ARE 382- Spring 2018 Memo to Supervising Attorney

100 points

Facts

Jane and Bob McFarmer own a 4.9 acres of land the town of Whistleville in the state of
East York. They purchased the land twenty years ago and moved right in. They also fenced in
the property and built barns and paddocks for their small herd of Romendale sheep, a rare breed
of sheep listed as “critical” by the Livestock Conservancy. The McFarmers are very active in the
conservation of the Romendale sheep breed. Their small herd consists of 10 breeding ewes, 1
ram, and several younger animals retained for breeding. The McFarmers are part of a group that
swaps lambs each year to ensure genetic diversity of the Romendale breed in the United States.
Therefore, they often don’t sell lambs, rather they trade them for a lamb with different genetics.
Jane uses the wool from their sheep to make handspun wool which she knits into accessories like
hats and scarves. She sells them at craft shows all around East York and raises awareness for the
Romendale breed.
In addition to sturdy fences, the McFarmers employ a pair of Kuvasz livestock protection
dogs to keep the native coyotes away from their prized sheep. The Kuvasz is a Hungarian breed
of livestock protection dog. They are white, approximately 28” tall, and weigh around 100
pounds. They protect livestock by scanning the fields and paddocks for potential threats and take
protective action as needed. They can be somewhat noisy, especially when protecting the sheep
from perceived threats. Occasionally, Bob sees a coyote of the property and dispatches it with is
trusty rifle, Betty Lou. Bob holds a valid “Nuisance Wildlife Control License” issued by the
Department of Environmental Conservation of the State of East York. This license allows him to
hunt coyotes and other livestock predators year-round and at any time of the on his private
property.
Their neighbor, Sally Cityslicker, purchased an adjacent 3-acre tract of land and build a
large house with wrap-around deck, swimming pool, and 10-person hot-tub overlooking the back
of her property. The home was completed in May of 2016 and Sally moved in the next month.
Sally enjoys spending time outside in her swimming pool and hot tub at all hours of the day. She
also frequently entertains guests.
Both the McFarmer’s and Cityslicker properties are zoned “non-exclusive agricultural”
which allows non-farm residential dwellings as well as farm uses. For parcels of land less than 5
acres the number of livestock is restricted to 10 head of cattle or horses, 30 head of sheep, goats,
or swine and similar sized livestock animals permanently housed on the premises. There are no
ordinances restricting the level of noise or the hours which noises must be restricted. There is
also no ordinance against hunting. Hunting is permitted subject to the rules and regulations set
forth by the Department of Environmental Conservation regardless of lot size. There are no
restrictions on the number of dogs and/or cats or breed specific restrictions in place.
Jane and Bob recently received a “cease and desist” letter from their neighbor, Sally
Cityslicker in October of 2017. In the letter, Sally threatened to sue Jane and Bob under the
theory of nuisance. She claims Jane and Bob’s baaing sheep, barking dogs, and the gun shots
create a nuisance that prevents her from enjoying her property. She states she hears the sheep baa
and dogs bark approximately once a day at random times. The noise continues for up to 30
minutes at a time. Approximately once per month she hears a gunshot from the direction of the
McFarmer’s property. She only hears the noise if she is outside of her house. Furthermore, Sally
states she has successfully sued similar small farms and she is undefeated in court. She knows,
 ARE 382- Spring 2018 Memo to Supervising Attorney
100 points

based on her extensive pro se legal representation while she lived in West Virginia, that the
McFarmers do not operate a farm because their farm is smaller than 5.0 acres and they do not
sell animals, they merely trade them. She is also certain that barking dogs can constitute a
nuisance based on a recent case from the state of Oregon where owners of Tibetan Mastiffs were
ordered to de-bark their dogs by the court. The Oregon court also said their 3.4 acre plot of land
wasn’t a farm. Therefore, Sally is confident she will prevail against the McFarmers here in East
York.
The McFarmers have come to your law firm for help. They are terrified that Sally will
win and they will have to sell their sheep and debark their beloved dogs. Your supervising
attorney knows that you have an interest in agricultural law, so she assigns you to the case.
Before advising the McFarmers on their next step, she wants to know how likely Sally would be
to prevail if she filed a lawsuit against the McFarmers. Draft a memo to your supervising
attorney outlining whether or not Sally has a valid nuisance claim against the McFarmers and
how likely she is to prevail.