SF 901

1st Engrossment - 90th Legislature (2017 - 2018) Posted on 03/02/2017 09:12am

A bill for an act
relating to agriculture; modifying the nuisance liability protection for certain
agricultural operations; establishing the farmer-neighbor mediation program;
requiring mediation for certain disputes with farming operations; amending
Minnesota Statutes 2016, section 561.19, subdivision 2; proposing coding for new
law as Minnesota Statutes, chapter 584.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 561.19, subdivision 2, is amended to read:

Subd. 2.

Agricultural operation not a nuisance.

(a) An agricultural operation is not
and shall not become a private or public nuisance after two years from its established date
of operation as a matter of law if the operation:

(1) is located in an agriculturally zoned area;

(2) complies with the provisions of all applicable federal, state, or county laws,
regulations, rules, and ordinances and any permits issued for the agricultural operation; and

(3) operates according to generally accepted agricultural practices.

(b) For a period of two years from its established date of operation, there is a rebuttable
presumption that an agricultural operation in compliance with the requirements of paragraph
(a), clauses (1) to (3), is not a public or private nuisance. new text begin For feedlot odor, this rebuttable
presumption can only be satisfied by a showing that the commissioner of the Pollution
Control Agency has determined that:
new text end

new text begin (1) the feedlot is in violation of the ambient air quality standards for hydrogen sulfide
under Pollution Control Agency rules, and the violation occurred when a manure removal
exemption authorized under section 116.0713, paragraphs (b) and (d), is not in effect; and
new text end

new text begin (2) the feedlot has not, when directed by the commissioner of the Pollution Control
Agency under section 116.0713, paragraph (a), clause (2), taken appropriate actions necessary
to ensure compliance with the ambient air quality standards for hydrogen sulfide.
new text end

(c) The provisions of this subdivision do not apply:

deleted text begin (1) to an animal feedlot facility with a swine capacity of 1,000 or more animal units as
defined in the rules of the Pollution Control Agency for control of pollution from animal
feedlots, or a cattle capacity of 2,500 animals or more;
deleted text end

deleted text begin (2) deleted text end new text begin (1) new text end to any prosecution for the crime of public nuisance as provided in section 609.74
or to an action by a public authority to abate a particular condition which is a public nuisance;
or

deleted text begin (3) deleted text end new text begin (2) new text end to any enforcement action brought by a local unit of government related to zoning
under chapter 394 or 462.

new text begin (d) Civil proceedings against an agricultural operation are subject to farmer-neighbor
mediation under chapter 584.
new text end

Sec. 2.

new text begin [584.01] CITATION.
new text end

new text begin Sections 584.01 to 584.12 may be cited as the "Farmer-Neighbor Mediation Act."
new text end

Sec. 3.

new text begin [584.02] LEGISLATIVE FINDINGS.
new text end

new text begin The legislature finds that nuisance claims brought against agricultural operations are
uniquely situated and readily amenable to alternative dispute resolution. Alternative dispute
resolution benefits nuisance claimants by providing an inexpensive forum that allows
claimants to be heard and benefits agricultural operations by providing them with a reasonable
opportunity to undertake mitigation efforts to abate any alleged nuisance. Moreover, the
legislature finds that mediation is an effective and desirable form of alternative dispute
resolution in the agricultural sector. Therefore, an orderly process with state assistance that
fosters agreement between nuisance claimants and agricultural operations preserves the
general welfare and integrity of the state.
new text end

Sec. 4.

