The Right to Practice Forestry Act

Summary

 This bill asserts that forestry operations may not be considered a nuisance if the forestry operation adheres to customary forestry management practices.

Bill Information

The Right to Practice Forestry Act counteracts local governments from restricting existing forestry operations and to prevent frivolous lawsuits against such operations.

Model Legislation

Section 1. {Short Title.}

This bill may be cited as The Right to Practice Forestry Act.

Section 2. {History of Issue.}

Under most state laws, if a business, property, or action of a person crates a public nuisance, the party damaged by that nuisance can bring an action for the damages caused by the nuisance or to abate the nuisance. A county or municipality may bring an action to abate a public nuisance, such as a place where a controlled substance is illegally distributed, sold, or manufactured.

This bill provides that a forestry operation may not be declares a nuisance if the forestry operation conforms to generally accepted forestry management practices. Under the bill, forestry operations include removal of vegetation or dead trees, noise from forestry equipment, and use of chemicals that are normally used in forestry operations. In addition, the bill provides that a forestry operation that conforms to generally accepted forestry management practices is not a nuisance as a result of any of the following:

  1. Change in ownership or size of a forest.
  2. Interruption of forestry operations.
  3. Enrollment of part or all of the forest in governmental forestry programs.
  4. Adoption of a new forestry technology.

The bill also allows a person who is alleged to commit the nuisance to receive  his or her costs, including attorney fees, if he or she prevails in the action alleging a nuisance.

Under this bill, no political subdivision may enact a zoning ordinance that prohibits forestry operations that are in accordance with generally accepted forestry management practices.

The people of the state of {InsertState}, represented in senate and assembly, do enact as follows;

Section 3. {Definitions.}

(A)  “Department” means the {insert name of state department with jurisdiction over forestry operations}.

(B)   “Forest” means a parcel of land in which at least 80% of the parcel is producing or is capable of producing at least 20 cubic feet of merchantable timber per acre per year {or as defined by state statute}.

(C)   “Forestry operation” means 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 {as defined by state statute.}

(E)   “Nuisance” means an action that annoys or disturbs a person in possession of his or her property and makes the use or occupation of that property physically uncomfortable {as defined by state statute}.

(F)    “Unit of Local Government” means any county, city, or town located in the state as defined by {insert state}.

Section 4. {Actions Against Forestry Operations}

(A)  Forestry operation is not a nuisance if the forestry operation alleged to be a nuisance conforms to generally accepted forestry management practices.

(B)  This section does not apply if a nuisance results from the negligent operation of a forestry operation.

(C)  A forestry operation that conforms to generally accepted forestry management practices is not a nuisance as a result of any of the following:

  1. A change in ownership or size of a forestry operation.
  2. Cessation or interruption of forestry operations.
  3. Enrollment of all or part of the forest in governmental forestry or conservation programs.
  4. Adoption of new forestry technology.
  5. A visual change due to removal of timber or vegetation.
  6. Normal noise from forestry equipment.
  7. The proper application of pesticides and fertilizers.

(D)  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 reasonable attorney fees.

Section 5. {Regulations and Restrictions by Local Governments}

Units of local governments are prohibited from enacting ordinances that may hinder forestry operations that are in accordance with generally accepted forestry management practices as defined by this Act and rules promulgated by the department.

Section 6. {Effective Date}

This shall become effective __________________.

Section 7. {Repealer Clause}

All laws and parts of laws in conflict with this Act are repealed.

Approved by ALEC Board of Directors in 2005.

Reapproved by ALEC Board of Directors on January 28, 2013.

Keyword Tags: Forestry