Monday, August 4, 2014

My Provisional Support For Missouri's Right To Farm amendment.

There has been a lot of controversy surrounding Constitutional Amendment No. 1 on the 5 August ballot in Missouri. Many people do not understand the potential meaning of the language or distrust the motives of the Amendment's promoters. I have personally supported "Right To Farm" proposals in the past, particularly as part of the Well-Fed Neighbor Alliance, and discussed potential language with State Senator Lembke's office several years ago. I have been opposed to Amendment 1 on the grounds that I was, like many others, uncertain of the meaning of the language and have spent a good bit of time over the last few days exploring that issue, as well as Facebook conversations with Tom Martz, Paul Curtman, and Shane Schoeller on the issue. As a result of my exploration, I am going to retract my opposition. I am not certain yet which way I will vote, but I do believe that the promoters of the amendment have taken care with the wording and that there is at least a good argument to be made about how the amendment will be interpreted. This post will explain some of what I have found to hopefully help others make their decision in the short time remaining to us.

I have tried to include direct links where possible to allow people to more quickly do their own reading.

Motives and Motivations

First of all, let me make clear my own motives. I am a disabled farmer, primarily raising sheep in a small family operation, first for wool but also for food, breeding stock, and other uses. We spin wool, knit, weave, and produce other fiber products, raise or wild harvest plants for natural dye use, from time to time market free-range eggs, raise a garden, and so forth. We have sold at farmers' markets in the past and currently mostly sell finished goods (e.g. woven shawls) at art festivals. Given that I am disabled, the size of the operation is limited to what my wife and daughter can do and what I can help with within my physical limits.

My wife and I are strong supporters of local cottage industry, small and family farms, and self-reliance. We were involved with the Well-Fed Neighbor Alliance from its beginnings and helped Galen Chadwick organize and launch the first local conference (under the banner of the WFNA and the Statesmen For Our Constitutional Republic). We are active in the Ozarks Property Rights Alliance, Lawrence County Chapter. This essay is, however, my own work and is not an official statement of any other organization.

The motives of the core promoters of this proposal are also very clear to me. State Representative Paul Curtman, Shane Schoeller, and State Senator Jim Lembke, in particular, are people I respect, who were involved in the promotion of this amendment and whom, largely, I find know what they are doing. I do not suspect them in any way of being a front for Monsanto or corporate agriculture. Whether the amendment effectively does what it claims to do and is a good idea is and has been my concern.

Tom Martz is also a voice I respect, however, and he, with some justice, has opposed this idea from the beginning. Tom Martz opposes a lot of things, and some people may get the idea that he is a nay-sayer and an alarmist, however, he also very consistently puts a lot of his own sweat, blood, and toil into coming up with alternative approaches and solutions, such as all the work he put into the Springfield audits and the good which has come out of that. Both sides have very good and respected voices. We should not lose sight of that.

The Amendment Text

The proposed text would go into Article I (Bill of Rights) of the Missouri Constitution:

Section 35.  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.
The first sentence is preamble and has no legal import. The second sentence, first clause states the rights to be protected ("the right of farmers and ranchers to engage in farming and ranching practices") and the second clause states that this right is subject to constitutional powers of the local and county governments (of which there are extremely few). Concern over the text revolves around the precise definition of "farmers" and "ranchers" and over the escape clause for local/county governments.

Looking At Definitions

One of the confusing aspects of this is that there are multiple potential definitions of farm or agriculture which might be applied from state or federal law. Typically, if not expressly defined, constitutional terms take their common language or dictionary meaning, The Constitution underlies statute, so statutory definitions can sometimes set up a "chicken and egg" problem, especially when statute changes over time.

Paul Curtman states that the definition of farm which would control is in RsMO 350.010(6):

"Farming" means using or cultivating land for the production of (a) agricultural crops; (b) livestock or livestock products; (c) poultry or poultry products; (d) milk or dairy products; or (e) fruit or other horticultural products, provided; however, "farming" shall not include a processor of farm products or a distributor of farming supplies contracting to provide spraying, harvesting or other farming services.
There are potentially other places a definition could come from, including the Department of Revenue, registrations of "agricultural land", etc., but I have to agree given my digging in statute and what case law I could find, that this definition is the most likely and that it is not incompatible with common or dictionary definitions of "farm" or "ranch". I have spent a lot of time digging through statute but I am not a lawyer and there is always the possibility that I have missed something. Your mileage may vary.

Ranching practices seems redundant to me in this context since the definition of "farm" includes livestock and the definitions of livestock are fairly broad. For example in RsMO 277.020:
(1) "Livestock", cattle, swine, sheep, ratite birds including but not limited to ostrich and emu, aquatic products as defined in section 277.024, llamas, alpaca, buffalo, elk documented as obtained from a legal source and not from the wild and raised in confinement for human consumption or animal husbandry, goats and poultry, equine and exotic animals;
Note that animals not raised for human consumption, such as horses, are included. There are a number of definitions of livestock in Missouri statute, but the all seem to be at least as inclusive. It may be possible that dogs or other animals raised for farm use might be included or included for those specific purposes (e.g. sheep dogs or livestock guardians).

The backyard raising of chickens or growing corn in an urban garden might not be included under these terms, but they are not specifically mentioned now.

There is already some protection from "agricultural nuisance" suits in RsMO 537. If you raise pigs and someone moves next door to you (after you raise pigs), they cannot readily claim in court that your pigs are a nuisance. The proposed amendment would leave that protection intact and potentially strengthen it. I have some concern about the impact on 537.295.3 which states:

The provisions of this section shall not affect or defeat the right of any person, firm or corporation to recover damages for any injuries sustained by it as a result of the pollution or other change in the quantity or quality of water used by that person, firm or corporation for private or commercial purposes, or as a result of any overflow of land owned by or in the possession of any such person, firm or corporation.
My initial reading of case law suggests however that actual damage caused by farming or a public health threat from a CAFO would be supported as reasonably overriding the offender's right to farm or ranch and the article VI escape clause retains the ability for localities to prevent such excesses.

For a specific (and exhaustive) discussion of the effects of Article VI on this language and what precisely a locality might be able to do, see David Cosgrove's excellent analysis.


There is much more which can be written, but given the limited time, at some point we need to roll the dice and take our chances. In some sense, if people are concerned about the text, the prudent case would be to vote it down and we could always explore the issue later. Amending the Constitution is always a ticklish and tricky proposition. My specific concerns over the wording, however, are greatly reduced and I am not 'worried' about the amendment. Given my long-time support of protections for the right to farm, I may end up voting for it tomorrow.

Whether this amendment passes or not, nothing changes the need to continually get good people into office, and in Missouri, good people who respect the traditions of farming, ranching, and local industry. In order to get good people into office, they must make it into the primaries, and, in our disagreement over Amendment 1, we must not distract ourselves from the importance of the 5 August primary itself.