'Right to Farm' divides Missouri as it charts unknown territory

Wednesday, July 16, 2014 | 6:00 a.m. CDT; updated 7:02 a.m. CDT, Thursday, July 17, 2014
Scott Hays and his family own Two Mile Pork, a company with 20 concentrated animal feeding operations, or CAFOS, around Missouri. The company is one of thousands across the state that could be affected by the Aug. 5 vote on Amendment 1, the "Right to Farm" amendment.

MONROE CITY — In late June, the air is shimmering above the hog lagoon on Scott Hays' farm near Monroe City.

The heat index is 101 degrees, which renders the afternoon nearly unbearable. Hays' Ford F-150 struggles to keep the interior cool as the truck rumbles over a gravel road toward the roughly half-acre lagoon, which collects the waste of 4,500 sows.


Question on the Aug. 5 ballot: 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?

Proposed Amendment 1 language: "That agriculture which provides food, energy, health benefits, and security is the 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."

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Hays rolls down the passenger window, and the stench is powerful enough to make eyes water. He doesn't flinch.

He points to a long black tube reaching into the murky depths of the waste. The tube extends eastward through a vast cornfield, where it disperses the manure as fertilizer. The process may be gross, but it's free fertilizer, and it helps Hays' crops thrive.

Hays and his family own and operate Two Mile Pork, a company with 20 concentrated animal feeding operations, or CAFOs, around Missouri that produce around 20 million pounds of pork product per year. Each of the 100,000 pigs he produces each year provides about 200 pounds of meat.

The company is one of thousands across the state that could be affected Aug. 5 by the outcome of a statewide election. On the ballot is Amendment 1, the so-called "Right to Farm" amendment to the state constitution, which would "forever guarantee" the rights of ranchers and farmers to engage in practices related to farming and ranching.

The amendment, which leaves much to interpretation, has divided the state.

Supporters claim CAFOs and other agricultural production methods need the amendment as protection from harmful and unnecessary regulations.

Opponents say its vague language would give too much power to large agribusinesses and leave local governments without much regulatory muscle.

If voters approve the measure, Missouri will join North Dakota as the only other state with farming protections lodged in the state constitution. Legal experts in both states have expressed uncertainty about its potential impact and say decades could pass before the courts define its reach.

A family of farmers

Hays supports Amendment 1 with a number of farming interests around the state that have been drumming up support for it: the Missouri Farm Bureau, Missouri Farmers Care, FCS Financial, Missouri Cattlemen's Association, the Missouri Soybean Association and the Missouri Pork Association.

They reason that farmers are threatened by regulations from environmental and animal rights activists, regulations that would make food production less efficient and more difficult. It's unfortunate that it needs to be done, they say, but a constitutional amendment is the only way to combat that threat.

Hays is a fifth-generation farmer, and his daughter, Acacia Hagan, who also works for the family company, represents the sixth. They live two miles from the center of Monroe City, a rural town of about 2,500.

Their hog facility meets the Environmental Protection Agency's definition of a large CAFO, which is subject to regulation of pollutant discharge under the Clean Water Act. Large CAFOs generate significant waste, which must be managed in environmentally sound ways.

CAFOs became principal players in U.S. livestock and poultry production in the 1970s and '80s as an economical, efficient solution to the demand for a standardized product. To help ensure consistency on his farm, Hays has imposed strict policies on the operation. He wants to minimize any adverse factors that could compromise the meat.

Before entering the sow facilities, he and his workers must remove their clothes, shower in a sterile room and don disinfected, company-approved gear.

To keep his livestock from overheating, water is funneled through PVC pipes on the north side of the barn, where it cools the corrugated surface and evaporates.

Although it's a brutal, cloudless day, Hays says the evaporators keep the interior a  comfortable 86 to 87 degrees. The evaporators regulate the temperature so effectively that there is only a 30-degree variance during the entire year.

His pigs don't experience sickness, extreme cold or heat, bugs or much danger in their six-month lifespan, Hays said. They're fed 20 different specialized rations, which he argues is better than most people in Third World countries.

The ultimate goal of all this, he said, is to optimize the product sold to consumers.

"We feel like we have an obligation to raise the highest-quality, lowest-cost protein source that we can," he said. "We want to put a pork chop out there that everybody can afford."

'Right-to-Farm' initiatives

All 50 states have enacted right-to-farm statutes that are designed to protect farmers and ranchers from nuisance lawsuits, according to the National Agricultural Law Center.

Missouri's statute protects any agricultural operation from being deemed a nuisance  "so long as all county, state, and federal environmental codes, laws, or regulations are met by the agricultural operation."

The effort to fold this protected status into the constitution stems from the passage of Proposition B, otherwise known as the "Puppy Mill Cruelty Prevention Act" — the law that regulates conditions under which breeders can keep dogs.

The law's passage alarmed farm organizations. Especially troubling was original language in the law that defined pets as "any domesticated animal normally maintained in or near the household of the owner thereof."

The definition was no accident, says Don Nikodim, executive director of the Missouri Pork Association. If the Missouri General Assembly and Gov. Jay Nixon hadn't revised the language after passage, he said, many forms of livestock could have been redefined as pets and been subject to the restrictions in the bill. Those included a limit on the number of animals a farmer or rancher could own.

