In ultimately denying transfer, a divided Indiana Supreme Court ended a dispute that pitted neighbor against neighbor and raised questions about whether the state’s Right to Farm Act was meant to cover an 8,000-head hog operation in Hendricks County.
The Supreme Court heard oral arguments Jan. 30 in Janet L. Himsel, Martin Richard Himsel, 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, but decided in a 3-to-2 vote to not render its own decision. Chief Justice Loretta Rush and Justice Christopher Goff both voted to grant transfer.
Neighbors of 4/9 Livestock LLC west of Danville asserted in their lawsuit that the odors from the confined animal feeding operation were so noxious their property values and quality of life had been greatly diminished. The plaintiffs’ complaint raised claims of nuisance, negligence and trespass, but the defendants offered Indiana’s Right to Farm Act as an affirmative defense.
A unanimous Indiana Court of Appeals panel affirmed summary judgment in favor of the defendants. The appellate court ruled the plaintiffs’ “nuisance and repackaged negligence and trespass claims” were barred by the Right to Farm Act and found their argument unavailing that the act was unconstitutional.
Plaintiffs petitioned for a rehearing at the Court of Appeals, and when that was denied, they petitioned for transfer to the Supreme Court.
The Hoosier Environmental Council, which represented the plaintiffs, said the Supreme Court’s denial of transfer lets stand the “alarming and dangerous” appellate decision that interprets Indiana’s Right to Farm laws as protecting factory farm operators from all liability.
“The Hoosier Environmental Council is very concerned about the ramifications of this decision for rural Hoosiers whose legal right and remedies have been stripped by a law that was meant to protect farmers from urban encroachment, not to allow the giant meat industry to proliferate and expand its animal factories,” the legal organization said in a statement.
Applauding the Supreme Court’s denial, the defendants said the protections provided by the Indiana General Assembly through the Right to Farm Act, Indiana Code section 32-30-6-9, have been reaffirmed.
“The Supreme Court’s decision to deny the petition to transfer and uphold the Court of Appeals’ opinion is important as it reaffirms the positions that Indiana courts have developed over the past 40 years regarding the RFTA and the legislative decision to conserve, protect, and encourage the development and improvement of Indiana’s farms and farmland by protecting farmers against nuisance lawsuits,” said Chris Braun, partner at Plews Shadley Racher & Braun, LLP, who served as lead counsel for the defendants.
Interest in the case was widespread. Hendricks County Board of Commissioners, Plan Commission and Planning and Building Department filed an amicus curiae brief in support of the defendants as did the Indiana Agricultural Law Foundation and the Indiana Pork Producers Association. For the plaintiffs, the Humane Society of the United States and group of law professors each filed a brief while the Indiana Farmers Union, Food and Water Watch, Public Justice and Family Farm Action joined together to submit their own brief.
In addition, the State of Indiana filed a brief as an intervenor.
The Hoosier Environmental Council is now urging the Indiana General Assembly to fix the precedent set by the appellate court and protect farming communities “from becoming dumping grounds for agribusiness.” Specifically, the HEC wants the Legislature to enact laws that will restore the property rights of rural Hoosiers by limiting the legal protections afforded to factory farms and that will give the Indiana Department of Environmental Management the authority to protect the public and the environment from “noxious and dangerous air pollution emitted from factory farms.”
Also, the council called upon the leaders in the livestock to exercise restraint.
“Simply because an agricultural operator can legally put a factory farm of any size or scale on any farm field in Indiana — even near where people live and children play — does not mean that such an operator should do so,” the HEC said in a statement. “The public increasingly cares about the serious impact that the meat industry is having on the environment, animals and people. And, as history shows, an industry that prioritizes profit over the health, safety and welfare of others will face declining consumer confidence and considerably lower levels of demand.”
The defendants maintained that farmers need the ability to transform their operations in order to remain viable.
“While Indiana farmers must adhere to strict local and state requirements when they build or expand a farm, such as converting land from row crops to a confined feeding operation, they must have the flexibility authorized by the RTFA to develop and improve their farming operations, which (the Supreme Court’s) decision reaffirms,” Braun said. “In this case, both the trial court and Court of Appeals held that even though the defendants’ farming operation was changed from growing corps to growing livestock, there was no evidence of any negligent operation of 4/9 Livestock’s farm.”