Wisconsin’s Right-to-Farm Summary

Legislators advocated the right-to-farm law in Wisconsin as a tool to prevent the loss of farmland and protect family farms.1 But since first codified in 1982, the number of farms in the state has dropped by 30 percent, with 23 percent fewer acres of farmland.2 So what does this legislation do in practice?

Wisconsin’s RTF Law at a Glance

Wisconsin’s law provides no explicit protection for farmland or family farmers. Rather, Wisconsin’s RTF law protects income-producing or livelihood-based agricultural activities and uses from nuisance suits over matters that impact neighboring properties, like noise or pollution.3 Protected areas of agriculture are expansive, including aquaculture, floriculture, crop and forage production, beekeeping, raising livestock, fur farming, forest management, and land enrolled in federal or state agricultural conservation payment programs.4 Protected agriculture uses include storing and processing agricultural products, and processing agricultural wastes.

Conditions and Activities

To receive RTF protections in Wisconsin, agricultural activities and uses should predate those of aggrieved neighbors without having been significantly interrupted.5 Also, no threats to public health or safety can be present. However, Wisconsin’s RTF law interprets uninterrupted agricultural uses and activities broadly. For example, the law does not consider a change in the agricultural use or practice to be significant. Wisconsin’s RTF law consequently protects almost any agricultural use or activity, so long as it does not substantially threaten public health or safety.

Under Wisconsin’s RTF law, only plaintiffs are required to pay the costs of litigation if they lose, but not defendants.6 This shifts the litigation risks away from agricultural operations and onto plaintiffs by requiring them to pay attorney fees, expert witness fees, and other costs related to preparing for and participating in lawsuits. For example, in a 2000 lawsuit, a crop and cattle farmer claimed his neighbor’s commercial cranberry farm flooded his property, creating a nuisance that curtailed his capacity to farm.7 The circuit court ruled in favor of the cranberry farm, and on appeal, the court further ruled there was insufficient evidence to prove the cranberry farm caused the flooding. The appellate court therefore ordered the cattle and grain farmer to pay the reasonable attorney fees of the prevailing defendant—the commercial cranberry farm.

Local Governance

Wisconsin’s RTF law encourages local governments to use zoning to prevent nuisance conflicts.8 But in practice, state statutes limit their authority to do so. For example, the Wisconsin Livestock Facility Siting Law prevents political subdivisions from enacting or enforcing zoning ordinances that prohibit livestock facilities in agricultural districts.9 An exception is made if reasonable scientific findings demonstrate that the ordinance protects public health or safety.

Limits on Damages

Even if an agricultural operation is sued and found to be a nuisance, the RTF law substantially limits what Wisconsin courts can award or what activities they can restrict, unless public health or safety is threatened.10 Courts must consult public agencies with expertise in agricultural matters to ensure the suitability of actions required to address the nuisance. Also, the agricultural operation must be granted “a reasonable time” of no less than one year to comply with any order. Further, courts cannot impose any actions to address the nuisance that would negatively impact the economic viability of the operation.

  • 1. Wis. Stat. § 823.08 (1982).
  • 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 49: Wisconsin 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-Wisconsin-CHAPTER_1_State_Data-121-Table-01.pdf; “2021 State Agriculture Overview: Wisconsin,” 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=WISCONSIN.
  • 3. Wis. Stat. §§ 91.01(2)(a), 823.08(2) (2021). See also Michael Buelow, “Senate Approves ‘Right to Farm’: Bill Would Protect Farmers from Lawsuits, Say Sponsors,” St. Paul (Minn.) Pioneer Press, January 10, 1996; and Associated Press, “Bill to Save Farmers from Frivolous Suits Approved 96–1,” St. Paul Pioneer Press, October 13, 1995.
  • 4. Wis. Stat. § 91.01 (2021).
  • 5. Wis. Stat. § 823.08 (2021).
  • 6. Wis. Stat. § 823.08 (2021).
  • 7. Zink v. Khawaja, 608 N. W.2d 394 (Wis. Ct. App. 2000).
  • 8. Wis. Stat. § 823.08 (2021).
  • 9. Wis. Stat. § 93.90 (2021).
  • 10. Wis. Stat. § 823.08 (2021).