This paper focuses on the practice of confinement farming of hogs, specifically examining those practices from the state of Iowa. In doing so, the paper outlines the problems associated with confinement farming of hogs, including manure storage, cruel practices, and zoning issues among others. It then concludes with a look at sustainable agriculture practices from the U.S. and Europe.
I. THE INDUSTRIALIZATION OF HOG FARMING
In the early 1970’s a new system of swine production emerged. New confinement systems allowed farmers to move their hogs indoors, taking the animals off of pasture land and raising them in enclosed buildings. Farmers who could not breed sows in winter months because their young could not survive in unheated barns could now breed their animals year round in climate-controlled buildings.
Confinement systems were heralded as a solution to many of the problems associated with hog production. Metal farm buildings were equipped with heating and ventilation systems to deal with temperature extremes that protected hogs from the elements. This increased the hog’s feed capacity resulting in greater gains in less time. Hogs could be market ready in a matter of months. Also, because they were housed indoors, the hogs were not threatened by predation.
Confinement also gave the farmer greater control over the breeding process. Piglets could be weaned and the sow could be rebred more frequently. Confinement systems seek to exploit the sow’s reproductive cycles, weaning piglets early and immediately re-impregnating sows until their reproductive capacities decline and the sows are sold for slaughter.
Confinement systems may have solved some of the problems associated with hog production, but they were far from problem free. Animals in confinement under high-density population circumstances present an opportune environment for disease to spread rapidly. Hog manure contains numerous pathogens, posing potential health risks both to human and to the animals. To combat this problem, farmers had to use vaccines and antibiotics with a greater deal of frequency, adding to the costs of confinement operations.
Antibiotics are now commonly used in hog production to promote growth and to counteract the health effects of crowded conditions on confinement operations. As much as 80% of all antibiotics consumed by farm animals are used at sub-therapeutic levels—that is, they are not used to treat animals that are sick. Antibiotics are commonly administered to hogs through their feed until the week prior to slaughter. Approximately 40% of all antibiotics consumed in the United States today are consumed by farm animals.
Manure management also became an issue. Small hog herds produce waste that can be applied to cropland as fertilizer. Confinement systems meant that farmers were raising more hogs, often creating more manure than the soil could assimilate. Excessive manure applied to cropland can pollute ground and surface water. Because nitrogen is water-soluble, this component of hog manure has a great capacity to contaminate groundwater if too much manure is applied to land. Hog waste can also contaminate waterways during storm water runoff.
Confinement systems also pose greater overhead costs to the farmer. Family farmers who used to be able to borrow from their local banks were forced to enter into production contracts with corporate farms to finance expensive confinement buildings, a process that has been likened to indentured servitude. Production contracts are binding agreements where the producer (farmer) raises hogs provided by the contractor in a specific manner until the animals are ready for market. Under a typical production contract, the producer does not have legal title to the hogs, but operates as an independent contractor and is paid a set price according to terms set out in the agreement. The producer is required to comply with the specific terms of the agreement in order to be paid for the hogs.
Production contracts result in increased vertical integration where a single company is involved in more than one stage of production. Independent hog farmers in Iowa used to control hog production from the breeding stage until the hogs were ready for market. They were able to dictate their own husbandry practices, supplied their own feed, and sold their hogs according to prices set by the market.
Farmers under production contract are typically required to adhere to very specific details regarding how the hogs are raised. They do not own the hogs that reside on their land. In order to comply with the contract specifications, farmers take on huge debts to build the facilities and often have little contract security. Production contracts are for fixed terms and are usually renewed a year at a time. After making a large investment in a confinement facility, a farmer has no guarantee from the corporate contractor that his/her contract will be renewed. Under these agreements, farmers take on most of the financial risks but under the terms of the contract have little opportunity for increased returns on their investments. Not only does this intensive farming system marginalize the family farmer, it also adversely impacts the surrounding environment.
Hog barns often contain thousands of individual hogs, generating thousands of pounds of wet manure. To understand how hog waste reaches waterways, it is important to understand how hog confinements collect and contain their waste. Two primary systems have emerged to contend with hog waste. Hog barns are built over slatted floors that enable urine and feces to fall through the floor into underground concrete lined manure pit.
In one system, the manure pits are equipped with pumps that allow the waste to be periodically pumped out into a manure spreader or other containment structure. In this system, the highly concentrated urine and manure collect beneath the hogs. Anaerobic fermentation of hog waste means the hogs are forced to breathe in numerous gaseous compounds, including ammonia and hydrogen sulfide. Pit systems are considered to be less odorous than above ground lagoons but this is only true if you count odors perceived by humans. It is true that odors are contained by the hog barn itself, but the system is very odorous for the hogs that are forced to reside above it for the months that it will take them to reach market weight.
The second method uses a pit flushing system where water is flushed beneath the barns and directs the liquid waste to an outdoor lagoon where it can be stored. Lagoons are large earthen pits, can measure up to eight acres and can contain millions of gallons of wet manure. Anaerobic bacteria continue to break down the collected waste in both systems.
A. PROBLEMS ASSOCIATED WITH MANURE STORAGE SYSTEMS
Manure storage systems are not infallible; when something goes awry with a structure responsible for containing thousands or millions of gallons of highly concentrated manure, the consequences can be disastrous. Lagoon failure can occur for a variety of reasons and under a number of circumstances. Pits are typically constructed with concrete retaining walls. Industry claims that pores in the concrete are eventually sealed by solid animal waste as the pit fills, but these pits have been reported to leak long after they should have self-sealed. Retaining walls can also crack or collapse altogether. Lagoons can also overflow in the event of storm events.
III. HOG OPERATIONS AND BREEDING
The USDA defines a hog operation as a farm that has a hog inventory of 25 head or more. ( See , Agricultural and Economic Report No. (AER818), February, 2003. Available at http://www.ers.usda.gov/publications/aer818/aer818g.pdf ). This definition therefore includes hogs raised by independent hog producers and those raised according to corporate production contracts. Modern hog production is characterized by large-scale production where animals are typically confined in corrugated metal “barns” where temperature, humidity, feeding, watering and breeding are tightly controlled. Climate control technology has enabled pork producers to farrow their sows at any time of the year. Hog buildings often have grated metal floors or slatted floors which allow waste to collect beneath the building into a lagoon. The lagoon may be outfitted with a pumping system that flushes waste from the lagoon into a separate lagoon or spreading machinery. (More on barns and living conditions later) Industrial hog production categorizes hogs according to their age and /or stage of development.
A. BREEDING AND GESTATION
Specific animals are responsible for breeding on hog farms. Female hogs, known as sows, will be used for this purpose until their reproductive capacities decline at which point they are slaughtered or, in cases where their legs are too weakened and deformed from their confined living conditions, they are dragged from the building, killed, and disposed of by the producer. Sows are essentially treated as breeding machines, piglet factories that supply the market with feeder pigs. Sows can be bred at the age of seven months. They are artificially inseminated and live in narrow 2’ x 7’ gestation crates that severely restrict the pig’s movement. To describe a gestation crate as small is inaccurate. These crates literally encase the sows, the iron bars pressing into their skin, causing sores and open wounds. The sow is unable to turn around and does not have enough room to sit or lie down comfortably. Restrictive movement allows the sow to carry more fetuses to term according to the hog industry.
Sows live this way for years, until their reproductive capacities diminish. Sows spend their entire lives in these barren metal prisons with nothing to do but bite at the bars and squeal. Confined sows exhibit a number of aberrant behaviors as a result of chronic stress and frustration and suffer from depression. Psychological disorders characterized by aberrant behaviors include repetitive bar biting, chewing on the chains of their crates, and head waving. The bodies of sow confined this way, under conditions that allow so little movement, suffer greatly. Their leg bones are fragile and break easily. Because they are housed so densely, when one sow lies down her legs are in the path of her neighbor, and leg sprains and fractures are common among gestating sows. Sows often suffer from crippling foot and leg injuries and suffer muscle weakness due to inactivity and lameness. The rough concrete flooring causes foot and shoulder lesions. Some sows experience urinary tract infections and constipation caused by unwillingness to defecate in the same area in which they sleep and eat. The only exercise pregnant sows get is the walk from the gestation barn to the farrowing barn, once every sixteen weeks. One less commonly used practice involves the use of a tether that is attached to a neck or birth collar that similarly restricts the sow’s movement.
Lastly, because their movement is so restricted, pregnant sows are at risk for developing obesity. Feed is restricted during gestation, providing only enough sustenance so that the sow’s nutritional needs are met. Restricted feed means that the sow is in a chronic state of huger during gestation.
