INDIANAPOLIS — On Feb. 20, 2020, the Indiana Supreme Court upheld decisions from the Indiana Court of Appeals and the Hendricks County Superior Court that reaffirmed the protections provided by Indiana’s legislature to Indiana’s agricultural community through Indiana’s Right to Farm Act, Indiana Code 32-30-6-9 (“RTFA”).
Chris Braun, a partner at the Indianapolis law firm Plews Shadley Racher & Braun, LLP, who served as lead counsel for the defendants Co-Alliance, LLP, 4/9 Livestock LLC and Sam, Cory and Clint Himsel, stated that “The Supreme Court’s decision to deny the petition to transfer and uphold the Court of Appeals’ opinion is important as it re-affirms 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.
“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 today’s decision re-affirms. In this case, both the trial court and Court of Appeals held that even though the defendants’ farming operation was changed from growing crops to growing livestock (raising hogs) there was no evidence of any negligent operation of 4/9 Livestock’s farm. As a result, the Defendants were entitled to the RTFA’s protections from nuisance claims.”
In October 2013, 4/9 Livestock, LLC began operating a brand new state-of-the-art confined animal hog farm operation (“CAFO”) in rural Hendricks County. The hog barns were built on the property which had been used for agricultural purposes since at least the early 1940s. 4/9 Livestock was careful not to build or operate the hog barns until it had obtained all of the necessary zoning and permit approvals—after the required notices and public hearings—required by Hendricks County and the Indiana Department of Environmental Management (“IDEM”). In addition to the public notices and hearings, the plaintiffs were afforded additional due process but chose not to appeal any of the zoning, construction, design approvals or permits that were issued by Hendricks County or IDEM.
In 2015, more than two years after the 4/9 Livestock farm opened, area residents Richard and Janet Himsel and Robert and Susan Lannon filed a lawsuit in Hendricks County asserting nuisance, negligence, and trespass claims against 4/9 Livestock, its hog supplier Co-Alliance, LLP and 4/9 Livestock’s individual members Sam, Cory, and Clinton Himsel. The plaintiffs’ claims for nuisance and trespass stemmed from occasional odors they claim originated from the 4/9 Livestock farm and they alleged diminution in property values. The negligence claim focused solely on the CAFO’s proximity to their homes and the odors which they say emanated from the farm. The plaintiffs also challenged the constitutionality of the RTFA.
On February 9, 2018, the Hendricks County Superior Court issued a decision in favor of 4/9 Livestock, its three individual members and Co-Alliance on all of the Plaintiffs’ claims.
On April 22, 2019, the Indiana Court of Appeals affirmed the Hendricks County Superior Court’s decision and held that 4/9 Livestock, its individual members and Co-Alliance were protected from the Plaintiffs’ nuisance claim by the RTFA. The Court of Appeals also found that the Plaintiffs’ “negligent siting” and trespass arguments were really just “repackage[d]” nuisance claims aimed to “create an end run around the protections of the RTFA.” 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.
After oral argument on January 30, 2020, on February 20, 2020, the Supreme Court denied the plaintiffs’ request that the Court accept transfer and reconsider the decisions of the Hendricks County Superior Court and the Court of Appeals. As a result, the trial court and Court of Appeals decisions remain intact in favor of all of the Defendants and against all of the Plaintiffs.
Sam Himsel, speaking on behalf of his entire family, stated that “Our family has lived with this stressful lawsuit since October 2015. We are relieved that our farming way of life and multi-generational agricultural livelihood can continue uninterrupted and be passed on to my grandchildren. We hope today’s decision helps ensure farming rights for future generations of Hoosier farmers and that no other farming family has to endure this type of protracted, expensive litigation. We greatly appreciate all of the support that we have received from Co-Alliance, the rest of the agricultural community and our lawyers Chris Braun and Jonathan Emenhiser from Plews Shadley Racher & Braun LLP, who fought for us from day one and who prevailed on our behalf at the trial court, Court of Appeals and now the Indiana Supreme Court.”
Kevin Still also stated that “Co-Alliance is thrilled for Sam, Cory and Clint Himsel and their families that the Indiana Supreme Court has upheld the Court of Appeals’ decision that recognized Indiana’s longstanding protections for farmers under the RTFA. This litigation has been difficult, hard fought and worrisome for Sam, Cory and Clint Himsel as it jeopardized their ability to continue raising livestock on their farm today as well as for future generations. As a farmer-owned Indiana cooperative Co-Alliance is proud to have stood side by side with Sam and his sons as co-defendants fighting for the preservation of rights for all farmers in Indiana. Today’s decision provides farmers with a high degree of certainty that their farm, which often represents a multi-million dollar investment, cannot be shut down without reason. After today’s ruling, Indiana farmers now have another consistent interpretation of the Right to Farm Act that can be applied when nuisance lawsuits come masquerading as trespass or negligence claims.”
— Plews Shadley Racher & Braun
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