new text begin [584.03] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Applicability. new text end

new text begin The definitions in this section apply to sections 584.03 to
584.12.
new text end

new text begin Subd. 2. new text end

new text begin Agricultural operation. new text end

new text begin "Agricultural operation" has the meaning given in
section 561.19, subdivision 1.
new text end

new text begin Subd. 3. new text end

new text begin Director. new text end

new text begin "Director" means the director of the Minnesota Extension Service or
the director's designee.
new text end

new text begin Subd. 4. new text end

new text begin Dispute. new text end

new text begin "Dispute" means a controversy between an agricultural operation and
other party that arises from a claim eligible to be resolved in a civil proceeding in law or
equity, if the claim relates to an action or actions of an agricultural operation that is alleged
to be or cause a nuisance.
new text end

new text begin Subd. 5. new text end

new text begin File. new text end

new text begin "File" means to deliver by the required date by certified mail or another
method acknowledging receipt.
new text end

new text begin Subd. 6. new text end

new text begin Mediator. new text end

new text begin "Mediator" means a farm mediator appointed by the director.
new text end

new text begin Subd. 7. new text end

new text begin Nuisance. new text end

new text begin "Nuisance" means anything that is injurious to health, or indecent
or offensive to the senses, or an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property.
new text end

new text begin Subd. 8. new text end

new text begin Participate. new text end

new text begin "Participate" means attending a mediation meeting and having
knowledge about and discussing issues concerning a subject relating to a dispute.
new text end

new text begin Subd. 9. new text end

new text begin Other party. new text end

new text begin "Other party" means any person or persons having a dispute with
an agricultural operation.
new text end

new text begin Subd. 10. new text end

new text begin Serve. new text end

new text begin "Serve" means:
new text end

new text begin (1) personal service as in a district court civil action;
new text end

new text begin (2) service by certified mail using return receipt signed by addressee only;
new text end

new text begin (3) actual delivery of required documents with signed receipt; or
new text end

new text begin (4) if an unsuccessful attempt is made to serve under clause (1) or (2), service may be
made by mail with a certificate of mailing to the last known address of the addressee.
new text end

new text begin For purposes of serving under clause (4), the addressee is considered to have been served
the documents five days after the date on the certificate of mailing.
new text end

Sec. 5.

new text begin [584.04] FARM MEDIATION.
new text end

new text begin Subdivision 1. new text end

new text begin Training. new text end

new text begin The director must provide training and support for mediators.
new text end

new text begin Subd. 2. new text end

new text begin Appointment. new text end

new text begin The director must provide mediators by contracting with qualified
persons experienced in agriculture, agricultural law, and negotiation.
new text end

new text begin Subd. 3. new text end

new text begin Administration. new text end

new text begin The director may appoint a farm mediation administrator.
The administrator and director shall provide training for farm mediators and coordinate
community legal education programs for farmers.
new text end

Sec. 6.

new text begin [584.05] VOLUNTARY MEDIATION PROCEEDINGS.
new text end

new text begin An agricultural operation or other party may request mediation of a dispute by a farm
mediator by applying to the director. The director shall make voluntary mediation application
forms available at the county recorder's and county extension office in each county. The
director must evaluate each request and may direct a mediator to meet with the agricultural
operation and other party to assist in mediation.
new text end

Sec. 7.

new text begin [584.06] MANDATORY MEDIATION PROCEEDINGS.
new text end

new text begin Subdivision 1. new text end

new text begin Mediation request. new text end

new text begin (a) Any other party desiring to initiate a civil
proceeding against an agricultural operation to resolve a dispute must serve a mediation
request on the agricultural operation and the director. The mediation request must state the
names and addresses of all other parties involved in the dispute, the name and address of
the agricultural operation involved in the dispute, and a general statement that mediation is
requested. The other party must also file with the director proof of the date the request for
mediation was served on the agricultural operation. The other party shall not begin the civil
proceeding until the other party receives a mediation release under subdivision 7.
new text end

new text begin (b) The director shall combine all mediation requests for the same agricultural operation
that are received prior to the initial consultation into one mediation proceeding.
new text end

new text begin (c) The requirements of paragraph (a) are jurisdictional prerequisites to filing a civil
action that initiates a civil proceeding to resolve a dispute subject to this chapter.
new text end