Farrowing describes the time period where the sow gives birth to her piglets until they are weaned. When a pregnant sow is ready to give birth, she is moved to a farrowing crate with an attached crate for her nursing piglets. Sows are confined in farrowing crates from the time they enter the farrowing barn, during the birth of the piglets, and until the piglets are weaned. Farrowing crates can be divided into two zones: the sow is confined to a zone that measures 2 x 7 feet while her piglets are confined in an attached stall where they only have access to their mother to nurse. Industry claims that sows must be confined during farrowing in order to prevent the piglets from being crushed by the sow, but this is true only because confinement creates a number of abnormal maternal behaviors for the sow. In a confinement setting a sow with limited mobility will crush her piglets—the nature of a confinement system, one which leaves the sow no room to even turn around makes it virtually impossible for her not to crush her piglets. Such is not the case on farms where sows have adequate room to nest and care for their young. The piglets are birthed on the same slatted floors where they will spend their entire lives.
C. PROCEDURES AFTER BIRTH
After birth pigs endure a number of painful medical procedures, on a typical hog confinement operation; none of the following are performed with anesthesia:
Teeth clipping : newborn piglets are born with sharp needle teeth that can pose a danger to littermates vying for teats and to the sow’s lactating udders. Farmers remove the tips of the incisors in order to prevent injuries to young piglets and injuries that may occur later in the hog’s life.
Tail docking : This involves amputating one-third to one-half of the pig’s tail. Confinement operators have found it necessary to dock pigs’ tails for a couple of reasons. One is that piglets are weaned prematurely and will continue to attempt to suckle after they have been removed from the farrowing barns, leading them to suckle or bite at the other hogs in their pens. The second reason for docking is because hogs are housed in dense populations, they will bite the tails of their pen mates out of frustration, aggression and boredom. Docking makes the amputated tail more sensitive to the stimulation, forcing the victimized pig to avoid the attacking animal and lessening the likelihood that the hog’s tail will become severely injured or infected.
Identification : operators use several methods to permanently identify animals. These include tattooing and ear notching where several “v”s are cut into the animal’s ears with scissors.
Castration : male piglets are castrated because when the animals reach puberty; their male hormones affect the flavor of their meat, known as “boar taint.” Also, castration is performed to reduce aggression among males and to make them easier to handle. The procedure is performed without anesthetic, using will a knife, scalpel or razor blade. While the piglet is being restrained an incision is made in the scrotum whereby the testicle is removed, twisted and severed from blood vessels. Sometimes a tool called an emasculator is used; this instrument simultaneously crushes and severs the blood vessels attached to the testicle. A less commonly used practice known as banding is used when a very tight rubber band is attached at the top of the piglet’s scrotum. The band cuts of circulation to the scrotum and it falls off after several weeks.
D. INTERACTION BETWEEN SOW AND YOUNG
The mother sow will never see her young. She will never nuzzle or know them as her own. Her piglets will be weaned shortly after their birth, anywhere from 10 days to four weeks, and will be moved to the nursery.
Nursery : weaned young pigs are cared for in a ‘nursery’ until they reached a certain weight, anywhere from 30-80 lbs. Pigs leave the nursery when they are 8-12 weeks old.
Finishing : this is the final weight gaining process for the pig. Growing pigs weigh about 50lbs. and finishing is the process where they will reach their market weight, usually about 250 lbs.
IV. FEDERAL LEGAL ANALYSIS
A. FEDERAL LAWS DEALING WITH FARM ANIMAL WELFARE
There are three federal laws that focus on animal welfare under very limited circumstances. They are (i) The Humane Methods of Slaughter Act , (ii) The Animal Welfare Act , and (iii) The 28-Hour Law . Of these, only the Humane Methods of Slaughter Act and the 28-Hour Law affect farm animals and these laws only apply under very limited circumstances, namely, transportation to the slaughterhouse and the method of slaughter.
1. The Humane Methods of Slaughter Act and Overview of Hog Slaughter
The Humane Methods of Slaughter Act was enacted by Congress to protect farm animals from unnecessary suffering during slaughter and mandates that swine be rendered insensible to pain prior being shackled and having their throats cut. The Humane Methods of Slaughter Act exempts slaughter practices that are in accordance with various religious ritual slaughter practices.
It is important to note that the Humane Slaughter Act has limited applicability. Its reach extends only to those slaughterhouses that are part of the Federal Meat Inspection Program and excludes poultry altogether. Chickens, turkeys, ducks and geese account for 90% of all animals slaughtered in the United States for food. The poultry exclusion means that approximately 9 billion animals are not protected by the Humane Slaughter Act. For animals that are covered, the Humane Slaughter Act does not guarantee a painless death. The provisions of the Act are grossly inadequate and rarely enforced.
Once hogs arrive at the slaughterhouse and are unloaded from their transport vehicles they are driven into single-file restraining chutes. Antibiotics are withdrawn from the hogs’ feed prior to slaughter to remove residue from the animals’ body tissue. This means that many hogs arrive at the slaughterhouse sick with pneumonia and other illnesses. Uncooperative hogs are shocked with electric prods until they comply. Hogs then individually enter an area where they will be “stunned” known as the restrainer. The person responsible for stunning the animals will reach over the restraining wall to stun the animal, usually with an electric chock or a captive bold gun. Stunned animals are then moved to a conveyor belt where one of their back legs will be shackled and the animal will be hoisted to the person responsible for “sticking” the hog—cutting its carotid artery so that the animal will bleed to death. Stickers report killing up to 900 hogs an hour. Hogs then make their way to the scalding tanks where their bodies will be submerged in scalding water—to remove hair and kill any external parasites. Hogs improperly stunned or stuck will be submerged in the scalding tank still alive and conscious. Finally, the hog is eviscerated and carved into smaller pieces.
Even though the stated intention of the Humane Slaughter Law is to ensure that food animals are slaughtered humanely, there are a number of problems regarding compliance and enforcement of the law. Poorly trained workers slaughtering large animals in assembly line fashion are bound to make mistakes, and the result is that improperly stunned animals often arrive on the kill floor alive and conscious with their hind leg shackled their throats are cut. Stunners working eight hour shifts may be responsible for as many as 16,000 hogs a day. (For more on the Humane Methods of Slaughter Act, click here .)
2. The 28-Hour Law/Interstate Transport of Livestock
The 28-Hour Law deals with the handling of farm animals while in interstate transport. It was expressly enacted to prevent cruelty to farm animals while in transport. The Act prohibits interstate shipment of confined livestock for periods longer that 28 hours where the animals do not have access to food or water and requires rest periods for animals once their confinement period lasts in excess of 28 hours.
Both the Humane Methods of Slaughter Act and the 28-Hour Law deal with a narrow range of circumstances in the transport and slaughter of farm animals. There are no federal laws that set standards for the daily care and living conditions of farm animals, leaving farm animals at the mercy of state anticruelty statutes to establish minimum standards of humane care.
B. FEDERAL ENVIRONMENTAL LAW: CONFINED ANIMAL FEEDING OPERATIONS UNDER THE CLEAN WATER ACT
The Clean Water Act targets point source pollutant discharges into the navigable waters of the United States. Designation as a point source is crucial to bring a hog confinement operation within the ambit of the permit requirements set forth in the Act. Recognizing the potential of Confined Animal Feeding Operations (CAFOs) to pollute the nation’s waterways, Congress included feedlots in the statutory definition of point sources in the Act, thereby making them subject to the National Pollutant Discharge Elimination System (NPDES) permitting system.
The term "point source" is defined as:
any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.
33 U.S.C §1362(14). This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.
1. When are Hog Confinements CAFOs under the Clean Water Act?
In order to be a CAFO, a livestock must first be designated as an animal feeding operation (AFO). A hog facility is an animal feeding operation (AFO) for purposes of the Act if the facility stables or confines and feeds hogs for 45 days or more in any 12 month period where crops and vegetation are not sustained in the confinement area during the normal growing season. ( 40 CFR § 122.23 (1).)
Secondly, a hog confinement’s CAFO designation depends upon the number of hogs raised on the site. The Act makes the following designations relevant to hog production: an AFO that houses 2,500 swine weighing 55 pounds or more, or, 10,000 swine each weighing less than 55 pounds is designated a Large CAFO under the Act. Large CAFOs are automatically point sources under the Act and require NPDES permits if the facility has the potential to discharge effluent into the waters of the United States.
A Medium CAFO is one that houses 750 to 2,499 swine each weighing 55 pounds or more; 3,000 to 9,999 swine each weighing less than 55 pounds, and either one of the following conditions are met: (A) Pollutants are discharged into waters of the United States through a man- made ditch, flushing system, or other similar man-made device; or (B) Pollutants are discharged directly into waters of the United States which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation. (40 C.F.R. 122.23(A)(B)).
Additionally, the EPA has the authority on a case-by-case basis to designate an AFO as a CAFO if the agency determines that the facility is a “significant contributor of pollutants to the waters of the United States.” (40 C.F.R 122.23(c)).
