Shielding Murphy-Brown from nuisance lawsuits sparks a fracas in the streets, a battle in the courts and a struggle in the legislature

By: - June 26, 2018 12:41 pm

The band was in the middle of its set of oldies and country tunes when a bystander in the crowd of 500 people muttered, “Uh-oh. This could be trouble.”

Several husky men had gathered in front of the bandstand on the Bicentennial Mall in Raleigh yesterday afternoon, where farmers, their families, state officials including Agriculture Commissioner Steve Troxler, and Smithfield Foods employees, had assembled for a rally. The men brandished preprinted signs that read “Stand up for NC Farm Families” and “NC Farms can feed stupid. NC Farms can’t fix stupid.”

They flanked another slighter man, whose hand-drawn sign defended migrant farmworkers, as well as neighbors of industrialized hog farms, many of whom have sued Smithfield over the stench, flies, buzzards and truck noise from these enormous operations.

“Your God is watching,” the sign read.

There was a scuffle, with hollering, shoving and pointing. A woman sandwiched herself between two men, trying to defuse the fight. The crowd jeered as a plainclothes police officer, accompanied by another officer in uniform, led the man with the hand-drawn sign, away.

Behind the stage, as the man recorded the interaction, police told him that he could not disrupt a gathering that had received a permit.

“I’m speaking out for the people of eastern North Carolina who have hog shit sprayed on their houses,” he yelled.

The rally occurred on the same day of Gov. Roy Cooper’s expected—and later delivered — veto of Senate Bill  711, the NC Farm Act, as well as the closing arguments in the second of more than a dozen nuisance suits filed in federal court. The common thread in all three events – the rally, the nuisance litigation and the bill – is Murphy-Brown/Smithfield Foods.

It is not an exaggeration to say that the world’s largest pork producer, and its lobbying arm, the NC Pork Council, are the bullies on the block. As has played out in the legislature and in court, it’s become apparent that they use legal maneuvers, a sophisticated public relations machine, political influence and occasionally, even intimidation, to maintain their hold over North Carolina.

In addition to their powerful greenwashing machine, both entities have wielded their considerable influence over the sponsors of Senate Bill 711, including Sen. Brent Jackson. Jackson openly acknowledged on the Senate floor and in committees that he filed the legislation explicitly in response to Smithfield/Murphy-Brown losing the first nuisance suit in federal court.

Through a variety of legal barriers, the NC Farm Act would all but eliminate the right of neighbors to sue Murphy-Brown for nuisance. The Farm Act’s purpose is at best to deter, and at worst, to punish anyone who dares to confront the company. The bill could be up for an override vote as early as Wednesday.

While Murphy-Brown has framed the nuisance suit issue as an attack against small farmers – thus the reason for the rally – the suits are not against the farmers. They are against Murphy-Brown.

That’s because Murphy-Brown is responsible for every part of the farm’s operations via contracts with individual farmers. These agreements mandate that the farmers strictly adhere to standard operating procedures in the number of hogs grown, the amount of feed they receive, and how the waste is managed.  If a farmer does not comply, Murphy-Brown can remove its hogs and destroy the farmer’s meager, but to them, vital livelihood.

In fact, Murphy-Brown chose to gradually “depopulate” the Kinlaw Farm of its 15,000 hogs after the company lost the first nuisance suit. In that case, which was resolved in late April, a jury awarded 10 plaintiffs $50 million, although a federal judge reduced the amount to $3.25 million, per a state cap on punitive damages.

The company could have covered the farm’s lagoons for about $750,000. Instead, it is removing the hogs, although a company spokeswoman told Policy Watch the animals could be reinstated if the company wins on appeal.

The nuisances posed by many Smithfield farms are significant: By failing to upgrade its antiquated waste management systems — stinking and putrid open-pit lagoons holding millions of gallons of hog feces and urine, and fields where those pathogen-laden excretions are sprayed into the air and then on the land – neighbors must live with flies, gnats, buzzards, truck traffic, stench and dust.

Putting farmers out of business is not the point of the nuisance suits, Mike Kaeske, lawyer for neighbors suing Murphy-Brown in the second trial, told the jury in his closing arguments of the recent trial. “We don’t want to put Joey Carter [the contract grower in the case] out of business. We want Murphy-Brown to fix the problem.”

While men were fighting on the Bicentennial Mall, down the street in federal court, closing arguments in the second nuisance trial had concluded. But as the day wound down, the plaintiffs’ attorneys filed court documents showing that Smithfield lawyers had withheld key documents from the plaintiffs until after they had rested their case.

(Although Smithfield is the defendant and has its own lawyers with McGuireWoods, the company hired Yates, McLamb & Weyher to represent Carter, even though he is not being sued.)

The documents showed that Carter, a Smithfield contract grower, had been threatened with lawsuits from neighbors more than 30 years ago over his plans to build his farm. Faced with litigation, Carter rushed to get his waste lagoon built, and the plaintiffs argued during trial it could not adequately handle all of the waste and urine from his burgeoning operation. When a lagoon is too small, it stinks even worse than an adequately sized one.

This nugget of information is important because throughout the trial, the pork producer’s attorneys had falsely asserted no one had ever complained about the farm or its operations. The current complaints, Smithfield’s attorneys claimed, were manufactured by neighbors to extract money out of the billion-dollar company.

Adding to the intrigue, Matthew Carter, son of Joey, is a technician with the Duplin County Soil and Water Conservation District. Court records show that the district and the Natural Resources Conservation Service, a federal agency that works in tandem with the county and the state agriculture department, also stonewalled the plaintiffs from receiving the documents, which were available and had been requested under the Public Records Act.

Court documents associated with the filing show that more than a year ago, the Yates firm instructed the NRCS and Billy Houston of the Duplin County Soil and Water Conservation District to hold onto all records.  After Houston received the “legal hold letter,” he requested all future letters go to his address. (Houston is the target of an SBI investigation in a separate incident involving questionable lagoon sampling results.)

Wallace & Graham attorneys repeatedly requested records about the Carter farm before the trial began in late May. Well into June, as the trial continued, the NRCS had pulled the 500-page file, but not yet produced it.

Smithfield attorneys received the records on June 5. The plaintiffs did not receive them until June 20, the day after they rested their case.

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Lisa Sorg
Lisa Sorg

Assistant Editor and Environmental Reporter Lisa Sorg helps manage newsroom operations while covering the environment, climate change, agriculture and energy.