The Right to Grow and Raise Your Own Food

[chickortreat]

I see no difference in someone coming into my home and trying to take my food by force (bad call), and attempting to stop me from growing my own food (also bad call). Either would meet physical violence.

 

[SunnySideUpFarm]

good info in this thread....

 

[DaikaijuTorira]

I really hope nobody got offended by my previous comment. I know it is ludicrous to put a cow on a balcony! I just wonder where the line SHOULD be drawn
.
Here, there is a limit to the number of chickens I can own.(I have been told the HOA allows it but I never actually checked , and the city allows it with permission of neighbors. I "forgot" to ask them.:/ )The limit is 3 or 5 or something. I think that is really fair- keeps me with enough eggs for my family, but not so many that it will cause a stink. Nobody in city limits should have a rooster in my humble opinion.

Also, I think having a garden is great- as long as it doesnt bother the neighbors too much. (Picture tearing out front yard grass to put in a garden in a cookie cutter neighborhood).

I love the idea of growing your own food, but we just have to be thoughtful about it. I read a post on here the other day. The person was sad because the neighbor was tired of chickens eating her garden! I have to admit, if I had just planted a nice garden and someones chickens were free ranging and ate all my plants, pooed on my yard, and sqwacked to high heaven I would ask the neighbor to please build a run too!

ps- I think the same goes for owning dogs! There should be a limit to how many, how loud, how stinky. Because it really isnt fair to ask others to put up with a barking dog day and night. (and I would call and complain if they were violating a noise ordinance.) When you live near other people you should still have the right to some amount of quiet! And they should pick up poo. Its gross, attracts flies and spreads disease. And it isnt fair to the dog either.

I've been meaning to respond to this specifically but got a little side-tracked.

Jenny, no offense taken here, and I hope my original response to the question wasn't perceived as such. Sticking with what I wrote before though, property ownership = land owner rights. One could choose to have X number of animals while not taking the ability to choose from their neighbor who wants less or more or none.

Excessive stink or volume of noise, most of the time it'll be found to have been caused by a lack of general cleaning care or too many in cramped quarters, both of which are usually already covered by animal cruelty laws, prosecute the actual criminals rather than creating criminals out of those who would not be were the animals themselves not out-right out-lawed. Although I do think if a problem shows up, it would be better to talk to the specific neighbor first and try to solve it without involving the authorities, just because they might be having a problem doesn't automatically make them a "criminal."

In most places there are already other ordinances on the books that apply to noise violations, even more specifically nuisance animals, there is no reason for chickens, poultry, fowl, whatever, to be singled out and regulated separately. In decibel numbers (fairness of justice requires a standard of measuring other than personal opinion) a rooster (which seems to be the major objection) is either equal to or quieter than a dog, up to 90dB vs. 90-110dB (depending on where you look for numbers on the internet.) Therefore, I feel if a person can choose to keep a dog they can choose to keep a rooster. If a complaint is made, then as it would be with a dog, there had better be a person on the other side of the lot line with a proper sound measuring device to prove there was a sound of dangerous level being produced. If there isn't proof, it didn't happen. If there is, then it is proper procedure to give the owner of said rooster ample time to attempt to solve the problem. (Please note: As with dogs, this should not automatically equal rooster must go.) Maybe our laws are different on that, dogs are usually given a few attempts, several reports over a specified amount of time, only multiple repeat offenders have to surrender the dog or face fines/imprisonment, even then they can appeal for another attempt to solve the problem.

To the statement that no one in city limits should have a rooster, let's turn that around for a moment.

All species of the canine variety shall only be kept, maintained, or raised within the agricultural zones. For these filthy, disgusting beasts surely must only belong out in the boonies with the other filthy beasts. Only three canines may be kept on properties of one acre or less, all must be the same gender. All must be restricted to the property of the owner, kept in impenetrable enclosures of suitable size at all times. All fecal matter must be cleaned up and disposed of properly and in a timely fashion. If a person wishes to keep mixed genders or breed canines they must apply for a special permit and license, have a property no less than ten acres and conform to regulations as listed in section G59.00A of XZK.007. No more than five canines over one year old may be kept for breeding purposes. ...

I could go on, but you do understand what I'm attempting to point out, don't you? It sounds excessive for a dog, doesn't it? Why does it not seem excessive to start listing out every tiny detail that may or may not be done with birds? Why are they discriminated against in such a manner? What makes them different? I do not understand. Is it merely because dogs are "man's best friend" while chickens are man's dinner? I'd rather have chicken best friends, at least they never tried to attack me... or... with friends like some of my neighbors' dogs, who needs enemies?