There are two noteworthy exemptions to the NPDES requirement. First, CAFOs are excluded when their capacity to discharge pollutants occurs only in the event of a 25-year, 24-hour storm event. ( 40 C.F.R. Pt. 122, Appendix. B) Secondly, Congress’ point source definition excludes storm water runoff from agricultural irrigation:
Land application discharges from a CAFO are subject to NPDES requirements. The discharge of manure, litter or process wastewater to waters of the United States from a CAFO as a result of the application of that manure, litter or process wastewater by the CAFO to land areas under its control is a discharge from that CAFO subject to NPDES permit requirements, except where it is an agricultural storm water discharge as provided in 33 U.S.C. 1362(14). For purposes of this paragraph, where the manure, litter or process wastewater has been applied in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater, as specified in § 122.42(e)(1)(vi)-(ix), a precipitation-related discharge of manure, litter or process wastewater from land areas under the control of a CAFO is an agricultural stormwater discharge.
40 CFR § 122.23 (e).
V. DETAILED LEGAL ANALYSIS OF IOWA LAWS DEALING WITH HOG CONFINEMENT OPERATIONS
A. STATE ANIMAL CRUELTY LAWS AND EXEMPTIONS FOR CUSTOMARY FARMING PRACTICES
In 1994 the Iowa legislature amended the animal cruelty provisions of the criminal code. Statutory amendments included two important provisions relating to livestock and customary farming practices. The amendments added two new chapters detailing criminal conduct with respect to livestock: Livestock Abuse I.C.A. § 717.1A and Livestock Neglect I.C.A. § 717.2 . The new sections replaced the state’s general animal cruelty statute, which covered all domestic animals, including livestock, and domestic fowl and did not exempt customary farming practices. The amendments define livestock as “an animal belonging to the bovine, caprine, equine, ovine, or porcine species, ostriches, rheas, emus; farm deer as defined in section 170.1; or poultry.” I.C.A. § 717.1 .
1. Livestock Abuse
Iowa’s amendments did not afford greater protection to animals raised for food. Section 717.1A of the Iowa Code allows prosecution of livestock abuse only when the prohibited acts are committed by a person that does not own the animal, leaving one free to abuse one’s own livestock as long as the abuse is not a prosecutable offense under § 717.2 relating to livestock neglect. I.C.A. § 717.1A reads as follows:
A person is guilty of livestock abuse if the person intentionally injures or destroys livestock owned by another person, in any manner, including, but not limited to, intentionally doing any of the following: administering drugs or poisons to the livestock, or disabling the livestock by using a firearm or trap. A person guilty of livestock abuse commits an aggravated misdemeanor. This section shall not apply to any of the following:
1. A person acting with the consent of the person owning the livestock, unless the action constitutes livestock neglect as provided in section 717.2.
2. A person acting to carry out an order issued by a court.
3. A licensed veterinarian practicing veterinary medicine as provided in chapter 169.
4. A person acting in order to carry out another provision of law which allows the conduct.
5. A person reasonably acting to protect the person's property from damage caused by estray livestock.
6. A person reasonably acting to protect a person from injury or death caused by estray livestock.
7. An institution, as defined in section 145B.1, or a research facility, as defined in section 162.2, provided that the institution or research facility performs functions within the scope of accepted practices and disciplines associated with the institution or research facility.
The Livestock Abuse statute only contemplates abuse committed by a third party who does not own the livestock or one who acts with consent of the owner. There are no reported decisions that interpret or apply I.C.A. § 717.1A .
2. Livestock Neglect
The second chapter that deals with livestock criminalizes livestock neglect. Livestock neglect is defined at I.C.A. § 717.2 as follows:
1. A person who impounds or confines livestock, in any place, and does any of the following commits the offense of livestock neglect:
a. Fails to provide livestock with care consistent with customary animal husbandry practices.
b. Deprives livestock of necessary sustenance.
c. Injures or destroys livestock by any means which causes pain or suffering in a manner inconsistent with customary animal husbandry practices.
2. A person who commits the offense of livestock neglect is guilty of a simple misdemeanor. A person who intentionally commits the offense of livestock neglect which results in serious injury to or the death of livestock is guilty of a serious misdemeanor. However, a person shall not be guilty of more than one offense of livestock neglect punishable as a serious misdemeanor, when care or sustenance is not provided to multiple head of livestock during any period of uninterrupted neglect.
3. This section does not apply to an institution, as defined in section 145B.1, or a research facility, as defined in section 162.2, provided that the institution or research facility performs functions within the scope of accepted practices and disciplines associated with the institution or research facility.
A person can be prosecuted under the livestock neglect statute regardless of whether he or she owns the animals, but § 717.2 contains an important exemption—livestock neglect is committed only when a person fails to provide care that is consistent that customary animal husbandry practices. (717.2(1)(a)). The importance of this exemption cannot be overstated. By exempting customary farming practices from the reach of the state’s animal cruelty laws, the Iowa legislature gave the agricultural industry the power to define what is and is not legal according to customary farming practices. This means that any customary practice is beyond the scope of the animal cruelty law.
Customary farming practices for hogs in Iowa include a number or practices that were they inflicted upon cats or dogs, would clearly be prosecutable under the state’s animal cruelty statute. Castration and tail docking without anesthetics, confinement practices especially those endured by gestating sows, cramped transportation conditions where animals do not have access to food or water for extended periods of time during temperature extremes, all of these practices are now considered customary for raising hogs in Iowa, and are thus not prosecutable offenses under § 717.2 .
The livestock abuse and neglect statutes are extremely inadequate in terms of the penalties they impose. First, in the event that someone is actually convicted under one of these laws, they can only be charged with a misdemeanor offense. Secondly, an individual can only be charged with a single misdemeanor regardless of the number of animals who were abused or neglected during a period of “uninterrupted neglect.” This means that whether an individual starves to death one hog or 1,000 hogs, if the period of neglect is uninterrupted, the party can only receive a single charge for livestock neglect.
In the case of State v. Wells, 629 N.W.2d 346, the defendant’s multiple convictions for starving to death two horses at his boarding facility were overturned. The Iowa Supreme Court overturned the multiple convictions, holding that because the horses’ deaths occurred during a single period of uninterrupted neglect only a single misdemeanor charge was appropriate. Citing the statute, the court stated that multiple convictions for livestock neglect could not be based on the number of animals neglected, but rather had to be established by separate periods of neglect.
Lastly, Iowa’s present animal cruelty statute, known as “Injury to Animals Other than Livestock” the legal definitions set forth in § 717B.1 specifically exclude livestock from the definition of animal under the statute, meaning that the only statutes that afford any protection to farm animals are the chapters entitled “Livestock Abuse” and “Livestock Neglect.” Livestock defined in § 717.1 includes animals “belonging to the bovine, caprine, equine or porcine species, ostriches, rheas, emus, farm deer…or poultry.” All animals belonging to these species are therefore, are not protected by Iowa’s animal cruelty laws.
B. HUMANE SLAUGHTER
Iowa has a humane slaughter law similar to the federal Humane Methods of Slaughter Act. Iowa Code § 189A.18 sets forth the following humane slaughter practices:
Every establishment subject to the provisions of this chapter engaged in the slaughter of bovine, porcine, or ovine animals or farm deer shall slaughter all such animals in an approved humane slaughtering method. For purposes of this section an approved humane slaughtering method shall include and be limited to slaughter by shooting, electrical shock, captive bolt, or use of carbon dioxide gas prior to the animal being shackle hoisted, thrown, cast or cut; however, the slaughtering, handling or other preparation of livestock in accordance with the ritual requirements of the Jewish or any other faith that prescribes and requires a method whereby slaughter becomes effected by severance of the carotid arteries with a sharp instrument is hereby designated and approved as a humane method of slaughter under the law.
Iowa Code § 189A.18.
Iowa slaughterhouses subject to the provisions set forth in I.C.A. § 189A.18 are those that bear the Iowa state inspected label and sale of these products is limited to intrastate commerce. The number of hogs slaughtered for intrastate distribution in the state of Iowa for the federal 2003 fiscal year was less than 7,000. This figure represents a less than one half of 1% of the total number of hogs slaughtered in the state. Slaughterhouses that participate in the state labeling program are typically small, custom operations that slaughter one to two hogs per day and market their products locally. These facilities are monitored by the Iowa Department of Agriculture and Land Stewardship Meat and Poultry Inspection Bureau and all hogs are inspected before and after slaughter. There are no reported cases that involve interpretation or enforcement of Iowa’s humane slaughter law.
Hogs slaughtered in the state of Iowa intended for distribution in interstate commerce are regulated and inspected by the USDA Food Safety and Inspection Service.
C. MANURE STORAGE AND DISPOSAL
A single hog raised on a factory farm can produce up to 2 tons of wet manure per year. This means that a typical 5,000 head confinement facility will generate 10,000 tons of manure per year averaging 28 tons per day. Unlike human waste, which undergoes extensive treatment to remove bacteria and other pathogens, hog waste is stored in vast open air lagoons and eventually applied to land without any form of sewage treatment.
