University of Vermont AAHS

Alaska Agricultural Protection Act

Title 9. Code of Civil Procedure.
Chapter 45. Actions Relating to Real Property.
Article 5. Nuisances.

Sec. 09.45.230 Action based on private nuisance.

(a) A person may bring a civil action to enjoin or abate a private nuisance. Damages may be awarded in the action.

(b) A person may not maintain an action under this section based upon an air emission or water or solid waste discharge, other than the placement of nuclear waste, where the emission or discharge was expressly authorized by and is not in violation of a term or condition of

(1) a statute or regulation;

(2) a license, permit, or order that is

(A) issued after public hearing by the state or federal government; and

(B) subject to

(i) continuing compliance monitoring;

(ii) periodic review by the issuing agency;

(iii) renewal on a periodic basis; or

(iv) AS 46.40; or

(3) a court order or judgment.

(c) The provisions of (b) of this section do not apply to actions in which the air emission or water or solid waste discharge that is the subject of the action produces a result that was unknown or not reasonably foreseeable at the time of the authorization.

(d) The provisions of (b) of this section remain in effect only as long as both of the following are satisfied:

(1) AS 46.03.900 defines "pollution" as including the contamination or altering of waters, land, or subsurface land of the state in a manner that creates a nuisance; and

(2) AS 46.14.990 defines "emission" as the release of one or more air contaminants to the atmosphere.

(e) Notwithstanding other provisions of law, except AS 09.50.170 -- 09.50.240 and AS 19.25.080 -- 19.25.180, a person may not bring a civil action to enjoin or abate a private nuisance or to recover damages for a private nuisance unless the action is authorized by this section.

(f) A person who is shielded under (b) of this section from a nuisance action shall indemnify, defend, and hold the state harmless from a claim or court action for inverse condemnation, including damages, costs, and attorney fees, for which the state may become liable because of the air emission or wastewater or solid waste discharge for which the person is shielded by (b) of this section. The state shall immediately tender the defense of the inverse condemnation claim or court action to the person. The provisions of (b) of this section do not apply to shield the person, if the person fails to accept or refuses the tender of the defense. A person who prevails in the defense of the claim or court action for inverse condemnation described under this subsection shall be awarded full reasonable attorney fees and costs.

Sec. 09.45.235 Agricultural operations as private nuisances.

(a) An agricultural facility or an agricultural operation at an agricultural facility is not and does not become a private nuisance as a result of a changed condition that exists in the area of the agricultural facility if the agricultural facility was not a nuisance at the time the agricultural facility began agricultural operations. For purposes of this subsection, the time an agricultural facility began agricultural operations refers to the date on which any type of agricultural operation began on that site regardless of any subsequent expansion of the agricultural facility or adoption of new technology. An agricultural facility or an agricultural operation at an agricultural facility is not a private nuisance if the governing body of the local soil and water conservation district advises the commissioner in writing that the facility or operation is consistent with a soil conservation plan developed and implemented in cooperation with the district.
(b) The provisions of (a) of this section do not apply to
(1) liability resulting from improper, illegal, or negligent conduct of agricultural operations; or
(2) flooding caused by the agricultural operation.
(c) The provisions of (a) of this section supersede a municipal ordinance, resolution, or regulation to the contrary.
(d) In this section,
(1) "agricultural facility" means any land, building, structure, pond, impoundment, appurtenance, machinery, or equipment that is used or is intended for use in the commercial production or processing of crops, livestock, or livestock products, or that is used in aquatic farming;
(2) "agricultural operation" means
(A) any agricultural and farming activity such as
(i) the preparation, plowing, cultivation, conserving, and tillage of the soil;
(ii) dairying;
(iii) the operation of greenhouses;
(iv) the production, cultivation, rotation, fertilization, growing, and harvesting of an agricultural, floricultural, apicultural, or horticultural crop or commodity;
(v) the breeding, hatching, raising, producing, feeding, keeping, slaughtering, or processing of livestock;
(vi) forestry or timber harvesting, manufacturing, or processing operations;
(vii) the application and storage of pesticides, herbicides, animal manure, treated sewage sludge or chemicals, compounds, or substances to crops, or in connection with the production of crops or livestock;
(viii) the manufacturing of feed for poultry or livestock;
(ix) aquatic farming;
(x) the operation of roadside markets; and
(B) any practice conducted on the agricultural facility as an incident to or in conjunction with activities described in (A) of this paragraph, including the application of existing, changed, or new technology, practices, processes, or procedures;
(3) "livestock" means horses, cattle, sheep, bees, goats, swine, poultry, reindeer, elk, bison, musk oxen, and other animals kept for use or profit.

Sec. 09.45.240 Manner of abatement.

If judgment is in favor of the plaintiff, an order may issue at any time within six months of the date of the judgment at plaintiff's request directing the issuance of a warrant to a peace officer to abate the nuisance. The expense of abating the nuisance is a part of the judgment and may be enforced by execution against the property of the defendant.

Sec. 09.45.250 Order staying issue of warrant.

At any time before the order is made, the defendant may apply to the court for an order to stay the issuance of the warrant for a period not exceeding six months to allow the defendant to abate the nuisance. The court may grant the stay if the defendant gives an undertaking to the plaintiff in a sufficient amount and with satisfactory sureties that the issuance will be abated within the time and in the manner specified in the order. If the defendant fails to abate the nuisance within the time specified, an order directing the issuance of the warrant for the abatement of the nuisance may be made.

Sec. 09.45.255 Definition of nuisance.

In AS 09.45.230 -- 09.45.255, "nuisance" means a substantial and unreasonable interference with the use or enjoyment of real property, including water.

Enacted in 1978, amended in 2001.
Reviewed by AAHS in June 2001.
Reviewed and updated by AAHS in April 2003.

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