Recently, the Indiana Court of Appeals heard a challenge to the Indiana Right to Farm Statute.  In Himsel v. Himsel, the court held the statute was constitutional.

TAMU AgriLife photo

Factual Background

Sam Himsel has farmed in rural Hendricks County, Indiana, for his entire life.  In 2012, he and his sons decided to form 4/9 Livestock to start raising hogs.  They located their hog farm on property that had been in their family for over two decades and had been used for agriculture since at least 1941. The family planned to construct two livestock barns with a 4,000 hog capacity each.

In order to do so, the family was required to take certain legal actions.  First, they had to seek re-zoning of the land from agricultural residential to agricultural intensive, which they successfully did.  One of the plaintiffs in this case spoke against the re-zoning at the hearing, but none of the plaintiffs appealed the decision.  Next, the family had to obtain a permit for the CAFO from the Indiana Department of Environmental Management (IDEM), which included two public hearings.  The IDEM granted the two permits, and the plaintiffs did not object.

In July 2013, 4/9 Livestock entered into an independent contractor relationship with Co-Alliance.  Co-Alliance would supply hogs and 4/9 would raise them.  Each group of hogs would remain on the property for about 6 months before shipped off, and then another group being shipped in.

Hogs first arrived on the property in October 2013.

The plaintiffs live in the vicinity of the hog operation.  Richard and Janet Himsel have lived in a 1926 farmhouse since 1994 and previously farmed the land.  Richard also raised livestock previously on his farm, including 200 hogs, 200 head of cattle, and a 400-head swine confinement building.  Robert Lannon built his home in 1971 and although he and his wife have never farmed, they are accustomed to rural life.

Procedural Background

The plaintiffs filed suit against 4/9 Livestock claiming nuisance, negligence, and trespass.  In particular, the plaintiffs complained about the odor of the swine operation claiming it diminished their quality of life, property value, and altered their daily activities.  Further, the plaintiffs challenged the constitutionality of the Indiana Right to Farm Act, claiming the statute both facially unconstitutional and unconstitutional as applied in this case as it violates the Open Courts Clause, the Takings Clause of both the federal and state constitution, and the Privileges and Immunities clause.

4/9 Livestock, raising the Right to Farm Act as a defense, moved for summary judgment, which was granted by the court.  This effectively dismissed the case.  The plaintiffs appealed.

Indiana Right to Farm Act

The Indiana Right to Farm Act exists to “conserve, protect, and encourage the development and improvement of agricultural and for the production of food and other agricultural products.”

The statute provides, in relevant part, that an agricultural operation is not and does not become a nuisance by any changed conditions in the vicinity of the locality after the agricultural operation has been in operation continually on the locality for more than one year and: (1) there is no significant change in the type of operation ; and (2) the operation would not have been a nuisance at the time the agricultural operation began on that locality.  Further, the statute expressly provides that the following situations are not “significant changes” per the statute: “(a) the conversion from one type of ag operation to another type of ag operation; (b) a change in the ownership or size of the ag operation;… and (d) the adoption of new technology by the ag operation.”  Additionally, there is an exception, providing that the Act is inapplicable if the nuisance results from the negligent operation of the ag operation. [Read the full statute here.]

Here, the plaintiffs conceded that the hog farm is an ag operation, has been in existence for over one year, and that no significant change–as defined by the statute–has occurred.  The plaintiffs argue that the Right to Farm Act does not apply, however, because they say the hog farm would have been a nuisance when farming originally began on the farm.

Court of Appeals Decision

Nuisance claim

The court sided with 4/9 Livestock.  Importantly, the court held it would not require 4/9 Livestock to prove that their particular hog farm would not have been a nuisance in 1941, only that hog farming generally would not have been.  As the Court explained, “Robert Lannon knowingly built his residential home in the middle of farm country, and the Himsel Plaintiffs lived and farmed on their property for a number of years before selling off much of their land and changing the use of their home to purely residential.  None of the Plaintiffs can now be heard to complaint hat their residential use of their property is being negatively impacted because the use of the Farm changed from crops to hogs, a use that would not have been a nuisance in or around 1941 when the agricultural operation began on the locality.”