Most of Iowa’s laws that affect hog confinement facilities regulate the manner in which hog manure must be handled, stored and disposed of. The degree to which a particular facility will be regulated depends primarily on the number of hogs housed in the confinement and the manner in which the manure is stored. State regulations set out minimum manure control requirements for all confinement operations and additional permitting requirements apply to large confinement operations.
1. Minimum Maure Control
Iowa Code § 459.311 sets forth the following requirements for minimum manure control:
1. A confinement feeding operation shall retain all manure produced by the operation between periods of manure disposal. A confinement feeding operation shall not discharge manure directly into water of the state or into a tile line that discharges directly into water of the state.
2. Manure from an animal feeding operation shall be disposed of in a manner which will not cause surface water or groundwater pollution. Disposal in accordance with the provisions of state law, including this chapter, rules adopted pursuant to the provisions of state law, including this chapter, guidelines adopted pursuant to this chapter, and section 459.314 , shall be deemed as compliance with this requirement.
3. The department may require that the owner of a confinement feeding operation install and operate a water pollution monitoring system as part of an unformed manure storage structure.
4. The owner of the confinement feeding operation which discontinues the use of the operation shall remove all manure from related confinement feeding operation structures used to store manure, by a date specified in an order issued to the operation by the department, or six months following the date that the confinement feeding operation is discontinued, whichever is earlier.
Iowa Code § 459.311.
In the case of State ex rel. Miller v. DeCoster 608 N.W.2d 785, the Supreme Court of Iowa enforced the minimum manure requirements set forth in I.C.A. §459.311. andupheld the Wright County District Court’s decision in an environmental enforcement action against a hog confinement operator. The defendant was held strictly liable for violating I.C.A. § 459.311 and fined $59,000. Defendant DeCoster is among the nation’s top 25 pork producers and has a long history in Iowa of environmental compliance problems. He was classified as a “habitual violator” pursuant to I.C.A. §455B.191(7) in June 2000. The habitual violator classification means that DeCoster cannot obtain a construction permit to build or expand a confinement facility for 5 years and will be subjected to heightened supervision from the DNR. DeCoster controls numerous confinement operations across the state of Iowa and is among the nation’s top 25 pork producers. Subsequent environmental violations at his operations will result in higher civil penalties.
Chapter 65 of the Iowa Administrative Code sets forth detailed requirements for compliance with Iowa’s minimum manure requirements. The provisions set forth in IA ADC §567.65.2(3) states that confinement operations must retain all manure in between periods of application and disposal and that facilities using anaerobic lagoons or earthen storage systems must maintain two feet of freeboard (distance between top of manure to the top of the storage structure). Discharge of manure into a “publicly owned lake, a sinkhole, or an agricultural drainage well” is prohibited. ( Id . 65.2(6). The regulations further require that land application of manure be conducted in a manner that will not cause ground or surface water pollution ( Id . 65.2(7)) and that discharges of manure from a feeding operation to ground or surface water or to tile lines be reported to the DNR. ( Id . 65.2(9)).
Minimum requirements are just that—the law may require certain operations to comply with additional restrictions. Operations large enough to require DNR permits are required to meet additional manure control requirements.
D. LAND APPLICATION OF MANURE
Land application of manure is one of the primary mechanisms for disposing of vast quantities of hog manure and it is this practice that is largely responsible for ground and surface water pollution as well as contamination from run-off. Iowa law mandates that hog manure be applied to the land in certain ways, often by individuals who have been certified by the Department of Natural Resources. There are two state administered programs for manure application certification:
1. Certification for Commercial Manure Applicators
A commercial manure applicator, as defined by I.C.A. § 459.102 is a person who engages in the business of and charges a fee for applying manure on the land of another person.” Commercial manure applicators must be certified by the DNR every year as specified by I.C.A. § 459.315 before they can legally handle, haul or apply liquid or dry manure. I.C.A. § 459.315(3)(a) states that commercial applicators must attend a three hour educational course and pass an examination year in or to be certified. Certified commercial applicators are required to comply with all applicable regulations including separation distances, must follow a manure management plan where applicable, must maintain records and must report all manure releases/spills to the DNR.
2. Certification for Confinement Site Manure Applicators
A confinement site manure applicator as defined by I.C.A. § 459.315(c) is “a person who applies manure at a confinement site other than a commercial manure applicator.” Non-commercial manure applicators must also be certified in order to apply or haul liquid or dry manure unless the source of the manure is an open feedlot or a small animal feeding operation. Confinement applicator certification lasts for three years and can be obtained upon completion of an exam or after attending a two-hour educational course. Confinement site manure applicators are required to comply with all applicable regulations including separation distances, must follow a manure management plan where applicable, must maintain records and must report all manure releases/spills to the DNR.
3. Spray Irrigation of Manure
The Iowa Administrative Code sets forth the definitions and manner in which spray irrigators can be used to apply manure at IA ADC 567-65.1(455B); 567-65.3(455B).
Additional administrative recommendations for the land application of manure are set out at IA ADC 65.3(455B).
E. PERMIT REQUIREMENTS FOR BUILDING OR EXPANDING CONFINEMENT OPERATIONS
Whether a builder is required to obtain a construction permit prior to building or an operation permit to expand or modify a facility depends on the type of manure storage system that will be used and the number of animals that will be housed at the facility. Confinement operations are animal feeding operations where animals are confined in structures that are completely roofed. Animal weight capacity in hog confinement operations is determined by multiplying the number of hogs housed in the facility by the average weight of the hog during its production cycle. The weight capacity is the sum of the hog’s average weight when the operation is at full capacity. The following limits demarcate when facilities are required to obtain a permit:
Confinement facilities that will use either an anaerobic manure storage system or an earthen manure storage basin are required to obtain permits if the facility will be housing more than 200,000 pounds of hogs.
Operations that will use formed manure storage structures (including tanks constructed of concrete wood or steel) will require permits if their hog weight capacity exceeds 625,000 pounds.
Operations that store their manure in dry form will require permits if their hog waste capacity exceeds 1,250,000 pounds.
(Iowa DNR (website source no longer available)). Permit requirements are also available at ICA 459.303. The DNR requires confinement operations to obtain building permits prior to construction or modification of an existing facility and its manure storage systems when those facilities meet the above criteria. Operators seeking permits must submit design plans, manure management plans, an engineering report that describes both the operation and manure storage system, location information demonstrated by maps and/or aerial photos, confirmation that the operation will comply with separation distances, an Interested Party Form that identifies all persons who have an interest in the proposed operation and other confinement operations in which those parties have an interest, and a signed receipt showing all application documents have been received by the county board of supervisors or designated officer in the county of the proposed operation.
The Interested Party Form included in the permit application allows the DNR to deny permits to parties who have ownership interests in operations under enforcement action by the DNR or persons who have been classified as habitual offenders. Interest in an operation is defined as a sole proprietor or an ownership interest greater than 10% held directly or indirectly through a spouse or dependent child.
The applicant is also required to pay numerous fees including fees for a manure indemnity fund to clean up abandoned confinement operations and filing fees. Additional permit requirements may apply if the operator plans to divert more than 25,000 gallons of water (excluding water purchased from municipal systems) and if the operation is located in a known flood plain. For a link to the Interested Party Form , please click on the following link: http://www.iowadnr.com/afo/forms.html .
1. Manure Management Plans
Facilities that do not require permits because they do not meet the above criteria may still be required to submit a manure management plan (MMP) to the DNR. Requirements regarding MMPs are set out at I.C.A. § 459.312. Small animal feeding operations, defined as those with a hog weight capacity below 200,000 pounds do not have to submit manure management plans. All facilities with a greater capacity, even though not required to apply for a construction permit, must still submit MMPs.
Operators required to submit MMPs must show that a copy of the plan has been received by the county board of supervisors in the county where the operation will be located, along with specific location of the proposed facility as demonstrated on maps and aerial photos, and the specific locations and animal weight capacities of confinement facilities within 2500 feet of the proposed site where there is a common manager or a common ownership interest. The operator must demonstrate that sufficient cropland exists to dispose of manure according to the terms of the plan.
Iowa law requires that manure from all animal feeding operations, including open feedlots and small animal feeding operations be applied in a manner that does not pollute surface or groundwater.
2. Separation Distances
Iowa law establishes minimum separation distances for land application of manure and manure storage systems and public use areas including schools, churches, businesses, cemeteries and private residences not owned by the confinement operation. Distances vary depending on the size of the operation, the type of manure system that is used and whether the stored manure is in dry or in liquid form. Separation distances can be viewed in table format at http://www.iowadnr.com/afo/files/sepdstb4.pdf . Note that small feeding operations that are exempted from permitting requirements still have to comply with separation distances.
