823.075 Actions against forestry operations. (1) In this section: (a) “Department” means the department of natural resources. (b) “Forest” means a parcel of land in which at least 80 percent of the parcel is producing or is capable of producing at least 20 cubic feet of merchantable timber, as defined in s. 77.81 (3), per acre per year. (c) “Forestry operation” means any activity related to the harvesting, reforestation, and other forest management activities, including thinning, pest control, fertilization, and wildlife management. (d) “Generally accepted forestry management practices” means forestry management practices that promote sound management of a forest, as determined by the department by rule. The rule promulgated by the department may incorporate by reference the most recent version of the department’s publication known as Wisconsin Forest Management Guidelines and identified as publication number PUB-FR-226. (2) A forestry operation is not a nuisance if the forestry operation alleged to be a nuisance conforms to generally accepted forestry management practices. (3) A forestry operation that conforms to generally accepted forestry management practices is not a nuisance as a result of any of the following: (a) A change in ownership or size of a forest. (b) Cessation or interruption of forestry operations. (c) Enrollment of all or part of the forest in governmental forestry or conservation programs. (d) Adoption of new forestry technology. (4) In any action in which a forestry operation is alleged to be a nuisance, if the party who was alleged to commit the nuisance prevails, the court may award that party the actual and necessary costs incurred in the action and, notwithstanding s. 814.04 (1), reasonable attorney fees. History: 2005 a. 79.
823.08
Actions against agricultural uses. (1) LEGISLATIVE PURPOSE. The legislature finds that development in rural areas and changes in agricultural technology, practices and scale of operation have increasingly tended to create conflicts between agricultural and other uses of land. The legislature believes that, to the extent possible consistent with good public policy, the law should not hamper agricultural production or the use
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of modern agricultural technology. The legislature therefore deems it in the best interest of the state to establish limits on the remedies available in those conflicts which reach the judicial system. The legislature further asserts its belief that local units of government, through the exercise of their zoning power, can best prevent such conflicts from arising in the future, and the legislature urges local units of government to use their zoning power accordingly. (2) DEFINITIONS. In this section: (a) “Agricultural practice” means any activity associated with an agricultural use. (b) “Agricultural use” has the meaning given in s. 91.01 (2). (3) NUISANCE ACTIONS. (a) An agricultural use or an agricultural practice may not be found to be a nuisance if all of the following apply: 1. The agricultural use or agricultural practice alleged to be a nuisance is conducted on, or on a public right-of-way adjacent to, land that was in agricultural use without substantial interruption before the plaintiff began the use of property that the plaintiff alleges was interfered with by the agricultural use or agricultural practice. 2. The agricultural use or agricultural practice does not present a substantial threat to public health or safety. (am) Paragraph (a) applies without regard to whether a change in agricultural use or agricultural practice is alleged to have contributed to the nuisance. (b) In an action in which an agricultural use or an agricultural practice is found to be a nuisance, the following conditions apply: 1. The relief granted may not substantially restrict or regulate the agricultural use or agricultural practice, unless the agricultural use or agricultural practice is a substantial threat to public health or safety. 2. If the court orders the defendant to take any action to mitigate the effects of the agricultural use or agricultural practice found to be a nuisance, the court shall do all of the following: a. Request public agencies having expertise in agricultural matters to furnish the court with suggestions for practices suitable to mitigate the effects of the agricultural use or agricultural practice found to be a nuisance. b. Provide the defendant with a reasonable time to take the action directed in the court’s order. The time allowed for the defendant to take the action may not be less than one year after the date of the order unless the agricultural use or agricultural practice is a substantial threat to public health or safety. 3. If the court orders the defendant to take any action to mitigate the effects of the agricultural use or agricultural practice found to be a nuisance, the court may not order the defendant to take any action that substantially and adversely affects the economic viability of the agricultural use, unless the agricultural use or agricultural practice is a substantial threat to public health or safety. (c) 1. Subject to subd. 2., if a court requests the department of agriculture, trade and consumer protection or the department of natural resources for suggestions under par. (b) 2. a., the department of agriculture, trade and consumer protection or the department of natural resources shall advise the court concerning the relevant provisions of the performance standards, prohibitions, conservation practices and technical standards under s. 281.16 (3). 2. If the agricultural use or agricultural practice alleged to be a nuisance was begun before October 14, 1997, a department may advise the court under subd. 1. only if the department determines that cost-sharing is available to the defendant under s. 92.14 or 281.65 or from any other source.
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(4) COSTS. (a) In this subsection, “litigation expenses” means the sum of the costs, disbursements and expenses, including reasonable attorney, expert witness and engineering fees necessary to prepare for or participate in an action in which an agricultural use or agricultural practice is alleged to be a nuisance. (b) Notwithstanding s. 814.04 (1) and (2), the court shall award litigation expenses to the defendant in any action in which an agricultural use or agricultural practice is alleged to be a nuisance if the agricultural use or agricultural practice is not found to be a nuisance. History: 1981 c. 123; 1995 a. 149; 1997 a. 27; 1999 a. 9; 2009 a. 28. Sub. (4) unequivocally mandates the recovery of reasonable attorney fees. Zink v. Khwaja, 2000 WI App 58, 233 Wis. 2d 691, 608 N.W.2d 394, 99-0149. In this case, the alleged nuisance at issue, the defendant’s farmland drainage activity on the defendant’s land, was an agricultural practice, as defined in sub. (2) (a). The plaintiff did not dispute that the farmland drainage activity was conducted to assist in the agricultural use of crop production on the defendant’s farmland. Thus, the farmland drainage activity was indisputably “associated” with crop production and met the definition of “agricultural practice.” Buchholz v. Schmidt, 2024 WI App 47, 413 Wis. 2d 308, 11 N.W.3d 212, 23-1400. Sub. (3) (a) 1. requires that, for this section to apply to an alleged nuisance-creating activity, the agricultural use of the land on which the activity is conducted must precede the plaintiff’s use of the allegedly affected property. That is, when considering the nuisance-creating activity, the focus is on the use of the land irrespective of who used the land at any given time; by contrast, when considering the interferedwith use, the focus is on “the plaintiff’s” use of that property. The timing comparison is not between the defendant’s use and the plaintiff’s use, but between the land’s use and the plaintiff’s use. Buchholz v. Schmidt, 2024 WI App 47, 413 Wis. 2d 308, 11 N.W.3d 212, 23-1400. Protecting the Right to Farm: Statutory Limits on Nuisance Actions Against the Farmer. Grossman & Fischer. 1983 WLR 95. Brewing Land Use Conflicts: Wisconsin’s Right to Farm Law. Hanson. Wis. Law. Dec. 2002.