Mississippi's Right-to-Farm Summary

With little public controversy or advocacy by legislators, the Mississippi right-to-farm law has existed since 1980. Since it was first enacted, the number of farm operations in the state has dropped by 37 percent and the acreage farmed by 29 percent.1 So what does this legislation do in practice?

Mississippi’s RTF Law at a Glance

Mississippi’s RTF law provides no explicit protection for farmland or family farms. Rather, its RTF law, like those present in the other forty-nine states, centers on protecting certain types of agricultural operations and forestry activities from nuisance suits when they impact neighboring property, for example through noise or pollution. Mississippi’s RTF protections apply to either private nuisance suits (those brought by people, like neighbors) or public nuisance suits (those brought by the government on behalf of the general public).

The state’s RTF law protects agricultural operations defined as facility or production and processing sites related to livestock, farm-raised fish and products, timber and wood-related products, and poultry for industrial or commercial purposes, among other things.2 In a 1986 case, a court initially ruled that a cotton gin did not qualify as an agricultural operation and thus did not warrant RTF protections.3 The court ordered the abatement of the nuisance and awarded damages to one of the plaintiffs, a man with chronic asthma who lived around 400 feet away from the gin. However, the ruling was appealed to and reversed by the Supreme Court of Mississippi in 1992. The court ruled that the facility constituted an agricultural activity that had not expanded, even though the plaintiffs struggled, in the words of the court, “mightily to convince us” otherwise.

Mississippi’s RTF law was amended in 1994 to extend nuisance suit protections to forestry activities, which includes reforesting, growing, managing, and harvesting timber, wood, and forest products.4 In a 1995 case, the Mississippi Supreme Court classified timber as a crop that warranted RTF protections when eleven citizens filed suit against operators of the Leaf River Mill, which included Leaf River Forest Products Inc., Great Northern Nekoosa Corporation, and Georgia-Pacific Corporation.5

Conditions and Activities

Once up and running for one year or more, agricultural operations and forestry activities receive absolute defense from nuisance action if the operation is in compliance with all applicable state and federal permits.6 An absolute defense means immunity from liability for wrongdoing associated with nuisances.

The RTF defense of operations once up and running for a year proved central in a 2002 case concerning Prestage Farms Inc., a partner of Smithfield Foods Inc., largely owned and operated by investors in China.7 Prestage Farms and its seven associated debtors/defendants, including limited liability companies, sought to defend themselves from sixty-eight plaintiffs who sued for nuisance. The associated cases played out in bankruptcy court, as swine operations increasingly use a folding corporate structure to limit their liability for wrongdoing.8 The companies sought to dismiss the suit, saying that their operations had been ongoing for over a year. However, the plaintiffs countered that the operations had substantially changed, because an incinerator that burned dead animal carcasses was more recently installed. The court responded that a new activity, in this case the incinerator, restarted the operations’ clock relative to when the burning started.9

However, the bankruptcy court ruled and affirmed on appeal that only the incinerators were eligible for nuisance suits, as the rest of the operations’ activities—such as waste lagoons and associated runoff—had been ongoing for over a year. In a final appeal with the state’s district court, the court was “sympathetic to the plight of the plaintiff landowners . . . [and was] of the opinion that plaintiffs whose property is adversely affected by an air polluting operation deserve some remedy; but, because . . . plaintiffs failed to bring their claims within the statutory period and because there has been no evidence presented that the hog farms substantially changed after operations began, the court’s hands [were] tied.”10 Since all of the defendant farms were in operation more than a year before the lawsuit was filed and there was no dispute regarding whether or not the farms remained substantially unchanged, the plaintiffs’ action was barred.11 In Mississippi, hog CAFOs tend to be located in areas with high percentages of African Americans and persons in poverty.12

To receive RTF protection, Mississippi’s RTF law also stipulates that such operations and activities must be in compliance with all applicable state and federal permits, including the Mississippi Air and Water Pollution Control Law.13 In 1995, the Supreme Court of Mississippi reviewed a lower court ruling, where the jury awarded over $3 million to residents for alleged damages from exposure to 2,3,7,8–Tetrachlorodibenzo–P–dioxin (“dioxin”), a toxic substance detected in mill sludge.14 The state supreme court determined that the Leaf River Mill qualified for absolute defense from nuisance suits, as the paper mill was a “crop” that had existed for at least one year. However, the court also ruled that even though the paper mill qualified for RTF protections, it still could face nuisance litigation via the pollution control laws. Based on this, the opposite also became true, where the RTF law still could protect an operation from liability, even in cases when the state’s pollution control laws were violated.15 After reviewing the case, the state supreme court reversed the earlier $3 million verdict, determining that there was not enough evidence to demonstrate that Leaf River Mill owed damages for alleged exposure.

However, not all agricultural operations must comply with the Mississippi Air and Water Pollution Control Act. The law exempts concentrated animal feeding operations, but not those housing swine.16 Swine CAFOs must be permitted. Those applying after 1998 must demonstrate that their animal waste management system reduces the “effects of the operation on the public health, welfare or the environment.” No more than five such permits can be issued to swine CAFOs in any given year.17 Those who violate this law can be subject to a civil penalty of up to $25,000 for each violation and/or be subject to temporarily or permanently ending their operations and activities.18 However, the law does not allow private actions to be brought against hog facilities for violating the act. The court treats the act as a regulatory scheme to oversee and abate air and water pollution.19

More generally, the public retains the right “to initiate a request with the [Mississippi Department of Environmental Quality]” to take action for violations of the Air and Water Pollution Control Act.20 However, it remains up to the state whether or not to take action on reported violations.