About the mentioned post of someone being sad because a neighbor was tired of chickens eating her garden... didn't see it, don't know the details, but my land, my rights, your land, your rights. Were I the neighbor with the garden and tired of someone else's chickens eating it repeatedly... hey neighbor, fair warning, keep them on your own property or I'm making chicken stew. Of course, case by case basis, accidents do happen and if the neighbor with chickens made an obvious effort to keep them from roaming beyond their territory, then I personally would tend to forgive the occasional mis-hap. Actually, I didn't have the garden, but I personally welcomed them into their new home and took over the care and maintenance of my neighbor's chickens when they roamed into my yard and stayed, but that was a completely different situation from what was described.

Tearing out the yard to put in a garden... better than tearing out the yard to put in rocks or shells then plopping in a couple of cacti, imo, but hey... Florida water-saving landscaping, whatever they want, it's their yard. Just because I think it looks like Florida rocky waste-land... hideous... not their problem. Mine probably looks like a Florida jungle with all the vines and trees and bushes... to them, perhaps, hideous. Yes, I have actually seen the rock or shell yards in cookie-cutter neighborhoods, they fought for it and won, it is completely acceptable landscaping practice. A small-scale garden can be just as attractive as any landscaping plan. Maybe try picturing it as a flower bed that happens to give edible seed-pods instead of the traditional set off in rows, farm-style garden. Could be done in such a way that would actually be really classy.

Sorry, ran long and went off-topic for the thread... back to food production and rights. Three hens would not provide enough eggs for my family, five, maybe, doubtful, depends on the week, number of eggs produced, particular meals planned, etc., but that's just us, obviously every family's needs are going to be different. That's the great thing about freedom, you are free to choose whatever will be best for your own family's needs, furthermore, you have the right to choose whatever you think will be best for your family's needs.

 

[MichAttorney]

“Food, clothing and shelter are perhaps more fundamental to life than free speech, freedom of worship and other inalienable rights. But the Constitution expressly guarantees those freedoms without assuring the basics for survival--food, clothing and shelter. The simple answer, based on the history of governments, would appear to be that freedom of speech, assembly and worship can only exist under free government and have been and are denied in governments that do not respect human freedom; whereas the right to food, clothing and shelter are not only inalienable rights, but rights that are essential to life itself. They do not, therefore, require constitutional affirmation. It has been argued for years that basic to all enumerated rights in the Constitution is the right to life; that the Constitution is a document for the living--not the dead.” Inganmort v. Borough of Fort Lee, 293 A.2d 720 (N.J. Super. L. 1972).

 

[chickortreat]

Excellent post, Mich! I consider the right to grow my own food to be an inherent right as a human. Anyone who thinks otherwise obviously has some ulterior motive, as someone raising their own food is most likely not hurting the nosy person in any way.

 

[MichAttorney]

Thomas Jefferson, considering the cultivation of the land a "fundamental right to labor the earth":


Quote:

 

[speeed001]

Thanks, Mich! South Bend, IN attorney here, looking for sources and case law on this question. You've been a big help - keep it coming!!

 

[MichAttorney]

As I indicated in the original post to this thread, one must be careful how to frame a right to food. It is one thing to say that I have a right to provide my own food, and that the government should not interfere with the raising and growing of my own food. It is a completely different proposition to say that I must have food provided for me - that I am entitled to some level of subsistence. When arguing the right to food, one should argue against arbitrary government restrictions on the right to grow food.

What we care about, in defining the right, is what level of scrutiny the court will apply. If the regulation infringes a fundamental right, then strict scrutiny applies, and the state must have a compelling reason for the regulation. If the regulation is merely economic or social regulation, then the state need only have a rational basis for the regulation, and it will be upheld. How the court views the regulation will be determinitive. We want strict scrutiny - and so we need to argue our right to grow food when the state steps in to prevent us from growing food.

The Supreme Court has made the distinction between infringing on rights (which can require strict scrutiny), and the affirmative duty of the state to provide for something important (which typically will be judged under the more deferential rational basis scrutiny).

In the case of San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973) the Supreme Court was faced with the argument that education was a fundamental right. The Supreme Court, of course, agreed that education was important, but stopped short of saying that education is a fundamental right. Here's what the court said that is important for our purposes:

Furthermore, the logical limitations on appellees' nexus theory are difficult to perceive. How, for instance, is education to be distinguished from the significant personal interests in the basics of decent food and shelter? Empirical examination might well buttress an assumption that the ill-fed, ill-clothed, and ill-housed are among the most ineffective participants in the political process, and that they derive the least enjoyment from the benefits of the First Amendment. If so, appellees' thesis would cast serious doubt on the authority of Dandridge v. Williams, supra, and Lindsey v. Normet, supra.

