Hawaii's Right-to-Farm Summary

Hawaii’s legislature passed its right-to-farm law with the stated intention of stopping “the premature removal of lands from agricultural use” and ensuring future investment in agriculture. Related statutes declare the preservation and promotion of farming to be part of the public purpose. 1 However, since Hawaii first enacted its RTF law in 1982, the number of operations has grown by 59 percent while the number of acres in farmland has dropped by 44 percent.2 So what does this law do in practice?

Hawaii’s RTF Law at a Glance

Hawaii’s “Right to Farm Act” provides no explicit protection for farmland. Like those present in the other forty-nine states, the state’s law centers on protecting certain types of farming operations from nuisance suits when they impact neighboring property, for example through noise or pollution.3 Hawaii has a lengthy definition of farming operations, which includes commercial agricultural operations that pertain to silviculture, aquaculture, livestock production, and planting, cultivating, harvesting, and processing of crops; apiary products; plant and animal production for nonfood uses; and the farming or ranching of any plant or animal species in a controlled salt, brackish, or freshwater environment. The definition also specifically includes noises, odors, dust, and fumes emanating from commercial agricultural or aquaculture facilities; the operation of machinery and irrigation pumps; ground and aerial seeding and spraying; and the application of chemical fertilizers and pesticides. Roadside stands, food establishments, farmers’ markets, food hubs, and commercial kitchens selling value-added and agricultural goods grown in Hawaii also receive protections.4 Hawaii is only one of a handful of states that also includes employment and the use of labor as part of the definition of farming operations.

Conditions and Activities

Hawaii’s original RTF law required farm operations to meet a series of conditions to receive protection from nuisance suits: (1) the farming operation could not have been a nuisance when it began; (2) the conditions surrounding the farm changed after it was established; (3) the farm lawfully operated at least a year prior to the nuisance claim; and (4) the farm operation was not operating negligently or improperly.

The current law in Hawaii has removed these requirements for protection. Hawaii now defines nuisance expansively, meaning RTF protections apply in a variety of legal contexts. Amendments define “nuisance” as any claim that meets the definition in the statute, regardless of whether the suit calls it nuisance, negligence, trespass, or any other similar cause of action. Nuisance defense also applies to interference with reasonable use and enjoyment of land (smoke, odors, dust, noise, or vibration). However, the definition does not protect an alleged nuisance that involves water pollution or flooding.5

The law stipulates that farm operations cannot be declared a public nuisance in Hawaii if they use generally accepted agricultural and management practices. When they use such practices, the law provides a rebuttable presumption that a farming operation does not constitute a nuisance.6 In practice, this means farm activities are assumed acceptable unless proved otherwise. In light of Hawaii’s broad protection of farm operations from nuisance suits, the meaning of accepted agricultural and management practices has proved important in court.
In one case, with various rulings appealed six times, the court made an operation’s awareness about practices key to liability. In the case, neighbors sued the owners of the land, who leased it to Pioneer Hi-Bred International Inc., for negligence, nuisance, and trespass in regard to its genetically modified organism test fields. Before leasing to Pioneer, the landlords conducted sugarcane farming on the property and neighbors complained then of dust drifting into their homes. The landlords responded by paying cleaning costs. The plaintiffs argued that because of this history, the landlords should have been aware of the risks when they rented the land to Pioneer. The court ruled that there was no evidence to support that the landowners knew about or consented to activities on the property that would create a nuisance.7 In a related case, the court also ruled against neighbors in favor of Pioneer, stating that “farming is not inherently a nuisance.”8

Local Governance

Hawaii’s RTF law prevents courts, public servants, and public employees (including any local government actor) from declaring farming operations nuisances, relative to the aforementioned criteria. However, the statute also contains a clause that preserves the rights of the state to protect the public’s health, safety, and welfare. It is unclear how these two provisions interact, as they have yet to play out in court.9

County zoning laws are limited relative to agricultural districts and their contiguous lands. Zoning laws restrict counties’ capacity to pass ordinances/regulations that interfere with or restrain farming operations. These zoning laws use the same definition for farming operations as the RTF law but also include many other protected operations and activities.10

For example, Pioneer Hi-Bred, Syngenta Seeds, and several genetics corporations sued the County of Kauai for an ordinance that was designed to regulate the application of restricted-use pesticides and the planting of modified crops. The ordinance would have required corporate agricultural entities to report the use of restricted-use pesticides and the possession of GMOs to nearby neighbors; create pesticide buffer zones; mandate a county environmental and public health study related to large-scale commercial agricultural entities; and require anyone who violated the ordinance to pay a civil fine of at least $10,000. The court ruled that the ordinance was invalid because the RTF law preempted it.11

• 1. Haw. Rev. Stat. § 165-3 (2021).
• 2. U.S. Department of Commerce, “Table 1. Farms, Land in Farms, and Land Use: 1982 and Earlier Census Years,” in 1982 Census of Agriculture, Volume 1: Geographic Area Series, Part 11: Hawaii State and County Data, Chapter 1: State Data (Washington, D.C.: U.S. Bureau of the Census, 1984), https://agcensus.library.cornell.edu/wp-content/uploads/1982-Hawaii-CHAPTER_1_State_Data-121-Table-01.pdf; “2021 State Agriculture Overview: Hawaii,” 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=HAWAII.
• 3. Haw. Rev. Stat. § 165-2 (2021).
• 4. Haw. Rev. Stat. § 205-2 (2021).
• 5. Haw. Rev. Stat. § 165-2 (2021).
• 6. Haw. Rev. Stat. § 165-4 (2021).
• 7. Aana v. Pioneer Hi-Bred Int’l, Inc., 965 F. Supp. 2d 1157 (D. Haw. 2013).
• 8. Casey v. Pioneer Hi-Bred Int'l, Inc., No. 12-00655 LEK-BMK, 2013 WL 1701873 (D. Haw. Apr. 17, 2013).
• 9. Haw. Rev. Stat. § 165-4 (2021).
• 10. Haw. Rev. Stat. §§ 165-4, 205-3.5 (2021).
• 11. Haw. Rev. Stat. § 165-2 (2021).