Right to Farm vs. State Regulation

A Missouri woman recently claimed Missouri’s “Right to Farm” constitutional provision as a defense in a felony prosecution for growing nine marijuana plants in her basement. All states have right to farm laws, generally intended to protect farmers from civil suits brought by encroaching suburban neighbors based on things like the smell of pig manure.

Missouri’s law is unusual, both because it is a constitutional provision and because the language is very sweeping:

“[T]he 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.”

The case has yet to be decided, but the argument deserves full credit for creativity. Few observers actually expect to see an emerging trend in right to farm criminal defense law.

However, what happens when a form of marijuana cultivation, such as collective or home growing, that was legal under a pre-existing state medical marijuana law ceases to be permitted under a newer recreational/medical regime?  Can these growers make an argument that their operations are protected under a state’s right to farm laws?  The answer depends on the jurisdiction, of course, but it is potentially an issue in any state that is evolving from medical to full adult-use legalization.

A case in point is Washington state. On April 24, 2015, Washington Gov. Jay Inslee signed SB 5052, which will effectively eliminate collective gardens as of July 1. Those patients who voluntarily register with the state’s medical marijuana registry may grow up to six plants at home. Without registration, the limit is four plants. Prior to SB 5052, patients could grow up to 15 plants.

The language of Washington’s Right to Farm Statute is very limited,specifically intended to protect agricultural activities from private nuisance lawsuits. The obvious application for the marijuana farmer would be where a neighbor complains of the pungent odor wafting from an indoor grow house. It is not immediately obvious how this could be applied to state action limiting agricultural operations.

Oregon legislators are similarly considering reform of the medical marijuana system. At present, the Oregon Health Authority regulates medical marijuana dispensaries, but not growers or manufacturers. SB 844 would limit existing growers to 96 plants in rural areas and 24 in urban areas. New growers could have half that number.

Oregon, too, has a right to farm law. The declared purpose is to protect farming not only from private legal action, however, but from governmental action that has the effect of limiting farming practices:

“Certain private rights of action and the authority of local governments and special districts to declare farming and forest practices to be nuisances or trespass must be limited because such claims for relief and local government ordinances are inconsistent with land use policies, including policies set forth in ORS 215.243, and have adverse effects on the continuation of farming and forest practices and the full use of the resource base of this state.”

A right to farm defense may, therefore, be more valuable to Oregon growers than those in Washington. It would still be a novel approach, at best, because of the technical legal meanings of terms such as “nuisance” and “trespass.”

Advocates eagerly anticipate recreational legalization in California in 2016, but many of the same issues with harmonizing the regulation of an existing and new industry are certain to appear.

California’s Right to Farm statute contains very expansive language, more like the Missouri constitutional amendment than either Washington or Oregon’s laws. Not only does it provide that no agricultural activity may be declared a public or private nuisance after three years of operation, but it states further that,

“This section shall prevail over any contrary provision of any ordinance or regulation of any city, county, city and county, or other political subdivision of the state.”

It hardly bears mentioning that bringing the robust, if not entirely legal, agricultural marijuana industry that already exists in Humboldt County into the legal fold is going to be a major challenge for California legislators. It would not be surprising to see some of the growers’ arguments based in the right to farm law.

Laws that impact how the legal marijuana sector may be regulated will have to be reviewed on a state-by-state basis. Right to farm laws may have been a sleeper in this arena. But if defendants and creative lawyers can find a plausible application in criminal law, growers are certain to be looking for applications in land use regulation.

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