House bill is response to Phillips Co. jury decision to order hog producer to pay $134K to two landowners
By SHERMAN SMITH
Kansas Reflector
TOPEKA — Rodney Ross says his family lived through a four-year nightmare instigated by a prominent hog producer who piped urine and manure through Ross’ property and sprayed the foul mix on a field next to the Ross home in Phillips County.
In July, a jury ordered Terry Nelson to pay $134,000 in damages to Ross and another landowner for trespassing and nuisance. On Monday, Ross asked the House Agriculture Committee to reject the Kansas Livestock Association’s attempt to protect other ag producers from such a ruling.
“We are a multigeneration farming family and support being good stewards of the land — while respecting others and their own property rights,” Ross said. “We must not allow complicating the system just to cause undue burden on others. It seems like this could be less complicated if people would just ask others for permission.”
The committee heard testimony on House Bill 2531, which would make it legal for farmers and owners of confined animal operations, like Nelson, to use the right-of-way on land they don’t own to operate pipelines for agricultural activities.
Mike O’Neal, a lobbyist for a group of landowners, said the court ruling last year sent “shockwaves through the state” because so many farmers rely on pipelines that go under or alongside roads and have been in place for decades.
“Producers don’t necessarily own contiguous ground,” O’Neal said. “And in order to get irrigation, effluence, nutrients from one field to another, they may have to go down to the right-of-way.”
County commissions have jurisdiction in approving these installations, but the judge’s ruling raised the question of whether local authority could be in conflict with the rights of private property owners.
Ross described his experience with Nelson as an “incredibly unpleasant event.”
Ross said he was driving one day when he unexpectedly discovered a mile of land had been destroyed for installation of a pipe extending from Nelson’s hog operation. Nelson later admitted to using the wrong size of pipe, and Ross said there were places where it was barely below the ground.
Ross said Nelson told him: “I have done this before. I will do this again. And you can’t stop me.”
Nelson’s operation in Long Island, Kansas, for years has been a source of conflict for the Sierra Club. In 2017, a fire killed 9,000 pigs and destroyed hog barns owned by the Nelson family. The Kansas Department of Health and Environment ordered Nelson to halt construction of new facilities, but Nelson ignored the order and eventually paid a $34,000 fine.
The Sierra Club successfully challenged in court a clandestine attempt by Nelson, KDHE and the Kansas Livestock Association to evade environmental setback rules. Their strategy was to allow Nelson to divide a single facility into multiple limited liability companies with separate permits in order to raise more hogs in a confined area without having to move further away from a protected water source.
In the pipeline case, the jury ordered Nelson to pay the Ross family and Laura Field $65,000 each for trespassing and $2,000 for allowing liquified waste to drift onto their property.
Zack Pistora, a lobbyist for the Sierra Club, testified in opposition to the bill before lawmakers, saying it would legalize trespassing on private property.
“I just think we got to be a little cautious about some of this,” Pistora said. “There’s property owners, there’s farmers on both sides of this equation.”
Gabe Hubbard, a Manhattan-based attorney for landowners, offered a more blunt assessment: The legislation represents “a taking by the government” of private land.
“It is a naked taking of private property for the benefit of other private actors,” Hubbard said.
Craig Ingram, a farmer with a hog operation in Phillips County, said the ability to farm efficiently requires the ability to move water and nutrients from one tract of land to another. After the jury decision last year, he said, he became worried about what would happen to the pipelines he uses in conjunction with a $9 million investment in barns.
“What’s going to happen to us?” Ingram said. “Am I going to be held for blackmail? Extortion?”
The county’s economy depends on agriculture, Ingram said, “or we’re not going to have anything left.”
“We’re dying,” Ingram said. “Agriculture and livestock are going to be the only thing that we really get to keep coming out here. And the way things are right now with this ruling, you’ll never have another livestock system built in Kansas.”