Vermont Legislature SmartTranscripts:

[Rep. David Durfee, Chair, House Agriculture Committee]: Revised.

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

[Rep. David Durfee, Chair, House Agriculture Committee]: video conference for s '45. This is the third year that I've been chairing the House Agriculture Committee and the first time that we've ever had a media conference. I don't know previous to my tenure here how often that happened, my first go around anyway. We've got, maybe we should just do introductions for the public. We all know each other,

[Rep. David Durfee, Chair, House Agriculture Committee]: but David Durfee, chair of the House Agriculture Committee from Strasbury. Bart Malone, chair of 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 Norris]: Bob Norris, senator from Franklin County. I vice chair, judiciary and sit on appropriations.

[Sen. Robert Plunkett]: And I'm Rob Plunkett, senator from Bennington,

[Sen. Robert Plunkett]: vice chair of institution. Sit on that.

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: 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 Committee 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 going do something, this is going to 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. Robert Norris]: We're all set? Yeah, Yeah. Go Well, first of all, Chair Derby, as usual, the senate thought that we passed you the perfect bill.

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

[Sen. Robert Norris]: 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 and tag 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, the nuisance, 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.

[Rep. David Durfee, Chair, House Agriculture Committee]: Why we were removed from that? Yes. Well, will say there was no, think the committee was unanimous on this, no interest in changing the Hittestest Trust Law. We took testimonies, 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 Norris]: Okay. Thank you for that. I guess I'm looking on page five under the house proposal of amendment, which would be, two c two and three. Those were we identified as areas of concern from our side of

[Rep. David Durfee, Chair, House Agriculture Committee]: the hallway here. To see two and three.

[Sen. Robert Norris]: The agriculture activity along with the agriculture activity has a noxious and significant interference as to 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's struck from the earlier section in the rebuttal presumption section. So I think that's on

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: Page four, About a third of the way it happens.

[Michael O'Grady, Legislative Counsel]: It begins the presumption that the ag activity does not constitute a nuisance maybe rebutted by showing, etcetera.

[Rep. David Durfee, Chair, House Agriculture Committee]: Sorry. Can you just

[Michael O'Grady, Legislative Counsel]: Page page four of the side by side.

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

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

[Rep. David Durfee, Chair, House Agriculture Committee]: Oh, on the left side. Okay. Yeah.

[Sen. Robert Norris]: There. It's there.

[Rep. David Durfee, Chair, House Agriculture Committee]: It's on both sides. That's right.

[Sen. Robert Norris]: That'd be the underlying session. Mike, well, can I hear no other group thought activity shall be renewed?

[Michael O'Grady, Legislative Counsel]: Since it struck Oh, I'm sorry. Okay. Thank you. It's because it it was in the house version moved. In your version, senator Norris, it was removed.

[Sen. Robert Norris]: And I have one more before I turn it over to Mike. Other senators here is, do we have a

[Rep. Martin LaLonde, Chair, House Judiciary Committee]: definition of of of the law? Noxious in the state? How does that We can ask the judge counsel. I don't think that

[Rep. David Durfee, Chair, House Agriculture Committee]: there's a a definition in the statute.

[Michael O'Grady, 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 Norris]: 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, you want, if you don't mind my jumping in, but just going back to my answer about why that language came from pointing out that this was this new language, what we were doing, and I realized you weren't there for the whole 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, we don't 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, thank you.

[Sen. Robert Norris]: I'm ready to go if you want to. I did want to

[Sen. Robert Plunkett]: ask

[Sen. Robert Norris]: a

[Sen. Robert Plunkett]: little bit more about that and Chair Derby, I think you might have just answered it, but in terms of a call with the 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 a repractical standpoint.

[Rep. David Durfee, Chair, House Agriculture Committee]: Either one of

[Sen. Robert Plunkett]: agricultural activity has a substantial adverse effect on health, safety or welfare, the activity is obnoxious and significant interference. So those two carried over from the prior revocable 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 So just the path that Bill took went to judiciary and 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

[Rep. Martin LaLonde, Chair, House Judiciary Committee]: might comment. We did not take a deep dive as far as nauseous 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 Dirfey said, and takes away any kind of prohibition on changes. 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 the rats 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 an 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 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 burden shift theme, I think that it does provide more protection for farmers than certainly what we have in current law.

[Sen. Robert Norris]: 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]: 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. At top of the page, it struck language. Consistent with good agricultural practices. 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' Rag activities in the state. Now that doesn't have a black and white test that you can go to right now. Will be Again, it's gonna be something that the court will take testimony on. The court will use experts. 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. David Durfee, Chair, House Agriculture Committee]: So

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: there's a reason why in the three years, Chair Dorfie, that you haven't had a conference, committee of conference, and I get it. This is a big deal. I mean, this is really this is 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 of getting something done. My 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.

[Rep. David Durfee, Chair, House Agriculture Committee]: We 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 a general concern that was expressed about having protection from nuisance claims, was that the large arbors 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 NOFA 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 legislatively? And that hasn't ever been something that rose to the top. So 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 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 Lalanne 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 when it's not just me, and that context would be feasible. But I think that it's happened. We didn't hear any testimony that's happened.

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: A 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 going to 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 means for the state of Vermont? Are we gonna try to craft language to support an industry?

[Rep. David Durfee, Chair, House Agriculture Committee]: Yeah, interestingly, we did that, and we had the legislature counsel walk us through the findings 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 Shierks was part of that conversation. So I said, this intent language is twenty years old. It looks like it could have been written today. It actually is expressing the same concerns, the same worries that farms for the development of the 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]: Yeah, the early 90s, '93, I believe.

[Rep. David Durfee, Chair, House Agriculture Committee]: In the nineties. Okay. Yeah. So, yeah. I mean, that's I I think that the house position, they said is 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 Committee]: it through. Let's try it. Let's change this language.

[Rep. David Durfee, Chair, House Agriculture Committee]: I'm not going to 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 Committee]: I'm sure the same bill doesn't work for us. That same bill is not even close. Talking, we put a bill over to you, which is 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 Norris]: 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, If they were gone I

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: don't see surely I'd be

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

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: 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 farmers 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, 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. 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 a big 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. And I stopped you as far as on your comments,

[Sen. Russ Ingalls, Chair, Senate Agriculture Committee]: and I apologize for that.

[Rep. Martin LaLonde, Chair, House Judiciary Committee]: 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?

[Sen. Robert Norris]: Yeah. If I might you all gonna be on the floor at 05:30, are

[Rep. David Durfee, Chair, House Agriculture Committee]: you gonna? We will be watching for the At 07:30. 07:30. Okay, I might,

[Sen. Robert Norris]: then I'll ask for a brief recess. Sure, yeah.