April 23, 2020

Modern Livestock Farms Are within the Right to Farm Despite Size and Scope

Brianna Schroeder

On February 21, 2020, the Indiana Supreme Court denied transfer in Himsel v. Himsel, a Right to Farm Act case. This is a win for Indiana agriculture because it leaves the Court of Appeals’ favorable decision in place. 

The Indiana Court of Appeals issued its opinion in the Himsel v. Himsel case on April 22, 2019. A farm family decided to build a new hog farm on some of their existing farmland. They applied for and received the necessary permission from the county and the state to build the farm. The farmers built the barns and populated them with pigs in October 2013. That month, a group of area neighbors filed a lawsuit against the farmers and their integrator, alleging the farm was a nuisance, was being operated negligently, and caused odors that constituted a trespass. The trial court initially ruled in favor of the neighbors, allowing the case to proceed to trial. This went against years of Indiana Right to Farm Act (RTFA) court decisions and the Act itself. Numerous amici curiae filed briefs in support of the farmers and, along with the defendants, asked the trial court to reconsider its decision. The trial court agreed with the farmers and their supporters and reversed its initial order, this time entering judgment in favor of the farmers.

The neighbors appealed to the Court of Appeals. On appeal, the neighbors argued the farmers failed to meet the Act’s statutory requirements. The neighbors claimed the modern confined feeding operation (CFO) would have been a nuisance at the time farming began in that area and thus the RTFA should not protect the CFO (see Appendix for text). The neighbors also argued the Act should not apply because they built their homes before the hog farm was in operation. The neighbors also urged the Court to find that the odor from the farm was a “trespass” and that the county was negligent for siting the barns too close to the neighbors’ homes. Finally, the neighbors alleged that the Act violated the Indiana and U.S. constitutions by providing privileges to farmers that did not apply to their non-farming neighbors. The Court of Appeals rejected all of neighbors’ arguments.

The farmers and the amici argued—and the Court agreed—that the Act preserves farmland by protecting farmers against nuisance lawsuits even if the modern farm arrives after the neighbors built their homes in the area. The change from cropland to livestock farming is not a statutorily “significant change” that would remove the Act’s protections. The farm was used for agricultural purposes in general at least as early as 1941, and neighbors’ non-farming land use began well after 1941. The neighbors knowingly built their homes in an agricultural area. That was enough for the Act to apply. The Court also rejected neighbors’ attempt to “repackage” their nuisance claim as one for “trespass” or “negligent siting.”

Finally, the Court held that the Indiana RTFA is constitutional. The Act does not violate the “Open Courts Clause” in the Indiana Constitution because the clause does not require the law to provide a remedy for every wrong. The Open Courts Clause merely prevents the legislature from arbitrarily denying access to the courts. Likewise, the Act does not run afoul of the state or federal constitutional “takings” clauses because plaintiffs were not deprived of all the value of their properties.

Lastly, RTFA does not violate the Privileges and Immunities Clause of the Indiana Constitution, because the Act itself spells out the rationale for treating farmers different than their non-farming neighbors. The purpose of the Act (spelled out in the Act itself) is to protect and encourage the development of agricultural land for the production of food. This rationale provides a reasonable basis for treating farmers differently than their non-farming neighbors. The Court explained that the RTFA’s preferential treatment is uniformly and equally available to all agricultural operations. While agricultural operations are treated differently under the RTFA than industrial operations, the two are not “similarly situated” and the express intent of the RTFA was to protect agricultural land.

The Court of Appeals’ decision in Himsel v. Himsel is crucial to protect agricultural land uses in Indiana. It can also serve as a persuasive resource for litigation over other states’ RTFA.

While this decision safeguards the rights of farmers to farm using modern tools, there are calls for legislation to impose a “moratorium” on CFO[AG1]  expansion. Sen. Booker proposed a quixotic national CAFO moratorium that is going nowhere, given the polarized state of Congress. But state and local moratoriums may be more likely to find some basis to restrict existing right to farm laws. In Indiana, for example, a zoning moratorium must comply with the statutory requirements for zoning ordinances. City of Carmel v. Martin Marietta Materials, Inc., 883 N.E.2d 781 (Ind. 2008); Rogers Grp., Inc. v. Tippecanoe Cty., 52 N.E.3d 848, 852 (Ind. Ct. App. 2016); Sagamore Park v. City of Indianapolis, 885 F.Supp. 1146, 1150 (S.D. Ind. 1994) (invalidating 90-day moratorium on the development of satellite wagering facilities); Triple G Landfills, Inc. v. Board of Commissioners of Fountain County, 977 F.2d 287, 291-292 (7th Cir. 1992) (invalidating restriction of development of landfills); Pro-Eco, Inc. v. Board of Commissioners of Jay County, 956 F.2d 635, 638 (7th Cir. 1992) (invalidating a sanitary landfill moratorium). See also, Leah Douglas, Across the Country, a Call Grows for Moratoriums on Huge Livestock Farms, Fern’s Ag Insider, (Jan. 26, 2020).

From 2011 and 2017, the United States added over 1,400 large-scale CAFOs nationwide for a total near 20,000. For example, Iowa now has nearly 4,000 large CAFOs. Moratoria are intended to be tailored to community issues. Some use size as a limit: in 2019, three Wisconsin counties issued yearlong moratoriums on any new 1,000-animal CAFO. Others target specific livestock, address environmental issues like protecting a river, or focus on preserving an area intended for later commercial development. 

APPENDIX

The Indiana Right to Farm Act, Ind. Code § 32-30-6-9, provides:

(a) This section does not apply if a nuisance results from the negligent operation of an agricultural or industrial operation or its appurtenances.

(b) The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.

(c) For purposes of this section, the continuity of an agricultural or industrial operation shall be considered to have been interrupted when the operation has been discontinued for more than one (1) year.

(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:

(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:

(A) The conversion from one type of agricultural operation to another type of agricultural operation.

(B) A change in the ownership or size of the agricultural operation.

(C) The:

(i) enrollment; or

(ii) reduction or cessation of participation;
of the agricultural operation in a government program.

(D) Adoption of new technology by the agricultural operation.

(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.

Brianna Schroeder

Brianna Schroeder practices law with Janzen Ag Law LLC in Indianapolis, Indiana, and represented the Indiana Agricultural Law Foundation in the Himsel case before the trial court, Court of Appeals, and Supreme Court. Please contact her at schroeder@aglaw.us with any questions.