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Neighbors ask for rehearing on Right to Farm Act dispute

June 13, 2019

Supporters and opponents are mobilizing after the neighbors of an 8,000-hog farm in Hendricks County asked the Indiana Court of Appeals to reconsider its earlier ruling that found their nuisance claim based on the “noxious odors” from the farming operation was barred under Indiana’s Right to Farm Act.

Nine professors from law schools across the country have filed an amicus curiae brief in support of the neighbors along with the Humane Society of the United States, the Indiana Farmers Union, Family Farm Action, Public Justice and Food & Water Watch.    

Likewise, the Agriculture Law Foundation and the Indiana Pork Producers Association have jointly filed a brief in support of the farming operation. The Henricks County Board of Commissioners, Plan Commission, and Planning and Building Department have filed a brief as well.

Indiana Attorney General Curtis Hill’s office gave notice it would not be submitting a response to the plaintiffs’ petition for a rehearing. The office, which filed a brief in support of the farm owners before the oral arguments, maintains the court correctly ruled the RTFA is constitutional.  

Martin and Janet Himsel and Robert and Susan Lannon have petitioned the Court of Appeals for a rehearing on their complaint against 4/9 Livestock LLC, its owner Samuel Himsel and his sons Cory and Clinton Himsel, and the farm’s hog supplier, Co-Alliance LLP.

The Himsels and Lannons originally filed a lawsuit asserting the noxious emissions from the 3.9 million gallons of untreated manure produced annually by hogs at the concentrated animal feeding operation have devalued their properties, diminished their life and, at times, made their homes unlivable.

However, the Court of Appeals affirmed the grant of summary judgment for the defendants in Janet L. Himsel, et al. v., 4/9 Livestock, LLC et al., 18A-PL-645. In a footnote, the appellate panel referred to a 1987 Indiana Court of Appeals opinion which observed, “(P)ork production generates odors which cannot be prevented, and as long as the human race consumes pork, someone must tolerate the smell.”

In petitioning for a rehearing, the plaintiffs argue the appellate panel interpreted Indiana’s Right to Farm Act beyond its “plain terms and intended scope.” While RTFA gives Hoosier farmers immunity from nuisance claims when they convert from one kind of agricultural operation to another, it does not extend the protection to “negligent operations” which are created by unreasonable changes.

Moreover, they assert the claims for negligence and trespass are separate from the claim for nuisance and are not prohibited under RTFA. Contending the Court of Appeals ignored the evidence supporting negligence and trespass, the neighbors pointed to the expert testimony about the dangerous levels and health threat from the ammonia and emissions of volatile fatty acids from the CAFO.

Kim Ferraro, attorney with the Hoosier Environmental Council is representing the Himsels and Lannons.

The defendants counter the rehearing should be denied because the Court of Appeals’ decision did not contain mistakes of law or fact. They argue the plaintiffs repeatedly make “straw man arguments” by misstating the appellate court’s holdings and rehashing prior arguments.

In particular, the defendants assert the appellate court properly rejected the plaintiffs’ claims of negligence and trespass as a repackaging of their nuisance claims. They argue the ruling from the court is consistent with the Legislature’s intent to not allow claims of negligence and trespass as an end-run around RTFA even though the Statehouse did not explicitly bar those kinds of claims in the statute.

Representing 4/9 Livestock and the other defendants are Christopher Braun, Jonathan Emenhiser and Josh Tatum of Plews Shadley Racher & Braun in Indianapolis and Kyle Lansberry and Brandon Ehrie of Lewis Wagner in Indianapolis.

The Indiana Agricultural Law Foundation and the Indiana Pork Producers Association dismissed the plaintiffs’ arguments, saying the RTFA was not meant to either mandate a specific farming method or prohibit modern farming practices. Instead, they assert, the RTFA was meant to encourage and protect agriculture development, which enables modern farming to remain viable in Indiana. 

“In fact, the RTFA’s exclusion for negligent operation promotes continual improvement on the farm. Negligence turns on the standard of care — what a reasonable and prudent person would do under the same circumstances,” the IALF and IPPA argued in their brief, citing Jones v. Carey, 37 N.E.2d 944.949 (Ind. 1941). “A material change in circumstances — like the passage of 70 years — might cause a reasonably prudent person to act differently. Actions which might be negligent under one set of circumstances might, under a different set of circumstances, constitute the actions of a reasonably prudent person and therefore not amount to negligence.” 

The group of nine law professors who filed a brief in support of the plaintiffs include Carlton Waterhouse, formerly of Indiana University Robert H. McKinney School of Law and now of Howard University School of Law.

They argue regulation and the permitting process 4/9 Livestock had to go through to start operating do not create an immunity to nuisance claims under the RTFA. The Court of Appeals, they assert, deems regulatory compliance as a defense against liability, but actually tort law provides the remedy for harm caused by unreasonable behavior.

“… (N)othing in the RTFA’s plain text can be constructed to limit an agriculture operator’s duty to regulatory compliance. To the contrary, the RTFA expressly states that its immunity ‘does not apply if a nuisance results from negligent operation,’” the professors’ brief states, referring to Indiana Code section 32-30-6-9(a). “Thus, the question of whether the CAFO at issue has been negligently operated is not decided by the CAFO Operators’ compliance with regulation and the Court’s determination otherwise is error.”

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