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Appellate court upholds attorney fees in CAFO dispute

February 14, 2018

An Indiana trial court properly awarded attorney fees to two livestock organizations that consulted on the construction of a Hendricks County feeding operation, the Indiana Court of Appeals ruled in an opinion that also found the subpoenas issued to the organizations were overly broad.

In 2013, Samuel, Cory and Clinton Himsel successfully obtained a rezoning of their Hendricks County property that allowed them to construct a concentrated animal feeding operation on the property. Martin and Janet Himsel and Robert and Susan Lannon objected to the rezoning, while the Indiana Pork Producers Association supported it.

The property owners created an LLC, 4/9 Livestock, to operate the CAFO that housed up to 8,000 hogs. Meanwhile, Martin and Janet Himsel and the Lannons sued Samuel, Cory and Clayton Himsel and their LLC. They  alleged the use and enjoyment of their homes and their homes’ values were ruined by odors and emissions coming from the CAFO.

The plaintiffs then subpoenaed the IPPA and requested production of documents related to the CAFO, including communications with the Himsels, relevant studies and copies of the organization’s testimony in support of the feeding operation. IPPA responded by producing only those documents it deemed non-privileged and only from the time it was actively assisting the Himsels in the rezoning process.

The IPPA also objected to a second subpoena for documents related to national studies on air quality and odor management. Livestock Engineering Solutions — which consulted with 4/9 Livestock on the construction and approval of the CAFO — was also served a subpoena seeking similar documents requested from IPPA. Like the pork organization, LES claimed the subpoena was overbroad, but agreed to provide documents it had produced regarding the CAFO.

Then in October 2016, IPPA and LES filed petitions in the Hendricks Superior Court for $4,980.50 and $2,572.75 in attorney fees, respectively, as well as other fees. The couples responded with motion to compel compliance with the subpoena, which the trial court denied before granting the requests for attorney fees.

The plaintiffs brought an interlocutory appeal of the denial of their motion to compel and the award of the attorney fees, but the Indiana Court of Appeals upheld both rulings Wednesday. Looking first to the motion to compel, Judge Michael Barnes wrote many of the requested documents had no direct relationship to the CAFO, IPPA or LES, and could have more easily been obtained elsewhere.

“That is to say, the burden on nonparties IPPA and LES in complying with the subpoenas would be substantial with little additional benefit to the Plaintiffs in proving their claims, in light of the evidence the Plaintiffs have already discovered,” Barnes wrote.

The appellate court next found that IPPA and LES were within their legal rights to hire attorneys — even though those attorneys were high-paid — to review the subpoenas to determine their legal basis, so the award of attorney fees was not excessive. However, the court also rejected the groups’ contention that they should have been awarded more, finding the trial court was within its discretion when it “split the baby by awarding IPPA and LES some of the attorney fees it sought, but not all of them.”

The case is Martin Richard Himsel, et al., v. Indiana Pork Producers Association and Livestock Engineering Solutions, 32A01-1703-PL-612.

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