Confinement operations must also comply with minimum separation distances from other structures including sinkholes, public and private wells, navigable waterways including lakes, rivers, and streams (excluding privately owned lakes and farm ponds), agricultural drainage wells and road right of ways.
Separation distances for public and private wells can be viewed at http://www.iowadnr.com/afo/files/sepdstb4.pdf ; ground and surface water requirements can be viewed at http://www.iowadnr.com/afo/factsheets.html . (Note: these tables apply only to facilities that store their manure in liquid form.)
Separation distances for land application of manure are found in the Iowa Administrative Code Chapter 567-65.3(455B).
3. Dead Animal Disposal
Confinement systems are breeding grounds for disease and bacteria. Dense animal populations combined with the air pollution caused by living in close proximity to highly concentrated decaying manure can lead to disease among hogs. Despite the use of sub-therapeutic antibiotics some animals sicken and die. Disposal of dead hogs and stillborn piglets is a grim reality on many hog farms.
A 2% mortality rate among nursery, feeder and gestating sows is considered excellent by industry standards. This means that a 10,000 head finishing operation under the best of circumstances will have 200 carcasses to dispose of per year. Feeder pigs can weigh anywhere from 30-250 pounds. At an average weight of 140 pounds, 200 carcasses would weigh 14 tons. Large confinement operations dispose of dead hogs in two primary ways, either through rendering or land disposal including burial and composting of the carcasses. Because rendering facilities have become scarce, operators have turned to on-site disposal methods.
The Iowa Department of Agriculture and Land Stewardship has set forth a number of regulations regarding the disposal of dead livestock. All livestock must be disposed of within 24 hours after the death of the animal.
BURIAL : Producers who bury their dead livestock may bury up to 44 market or breeding hogs an acre per year. Burial pits cannot be more than six feet deep and must be two feet above the highest groundwater elevation. “Burial must beat least 100 feet from a private well, 200 feet from a public well, 50 feet from an adjacent property line, 500 feet from a residence and more than 100 feet from a stream, lake or pond. Burial cannot be in a wetland, floodplain or shoreline area.” (Iowa DNR). Animals must be covered with six inches of soil upon burial, but the pit can remain open until it has reached its maximum carcass capacity. Minimum soil cover for a burial pit is 30 inches. If operators choose to dispose of carcasses through burial method they must bury the animals on the property in which the animals originated. Animals are not required to be disposed of in a “dead box” or other type of container.
COMPOSTING : Livestock can be disposed of through a natural technique where the bacterium in the hog’s carcass degrades the animal tissue. Bedding is used to line the compost heap and dead hogs are placed on top of the bedding and then covered with more bedding. The bedding absorbs excess liquid and helps absorb odors. The process is repeated as additional mortalities occur until the pit has reached its maximum carcass capacity. The compost must be turned several times with a tractor and will eventually be ready for use as fertilizer. The amount of time needed to compost a dead hog depends on the size of the carcass. The DNR requires that composting sites be built on all-weather surfaces such as concrete. Additionally, composting must be done in a manner where there is no release of run-off and odor and flies need to be controlled.
RENDERING : Rendering is the process whereby dead animals are cooked in large vats where it can be broken down into components such as fat and protein. The Iowa Code sets forth regulations regarding the use and disposal of dead animals at chapter 167.1.
(The above information and more can be found at Iowa's DNR Website under "Dead Animal FAQ." http://www.iowadnr.com/afo/disposal.html )
4. Master Matrix
Iowa legislators responded to public outcry from communities who complained that local governments had no decision making power in whether a proposed confinement operation would be issued a permit to build on a particular site. The new set of livestock regulations, known as the Master Matrix, went into effect on March 1, 2003.
The Master Matrix establishes a scoring system that counties can use to evaluate proposed building sites for confinement operations that will house more than 2,500 hogs and require a building permit from the DNR. The scoring system is designed to evaluate proposed building sites and manure management practices by focusing on three subcategories: air quality, water quality, and the impact the facility will have on the local community. The matrix does not address animal welfare concerns among its scoring criteria. Operators choose from a menu of regulations that impose requirements more stringent than state laws and earn points through compliance with the scoring criteria. For example, operators can earn points by choosing a site that exceeds minimum separation distances required by state law and by adopting more stringent manure management practices.
The matrix requires operators to establish minimum scores of 25% of available points in the air, water, and community impact subcategories and a total overall minimum score of 50%. The system is meant to give local governments and community members access to information about proposed operations, more input regarding the siting of confinement operations and to encourage project modifications that will minimize environmental and community impacts.
Counties are not compelled by law to use the matrix to evaluate proposed CAFO sites. Counties that want to use the system must pass Construction Evaluation Resolutions before implementing the matrix. As of 2003, 86 of Iowa’s 99 counties have chosen to use the matrix. A map of counties that have adopted the matrix can be viewed at http://www.iowadnr.com/afo/matrix.html .
The master matrix gives counties in Iowa more input regarding CAFO location, but final permitting power still resides with the DNR. After the county approves or rejects the application, they must send the results on to the DNR along with public comments. Operators who attain minimum scores in all necessary categories and meet all other permitting requirements will still have their permits approved even if the public comments are opposed to the operation and the county recommends against the application. Operations can only be rejected based on their final scores, community outcry and environmental concerns are not enough to defeat an application.
F. ENVIRONMENTAL IMPACTS OF HOG FARMING
1. The Impact of Intensive Hog Farming on Iowa’s Waterways
Nonpoint source pollution from intensive hog farming in Iowa is a huge contributor to pollution of both ground and surface waterways. Hogs can generate anywhere from 4 to 8 times as much waste as a human being. Towns and cities are required to treat human generated sewage before the effluent can be flushed into a waterway. The hog factories that have sprung up all across Iowa, housing thousands of animals at a time, are not required to treat their hog waste because the manure is applied directly to land and is thus excluded from the point source definition set forth in the Clean Water Act. Invariably, hog waste finds its way into Iowa’s streams, lakes, rivers and groundwater, polluting waterways and resulting in mass fish kills.
In the three-yearperiod from 1995-1998 there were 134 reported fish kill events in Iowa killing approximately 2.3 million fish. During this three-year period approximately half of the fish kills were the result of agricultural pollution caused by expanding confinement operations and improper management of manure. Manure spills and agricultural run-off from CAFOs are a major source of water pollution in Iowa.
One of the largest spills occurred in Hamilton County in 1995 when 1.5 million gallons of hog manure traveled to the Iowa River through an underground tile line. More recently in September 1999, 25,000-35,000 gallons of hog manure was spilled into Seven Mile Creek after a pipeline broke at an Iowa Select Farm.
2. Hog Confinements & Air Pollution
Air pollution from hog confinements is caused by emissions of dust and particulate matter, airborne dust containing bacteria and microbes (bioaerosols) and noxious gases produced by decomposing manure, including hydrogen sulfide, carbon dioxide, ammonia and methane. The air is dangerous for farm workers, neighboring residents and the hogs who breathe it. Numerous studies show that neighbors of confinement facilities suffer from numerous medical conditions including bronchitis, asthma, chronic respiratory illness, neurological damage and depression.
1. County Zoning: Farm Building and Agricultural Exemptions
Chapter 335 of the Iowa Code grants counties the authority to zone within their boundaries, with numerous restrictions for farming and agricultural activities. Iowa Code § 335.2 exempts “land, farm houses, farm barns, farm outbuildings or other buildings or structures which are primarily adapted, by reason of nature and area, for use for agricultural purposes, while so used.” Hog confinement buildings were held to be within the agricultural building exemption and thus exempt from county zoning regulations under § 335.2 in Kuehl v. Cass County, 555 N.W.2d 686 . The issue before the Kuehl court was whether hog confinement buildings could be considered “agricultural” so as to fall within the zoning exemption. Quoting from an earlier case, Farmegg Products, Inc. v. Humboldt County, 190 N.W.2d 454 , the Iowa Supreme Court stated that “[T]he question as to whether a particular type of activity is agricultural is not determined by the necessity of the activity to agriculture nor by the physical similarity of the activity to that done by farmers in other situations. The question is whether the activity in the particular case is carried on as part of the agricultural function or is separately organized as an independent productive activity.” ( Id. at 458).
The court went on to say that “in determining what uses are for agricultural purposes we view agriculture as the art or science of cultivating the ground, including harvesting of crops and rearing and management of livestock.” ( Kuehl, 555 N.W.2d 686, 689 ).
2. Preemption of Local Livestock Regulations
The issue of county versus local control over livestock regulations came to a head in the case of Goodell v. Humboldt County (575 N.W.2d 486) when the Iowa Supreme Court invalidated a series of ordinances that had been enacted by the Humboldt County Board of Supervisors to add additional regulations to the livestock industry and to address problems created by CAFOs in the county.
The ordinances at the heart of the battle dealt with (1) permitting requirements for new construction, (2) financial assurances, (3) groundwater protection, and, (4) toxic air emissions. The ordinances were adopted in response to growing numbers of hog confinements as a means of limiting new construction and the attendant environmental harms that accompany such facilities. Id.