new text begin Subd. 2. new text end

new text begin Initial consultation. new text end

new text begin No less than 30 days after receipt of the request for
mediation, a mediator shall conduct an initial consultation with the other party privately
and without charge. At the initial consultation, the mediator shall hear the other party's
claims and inform the other party of the litigation risks that would be involved in commencing
a civil proceeding to resolve the dispute. Mediation may be waived after the initial
consultation if the other party and the agricultural operation involved in the dispute agree
in writing.
new text end

new text begin Subd. 3. new text end

new text begin Supplemental information; opportunity to cure. new text end

new text begin (a) If mediation is not
waived after the initial consultation, the other party shall file with the director, and serve
on the agricultural operation, information required by the director to conduct mediation,
including, at a minimum:
new text end

new text begin (1) a detailed statement that explains with particularity the conditions creating the
nuisance giving rise to the dispute;
new text end

new text begin (2) a report from a qualified expert that explains with particularity the conditions creating
the nuisance giving rise to the dispute and the scientific basis for why the conditions create
a nuisance; and
new text end

new text begin (3) a statement of settlement efforts that have taken place between the other party and
the agricultural operation involved in the dispute and, if no settlement efforts have taken
place, an explanation of why the settlement efforts would have been futile.
new text end

new text begin (b) Within 20 days of receiving the other party's supplemental information, the agricultural
operation may file with the director, and serve on the other party, a plan proposing actions
that the agricultural operation will take to abate the conditions creating the nuisance giving
rise to the dispute. Upon filing the plan, the agricultural operation shall have a reasonable
amount of time to implement it, during which time the proceedings of this chapter will be
stayed.
new text end

new text begin (c) If the agricultural operation's plan abates the nuisance after the plan has been
implemented, then the director shall dismiss the other party's mediation request. Dismissal
of the other party's mediation request does not constitute a mediation release.
new text end

new text begin (d) If the agricultural operation's plan does not abate the nuisance after the plan has been
implemented, then the other party may continue the mediation process imposed by this
chapter by filing with the director, and serving on the agricultural operation, a detailed
statement that explains with particularity the conditions creating the nuisance giving rise
to the dispute that exist after implementation of the agricultural operation's plan.
new text end

new text begin Subd. 4. new text end

new text begin Mediation proceeding notice. new text end

new text begin (a) By ten days after the time in which the
agricultural operation may file and serve a plan under subdivision 3, paragraph (b), the
director shall send a mediation proceeding notice to the agricultural operation and the other
party.
new text end

new text begin (b) The mediation proceeding notice must state:
new text end

new text begin (1) the name and address of the agricultural operation and the other party;
new text end

new text begin (2) that the other party has requested mediation under the Farmer-Neighbor Mediation
Act;
new text end

new text begin (3) the time and place for the mediation proceeding;
new text end

new text begin (4) a list of the names of three mediators that may be assigned to the mediation
proceeding, along with background information on those mediators, including biographical
information, a summary of previous mediation experience, and the number of agreements
signed by parties to previous mediation;
new text end

new text begin (5) that the agricultural operation and the other party may each request the director to
exclude one mediator by notifying the director within three days after receiving the notice;
new text end

new text begin (6) that in lieu of having a mediator assigned by the director, the agricultural operation
and any other party may agree to select and pay for a professional mediator that is approved
by the director; and
new text end

new text begin (7) that the Farmer-Neighbor Mediation Act prohibits the other party from beginning
or continuing a proceeding to resolve a dispute until it obtains a mediation release.
new text end

new text begin (c) The mediation proceeding must be held no less than 30 days after the director sends
the mediation proceeding notice.
new text end

new text begin (d) The agricultural operation and the other party may each request the director to exclude
one mediator from the list by sending the director a notice to exclude the mediator within
three days after receiving the mediation proceeding notice.
new text end

new text begin (e) In lieu of the director assigning a mediator, the agricultural operation and any other
party may agree to select and pay for a professional mediator for the mediation proceeding.
The director must approve the professional mediator before the professional mediator may
be assigned to the mediation proceeding. The professional mediator may not be approved
unless the professional mediator prepares and signs an affidavit:
new text end

