On April 22, 2019, the Indiana Court of Appeals upheld a significant ruling from the Hendricks County Superior Court reaffirming the protections afforded Indiana farmers under the Right to Farm Act, Indiana Code  § 32-30-6-9 and Indiana Code  § 15-11-2-6(a) (“RTFA”).  The Court recognized that the RTFA is designed to “protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.”  As Kevin Still, the President and CEO of Defendant Co-Alliance, LLP, stated “The RTFA is important to Indiana’s agricultural economy and the protection of farmer’s rights related to livestock agriculture.  As a farmer-owned Indiana cooperative, we are very pleased that these important farming rights have been reaffirmed by the Indiana Court of Appeals decision.”

According to Chris Braun, a partner at the law firm Plews Shadley Racher & Braun, LLP, who represented defendants Co-Alliance, 4/9 Livestock and its three Himsel family members, “the Court of Appeals decision continues a consistent line of judicial decisions upholding the Indiana Legislature’s enactment of the RTFA, dating back to 1981.  This is a significant victory for Hoosier farmers who face costly and disruptive lawsuits brought by their residential neighbors for the odors associated with rural life, as well as for entities in the agricultural industry who supply livestock, feed and other support to Indiana’s farming community. Braun also noted that this is a significant win for financial lenders who make loans to the agricultural community which enables farmers to update and modernize their operations, local zoning boards that have established procedures for rezoning requests, and finally, for the Indiana Legislature that enacted the RTFA.”  The importance and broad impact of this lawsuit was underscored by the amici briefs filed by many interested parties, including Hendricks County, Indiana Bankers Association, Indiana Agricultural Law Foundation, and Indiana Pork Producers Association.

1. Background on Himsel Family Farm Hog Farm Development and Operation

In October 2013, Samuel, Cory and Clinton Himsel, a second and third-generation farming family, began operating a brand-new state-of-the-art hog farm.  The two hog barns, with enclosed containment pits, were built on their rural Hendricks County farm which had been used for agricultural purposes, including crop farming, since at least the 1940s.

Prior to construction and operation of the hog barns the Himsels and their newly formed company, 4/9 Livestock LLC, obtained all of the necessary rezoning and permits approvals from Hendricks County and the Indiana Department of Environmental Management (“IDEM”).  The Court of Appeals highlighted these significant local and administrative procedures that farmers, like the Himsels and 4/9 Livestock, must satisfy before being allowed to build a CAFO.  The Court recognized that the necessary rezoning, siting, design, construction and operation permits in this case were obtained only after notice and public hearings.  The Court of Appeals said that the plaintiffs had “ample due process to challenge” the permits issued but they did not seek review of any of the county officials’ or the IDEM’s decisions.  The Court of Appeals noted that by waiting more than two years to bring a nuisance claim that was barred as a matter of law the plaintiffs had “put their eggs in the wrong basket.”

1. Plaintiffs’ Complaint and Claims

More than two years after the 4/9 Livestock hog farm began operating, the Hoosier Environmental Council and its counsel Kim Ferraro filed suit in Hendricks County on behalf of area residents Richard and Janet Himsel and Robert and Susan Lannon challenging the constitutionality of the RTFA and alleging nuisance, negligence, and trespass against 4/9 Livestock, its hog supplier Co-Alliance, and 4/9 Livestock’s individual members Samuel, Cory, and Clinton Himsel. The Plaintiffs’ claims for nuisance and trespass stemmed from occasional odors they claim originated from the 4/9 Livestock farm. The negligence claim focused solely on the farm’s proximity to their homes and the odors which they say emanated from the farm. The Plaintiffs’ suit sought an injunction against the farm’s operations and sought monetary damages for various claims, including an alleged decrease in the Plaintiffs’ property values.

• Lack of Merit to Plaintiffs’ Claims Revealed in Extensive Discovery

Despite extensive written and oral discovery over several years, none of the Plaintiffs claims against the Defendants could be substantiated.  For starters, the Plaintiffs did not and could not identify any specific examples of negligent or unreasonable acts, omissions, conduct, practices, or methods utilized by any Defendant in the operation of the 4/9 Livestock farm which give rise to the alleged nuisance. As the Court held, the “designated evidence provides no indication that the CAFO has been negligently operated by 4/9 Livestock or has violated IDEM regulations.”  As Sam Himsel stated, “This lawsuit was especially frustrating because we did everything by the book, obtained all of the necessary regulatory permits and operated our hog farm for 2 years without any violations.  Despite our excellent track record, we got sued anyway.”

Second, the Plaintiffs admitted that they could not identify and had no basis to pursue any claims for personal injury, medical claims or bodily injury even though their Complaint alleged those very claims.

