As Nuisance Claims Rise, Cannabis Cases May Depend on Expert Witnesses

Dani Alexis Ryskamp, J.D.

Written by
— Updated on June 25, 2020

As Nuisance Claims Rise, Cannabis Cases May Depend on Expert Witnesses

As Nuisance Claims Rise, Cannabis Cases May Depend on Expert Witnesses

Using marijuana for recreational purposes is now legal for adults in several US states. These states also allow these adults to cultivate a limited number of marijuana plants for personal consumption.

Several states have been slow to enact regulations for the commercial sale of marijuana and marijuana-containing edibles, making do-it-yourself cultivation more attractive for residents who want to take advantage of marijuana’s legalization.

Those who do so, however, may find themselves unintentionally running afoul of nuisance laws in their respective states. That’s because growing marijuana comes with a number of externalities, from the sound of fans to the smell of the plants themselves, that haven’t been addressed by state or local cultivation rules.

Is There a Right to Farm Marijuana?

Consider Michigan’s Right to Farm Act. The Act in its current form was enacted by the Michigan legislature in 1981 to strike a balance between the desire of homeowners and farmers to cultivate backyard gardens or raise small animals and the desire of neighborhoods to maintain certain standards regarding noise, smells, and other bothersome experiences.

Currently, the Right to Farm Act protects farms and “farm operations” from liability for nuisance if the farm or operation conforms to generally accepted agricultural and management practices, or GAAMPs. While conflicting opinions exist as to whether GAAMP compliance operates as a complete defense, it is generally accepted that liability protection extends to both private and public nuisances.

What Makes Cannabis a Nuisance?

GAAMPs are determined by the Michigan Commission of Agriculture, which has promulgated eight practices to date. Several of these GAAMPs may apply to marijuana cultivation. For instance, the GAAMPs on the use of fertilizers, water, and pesticides may apply to marijuana crops.

However, marijuana crops also produce a number of nuisances that aren’t specifically addressed by the GAAMPs. For instance, marijuana plants are known to emit strong odors, but the only GAAMPs that address odors from farming refer specifically to the management of livestock and their waste, not to plants.

Also, since Michigan’s marijuana cultivation rules require the plants to be sheltered from public sight, the use of fans or HVAC systems for ventilation may be more common. These systems can cause additional noise, which neighbors may find bothersome. Currently, however, the only GAAMPs that address farm noise relate to livestock, not to crops.

Gaps in the GAAMPs when it comes to the specific demands of marijuana growth raise unanswered questions about whether marijuana growers can be held liable for nuisance, and if so, under what circumstances.

Even as these questions are answered, however, they may not protect all growers. Marijuana cultivation falls under the Right to Farm Act only if the marijuana is available for sale and is useful to human beings. If the grow in question exists only for the benefit of its grower, it cannot claim protection under the Right to Farm Act even if it is fully covered by one or more GAAMPs.

Choosing Experts for Marijuana Cultivation Cases

Marijuana growers facing nuisance claims in Michigan and other states may find themselves in uncharted waters. The grow itself may comply with state law regarding marijuana cultivation, but the lack of clear guidance on civil liabilities may leave growers open to nuisance claims nonetheless.

Here, an expert witness’s testimony can help develop a clear case on behalf of a client. For example, an expert on marijuana cultivation can testify as to best practices for controlling odors, noise, and other nuisances that are not specifically addressed by relevant exemptions in state law or by local regulations.

An expert may also be able to devise, execute, and defend methods for determining the level and type of interference with a litigious neighbor’s enjoyment of their property. For instance, an expert witness may be able to test ambient noise or odor levels and compare them to surrounding noises or odors from other sources in order to place the marijuana grow in context within the neighborhood. These readings can provide concrete evidence from which to argue whether a particular marijuana cultivation produces offensive sensory outputs that approach the intolerable.

Marijuana cultivation raises a number of questions that are unique to the cultivation of plant crops. As a result, many states and localities may be unequipped to deal with nuisance claims related to marijuana grow operations, even if rules on farming-based nuisances exist. Expert witnesses can help lay the groundwork for developing sensible rules that balance the rights of cultivators and their neighbors.

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