulled Hog Farm Suits from the Docket

Credit: Maryn McKenna

Special Note: This article was co-authored by Corey A. Goss ’23 whose passion for attending law school was inspired by this very topic.

North Carolina human population: 10.5 million
North Carolina hog population: 9.5 million

Almost 100 years ago, it was common to find a hog on almost every farm in the United States, as families butchered and consumed their own family-raised hogs.  With the Great Depression, though, hog production became commercialized and hogs were found less and less on small family farms.  Today, Iowa is the top producer of hog sales in the United States, and our very own beautiful state of North Carolina is within the top five state producers.  North Carolina Duplin and Sampson counties house the largest population of farmed pigs in the United States.

In North Carolina, there is almost a 1:1 ratio of hogs to humans; there are 9.5 million hogs, which is just 1 million units shy of the 10.5 million humans occupying the state.  North Carolina’s Sampson and Duplin counties currently maintain the highest pig population, with their ratio being at least 29:1; their hog population is 1.7 and 1.8 million in comparison to their human population of 48,000-60,000.  That’s a lot of hogs!

A lot of hogs translates to a lot of jobs 

The following chart details total hog sales in the state of North Carolina in the years of an agricultural census:

Year of Agricultural Census Total Hog Sales in ($)
1997 $2,570,376,000
2002 $2,183,646,000
2007 $3,104,731,000
2012 $2,873,988,000
2017 $3,216,902,000

 

As the above chart depicts, the hog business in North Carolina is a billion-dollar industry.  The industry generates more than 44,000 jobs throughout the state, as workers are needed in the farming, processing, and sales arenas.  These jobs are especially abundant in rural areas, and they positively and largely contribute to the economies in which they are located; the hog industry itself contributes to rural economies not only through taxes, but also through the support of small businesses from whom hog farms buy equipment, feed, and more.

Too good to be true?

Despite being a billion-dollar industry that creates tens of thousands of jobs for North Carolinians predominantly in rural areas, the hog industry of North Carolina has been subject to legal challenge…until recently.

In 2015, 515 plaintiffs sued Murphy-Brown, the world’s largest producer of hogs. Murphy-Brown is headquartered in Warsaw, North Carolina.  The plaintiffs, spread over five separate lawsuits, alleged the hog farms located in eastern North Carolina were a nuisance in that they created odor, larger populations of flies, and waste.  To support their claims, the plaintiffs cited Steven Wing, a professor of epidemiology from the University of North Carolina, whose research found correlations between the air pollution from hog farms and higher rates of respiratory issues, asthma, nausea, and increased blood pressure in the surrounding community.  By January 2019, the plaintiffs had won all five lawsuits and five separate multi-million-dollar verdicts were entered against Murphy-Brown, a subsidiary of Smithfield Foods.  These lawsuits shook many in Eastern North Carolina, and captured the attention of small hog farmers, like Marlowe Ivey.

“A country that cannot feed itself cannot defend itself. If we continue to sue these [hog] farms, we are going to have real problems.” – Marlowe Ivey

Marlowe Ivey grew up on her family’s hog farm and has close ties to the community of small hog farms that were affected by the lawsuit against Murphy-Brown.  Ivey’s family farm is labeled a “contract grower.” Contract growers are independent farmers that invest in hogs and work under contract with larger businesses; the contract growers raise and care for the hogs, then send them to the larger businesses for processing.

The position of contract growers in lawsuits like those against Murphy-Brown is important to understand. As Ivey explains, “small family operations provide the hogs to the big corps…Smithfield [Murphy-Brown] doesn’t lose, the farmers with the hogs do.”  The lawsuit may have been against Murphy-Brown as a large business, but the complaint lists at least 90 small, family-run hog farms as defendants and those 90 family-run hog farms are the farms that get harmed by the lawsuit.  Ivey expresses concern that the side effect of the million-dollar judgments against the large business was not the closure of Murphy-Brown; rather, the consequence was the closure of small hog farms in her community.  This meant that families lost their livelihood and income.  “Suddenly,” Ivey remarks, “fifth and sixth generation families of hog farms had a large amount of land and the equipment needed for hog farming…but no hogs.”

To make matters worse, the defendant farms were initially issued a gag order and were not allowed to speak about the lawsuit until it was over; this temporarily took away the ability of hundreds of North Carolina citizens publicly defend themselves and their farms. Fortunately, the North Carolina Court of Appeals later struck down the gag order as a violation of the First Amendment. Ivey states from her perspective, “I sat back and watched the lies being told through a web of professions searching to take away my abilities and my children’s opportunity to come back to the family farm.”  To make matters even more frustrating, Ivey relays that the plaintiffs were not seeking a change in regulations to make hog farming safer for the community; the plaintiffs simply wanted money.

On a broader spectrum, with North Carolina being one of the largest producer of hogs in the U.S., the shutting down of the hog farms can have a disparate impact on North Carolina’s economy as these farms bring in billions of dollars of income to the state per year.  Ivey proudly reminisces on North Carolina hog farming culture, stating, “There’s a history and a heritage in North Carolina pig farming.  I have watched it grow from hogs on the ground feeding a few families into a leader in science and technology feeding families all over the globe.”