Separate charges were brought challenging the county’s ordinances by the Humboldt County Livestock Producers along with a local livestock producer, Lloyd Goodell. The actions were consolidated; both parties sought declaratory judgment. The Iowa Supreme Court, sitting en banc, invalidated the Humboldt County ordinances holding that the county was preempted from enacting the ordinances because they were inconsistent with state law. The court stated that the issue before them was “whether Humbolt County had the authority to enact the challenged ordinances” ( 575 N.W.2d 486, 495 ) based on their home rule authority.
The doctrine of implied preemption states that a county cannot exercise its home rule authority in a manner that is inconsistent with state law. The classic example of implied preemption is when a county enacts a law that allows something that a state law prohibits. Implied preemption can also occur when a municipal body enacts a law in an area or field already occupied by the state legislature. All four ordinances were invalidated based on implied preemption.
Shortly after the court handed down its decision the legislature made move to amend the Iowa Code to expressly preempt county regulation of the livestock industry. The result was § 331.304A which prohibits a county from adopting legislation that regulates “a condition or activity occurring on land used for the production, care, feeding, or housing of animals unless the regulation of the production, care, feeding, or housing of animals is expressly authorized by state law. County legislation adopted in violation of this section is void and unenforceable and any enforcement activity conducted in violation of this section is void. A condition or activity occurring on land used for the production, care, feeding, or housing of animals includes but is not limited to the construction, operation, or management of an animal feeding operation, an animal feeding operation structure, or aerobic structure, and to the storage, handling, or application of manure or egg washwater.” I.C.A. § 331.304A.
H. IOWA NUISANCE LAW AND RIGHT TO FARM STATUTES
You may not be able to see the thousands of hogs raised throughout the state of Iowa, but if you live in the vicinity of a confinement operation, you can certainly smell them. Odors produced by confined hogs are more than unpleasant for those who breathe the tainted air, the gaseous components that are responsible for the foul smells threaten the health of farm workers, neighboring residents and the animals forced to live there.
Odors from hog confinements are caused by a mixture of concentrated decaying urine and feces stored in lagoons or applied directly to land. Anaerobic decomposition of hog waste is the primary source of unpleasant odors in rural communities. Odors come from manure storage areas and when manure is applied to pasture land. Manure is applied to land using spray irrigation equipment or manure spreaders.
Generally, a nuisance is an act or condition on one parties’ property that substantially interferes with a person’s use and enjoyment of his/her land. Odor is the driving force behind nuisance actions against confinement operators in Iowa.
In the case of Blass, et al v. Iowa Select Farms , L.P., Iowa, Sac County Dist. Ct., No. LACV018147, Oct. 9, 2002, a jury awarded four neighbors of a 31,500 hog finishing operation$1.06 million in actual damages plus an additional $32 million in punitive damages in their nuisance suit against Iowa Select Farms. The neighbors alleged personal discomfort and loss of property values and complained that the lot produced extreme odor, noxious gases and excessive flies. In lieu of appeal, the parties settled the case for an undisclosed amount.
The Iowa legislature has sought to protect livestock producers from nuisance lawsuits through various statutory provisions collectively known as right to farm laws. Originally enacted to preserve farmland and to protect agricultural areas from the threat of nuisance actions caused by urban encroachment, right to farm laws generally afford protection to agricultural operations by providing a defense to nuisance actions. Agricultural operations in compliance with the statutory provisions set out in the law are afforded a defense to nuisance actions. The nuisance defense is not available if the operations are not in compliance with all applicable state, federal and local laws or if the operation is conducted negligently.
1. Nuisance Protection for Feedlot Operations: Iowa Code § 172D.2
In 1976 the Iowa legislature enacted the first of three right to farm laws. Chapter 172D, otherwise known as the feedlot nuisance law, provides an absolute defense to feedlot operators if the following conditions are met: (1) the feedlot must have been in operation before the complaining party acquired title to his/her land (the established date of operation requirement prevents actions that involve coming to the nuisance), and, (2) the feedlot must be in compliance with all applicable state and federal law, DNR regulations and local zoning requirements. Under the statute, a feedlot is a “lot, yard, corral, or other area in which livestock are confined, primarily for the purposes of feeding and growth, prior to slaughter.”
A feedlot that is not in compliance with state and local zoning laws is not protected by § 172D.2. Significantly, the feedlot’s established date of operation changes if the operation undergoes significant changes or expands the operation.
2. Unconstitutional Immunities for Designated Agricultural Areas
The second right to farm law was enacted by the Iowa legislature in 1982. Chapter 352 of the Iowa Code sets forth the procedure whereby parties can apply to the county board of supervisors to designate land as an agricultural area. Agricultural designation was intended for certain types of land use, generally activities crop raising and storage, livestock rearing and manure disposal. After counties approved applications, agricultural designation provided immunity to all farming operations in that area. Under § 352.11(1)(a) farms located in designated agricultural areas were immune from nuisance lawsuits regardless of the farm’s established date of operation or subsequent changes or expansions of the farming operation. In order to be protected by this right to farm law, the operation must comply with all federal, state and local laws.
The nuisance immunity provision in Chapter 352 was challenged by a group of landowners in Kossuth County after the Board of Supervisors approved an application to designate a 960 acre parcel of land as an agricultural area. In Bormann v. Board of Supervisors in and for Kossuth County , 584 N.W.2d 309 , the Iowa Supreme Court of Iowa held that section 352.11(1)(a) was an unlawful taking in violation of the Fifth Amendment of the Federal Constitution and under article I § 18 of the Iowa Constitution.
The Bormann court held that the right to maintain an action for nuisance was an easement. When the County Board of Supervisors approved the application, the nuisance immunity provisions of Chapter 352 were triggered. The court held that the nuisance immunity created a property interest in the agricultural area. “This is because the immunity allows the applicants to do acts on their own land which, were it not for the easement, would constitute a nuisance.” ( 584 N.W.2d 309, 316 ). The court stated that the Board’s approval was a forced transfer of the neighboring landowner’s property right to the farmer’s land without just compensation and invalidated the immunity provision in § 352.11(1)(a).
Following the court’s declaration that the agricultural area nuisance immunity provision was unconstitutional, numerous lawsuits were followed in Iowa Courts. As of August 2003, a number of these lawsuits are still pending.
3. Nuisance Protection for Animal Feeding Operations: Iowa Code § 657.11
The third of Iowa’s right to farm laws is found in § 657.11 of the Iowa Code and applies to animal feeding operations. The law provides a defense to private actions for nuisance to animal feeding operators who are in compliance with state and federal law. The presumption can be overcome if the complainant can show that the proximate cause of the injury is failure to comply with state or federal laws regarding the animal feeding operation, or, if the complainant can show both that that the operation caused an unreasonable interference with the party’s use and enjoyment of their property and that the operation failed to follow accepted management practices. The presumption is afforded regardless of the established date or subsequent changes in the operation.
The impact of the Bormann decision on Iowa’s right to farm laws is difficult to determine. While the holding in Bormann was limited to the nuisance provisions in agricultural areas, the court’s holding may have implications for the nuisance defenses in Chapters 172D and 657 of the Iowa Code. Cases are pending that challenge the nuisance defenses in Iowa’s other right to farm statutes.
I. VERTICAL INTEGRATION AND PACKER OWNERSHIP OF LIVESTOCK
Vertical integration is becoming commonplace in the hog industry. Vertical integration allows large corporations to control various aspects of hog production by engaging in production contracts which allow corporations to control the producers themselves, allowing corporations better access to uniform products while still complying with Iowa’s anti-corporate farming laws.
Vertical integration is common where farmers under production contract raise hogs that are owned by the same company that will slaughter and process the animals. Corporations may wield complete control over every aspect of pork production including feeding, breeding, veterinary supplies, processing and marketing of the hogs.
Consolidation in the meatpacking industry has lead many packers to extend their growth vertically; thereby giving them control almost every aspect of pork production. Many small family farms have been unable to compete with the large corporations and packer ownership of hogs has dramatically narrowed the market for smaller farmers and their hogs.
In 2000, the Iowa legislature addressed the issue of packer ownership by amending § 9H of the Iowa Code to prohibit packers from owning and contracting for the care and feeding of hogs in Iowa. Two years later, § 9H was amended to further restrict packer involvement in hog production to ban packers from financing or receiving the profits from a hog operation and to expand the definition of producer to include individuals who had held executive positions in processing companies within the past two years.
When Smithfield Foods the nation’s largest pork processor, a vertically integrated business that owns hog production and processing facilities purchased Murphy Farms (minus Iowa based assets which were sold to Randall Stoecker manager of Murphy Farms’ Midwest operation) which in turn financed and contracted with Iowa corporation Prestage-Stoecker Farms (partially owned by William Prestage a former Smithfield board of directors), the Iowa Attorney General threatened to sue and assess penalties up to $25,000 per day, challenging the transaction under § 9H.2 and § 9H.1(19)(b) which expanded the definition of processor to include persons who had held positions on the board of directors of a processing operation. ( 241 F.Supp.2d 978 ).
