Vermont Legislature SmartTranscripts:

[Sen. Brian Campion (Bennington County; Vice Chair, Senate Institutions)]: Very nice.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Alright. So media conference for s forty five. This is the third year that I've been chairing the House Agriculture Committee and the first time that we've ever had a committee conference. I don't know previous to my tenure here, how often that happened, but my first go around anyway, we've got, maybe we should just do introductions for the public. We all know each other, but David Durfee, chair of the House Agriculture Committee from Shaftsbury. Martin Malone, chair of

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: the House Judiciary Committee from South Burlington. I'm Leland Morgan, member of this committee, represent Grand Isle County and the Western portion of Milton.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: Bob Norris, senator from Franklin County. I vice chair, judiciary and sit on appropriations.

[Sen. Brian Campion (Bennington County; Vice Chair, Senate Institutions)]: And I'm Rob Blanket, senator from Bennington,

[Rep. David Durfee (Chair, House Agriculture Committee)]: vice chair of institution. Sit on the.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: Senator Russell Eagles, chair of agriculture, serving the Essex District, 25 towns, a king. Glad to be here.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Good. Well, thank you for making Mr. Buck's mayor sit into unfamiliar territory and house and community rooms. I wanna just start by acknowledging that we passed a bill that's quite different from the bill that passed out of the Senate. We wanna give the Senate folks an opportunity to say what you wanna say. My feeling is, and I'll just say this right up front, the bill that we passed is the compromise bill that we can get through. And I had several conversations with the agency and with folks in the Senate saying, if we're gonna do something, this is gonna be it. I am hopeful that if the committee could, sometime today produce a conference report that was our bill, the bill would pass, and also that we could get that through today. Not 100% confident knowing how tenuous the support was when we voted it out earlier. Tenuous in this committee and then ran it too fairly quickly on the House floor to get it passed. So that's our position right now, is the bill that we passed. Let's stop there because that's about all there is to say, I think, for us.

[Sen. Brian Campion (Bennington County; Vice Chair, Senate Institutions)]: We're all set? Yeah, go Yeah.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: Well, first of all, Chair Durfee, as usual, the senate thought that we passed you the perfect bill.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Yeah.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: But obviously, it didn't turn out that way in your minds here. And we do have some concerns with the bill as it was passed, I, along with how it came out on the floor. And I don't think that there are big concerns. But being from Franklin County, I can assure you that, and there's other members that come from agricultural communities that there's certain things here that we need to, I guess, look at once again. I see where the trespass notice was was stricken from the bill. We we looked at it in in judiciary that has the trespass and the defense and more so the revival presumption, which was huge that both the house and the Senate agreed that we should just leave that alone and just take it out of it. So I guess we would like to know We have some, a recommendation or two, if in fact, after we listen, we'd like to know, in your mind as to why was the trespass removed from the bill. That'd be nice to, I guess, explain that to us. We have a better understanding as to why. Why we removed that? Yes.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Well, I will say there was no, I think the committee was unanimous on this, no interest in changing the defense test law. We took testimony, as I think you did too, I'm pretty sure you did, in the judiciary committee from a lawyer, a professor of law who had concerns that I think brought up in your committee too about the constitutionality. But more than that, I think we didn't see that there's a need to be changing that part of law. So we wanted to focus just on what could we do, if anything, to the nuisance part.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: Okay. Thank you for that. I guess I'm looking on page five under the house proposal of amendment, would be, two c two and three. Those were we identified as areas of concern from our side of the hallway here.

[Rep. David Durfee (Chair, House Agriculture Committee)]: To see two and three.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: The agriculture activity along with the agriculture activity has a noxious and significant interference as to the the verbiage or why,

[Rep. David Durfee (Chair, House Agriculture Committee)]: I should say. Yeah. That's so that verbiage, that's existing language in statute. It's language that struck from the earlier section in the rebuttal presumption section. So I think that's

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: Page four, about a third of the way down.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: It begins the presumption that the ag activity does not constitute a nuisance may be rebutted by showing, etcetera. Sorry. Can you just Page page four of the side by side.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Yeah. Yeah.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: About a third of the way down.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Oh, on the left side. Okay. Yeah. Great. It's very sides. So it's like

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: That'd be the underlying section. Mike, will

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: can I hear no other thought to activity shall be

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: Since it struck Oh, I'm sorry? Okay.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Thank you. It's because it it was in the house version moved. In your version, senator Norris, it was removed.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: And I have one more before I turn it over to Mike. Other senators here is, do we have a