new text begin (1) disclosing any biases, relationships, or previous associations with the agricultural
operation or other party subject to the mediation proceedings;
new text end

new text begin (2) stating certifications, training, or qualifications as a professional mediator;
new text end

new text begin (3) disclosing fees to be charged or a rate schedule of fees for the mediation proceeding;
and
new text end

new text begin (4) affirming to uphold the Farmer-Neighbor Mediation Act and faithfully discharge the
duties of a mediator.
new text end

new text begin Subd. 5. new text end

new text begin Mediation proceeding. new text end

new text begin (a) The agricultural operation and other party shall
participate in a mediation proceeding with a mediator at the time specified in the mediation
proceeding notice. At the mediation session, the mediator shall:
new text end

new text begin (1) listen to the other party and the agricultural operation;
new text end

new text begin (2) attempt to mediate between the other party and the agricultural operation;
new text end

new text begin (3) encourage compromise and workable solutions; and
new text end

new text begin (4) advise, counsel, and assist the other party and the agricultural operation in attempting
to arrive at an agreement for the future conduct of relations between them.
new text end

new text begin (b) If the other party and the agricultural operation do not reach an agreement at the
mediation proceeding, either the other party or the agricultural operation may request, at
the end of the mediation proceeding, that an additional mediation proceeding be conducted
in no less than 30 days. If an additional mediation proceeding is requested, it must be held,
and the mediator shall have responsibilities at the additional mediation proceeding identical
to those required at the prior mediation proceeding.
new text end

new text begin Subd. 6. new text end

new text begin Mediation agreement. new text end

new text begin (a) If an agreement is reached between the agricultural
operation and other party, the mediator shall witness and sign a written mediation agreement
and have it signed by the agricultural operation and other party.
new text end

new text begin (b) The agricultural operation and other party:
new text end

new text begin (1) are bound by the terms of the agreement;
new text end

new text begin (2) may enforce the mediation agreement as a legal contract; and
new text end

new text begin (3) may use the mediation agreement as a defense against an action contrary to the
mediation agreement.
new text end

new text begin Subd. 7. new text end

new text begin Mediation release. new text end

new text begin (a) If an agreement is not reached between the other party
and the agricultural operation at the mediation proceeding, the mediator shall issue a
mediation release unless the other party fails to personally attend and participate in all
mediation meetings. The mediator shall issue a mediation release if the agricultural operation
waives or fails to attend and participate in all mediation meetings, regardless of participation
by the other party. However, if the other party or the agricultural operation is not a natural
person, the other party or agricultural operation must be represented by a natural person
who is an officer, director, employee, or partner of the other party or agricultural operation.
If a person acts in a fiduciary capacity for the other party or agricultural operation, the
fiduciary may represent the other party or agricultural operation. If the other party or
agricultural operation or eligible representative is not able to attend and participate as
required in this paragraph due to physical infirmity, mental infirmity, or other exigent
circumstances determined reasonable by the director, the other party or agricultural operation
must be represented by another natural person. Any representative of the other party or the
agricultural operation must be authorized to sign instruments provided by this chapter. This
section does not require that the other party and the agricultural operation reach an agreement.
This section does not require that the other party and the agricultural operation change a
position, alter an activity that is a subject of the dispute, or restructure a contract in order
to receive a mediation release.
new text end

new text begin (b) The mediator shall promptly notify the other party and the agricultural operation by
certified mail of a denial to issue a mediation release and the reasons for the denial. The
notice shall state that the other party or the agricultural operation has seven days from the
date that the notice is delivered to appeal the mediator's decision to the director, pursuant
to procedures adopted by the director. After a final decision by the director, the party may
seek an action for judicial review pursuant to section 584.12.
new text end

new text begin (c) If mediation is waived by both the agricultural operation and the other party at any
point during the mediation process imposed by this chapter, the parties may sign a statement
prepared by the mediator that mediation was waived or that the parties did not reach an
agreement. If any party does not sign the statement, the mediator shall sign the statement.
The statement constitutes a mediation release.
new text end