We have carefully considered each of the arguments supportive of the District Court's finding that education is a fundamental right or liberty, and have found those arguments unpersuasive. In one further respect, we find this a particularly inappropriate case in which to subject state action to strict judicial scrutiny. The present case, in another basic sense, is significantly different from any of the cases in which the Court has applied strict scrutiny to state or federal legislation touching upon constitutionally protected rights. Each of our prior cases involved legislation which "deprived," "infringed," or "interfered" with the free exercise of some such fundamental personal right or liberty. See Skinner v. Oklahoma, supra, at 536; Shapiro v. Thompson, supra at 634; Dunn v. Blumstein, supra, at 338-343. A critical distinction between those cases and the one now before us lies in what Texas is endeavoring to do with respect to education. MR. JUSTICE BRENNAN, writing for the Court in Katzenbach v. Morgan, 384 U.S. 641 (1966), expresses well the salient point:

This is not a complaint that Congress . . . has unconstitutionally denied or diluted anyone's right to vote, but rather that Congress violated the Constitution by not extending the relief effected [to others similarly situated]....

[The federal law in question] does not restrict or deny the franchise, but, in effect, extends the franchise to persons who otherwise would be denied it by state law .... We need only decide whether the challenged limitation on the relief effected . . . was permissible. In deciding that question, the principle that calls for the closest scrutiny of distinctions in laws denying fundamental rights ... is inapplicable; for the distinction challenged by appellees is presented only as a limitation on a reform measure aimed at eliminating an existing barrier to the exercise of the franchise. Rather, in deciding the constitutional propriety of the limitations in such a reform measure we are guided by the familiar principles that a "statute is not invalid under the Constitution because it might have gone farther than it did," ... that a legislature need not "strike at all evils at the same time," ... and that "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind...."

Id. at 656-657. (Emphasis in original.) The Texas system of school financing is not unlike the federal legislation involved in Katzenbach in this regard. Every step leading to the establishment of the system Texas utilizes today -- including the decisions permitting localities to tax and expend locally, and creating and continuously expanding state aid -- was implemented in an effort to extend public education and to improve its quality. Of course, every reform that benefits some more than others may be criticized for what it fails to accomplish. But we think it plain that, in substance, the thrust of the Texas system is affirmative and reformatory, and, therefore, should be scrutinized under judicial principles sensitive to the nature of the State's efforts and to the rights reserved to the States under the Constitution.

In Rodriguez, the proponents were trying to argue that the State needed to provide some basic level of education. The Supreme Court rejected that argument and notice how the court distinguished the cases - strict scrutiny was applied in cases where rights were being infringed.

Let’s say that the Texas Legislature was trying to prevent a parent from educating their children – the outcome would have been undoubtedly different – see for example the case of Pierce v. Society of Sisters, 268 U.S. 510 (1925).

The lesson here is that it matters how the right is characterized. You must argue that you that you have a fundamental right to life, and implicit in the right to life is the right to feed yourself (not have food provided for you), and that in growing food, you are exercising your fundamental right to provide for your own subsistence.

 

[speeed001]

Mich,

Check out some of the international human rights treaties and resolutions, if you haven't already. A couple of the more notable ones of late (UDHR?) have named food as a basic human right. It's more often discussed in the context of whether a state (country) has the obligation to provide food to its people to resolve hunger (as opposed to the right to grow your own), but the inclusion of food there supports the fundamentality of the thing.

What are your plans with this research, if you don't mind me asking? Law review article? I have a vision of starting an organization that gets a plaintiff's case together and then looks for a plaintiff, the right person in the right federal district (i.e. - the right federal judge and appeals court) to sue on the basis of growing food as a fundamental right. (The goal, for others reading, would be for a judge to make a conclusion of law and issue an opinion finding that the right to grow food is a fundamental right deserving of strict scrutiny, and that any ordinance restricting that right must pass strict scrutiny and be narrowly tailored to a government interest, making outright chicken bans overbroad and not narrowly tailored). Would you have any interest in collaborating? I'm also a former TV/communications professional. I'm in South Bend, IN. Where in MI are you?

-Scott P.

 

[liliyfield]

This is a great thread, I now live in a rural area, but still run a "fowl" of the ordinances at times. I was told that my poultry was not allowed to free range on my property although I have an acre of land. Seems the county wants them cooped. I need for them to free range. I believe in living and letting live. My dogs are fenced for my flocks and other flocks protection. I have had to call animal control on dogs who were not penned after telling the owners to keep them up 3 times, they finally killed one of my geese, that was when I was told my geese are not allowed to free-range either.although the dogs came onto my property. They did remove the dogs, but I was not compensated for the goose. but was warned to pen them. I am doing my best to keep my flock organic and free range is the best way to do it for their health. I have always believed in minding my own business under my own vine and fig tree, and others doing the same on their own property. Neighbors have complained of my garden area being close to the road, of roosters crowing, and of geese honking. My geese are watch geese, and do protect my property and flock. Penning them would be counter productive. As long as the animals stay on my property, what rights do they have to free range?