[Rep. David Durfee (Chair, House Agriculture Committee)]: definition of of of a law? Noxious in the state. How does that We cannot pledge counsel. I don't think that there's a a definition in the statute.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: I specifically asked over the past couple days to look at ways to define that. And first, I I looked to the broader jurisprudence nationally to see what other states have a have a noxious standard. And and there are are not many, if any. And then I look to the the court opinions of the Vermont Supreme Court, and they basically all say it's a fact specific determination. You have to look at the evidence and the effect of each alleged activity to determine if it will, in fact, be noxious.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: Thank you. I guess I'll turn it over to see if my fellow senators have any questions.

[Rep. David Durfee (Chair, House Agriculture Committee)]: I could say while you're thinking, if you want, if you don't mind my jumping in, but just going back to my answer about where that language came from and pointing out that there's existing language, what we were doing, and I realized you weren't there for the full report that I gave the other day, so I'll say in a couple of minutes what I told the House what this bill was doing. And it's not immediately obvious from looking at, as it often is the case, it's not immediately obvious, what is being changed here ultimately. And we wanted to expand the protection that farmers have to include instances where they change the type of farming that they're doing. I think that's also something that you all have wanted to do. So any kind of change to methods for crops being raised or livestock. And then also, if you had new land that wasn't previously being used for agriculture. Right now, if you decide to start farming next to somebody's house, people enjoy that protection. So we wanted to change that. And then the third thing we wanted to change was the exception that has the rebuttable presumption, but beyond the rebuttable presumption, also the current requirement that the farmer be responsible for basically defending themselves rather than the neighbor or the plaintiff having the burden of proof. So we took the existing language without wanting to change the existing language, but shifted that burden of proof. So that's a longer answer to your question. Yeah, okay.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: I'm gonna go if you wanna I did wanna ask a little bit

[Sen. Brian Campion (Bennington County; Vice Chair, Senate Institutions)]: more about that and then, Chair Durfee, I think you might have just answered it, but in terms of a conflict of piercing provisions of the protection, which were two of them were a part of overcoming the presumption, and essentially is it correct that you all have the house, have just carried it over and hadn't didn't dive deeply into either one of those from, I suppose, legal or geographical standpoint. So agricultural activity has a substantial adverse effect on health, safety or welfare, or the activity is obnoxious and significant interference. So those two carried over from the prior rebuttable presumption. Did you dive deeply into either one of those?

[Rep. David Durfee (Chair, House Agriculture Committee)]: We did not, no, and I don't know whether judiciary did. So just the path that Bill took, went to judiciary. What happened there, and I wasn't following it closely, we then got a draft and began looking at the more ag pieces, I guess I would say. But I don't know if you might comment. We did not take a

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: deep dive as far as noctis and significant interference at the time. If I'm recalling correctly, we did add back the adverse effect on health, safety and welfare. We did do that. Certainly since then, my view of the noxious and significant interference language is that it has been in law for a very long time and the law as it has existed for a very long time also put the burden on the farmers. It also didn't let them change their activities and it still had this additional language. And now the bill in fact shifts the burden as Chair Durfee said, and takes away any kind of prohibition on changes. And I think it's fairly obvious when a court looks at this that we're saying if first of all, the plaintiff has to show that wraps are not being followed, they have to show that there's not compliance with the agricultural processes. And if they're unable to do that, there's this protection against nuisance and unreasonable, substantial impact to the enjoyment of one's property. It's pretty clear with this additional language that it's a heightened burden. It's not, you you can't just show nuisance, it has to be more. So when the court's gonna look at this, they're gonna understand that noxious is a whole other level that has to be shown. That's beyond what I would consider your standard nuisance claim. So that makes me comfortable that this is something that is more than the nuisance that would have to be proven by a plaintiff. And when you combine that with the burn shift theme, I think that it does provide more protection for farmers than certainly what we have in current law.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: I just had one quick follow-up, and I think, Mike, you gave us that the definition of the generally accepted agricultural practices really hasn't been defined in law. So we'd be looking for litigation to establish that.

