`

Neighbors’ Right-to Farm Act constitutional challenge fails

April 22, 2019

A constitutional challenge to Indiana’s Right To Farm Act was tossed by the Indiana Court of Appeals, rejecting neighbors’ claims that an 8,000-hog concentrated animal feeding operation in central Indiana deprived them of their long-vested property rights.  

The Himsel and Lannon families filed a complaint, alleging nuisance, negligence and trespass, against a neighboring farm in Hendricks County that had become a concentrated animal feeding operation.

According to the plaintiffs’ brief, the nearby CAFO consisted of two 4,000-hog production buildings that are located about a quarter-mile upwind of the Himsels’ home and a half-mile upwind of the Lannons’ home. Concrete pits underneath the buildings collect and store several million gallons of liquid hog waste.

As part of their complaint, the Himsels and Lannons challenged the constitutionality of Indiana’s Right to Farm Act, Indiana Code section 32-30-6-9. Specifically, they argued the RTFA is unconstitutional as applied to them because it violates the Open Courts Clause, the Takings Clause and the Equal Privileges and Immunities Clause of the Indiana Constitution as well as the federal Takings Clause.

The Hendricks Superior Court granted summary judgment in favor of the CAFO, 4/9 Livestock LLC and its owners, Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, and their business partner, Co-Alliance.

In Janet L. Himsel, Martin Richard himself, Robert J. Lannon, Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton s. Himsel, 4/9 Livestock, LLC and Co-Alliance, LLP, 18A-PL-645, the Court of Appeals affirmed.

The Himsel and Lannon families argued they have a vested right to use and enjoy their properties but the RTFA has been unconstitutionally applied to deny their access to the courts to enforce that right. However, the unanimous appellate panel noted the Open Courts Clause does not require the substantive law to provide a remedy and individuals have no vested or property right in any rule of common law.

“Here, the legislature has exercised its broad discretion and modified the substantive law of nuisance by eliminating a nuisance cause of action against agricultural operations except where the alleged nuisance is the result of negligent operation or where the conditions of I.C. 32-30-6-9(d) are not met,” Judge Robert Altice wrote for the court. “The RTFA is rational and falls comfortably within the legislature’s legitimate constitutional authority.”

Similarly, the appellate court rejected the plaintiffs’ assertion of a regulatory takings claim. The court noted regulation effects takings only where it deprives an owner of all or substantially all economic or productive use of his or her property.

Although the Lannons’ property lost an estimated 60 percent of its value and the Himsels’ property value declined 49.5 percent, the Court of Appeals maintained the plaintiffs’ properties have retained significant economic value.

“Moreover, they continue to reside in their residences, making valuable use of their properties, and have alleged no distinct, investment-backed expectations that have been frustrated by the CAFO,” Altice wrote. “Finally, with respect to the character of the governmental action, we do not agree with the Plaintiffs that the RTFA has permitted a physical invasion of their property. While their property rights are clearly affected by application of the RTFA, the Plaintiffs cannot dispute that the regulation is reasonably related to the promotion of the common good.”

With regards to the Privileges and Immunities Clause, the Court of Appeals acknowledged RTFA gives preferential treatment to farmers by granting immunity from nuisance claims that do not arise from negligence. The “reasonable basis for treating farmers differently” comes from the RTFA’s underlying intent to promote “the production of food and other agricultural products.”

“… (W)e conclude that the RTFA’s preferential treatment is uniformly and equally available to all agricultural operations and although agricultural operations are treated differently under the RTFA than industrial operations, the two are not similarly situated and the express intent of RTFA is to protect agricultural land,” Altice wrote. 

The case garnered amicus briefs from Hendricks County, the Indiana Bankers Association, Indiana Agricultural Foundation Inc., and Indiana Pork Producers Association Inc.

ADVERTISEMENT

Recent Articles by Marilyn Odendahl