2006 was perhaps the last time that Small Farmers and the Michigan Department of Agriculture agreed on whether small farms in Michigan are protected by the Right to Farm Act.
2006 is the year Vikki Papesh won a Michigan Court of Appeals case that ruled that her farm operation was protected by Right to Farm, even though she lived on land zoned residential and her township had enforced an ordinance against farm operations on less than 3 acres. None of this should be surprising, because it is consistent with the language of Michigan's Right to Farm Act, which since 1999 has forbidden local governments from enacting regulations that are more stringent than those in the Act, for commercial farm operations that follow the GAAMPs.
Although MDARD is now loathe to admit that any small farm is compliant with applicable Generally Accepted Agriculture and Management Practices, this was not their practice in 2006. Indeed, Steve Mahoney of MDA presented the appeals court with a signed Affidavit that stated that his inspection of her farm in 2004 showed that it was in compliance with the Manure GAAMPs, and that the Manure GAAMPs were the only ones applicable to her farm. He further stated that the GAAMPs for Site Selection and Odor Control of Livestock Production Facilities were not required because the farm contained fewer than 50 animal units, and because it was not a new or expanding facility. Thus in 2006 the MDA confirmed that the Papesh farm was compliant with the GAAMPs, and the Papesh family had only to prove that their operation also met the definition of a farm and was commercial in nature to win the protection of the Right to Farm Act.
The Mahoney Affidavit is a testament to what good government looks like, because it both promoted the mission of the state agency (agriculture) and upheld the clear language of the law (RTF) to ensure that the Papesh farm operation was managed responsibly. Furthermore, because Vikki Papesh won her case, she was able to build a successful commercial operation that not only benefits her family, but also benefits her customers who clearly value the fresh eggs that she sells. Without the Right to Farm Act, the kind of successful small farm operation that Vikki Papesh has built would not be possible in Michigan, because most local governments actively prohibit this kind of activity.
But that isn't the end of the story. In the same year that Papesh won her landmark case, State Senator Bob Emerson wrote a letter to Attorney General Mike Cox requesting clarification on five different Right to Farm issues. The last paragraph of the resulting 2006 informal Attorney General opinion is particularly revealing:
Your fifth question is whether the Department of Agriculture can limit its site selection GAAMP to any number of animal units, and if so, whether a local government can enforce its zoning ordinance when the use involves fewer than that number. The Department has recently expanded the site selection GAAMP to operations with any number of animal units, thus rendering this question moot.
This opinion from the attorney general's office demonstrates that in 2006 Michigan's Department of Agriculture was already taking steps to ensure that Vikki Papesh would be the last small farmer to win Right to Farm protection in Michigan, by changing the Site Selection GAAMPs in such a way that small could not meet the requirements even if well managed, and therefore could not in any circumstance win Right to Farm protection. But in 2006 this wasn't clear to the rest of us, because this document was not widely known to exist. As a result, 2006 was the year in which the understanding of Small Farmers and MDARD over who is protected by Right to Farm diverged radically: Small Farmers read Papesh and understood that we are all protected, while MDARD made plans to make changes to the Site Selection GAAMPs to ensure that Right to Farm protection for small farmers like Vikki Papesh would be lost.
Two additional facts go a long way in explaining the confusion that has reigned over this issue since 2006. The first is that the actions of MDARD and the informal opinion produced by the Attorney General's Office continued to remain a secret, and were not made available to small farmers when they made inquiries about their Right to Farm rights; indeed, the 2006 informal Attorney General opinion only became widely available last year, after it was FOIA'd and posted on this website.
And the second fact is that although MDARD used this attorney general opinion to justify their position that Right to Farm does not protect small farmers in residentially zoned areas, that opinion contains an significant error that renders its major conclusion invalid. The error, of course, is that MDARD never actually made the change to the Site Selection GAAMPs in 2006 that they asserted to the Attorney General they had already made: in 2006 the Site Selection GAAMPs were not expanded to "operations with any number of animal units"; indeed, that change was never made and the Site Selection GAAMPs have always been applicable only to operations with 50 animal units or more. This fact is very clear to the hundreds of small farmers who are currently attempting to keep MDARD from making exactly this change to the 2014 Site Selection GAAMPs.
Here is what I think. The 2006 effort by MDARD to change the Site Selection GAAMPs to ensure that cases like the one that Vikki Papesh won could not be won again, and the 2006 informal Attorney General opinion that asserted that this strategy had worked, both depended on whether the Site Selection GAAMPs document was actually expanded in 2006 to include any number of animal units. It was not. This means that when MDA's position diverged from that of Small Farmers in 2006, it is not the Small Farmers who were in error. It was MDA. Small Farmers really have been protected not only by a reading of the law but also by a reading of the GAAMPs, for all of these years.
The question of why our state agricultural agency thought in 2006 that it was in the best interest of agriculture in Michigan to use their authority to thwart the efforts of small agricultural operations, remains unanswered. And unfortunately, it remains an important question, since this is what the proposed changes to the 2014 Site Selection GAAMPs will finally accomplish, if the Michigan Commission of Agriculture approves those changes on March 20th.
More information on Attorney General Opinions relevant to Right to Farm in Michigan, including links to original documents, is available here.
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