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: That's correct. That fourth category that you're adding in that definition, is a generally accepted agricultural practices, those practices conducted in a manner consistent with proper and accepted customs and standards followed by similar operators. You can see that there's already in law in order to meet the rebuttable presumption. And you can see this on page four.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: The top of the

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: page, it struck language. Says, It is consistent with good agricultural practices. There was no standard for what good agricultural practices were. It was something that would often be just argued in front of the court. Packing your apple crates at 11:00 at night is not a good agricultural practice, but it might be a necessity for that business, considering the season and the need to ship, etcetera. So what you both did, both the House and the Senate, is to more clearly define what generally accepted agricultural practices are. It's meeting the RAPs. It's meeting the CAFO permit if you have to get a CAFO permit and you're no longer subject to the RAPs. It's meeting your pesticide rule. And then it's meeting what the customs and practices and standards are for similar operators for ag activities in the state. Now that doesn't have a black and white test that you can go to right now. You will be Again, it's gonna be something that the court will take testimony on, the court will use experts, the court will, the defendant, the farmer will probably bring their own witnesses to say, This is something that is very common to do in this area. And I used the example the other day that it will vary across the state because in Bennington, the soils and parts of Bennington are very sandy. But in Addison, the soils can be very clay. And so the practices that you're going to use in those two different areas are gonna be different. And so whether it's practice that's consistent with proper and accepted customs and standards is gonna depend on where you are, type of farming, how you're farming, etcetera.

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: So

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: there's a reason why in the three years, Chair Durfee, that you haven't had a conference committee conference, and I get it. It's a big deal. I mean, this is really it's it's the first first substantial bill as far as to protect farmers that's been trying to be passed for better than ten or fifteen years. It really, really is. As we look to expand farming in this state, we're $5,800,000,000 now within this state, probably a little bit higher than that. We're hearing complaints from we've heard a complaint the other day. I'm sure one of your members probably relate to you about a strawberry farmer over in St. Albans on a little four acre patch getting harassed. Actually, a farmer who's not using pesticides, not doing anything, getting harassed by their neighbors because they're too busy on their little small strawberry patch. We have big farmers, we have small farmers, we're trying to grow, we're trying to cultivate lands that haven't been farmed for a lot of years. And we have big farmers, small farmers, we're trying to support them all, and we're trying to keep them from being harassed. I think that this bill is almost there. I'm gonna get right to the point of what bothers me about this bill. I have respect for all what you guys have done. I really, really do. I think that we're close on getting something done. My part of this bill is on section on page five, section section two on subsection c, and it's number two and three. If we can somehow determine how we can make that not so subjective, because we can't really define the word noxious. We can't really if that's just subjective, and that's what it is. Oh, that's that's noxious to me. Everybody says, well, but you have enough protections in this bill so that it shouldn't matter. You know what? They're gonna file or what it but that still doesn't stop a farmer, large or small. I'm concerned more about the small farmer than I am the large farmer from having to go and defend themselves from something that somebody is saying that makes me nauseous. All of the, I've got hay fever because you haven't cut your hay in time. So that is just too subjective for me. If we could come up with a solution there, I would say to my people, hey, let's sign off on this thing and let's pass this bill. Other than that, I'm willing to hang it on the wall. We

[Rep. David Durfee (Chair, House Agriculture Committee)]: took a lot of testimony from farmers, and some of them were neighbors of farmers. Some of the farmers who came in to testify were also farmers, the neighbors of farmers. And I would say that the concerns that we heard about the bill, and it wasn't about our version or your version, it was just about, it was more general concern that was expressed about having protection from nuisance claims was that the large farmers would somehow do something that would make it more difficult for the small farmers. We didn't have testimony from the general public neighbors of farmers, which I think is probably too bad that we weren't able to find people off the street. And I will say we did not go deliberately to ask the neighbor in a case that we're all familiar with that I think maybe you heard from them, maybe you did too. So we didn't hear from that or from any other neighbors. Interestingly, and I'm gonna get to your point in a second, Senator Ingalls, but we asked the Farm Bureau, we asked no for Vermont, we asked the Dairy Producers Alliance and rural Vermont to either bring us witnesses or testify themselves. And we heard from some of those organizations that some of them didn't wanna testify because they didn't have a unified position on it. Others came and said, We actually don't support this. We ask farmers, our members every year, what are you concerned about? What would you like to see happen over the slide, and that hasn't ever been something that rose to the top. We all want to be in this committee conscious of what we can do to further the interests of agriculture, at the same time recognizing that we are not the Farm Bureau. We are here to represent all Vermonters, whether they're farmers or neighbors, and we want to do that in a way that ideally strikes the right balance. Just as far as these two points are, I guess I would go back to what Representative Leland said, that this is language that's in the law today. It's in the existing law. And yes, I suppose at some point, if somebody could bring a claim, then it would be difficult to say, Well, it's not just me, and that context doesn't mean people. But I think that it's happened. We didn't hear any testimony. That's true.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: That That language was written when farmers were doing $3,000,000,000 not 5.8, right? And that was before that we were trying to expand farming across, and that's why we're trying to push farming up to $10,000,000,000 instead of where it is. So are we gonna stick with language that doesn't fit what today's farmers are doing? Or are we going to be brave as ag committees? And what's what what what the ag industry needs for the state of Vermont, and we're try to craft language to support an industry.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Yeah, interestingly, we looked at that, and we had the legislature counsel walk us through the finding section of the intent at the beginning. And I knew it had been brought to my attention that it was back in the early 2000s, twenty years ago, when the last time this was updated, and Senator Shierz was part of that conversation. So I said, this this in 10 languages is twenty years old. And it looks like it could have been written today. It actually is expressing the same concerns, the the same worries that farms, as a driven out business, that there will be a need to change the types of farms. So that's actually in the intent. It's right here, that you may need to change farms. Interestingly, the legislation didn't allow for that. So I think we are making an adjustment there that serves that point. Is this actually from the '80s? Is that what you found, Mike, for this language?