Further, the court noted the significant “local and administrative hurdles” a farmer has to overcome before building this type of operation.  “The plaintiffs were provided ample due process to challenge the size and/or placement of the CAFO buildings on the Farm, yet they decided instead to wait and file a nuisance action more than two years later.  In light of the Right to Farm Act, they put their eggs in the wrong basket.  Their general nuisance claim fails as a matter of law.”

Negligence claim

The court found that the exception to the Right to Farm Act, providing the act does not apply if the operation is done in a negligent manner, is inapplicable to this case.  There was no evidence that the operation was being negligently managed or were in violation of any IDEM regulations.  And as to the claim of “negligent siting,” the court found that this claim–related to the decision to build in a particular location–cannot constitute “negligent operation” under the Right to Farm Act, as it would provide an end-run around the Act itself.

Trespass claim

The plaintiffs sought to avoid the Right to Farm Act defense by pleading trespass, whereas the statutory language refers only to nuisance claims.  In particular, they claimed that the odor, pollutants, and harmful gasses, resulted in a physical, space-filling invasion to their homes.  Citing to a case from here in Texas, the court held that this type of artful pleading and labeling does not allow a plaintiff to avoid the Right to Farm Act.  Thus, the defense applies to trespass claims as well.

Constitutionality of Right to Farm Act

Finally, the Court addressed the constitutionality of the Indiana Right to Farm Act.

Open Courts Clause (IN Constitution)  “All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law.”  The court held that the legislature modifying the common law of nuisance by passing the Right to Farm Act does not violate this provision as this limitation is rationale and falls within the authority of the legislature.

Takings clauses (IN and US Constitution)  In order to prove a regulatory takings, the court analyzed, the plaintiffs would have to show a deprivation of all or substantially all economic or productive use of his or her property.  The court cited to prior cases involving noise complaints where the courts rejected takings claims because the noise did not amount to a substantial impairment of the use of the property.  Similarly, the court held that here, the plaintiffs were not deprived of all or substantially all of their economic uses of their properties.  Although property values may have decreased, they remained significant according to the court.  Moreover, both continue to live on the properties.  Thus, no taking occurred.

Privileges and Immunities Clause (IN Constitution)  “The General Assembly shall not grant to any citizen, or class of citizens, privileges and immunities, which, upon the same terms, shall not equally belong to all citizens.”  The plaintiffs claim the statute creates two classes of people, those who are currently engaged in an ag operation in existence for over one year and everyone else who lives in the country.  They argue that those in the first group may sue anyone in the first or second group for nuisance, while those in the second group may  only sue those in the second group.  Although the court agrees that the Right to Farm Act treats ag operations differently, it held that it did so for a rational reason–to protect agriculture.  Further, the court found that the preferential treatment is uniform among all ag operations.  This clause was not violated by the Right to Farm Act.

IN Agricultural Canon  The Canon, passed in 2014, essentially states a policy to protect agriculture and provides that state law shall be construed to protect the rights of agricultural operations.  This Canon applies to aid in interpreting statutes only where it is ambiguous–where a statute is clear, the Canon does not apply.  Because the Right to Farm Act is unambiguous, and the Canon need not be applied, the court declined to consider its constitutionality.

The plaintiffs  have filed a Motion for Rehearing, so the timeline to file an appeal to the IN Supreme Court has not yet run.

Why We Care?

Right to Farm Acts exist in all 50 states, although the language and details of each differ.  [To find your state’s Act, click here.]  These statutes offer an affirmative defense to ag operations facing nuisance lawsuits and have been important to farmers and ranchers particularly in areas of urban sprawl.  There have been a number of nuisance lawsuits against ag operations across the country in recent years, and these defenses are often critical to those defending an agricultural operation.  It can be instructive to see the legal challenges brought to different state statutes and the ways courts analyze them, as we well may see other similar cases in other states at some point.