Marijuana Farming Is A Constitutional Right? It Just May Be

Lisa Loesch, a Missouri woman facing felony drug charges for growing cannabis in her basement, is attempting to shield herself from criminal liability under a so-called “right-to-farm” provision in Missouri’s constitution. Loesch was caught growing nine cannabis plants in her basement. She claims, rather implausibly, that she had no knowledge of the plants, even though they were found potted under grow lights next to a CO2 generator. Her defense attorney recently filed a motion to dismiss the case, arguing that her activities are shielded by the state constitution.

Is there a right to farm marijuana?
Is there a right to farm marijuana?

Right-to-farm laws, generally speaking, are designed to immunize industrial agriculture operations from nuisance liability by establishing a combination of substantive and procedural hurdles private litigants must clear to seek damages in tort. In some instances, they preempt local authority to enact ordinances declaring agricultural operations nuisances.

Right-to-farm laws exist in all fifty states, in some form or another, either by statute, constitutional amendment, or both. Missouri’s constitutional amendment provides that “the right of farmers and ranchers to engage in farming and ranching practices shall be forever guaranteed in this state[.]”

Right-to-farm laws’ ostensible purpose is to protect pre-existing agricultural operations from “NIMBY” lawsuits filed by plaintiffs who “come to the nuisance,” a common litigation tactic by environmental advocacy organizations that seek to challenge environmentally destructive agricultural practices, such as concentrated animal feeding operations. They became more prevalent as urban and suburban residential developments began encroaching on rural agricultural operations whose new neighbors were none too pleased by the overwhelming smell of pig or cow manure.

Though right-to-farm laws are by no means new, from what we can tell this is the first time a defendant in a criminal marijuana case has attempted to use a state right-to-farm law as an affirmative defense to criminal charges for cultivating marijuana.

We have to give credit to her defense counsel’s creativity, but there is little chance her argument will prevail. First off, the constitutional right she is seeking to invoke was designed to protect farmers against tort liability, not criminal liability. Secondly, the law she is invoking did not even exist at the time she was charged; the amendment was passed by ballot referendum in late 2014, more than a year after she was charged. Moreover, the civil immunities provided by right-to-farm laws presuppose an otherwise lawful pre-existing land use. At present, cannabis cultivation is not legal in any form under Missouri law. Thus, taking Ms. Loesch’s argument to its logical extreme, the Missouri constitution would also protect the cultivation of poppy, coca, psilocybin mushrooms, or any other organically-grown controlled substance. We are highly skeptical that any Missouri  judge will rule in her favor and consequently subvert state controlled substances law.

Though almost certainly inapplicable in the criminal context, right-to-farm laws may well have an underutilized place in the context of regulated cannabis cultivation. State-licensed cannabis cultivators in many cannabis-legal states are frequently finding themselves subjects to “NIMBY” suits, which are precisely the types of actions that right-to-farm laws are intended to protect against. Our cannabis lawyers have defended against about more than a half dozen of these lawsuits in various states and we have no doubt that the number of these lawsuits will increase as legalization progresses. Right-to-farm laws can vary dramatically from state-to-state, but cultivators may be able to avail themselves of their protections under certain circumstances. We will report back when we hear of a court ruling on such a defense.