[Michael O'Grady (Legislative Counsel, Office of Legislative Counsel)]: Yeah, the early '90s, 'ninety three, I believe.

[Rep. David Durfee (Chair, House Agriculture Committee)]: In the '90s, okay. Yeah. So, yeah, I mean, that's I think that the House position, as I said, this was a compromise. This was a compromise in this committee. I don't know. If we have shown before today, I think we could probably push

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: it through. Let's try it. Let's change this language.

[Rep. David Durfee (Chair, House Agriculture Committee)]: I'm not going be able to go to the floor and say we have a different bill, but I could say we have the same bill.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: The same bill doesn't work for us. That same bill is not even close. Talking, we put a bill over to you, was a good bill, and you guys have changed it. And we're here to try to figure out a way to compromise on it. And you're saying that there's no compromise.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Yeah, know I realized that if you had thought that it was the right bill, you would have concurred with it, and I understand that that's your position.

[Sen. Robert "Bob" Norris (Franklin County; Vice Chair, Senate Judiciary; Appropriations member)]: In your view,

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: if I may.

[Rep. David Durfee (Chair, House Agriculture Committee)]: Sure. Two

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: and three, Mhmm. If they were gone I don't know

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: if he'd still have to be

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: gone. Adjusted.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: Let's get rid of their word. Let's get rid of the word of noxious. Let's find a different way to say it differently so that it isn't quite so subjective. We do want people who are bothered to be able to make a complaint, if that's really where it's at. But let's make it so that it's not so obnoxious. Let's make it so it's a better word in there so that it's not so subjective. It's that the way that is worded is that automatically that person is going in and making a claim that the farmer's in violation.

[Rep. David Durfee (Chair, House Agriculture Committee)]: I think a reaction when we first heard about this bill may have been a premature reaction, but it was what, and I often have this question, what problem are we trying to solve here? Where is the problem? It wasn't that, the problem is not that farmers are being sued. I mean, the evidence is pretty clear on that. Problem, and I think this is a legitimate problem, is that farmers are afraid they're going to be sued. And to that, I think many people would say, Well, I'm sorry, you can't control how you feel or what your fears are. We said, Okay, we hear you, we're gonna make some changes. And here's the beginning of the bill that shifts the burden onto the plaintiff. So that fear that you're gonna be sued should be somewhat less of a fear because now the plaintiff is gonna have to take the initiative rather than the farmer.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: And I stopped you as far as on your comments,

[Rep. Martin LaLonde (Chair, House Judiciary Committee)]: and I apologize for that. My my further thought was, do you have some other sample wordings that we might all consider that might be acceptable to all of us and still do what we want to do. Yeah.

[Sen. Russ Ingalls (Chair, Senate Agriculture; Essex District)]: If I might you all gonna be on the floor at 05:30 or you wanna

[Rep. David Durfee (Chair, House Agriculture Committee)]: We we will be watching for the red light. 07:30.

[Sen. Brian Campion (Bennington County; Vice Chair, Senate Institutions)]: Okay, if I might, I'll ask for a brief recess. Sure, yeah.