Smithfield sued, challenging the constitutionality of Iowa Code § 9H.2 under the dormant commerce clause. On January 22, 2003 Iowa’s statute banning packer ownership of hogs was struck down in U.S. District Court. The court held that because the statute exempted both Iowa cooperative and cooperatives with an Iowa component, §9H.2 discriminated against out-of-state interests, a violation of the dormant commerce clause, which prohibits states from enacting regulatory schemes that favor in-state interests while burdening out-of-state competitors. The court characterized the legislation as a form of economic protectionism, discriminating “against interstate commerce on its face, in purpose and effect” and applying strict scrutiny, declared Iowa Code § 9H.2 null and void. ( 241 F.Supp.2d 978, 992 )
Following the decision in Smithfield a federal judge granted a temporary stay to maintain Iowa’s 27 year old ban on packer ownership of livestock pending final appeal of the decision and the state legislature amended the provisions of § 9H.2, deleting provisions that favored in-state cooperatives and farming interests. IA ST § 9H.2.2 still prohibits swine producers from “directly or indirectly contract[ing] for the care of swine in this state.”
Meanwhile, Iowa Senators Chuck Grassley and Tom Harkin are seeking a Congressional ban on packer ownership of livestock, though the measure failed in the 2002 House/Senate Farm Bill conference committee.
Corporations are also prohibited from owning or leasing agricultural land under I.C.A. §9H.4.
J. TAX EXEMPTIONS FOR CAFOs: IOWA TAX LAW FAVORS CORPORATE HOG FARMS
Chapter 427 of the Iowa Code sets forth a number of classes and types of property that enjoy tax exempt status. The list includes the types of properties one might expect to find including churches, cemeteries, state and federal property and military property. Section 427.1(19) sets forth a category of exempt property known as “pollution control and recycling” property which defines pollution control property to include “ personal property or improvements to real property, or any portion thereof, used primarily to control or abate pollution of any air or water of this state or used primarily to enhance the quality of any air or water of this state.”
Air pollution for purposes of the tax exemption is defined under Iowa Code § 455.B.131 as “presence in the outdoor atmosphere of one or more air contaminants in sufficient quantities and of such characteristics and duration as is or may reasonably tend to be injurious to human, plant, or animal life, or to property, or which unreasonably interferes with the enjoyment of life and property.” Water pollution is defined as “the contamination or alteration of the physical, chemical, biological, or radiological integrity of any water of the state by a source resulting in whole or in part from the activities of humans, which is harmful, detrimental, or injurious to public health, safety, or welfare, to domestic, commercial, industrial, agricultural, or recreational use or to livestock, wild animals, birds, fish, or other aquatic life.” (I.C.A. § 455B.171).
The Iowa legislature originally enacted the tax exemption to encourage manufacturing industries to install pollution control devices to decrease the environmental impacts of their operations. In the mid-1990s the definition of pollution control devices to include structures used on confinement operations to control and store hog manure. The pollution control exemption under the statute applies to manure lagoons and pits, manure application devices, and liquid manure piping.
Large hog confinement operations can write off a certain amount from their manure storage systems every year, lowering their annual tax burden, creating a huge loss of tax revenue for the county where the operation is located. Decreased tax revenue for counties means there is less revenue and fewer county services and less money for roads and schools. By exempting the types of manure storage systems used by industrial hog farms Iowa law favors confinement operations over systems that do not use large manure storage equipment, shifting the tax burden to other agricultural property owners and making it even more difficult for small, sustainable hog farms to survive.
VI. SUSTAINABLE AGRICULTURE: ALTERNATIVES TO HOG CONFINEMENTS
As hog farmers struggle with decreasing profit margins, animal welfare and environmental concerns, new technologies for raising hogs are emerging. One such technology is a method of production that uses hoop barns. Hoop barns are tent-like structures where the sidewalls are fitted with steel arches and a tarp is stretched over the metal form for the roof. These buildings are inexpensive and easy to build. Instead of relying on manure storage structures and ventilation systems, the barns utilize bedding and natural air flow. The floor has bedding material—often cornstalks or hay, with one concrete floor section for food and watering systems. Sows can be raised in hoop barns in groups, although they are still confined in farrowing crates during birth and lactation.
Hoop barns have a number of advantages from a rural preservation, animal welfare and environmental standpoint. Hogs raised in hoop barns have the opportunity to exhibit a number of behaviors that are not possible in a confinement operation. Hoop barns allow hogs to move freely, root, play and socialize.
Hoop barns are also economically viable options for farmers who do not want to take on the financial risks associated with the capital investment involved in constructing confinement operations. Hoop barns are simple and flexible structures that allow the farmer to use traditional animal husbandry systems that are less automated, give the farmer access to niche markets and offer a sustainable model of pork production.
One alternative niche market, Niman Ranch Pork, follows animal husbandry standards established by the Animal Welfare Institute. Niman Ranch farmers are required to comply with humane husbandry criteria and are prohibited from using confinement crates, hot prods and electric shockers, subtherapeutic antibiotics, limiting the feed of gestating sows and tail docking. Hogs must be allowed to engage in normal behaviors with bedding material, freedom of movement and continuous access to shelter. Niman Ranch requires its suppliers to be family farms where the family owns the hogs, provides farm labor and depends on the operation for its livelihood. Niche markets for pork support independent farmers and a sustainable method of pork production.
Click here for Photo of a Hoop Barn. Courtesy of Mark Honeyman Iowa State University.
Click here for Photo of Unconfined Sow with Bedding in a Hoop Barn. Courtesy of Mark Honeyman Iowa State University.
Click here for Pigs in Hoop Barn . Photo courtesy of Mark Honeyman Iowa State University.
Another movement towards more humane farming recently took place at the ballot box.
Floridians for Humane Farms, a coalition of conservation and animal rights groups, joined forces to collect over 700,000 signatures of registered Florida voters for a ballot initiative to ban gestation crates in the state. The ballot initiative was pursued to ban gestation crates after House Bill 1029 (which would have banned gestation crates) was refused a hearing by the Florida legislature’s House Agricultural Committee.
In November of 2002, Florida voters passed a historic constitutional amendment that imposed a statewide ban on the practice of confining pregnant sows in gestation crates. Amendment 10 is the first time a state has outlawed the intensive confinement practices on factory farms.
The amendment reads:
Inhumane treatment of animals is a concern of Florida citizens. To prevent cruelty to certain animals and as recommended by The Humane Society of the United States, the people of the State of Florida hereby limit the cruel and inhumane confinement of pigs during pregnancy as provided herein. ( a) It shall be unlawful for any person to confine a pig during pregnancy in an enclosure, or to tether a pig during pregnancy, on a farm in such a way that she is prevented from turning around freely.
FL CONST Art. 10 § 21(a). ( Link to text of initiative ).
While the national impact of the Florida remains to be seen, advocates hope its impact will be felt in states where pregnant sows are confined in great numbers. Iowa presently houses approximately 1.1 million sows in confinement settings, the largest number of sows in the country. A similar ban in a state like Iowa would dramatically change the way confinement farmers raise sows. Given the factory farming mentality in Iowa, many assume that such a ban is not viable. A recent poll co-sponsored by the Humane Society of the United States revealed that Iowans are concerned with the welfare of farm animals with 73% agreeing that humane treatment of farm animals in an important issue for voters and 77% reporting a willingness to buy from producers who raise their hogs humanely. The full text of the poll can be viewed at http://www.factoryfarm.org/docs/iowa_survey_(hogs)_marginals_2003-01.pdf. While Iowa does not have a provision that allows for citizen sponsored ballot initiatives, it is clear that Iowans are growing increasingly concerned with the impact of intensive hog farming on rural communities, the environment and animal welfare.
The legal trend regarding factory farming in the United States from an animal welfare perspective is towards deregulation. With customary farming practice exemptions from animal cruelty statutes in effect in 28 states and the exclusion of farm animals from the definition of animal in anti-cruelty statutes in 17 states, farm animals have less legal protection from cruel farming practices than ever before.
A. THE EUROPEAN APPROACH
The European Community has taken a decidedly different approach to the regulation of factory farming practices over the past 15 years that have dramatically reformed the way animals are raised for food. The EU is one model of how regulations can improve the lives of food animals by outlawing inhumane farming practices and severely restricting the use of antibiotics. The following is a brief legal summary of legal changes that affect the way that hogs are raised in European countries.