The Right to Farm Act of 2018

In direct response to the Murphy-Brown suits, the North Carolina General Assembly amended the right to farm laws to create the Farm Act of 2018.  This act pertains directly to nuisance lawsuits and dictates who can file suit against a hog farm.  The act mandates three conditions must be met before an individual could file suit against a hog farm: (1) the individual must live within half a mile from the hog farm; (2) only an owner of real property within that half mile can bring suit (no family, spouses or renters); and, (3) the suit must be filed within one year of the hog farm becoming operational.

Two civil rights lawyers recently challenged the conditions of the Farm Act of 2018, arguing that since most hog farms have been around since at least the 1990s, many real property owners living within half a mile of a hog farm are automatically estopped from filing suit due to the one year requirement.

Interestingly enough, estopping residents from filing nuisance lawsuits against pre-existing farms can be traced further back to North Carolina’s Right to Farm Act of 1979, which enacted in its language a preexisting “coming to the nuisance” defense doctrine.  Under the “coming to the nuisance” doctrine, a plaintiff could not recover under a nuisance lawsuit when the plaintiff voluntarily came or moved within the area of an already existing farm against which they were alleging the nuisance.  This very defense was intended to protect agricultural operations, like hog farms, from nuisance lawsuits; courts typically showed deference to farms when it could be proven the plaintiff chose to become a neighbor with the nuisance.  While the Act utilized this doctrine as a defense, the courts did not recognize the defense as being “absolute.”[1]

For example, the first case to establish a coming to the nuisance defense was a Washington case, Foster v. Preston Mill Co..  In Foster, plaintiff and neighbor of a timber farm brought a nuisance lawsuit against the timber farm.  The plaintiff alleged the timber farm’s blasting operations caused the minks he raised on his ranch to panic and, in one case, caused a mother mink to kill her baby kittens.  The court held that the plaintiff could not seek damages because there was not a valid complaint for nuisance.  The court reasoned that the timber farm had preexisted for over 50 years and its blasting operations had never disrupted the quiet enjoyment of surrounding residents; no other harm or complaint had been filed against the farm as a nuisance, so the court could not reason the farm should suffer absolute liability for a one-off causation of mink panic.  As seen through this case, which preexisted the Right to Farm Act of 1979, the court did not look solely at whether the plaintiff “came to” the timber farm, thus automatically excluding them as a plaintiff in a nuisance lawsuit.  Rather, the court looked at the coming to the nuisance defense as a factor in their final holding.

Thus, the civil rights lawyers are right.  The language of the recent Right to Farm Act of 2018 does essentially estop nuisance lawsuits against hog farms, but that concept is not novel, as the “coming to the nuisance” defense has existed for almost a century.

The North Carolina Court of Appeals delivered a similar response to the plaintiff’s attorneys by finding that the Act does essentially bar nuisance suits; this response can be considered a “win” for North Carolina hog farmers.

Further hope for hog farms today

On December 21, 2021, three appellate judges sitting on a North Carolina Court of Appeals panel listened to arguments pertaining to hog farm nuisance lawsuits; these judges were Judge Gore, Judge Tyson, and Judge Griffin.  All three judges hail from counties in Eastern North Carolina and all three, like Marlowe Ivey, understand the importance of the hog industry and the impact it has on rural eastern North Carolina communities.

The panel found that the argument provided by the civil rights lawyers, which stated that the Farm Act’s one year requirement automatically estops property owners from filing suit, fell directly within the meaning of the Farm Act of 2018.  The legislation was carefully drafted with the intent to limit or stop nuisance lawsuits against North Carolina’s agricultural community.  The Act does exactly that; it recognizes the importance of the industry to North Carolina’s economy and the positive global impact the industry creates.  In the Court of Appeals’ unanimous decision, Judge Tyson writes, “Limiting potential nuisance liability from agricultural, forestry, and related operations helps ensure the State’s stated goal to protect agricultural activities in North Carolina and to encourage the availability and continued ‘production of food, fiber, and other products.’”

One small step for the hog farming industry…

While this Court of Appeals decision defending the current legislation meant to protect the farming industry is a major “win” for North Carolina hog farmers and farms, it does not mean the lawsuits will end.  Marlowe Ivey advised that there is already further talk about future plaintiffs gathering new scientific evidence on air pollution to bring a lawsuit that circumvent the Right to Farm Act’s conditions..  Such a lawsuit would focus on the overall environmental impact of the farms, rather than the personal impact the farms have on the surrounding residents.  Whether this particular lawsuit comes into fruition or not, it is a clear sign that North Carolina’s hog farming industry and the small farms that support it will have to continue to fight for their livelihoods, income, farms, and overall global production.

[1] Ferdinand S. Tinio, “coming to nuisance” as a defense or estoppel, ALR.3d (1972).

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About Leanne McAbee (3 Articles)
LeAnne McAbee is a current 2L and serves as a Staff Writer for the Campbell Law Observer. She is from Wilkesboro, North Carolina, and attended undergrad at UNCG where she obtained a degree in Liberal Studies, with a concentration in Humanities. Her areas of interest include juvenile defense, education law, and property law.