Right to Farm

Grandfathers non-nuisance farming operations that existed prior
to the establishment of surrounding nonfarming operations of
lands zoned other than agriculture.  Defines "generally accepted
agricultural and management practices."  Provides that a farming
operation that has been conducted in a manner consistent with
generally accepted agricultural and management practices is not a
nuisance.  Provides that if a court determines an action alleging
an agricultural operation is a nuisance is frivolous, the court
may award court costs, attorney fees, and other costs to the
defendant.  (HB2999 HD1)

HOUSE OF REPRESENTATIVES                H.B. NO.           H.D.1
TWENTIETH LEGISLATURE, 2000                                
STATE OF HAWAII                                            

                   A  BILL  FOR  AN  ACT



 1      SECTION 1.  Section 165-2, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "165-2 Definitions.  As used in this chapter, unless the
 4 context otherwise requires:
 5      ["Established date of operation" means the date on which the
 6 original farming operation first commenced operation.  If the
 7 physical facilities of the farming operation are subsequently
 8 expanded or new technology adopted, the established date of
 9 operation for each change shall be the same as the established
10 date of operation for the original operation, provided that this
11 does not violate existing state law or county ordinances.]
12      "Farming operation" means a commercial agricultural,
13 silvicultural, or aquacultural facility or pursuit conducted, in
14 whole or in part, including the care and production of livestock
15 and livestock products, poultry and poultry products, [and]
16 apiary[, horticultural, or floricultural products;] products, and
17 plant and animal production for nonfood uses; the planting,
18 cultivating, [and] harvesting, and processing of crops; and the
19 farming or ranching of any plant or animal species in a
20 controlled salt, brackish, or freshwater environment.  "Farming

Page 2                                                     2999
                                     H.B. NO.           H.D. 1

 1 operation" also includes[,] but shall not be limited to[,
 2 marketed]:
 3      (1)  Marketed produce at roadside stands or farm markets;
 4           [noises,]
 5      (2)  Noises, odors, dust, and fumes emanating from a
 6           commercial agricultural or an aquacultural facility or
 7           pursuit; [operation]
 8      (3)  Operation of machinery and irrigation pumps; [ground]
 9      (4)  Ground and aerial seeding and spraying; [the]
10      (5)  The application of chemical fertilizers, conditioners,
11           insecticides, pesticides, and herbicides; and [the]
12      (6)  The employment and use of labor.
13 A farming operation that conducts processing operations or salt,
14 brackish, or freshwater aquaculture operations on land that is
15 zoned for industrial, commercial, or other nonagricultural use
16 shall not, by reason of that zoning, fall beyond the scope of
17 this definition; provided that those processing operations form
18 an integral part of operations that otherwise meet the
19 requirements of this definition.
20      "Generally accepted agricultural and management practices"
21 means those practices as defined by the board of agriculture.
22 The board shall give due consideration to information available
23 from the department of agriculture and written recommendations

Page 3                                                     2999
                                     H.B. NO.           H.D. 1

 1 from the University of Hawaii college of tropical agriculture and
 2 human resources, in cooperation with the United States Department
 3 of Agriculture, Hawaii agriculture research center, and other
 4 professional and industry organizations.  The board shall give
 5 due consideration to practices adopted by other states and
 6 federal agencies.
 7      "Nuisance" means any interference with reasonable use and
 8 enjoyment of land, including but not limited to smoke, odors,
 9 dust, noise, or vibration; provided that nothing in this chapter
10 shall in any way restrict or impede the authority of the State to
11 protect the public health, safety, and welfare.  "Nuisance" as
12 used in this chapter, includes all claims that meet the
13 requirements of this definition regardless of whether a
14 complainant designates such claims as brought in nuisance,
15 negligence, trespass, or any other area of law or equity;
16 provided that nuisance as used in this chapter does not include
17 an alleged nuisance that involves water pollution or flooding."
18      SECTION 2.  Section 165-4, Hawaii Revised Statutes, is
19 amended to read as follows:
20      "165-4 Right to farm.(a)  No court, official, public
21 servant, or public employee shall declare any farming operation a
22 nuisance for any reason if [all of the following have been
23 proven:

Page 4                                                     2999
                                     H.B. NO.           H.D. 1

 1      (1)  That during the twelve-month period preceding the
 2           filing of the nuisance complaint with a court or other
 3           adjudicative public body, the farming operation
 4           complied with statutes, ordinances, regulations, or
 5           rules relevant to the nuisance complaint; and
 6      (2)  That the farming operation has used reasonable care in
 7           conducting its operation.
 8      (b)  Notwithstanding a farming operation's satisfaction of
 9 subsection (a)(1) and (2), a farming operation may be declared a
10 nuisance if:
11      (1)  The farming operation or any aspect thereof has been
12           previously determined to be injurious to public health
13           or safety by the department of health, the department
14           of agriculture, or a court of competent jurisdiction;
15           and
16      (2)  The complainant establishes by a preponderance of the
17           evidence that the alleged nuisance resulted from the
18           injurious operation or aspect thereof.  Any
19           determination of injuriousness shall be in writing and
20           shall set forth the bases for the determination.] 
21 the farming operation has been conducted in a manner consistent
22 with generally accepted agricultural and management practices.
23 Any such farming operation shall be presumed to be reasonable and
24 shall not be found to constitute a nuisance."

Page 5                                                     2999
                                     H.B. NO.           H.D. 1

 1      SECTION 3.  Section 165-5, Hawaii Revised Statutes, is
 2 amended to read as follows:
 3      "[[]165-5[]]  Frivolous lawsuits.  [Any nuisance action,
 4 found to be frivolous by the court, in which a farming operation
 5 is alleged to be a nuisance as defined in section 165-2, shall be
 6 governed by section 607-14.5.] If the court determines that any
 7 action alleging that an agricultural operation is a nuisance is
 8 frivolous, the court may award costs of court, reasonable
 9 attorney fees, and any other related costs, to the defendant."
10      SECTION 4.  Statutory material to be repealed is bracketed.
11 New statutory material is underscored.
12      SECTION 5.  This Act shall take effect upon its approval.