1. Gestating Sows
Tethers and Gestation Crates : sow tethering systems, an alternative to the gestation crate where the front of the sow’s body is partially enclosed my metal bars and the rear of the sow is exposed, the sow is tethered to the floor by a metal chain and neck or body collar, were banned in the United Kingdom in 1991. All of the 600,000 sows raised in the UK are now raised either in indoor groups where they often have access to straw bedding, while approximately 150,000 of these sows are housed in outdoor systems. When the time comes for farrowing, sows in Europe still spend time in farrowing crates until their piglets are no longer at risk for being crushed by the mother.
Confinement systems for sows are being phased out in the European Union as well. Tethering systems in new sow units was prohibited as of January 1, 1996. All tethering systems must be completely phased out of use by December 31, 2005.
The use of gestation crates for new sow units is prohibited as of January 1, 2003 and all gestation crates must be phased out by January 1, 2013. Additionally, by January 1, 2013, fully slatted floors are banned and sows must have access to solid flooring and materials that will provide psychological enrichment and opportunities to investigate and manipulate items.
Regulations also require that sows be housed in groups after the first four weeks of gestation. The use of farrowing crates is allowed one week prior to the expected delivery date. During the week prior to farrowing, sows must be given a sufficient quantity of nesting material unless the bedding would interfere with the facility’s slurry system. ( (Commission Directive 2001/93/EC of 9 November 2001 amending Directive 91/630/EEC laying down minimum standards for the protection of pigs).
2. Minimum Standards
Minimum requirements dealing with living conditions for pigs require that building be constructed in a way that will allow pigs to “lie down, rest and stand up without difficulty, have a clean place in which it can rest, and see other pigs.” ( Council Directive 91/630/EEC of 19 November 1991 laying down minimum standards for the protection of pigs). Requirements also state that “pigs must have permanent access to a sufficient quantity of material to enable proper investigation and manipulation activities, such as straw, hay, wood, sawdust, mushroom compost, peat or a mixture of such, which does not compromise the health of the animals.” (Commission Directive 2001/93/EC of 9 November 2001 amending Directive 91/630/EEC laying down minimum standards for the protection of pigs).
3. Body Mutilations
In the UK, castration of piglets is not necessary as young male pigs are slaughtered prior to the onset of sexual maturity. Tail docking is not permitted on a routine basis according to England’s Welfare of Farmed Animals Regulations which state that both tail docking and tooth clipping should only be carried out in situations where there is evidence “that injuries to sow’s teats or to other pigs’ ears or tails have occurred or are likely to do so as a result of not carrying out these procedures.”
Additionally, the Commission of European Communities set forth a directive on November 9, 2001 that states:
Neither tail docking nor reduction of corner teeth must be carried out routinely but only where there is evidence that injuries to sows' teats or to other pigs' ears or tails have occurred. Before carrying out these procedures, other measures shall be taken to prevent tail biting and other vices taking into account environment and stocking densities. For this reason inadequate environmental conditions or management systems must be changed.
(Commission Directive 2001/93/EC of 9 November 2001 amending Directive 91/630/EEC laying down minimum standards for the protection of pigs).
The Directive also states that tail docking and teeth clipping can only be performed by a veterinarian or someone trained to perform surgical procedures. Furthermore, if tail docking or castration takes place when the piglet is more than seven days old, the use of anesthesia and pain medications are required.
The EU has numerous detailed rules regarding how food animals can be transported. Whereas the maximum interstate transport time for all species of food animals in the United States is 28 hours, the maximum road journey time for cattle, horses, goats, sheep and pigs is nine hours. Regulations also require that animals have adequate bedding, animal-operated watering devices and adequate ventilation. Notably, the legislative approach adopted by the EU is species specific and requirements are tailored to address humane transport requirements according to species taxonomy and physiology. Such is not the case in the United States where food animals receive identical treatment under the 28-hour law regardless of species.
Lastly, in July of 2003 the Commission of European Communities issued a proposal to amend directives dealing with the protection of animals during transport. The regulations would prohibit a number of handling techniques, and would make it illegal for transporters to do any of the following:
(a) strike or kick the animals; (b) apply pressure to any particularly sensitive part of the body; (c) suspend the animals themselves by mechanical means; (d) lift or drag the animals by head, ears, horns, legs, tail or fleece, or handle them in such a way as to cause them unnecessary pain and suffering; (e) use instruments which administer electric shocks; (f) use prods or other implements with pointed ends…
( Proposal for a Council Regulation on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EEC /; July 16, 2003).
In 1998 the EU banned the use of a number of antibiotics used to treat human medical conditions to promote growth in food animals. The use of antibiotics as growth promotes is to be phased out by January 2006. In March of 2002, the European Commission proposed an outright ban on all sub-therapeutic antibiotic use in food animals.
The European Union has adopted detailed rules that govern the treatment of animals prior to and during slaughter. As in the United States, death for food animals is brought about by first stunning the animals and then cutting their throats so that they bleed to death.
Article 3 of the Council Directive setting forth standards for the protection of animals at slaughterhouses states “Animals shall be spared any avoidable excitement, pain or suffering during movement, lairaging, restraint, stunning, slaughter or killing.” (Council Directive 93/119/EC of 22 December 1993 On the Protection of Animals at the Time of Slaughter or Killing, Article 3)
Legislative rules require that the animal be stunned using either captive bolt, concussion (blow to the brain), electronarcosis or exposure to carbon dioxide and that a state of unconsciousness persists from the moment of the stunning until the animal dies from blood loss. Killing methods done by a free bullet pistol or rifle, electrocution or exposure to carbon monoxide are also permitted. Killing by electrocution is only permissible when the electrical current is sufficient to bring about cardiac arrest. (Council Directive 93/119/EC of 22 December 1993 On the Protection of Animals at the Time of Slaughter or Killing, Annex C). The use of electric prods is only authorized on adult pigs or cows when they refuse to move.
After an animal has been stunned, on of their carotid arteries must be severed and bleeding must commence “as soon as possible after stunning and be carried out in such a way as to bring about rapid, profuse and complete bleeding. In any event, the bleeding must be carried out before the animal regains consciousness.” ( Council Directive 93/119/EC of 22 December 1993 On the Protection of Animals at the Time of Slaughter or Killing, Annex D). Rules in the EU require licensing for person involved in the following slaughter activities: restraining animals prior to stunning, stunning animals, slaughtering animals, shackling or hoisting an animal and bleeding an animal after it has been stunned. Certificates must be issued by a veterinary surgeon authorized to assess the applicant’s skill and competence by the Minister of Agriculture.
On any given day, more than 75,000 hogs are slaughtered in the state of Iowa. For these animals, slaughter is the end of a short and often brutal existence. These animals, having spent their whole lives incarcerated in steel and concrete cells, breathing in the fumes of their own decaying excrement, will have never known sunlight, changing seasons or the experience of earth beneath their hooves. Their journey from the truck that hauled them to slaughter to the killing floor will be the furthest these animals have ever walked.
Their individual bodies are the evidence of lives lost in a system that is unwilling to acknowledge that they are thinking, feeling, sentient beings. Their suffering sells for about 25¢ per pound.
Ironically, a hog’s life only becomes valuable upon its death; prior to slaughter, these animals are objects, pressed into service by producers concerned primarily with the rate at which an animal can convert its feed to flesh. Producers prefer to think of hogs as feed converters—widgets in a factory farm flesh assembly line. This objectification keeps producers from acknowledging the sentience of these animals—factories do not have feelings.
Hogs in Iowa are born, raised and slaughtered under conditions that would be illegal were they visited upon cats or dogs. But animal cruelty legislation in Iowa only affords protection to animals based on how they are used by humans. If your use is companion animal—a dog or cat for instance, you fall within the purview of the statute and in the event that the statute is enforced, you will have some legal protection. If you are a hog, and your designated use is food, you have no legal protection under Iowa’s animal cruelty legislation.
The fact that these animals are raised for the purpose of human consumption does not mitigate their suffering, nor does it dispatch with our duty to treat them with some modicum of decency—some semblance of humane treatment. The statutory exemptions excluding livestock and customary farming practices from the ambit of Iowa’s animal cruelty statute do not exempt the hogs from suffering.
The mass production of animals raised for food in this country means that their suffering takes place on a scale that is difficult to comprehend. The number of hogs slaughtered annually in the United States exceeds 1.2 billion—a number that is approximately 4 times the present human population in the U.S. For every person you encounter, four hogs were born, raised and slaughtered for human consumption. Like people, these animals are individuals who assign meaning to their own existence, one that is independent of human design and exploitation. Perhaps the Greek philosopher Plutarch said it best: “But for the sake of some little mouthful of flesh we deprive a soul of the sun and light, and of that proportion of life and time it had been born into the world to enjoy.”
The suffering of farm animals merits our attention; compassion is an ethical position, one that should be reflected in state and federal laws dealing with animals raised for food. Food animals should no longer be excluded from the realm of moral consideration we so willingly extend to the companion animals who occupy our homes. Hogs are no less deserving of the sympathies of the human heart.