Sec. 8.

new text begin [584.07] GOOD FAITH REQUIRED.
new text end

new text begin Subdivision 1. new text end

new text begin Obligation of good faith. new text end

new text begin The other party and the agricultural operation
must engage in mediation in good faith. The other party is not mediating in good faith if
the other party rejects measures proposed by the agricultural operation that could mitigate
the conditions that the other party alleges to cause a nuisance without providing justification
for the rejection.
new text end

new text begin Subd. 2. new text end

new text begin Party's bad faith; mediator's affidavit. new text end

new text begin If the mediator determines that either
the other party or the agricultural operation is not participating in good faith, the mediator
shall file an affidavit indicating the reasons for the finding with the director and provide
copies of the affidavit to the agricultural operation and the other party.
new text end

new text begin Subd. 3. new text end

new text begin Review of good faith finding. new text end

new text begin (a) Upon petition by either the other party or
the agricultural operation, a court may review a mediator's affidavit of lack of good faith
or a mediator's failure to file an affidavit of lack of good faith. The review is limited to
whether the mediator committed an abuse of discretion in filing or failing to file an affidavit
of lack of good faith. The petition must be reviewed by the court within 20 days after the
petition is filed.
new text end

new text begin (b) If the court finds that either the other party or the agricultural operation failed to
mediate in good faith, the court may:
new text end

new text begin (1) order court-supervised mediation; or
new text end

new text begin (2) require that the mediation process imposed by this chapter be restarted.
new text end

new text begin (c) A mediator may offer testimony but is not required to testify as part of the court's
review.
new text end

Sec. 9.

new text begin [584.08] FORMS AND COMPENSATION.
new text end

new text begin Subdivision 1. new text end

new text begin Compensation. new text end

new text begin The director shall set the compensation of mediators.
new text end

new text begin Subd. 2. new text end

new text begin Forms. new text end

new text begin The director shall adopt voluntary mediation application forms.
new text end

Sec. 10.

new text begin [584.09] EXTENSION OF DEADLINES.
new text end

new text begin Upon petition by the agricultural operation or other party, the farm mediation service
may, for good cause, extend a deadline imposed.
new text end

Sec. 11.

new text begin [584.10] PRIVATE DATA.
new text end

new text begin All data regarding agricultural operations and other parties created, collected, and
maintained by the mediators or the director are classified as private data on individuals
under section 13.02, subdivision 12, or nonpublic data under section 13.02, subdivision 9.
new text end

Sec. 12.

new text begin [584.11] JUDICIAL REVIEW.
new text end

new text begin An action for judicial review shall be brought in equity, and the action shall be limited
to whether, based on clear and convincing evidence, the decision by the director is an abuse
of discretion. The action may be brought in the district court in which the affected agricultural
operation is located. Upon reversing the decision by the director, the court shall order that
the director issue a mediation release.
new text end

Sec. 13.

new text begin [584.12] EFFECT OF MEDIATION.
new text end

new text begin Subdivision 1. new text end

new text begin Rights not affected. new text end

new text begin An interest in property, or rights and obligations
under a contract, are not affected by the failure of a person to obtain a mediation release,
regardless of its validity.
new text end

new text begin Subd. 2. new text end

new text begin Timing. new text end

new text begin Time periods relating to a claim, including applicable statutes of
limitations, shall be suspended upon filing a mediation request. Time periods affecting a
claim in a civil proceeding shall be suspended upon filing a mediation request. The
suspension shall terminate upon dismissal of a mediation request, waiver of mediation,
signing a mediation agreement, or signing a mediation release.
new text end

Sec. 14.

new text begin [584.13] INCONSISTENT LAWS.
new text end

new text begin The Farmer-Neighbor Mediation Act has precedence over any inconsistent or conflicting
laws and statutes.
new text end