Local Governance

The RTF law does not allow local governments to require permits for any buildings, structure, or uses that pertain to agriculture, including forestry activities.21 In addition, the RTF law takes away municipal or county authority to adopt or impose ordinances, regulations, rules, or policies that prohibit or restrict agricultural operations, forestry activities, or traditional farm practices, the latter of which are defined as those that adhere to accepted customs or standards used by similar operations in similar circumstances.22 This applies to agricultural land or land otherwise unclassified, unless it creates obstruction to navigable airspace.23

County and municipal governments retain their ability to reclassify property from one zone to another.24 The appellate court affirmed that a county board could enforce zoning regulations, as pertained to a nonprofit horse-riding arena.25 In another case, the court ruled that the building of a home on twenty-five acres did not qualify for RTF protection, and thus exemption, from a zoning ordinance.26

  • 1. U.S. Department of Agriculture, USDA Quick Stats Tool: June 1980 Survey, Mississippi, distributed by National Agricultural Statistics Service, accessed December 13, 2020, https://quickstats.nass.usda.gov/results/276191E8-01B3-30EE-9232-126794DC5995; “2021 State Agriculture Overview: Mississippi,” U.S. Department of Agriculture, National Agricultural Statistics Service, accessed October 21, 2022, https://www.nass.usda.gov/Quick_Stats/Ag_Overview/stateOverview.php?state=MISSISSIPPI.
  • 2. Miss. Code § 95-3-29(2)(a) (2021).
  • 3. Bowen v. Flaherty, 601 So. 2d 860 (Miss. 1992).
  • 4. 1994 Miss. Laws 647 (S.B. 2464) (amending, in relevant part, Miss. Code § 95-3-29).
  • 5. Leaf River Forest Prods v. Ferguson, 662 So. 2d 648 (Miss. 1995).
  • 6. Miss. Code § 95-3-29(1) (2021).
  • 7. Prestage Farms Inc. has many interfirm ties with Smithfield Foods. For example, Prestage uses Smithfield’s processing plant, in addition to operating two of its own: Prestage Foods of Iowa and Prestage Foods of North Carolina (for poultry). For more information, see Loka Ashwood, Andy Pilny, John Canfield, Mariyam Jamila, and Ryan Thompson, “From Big Ag to Big Finance: A Market Network Approach to Power in Agriculture,” Agriculture and Human Values 39, no. 4 (2022): 1421-1434.
  • 8. Loka Ashwood, Danielle Diamond, and Kendall Thu, “Where’s the Farmer? Limiting Liability in Midwestern Industrial Hog Production,” Rural Sociology 79, no.1 (2014): 2–27.
  • 9. Moore v. Prestage Farms, Inc., No. 3:05CV64, 2007 WL 1031371 (N.D. Miss. Mar. 30, 2007).
  • 10. Norman v. Prestage Farms, Inc., No. 3:05CV64, 2007 WL 1031371 (N.D. Miss. Mar. 30, 2007).
  • 11. Norman, 2007 WL 1031371; Miss. Code § 49-17-35 (2021).
  • 12. Sacoby M. Wilson, Frank Howell, Steve Wing, and Mark Sobsey, “Environmental Injustice and the Mississippi Hog Industry,” Environmental Health Perspectives 110, no. suppl 2 (2002): 195–201.
  • 13. Miss. Code § 95-3-29(1), (4) (2021).
  • 14. Leaf River Forest Products, 662 So. 2d 648.
  • 15. Norman, 2007 WL 1031371.
  • 16. Miss. Code § 49-17-29(1)(b), 2(a) (2021), which states that “concentrated animal feeding operations may be a source, or a category of sources exempted under this paragraph. However, no new or existing applications relating to swine concentrated animal feeding operations within a county shall be exempted from regulations and ordinances which have been duly passed by the county’s board of supervisors and which are in force on June 1, 1998.”
  • 17. Miss. Code § 49-17-29(3)(f) (2021).
  • 18. Miss. Code § 49-17-43(1)–(2) (2021).
  • 19. Norman v. Prestage Farms, Inc. (In re Moore), 310 B.R. 795 (Bankr. N.D. Miss. 2004). >
  • 20. Miss. Code § 49-17-35; Norman, 2007 WL 1031371.
  • 21. Miss. Code § 17-1-3(1) (2021).
  • 22. Miss. Code § 95-3-29 2(c) (2021).
  • 23. Miss Code § 17-1-21(2)(a)–(b) (2021).
  • 24. Miss Code § 95-3-29 2(c) (2021).
  • 25. Hinds Co. Bd. of Supervisors v. Leggette, 833 So. 2d 586 (Miss. Ct. App. 2002).
  • 26. Ladner v. Hancock Co., 899 So. 2d 899 (Miss. Ct. App. 2004).