Third, Plaintiffs failed to identify any acts or omissions by the Himsel Defendants in their personal capacities which could give rise to personal liability.  Nor did the Plaintiffs identify any basis to pierce the corporate veil of 4/9 Livestock to pursue claims against the Himsel Defendants in their individual capacities.

Fourth, the Plaintiffs failed to identify any acts or omissions by Co-Alliance giving rise to vicarious liability for the hog farm operation.

Fifth, regarding the impact on property values, the evidence showed that: (a) Hendricks County’s assessed values of the Plaintiffs’ properties had actually increased since the hog barns were built; and (b) a neighboring home –which was closer to the hog farm than the Lannon’s property – sold in less than 30 days and did so for an amount in excess of the asking price.

The Court also pointed out that “In fact, Richard Himsel and his father raised livestock, including 200 head of hogs and 200 head of cattle at a time, in the area directly adjacent to their home for years.  For about two years, Richard a confinement building on his property, approximately 700 feet from his home, that held up to 400 head of hogs.”  The Court further noted that another nearby farmer “has been operating his hog farm for many years and periodically applies hog manure to fields as close as twenty feet from the Himsel Plaintiffs’ home.”

1. Collateral Purposes of Plaintiffs’ Claims

Discovery did reveal that the Plaintiffs’ “situation” was used by HEC as a fundraising device.  After the 4/9 Livestock hog farm became operational in 2013 Ms. Ferraro and the HEC published on HEC’s website an article titled “Last Chance to Donate In 2013 To Help Stop Right To Harm in Indiana.”  The article attacks Indiana’s Right to Farm Act statute as the “Right To Harm” act and used Plaintiff Richard Himsel’s “situation” as a fundraising opportunity with all gifts received by December 31 being matched dollar for dollar.

Discovery also revealed that the Plaintiffs’ challenges to the Ind. Code § 15-11-2-6(a), including the constitutional arguments, had previously been presented to and were rejected by the Indiana Legislature.  Specifically, the Plaintiffs’ counsel and HEC provided testimony to the Indiana Senate Agriculture and Natural Resources Committee on or about January 13, 2014, in opposition to SEA 186.  Her testimony included Plaintiff Richard Himsel’s complaints about the odors from the 4/9 Livestock facility. These arguments and testimony of Plaintiffs’ counsel were considered and expressly rejected by the Indiana Legislature by its enactment of SEA 186 in 2014.  The Indiana Legislature, which is the proper forum for such policy arguments, heard and knowingly rejected these arguments in enacting SEA 186 in 2014.  It appears that the HEC decided to recycle these same unsuccessful arguments by filing the Plaintiffs’ Complaint in hopes that it could find a judge who would invade the province of the Indiana Legislature and override the considered judgment of the Legislature.

1. The Purpose of the RTFA

As the Court held, “the [RTFA], by its plain terms, was intended to prohibit nonagricultural land uses from being the basis of a nuisance suit against an established agricultural operation.” In other words, the RTFA’s purpose is to protect farmers from becoming the target of costly nuisance suits like this one, which required the Defendants to expend considerable time, energy and expense to properly defend themselves.  As Cory Himsel stated, “This decision is great news for Indiana Farmers and livestock producers.  It’s unfortunate that any farmer would have to endure the extensive demands of time and money and undergo the ongoing family stresses that a meritless lawsuit imposes on you.  I am thankful for the Indiana courts and that justice prevailed.”

In this case, both the trial court and Court of Appeals held that even though the Himsel family farming operation changed from growing crops to raising livestock there was no evidence of any negligent operation of the hog farm. In so ruling the Court of Appeals also rejected the Plaintiffs’ argument that the mere decision to build and operate the hog barns at this particular location constituted a “negligent operation.”  The Court of Appeals found that the Plaintiffs’ “negligent siting” argument was really just a “repackage[d]” nuisance claim aimed to “create an end run around the protections of the RTFA.”

As a result, the Himsel family farm and Co-Alliance were properly protected by the RTFA. As Clinton Himsel stated, “We are very pleased with the court’s decision.  It’s a great day for livestock producers in Indiana and across the nation.  A huge burden has been lifted off of my family.”  Finally, the Court of Appeals upheld the RTFA’s constitutionality and rejected the Plaintiffs’ arguments that it violates the Open Courts Clause, the Takings Clause and the Equal Privileges and Immunities Clause of the Indiana Constitution and the federal Takings Clause.

This decision provides an important peace of mind for all Hoosier farmers, ensuring that the RTFA remains a viable defense against nuisance claims brought against them for their longstanding, non-negligent agricultural operations.

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Tagged In: Right to Farm Act