"Once you set the precedents that set — where you can only have 50 animals — that will put guys like (Hays) out of a job," Nikodim said.

Too much freedom?

Critics of the amendment include the Humane Society of the United States, the Sierra Club, Missouri Farmers Union, Cultivate Kansas City and the Missouri Association of Social Welfare.

They fear it would give large-scale farmers and ranchers free rein to skirt regulations that manage unchecked waste, pollution and unsanitary conditions. 

Others, including Nixon, who says he is "leaning" against the amendment, want to limit the number of amendments tacked onto the state constitution.

One vocal opponent is John Ikerd, a professor emeritus in agricultural economics at MU. Ikerd is primarily interested in issues of sustainability in agriculture and education programs related to sustainability.

Ikerd worries that Amendment 1 is another attempt do away with health ordinances that govern agricultural expansion, leaving counties unable to regulate land use within their boundaries.

"Enshrining farmers' constitutional rights to use popular production technologies, such as genetically modified organisms (GMOs) and concentrated animal feeding operations (CAFOs), would preclude future regulations," Ikerd has written, "even if regulations were later deemed necessary to protect public health."

Missouri grants broad zoning powers to counties and townships, though state statutes prohibit them from using zoning to regulate agricultural properties.

The state allows counties and townships to use health ordinances to regulate the location of agricultural construction, an authority upheld by the state Supreme Court. MU Extension estimates that 18 counties have adopted health ordinances dealing with animal feeding operations.

The General Assembly has twice attempted to pass legislation that would prevent such ordinances, first in 2007 and again in 2012. The bills failed.

In an interview, Ikerd recalled an early job he had in North Carolina in the '70s, where tobacco was a big business and smoking was prevalent. Little was known about smoking hazards at the time, and smokers were still able to assert their independence.

"It would be like granting a right-to-smoke (amendment) back in the '70s," he said. "Regardless of what they found after, there would be no restrictions because you had the basic right to smoke."

Similarly, he said, a right-to-farm amendment could preclude future generations from adopting measures to safeguard the public from as-yet undiscovered risks.

"There wouldn't be anything you could do about it consistent with the Constitution," Ikerd said.

Political action

Another opponent of the amendment is Wes Shoemyer, a former state senator from Hannibal, who has created a political action committee called Missouri's Food for America.

After Nixon placed the amendment on the August ballot, Shoemyer and former Lt. Gov. Joe Maxwell began traveling across the state to spread the word. Their unofficial motto: "Right to farm is right to harm."

Amendment 1 would transfer the weight of family farms to big business, Shoemyer argues.

"I think Monsanto cannot wait to become a farmer," he said, referring to the large agricultural company that specializes in genetically modified crops.

Like Ikerd, Shoemyer is also worried about the amendment's potential to circumvent county regulations. His local county commission has established a "green belt" around the lake that serves as the county's water source to prevent contamination from a proposed CAFO.

Another concern is the possibility of allowing foreign corporations to own Missouri farmland, citing the purchase of Smithfield Foods by a Chinese conglomerate in 2013.

According to the Missouri's Food for America website, "Amendment 1 will guarantee foreign corporations the right to own Missouri farm land and do as they see fit without any check and balance from the people or the legislature."

If the amendment is approved, Shoemyer fears it would be challenged in court with the potential for extensive repercussions.

"Any time you're going to give a constitutional right, all statutes can be challenged in the court of law," he said. Everything from environmental regulations to Proposition B could be challenged and removed by courts because of the amendment.

"Courts can take away rights quicker than legislation will," he said. "The Constitution trumps all."

A new movement

Installing a right to farm within a state's constitution is a relatively new phenomenon. Two-thirds of North Dakota voters approved a similar amendment in 2012 that contains nearly identical language to the one proposed in Missouri.

It reads: "The right of farmers and ranchers to engage in modern farming and ranching practices shall be forever guaranteed in this state. No law shall be enacted which abridges the right of farmers and ranchers to employ agricultural technology, modern livestock production and ranching practices."

David Saxowsky, a professor at North Dakota State University who specializes in agricultural law, said these types of amendments are designed to protect the modern technologies used in agriculture and could lead to provocative legal interpretations.

Missouri's proposed amendment does not include direct language about modern livestock production, though as written, it would include all agricultural practices.

"If there's a proposal to stop farmers from using genetically modified seeds, would that proposal be found unconstitutional?" he asked.

"Would genetically modified organisms be considered a modern technology that can't be prevented? It's going to boil down to 'what do we mean by modern technology?'"

The amendment is not likely to prohibit regulation of where farming occurs or how it impacts adjacent lands, Saxowsky said.

"What we are trying to prevent is, a county can't come back and say 'you can't raise chickens any other ways other than in a free-range area,'" he said. "The authority to blanket-regulate is going to be prohibited by this type of language in the constitution."

Still, Saxowsky said he is concerned with the implications right-to-farm amendments might have in the future.

"I would tell people to carefully study the proposed language," he cautioned. "Is this language providing too much protection into the future when we don't know what kind of technologies will emerge?"

Supervising editor is Jeanne Abbott.

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