Indiana’s Right to Farm Act still protects farmers against nuisance suits, ruled the Indiana Court of Appeals Monday in Himsel v. Himsel. The Act says that it is the policy of the state to conserve, protect, and encourage the development and improvement of agriculture and protect farmers from nuisance lawsuits.
“Pork producers should feel reassured that Indiana’s Right to Farm Act continues to be a valid defense against nuisance suits based on competing non-farm uses in agricultural areas. Indiana is a welcoming place for all agribusinesses, especially livestock farms,” says Brianna Schroeder of Janzen Ag Law. Schroeder, along with Todd Janzen, represented the Indiana Agricultural Law Foundation (IALF) in the case and filed several briefs explaining the Right to Farm Act.
Himsel v. Himsel
In 2013, the Samuel, Cory and Clinton Himsel family built a new 8,000-hog farm on their existing farmland after applying for and receiving permission from both the county and the state to build the farm. They populated the barns with pigs in October 2013.
That same month, a group of neighbors, including Samuel’s cousin, filed a lawsuit against the farmers and their integrator, alleging the farm was a nuisance and being operated negligently.
The trial court initially ruled in favor of the neighbors, allowing the case to proceed to trial. The Indiana Agricultural Law Foundation, Indiana Pork Producers Association and Hendricks County filed briefs in support of the farmers and asked the trial court to reconsider.
The Court agreed with the farmers and their supporters, reversing its initial order and entering judgment in favor of the farmers, Schroeder says. The neighbors appealed to the Court of Appeals, arguing the farmers failed to meet the Act’s requirements. The neighbors claimed the CAFO would have been a nuisance at the time farming began in that area. Since the neighbors built their homes before the hog farm existed, they argued the Right to Farm Act should not apply.
The neighbors also argued the odor from the farm was a “trespass” and that the county was negligent for siting the barns too close to the neighbors’ homes, Schroeder explains. They also said 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 these arguments.
“The farmers and the amici, including the IALF, 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 had already settled into the area,” Schroeder says. “The change from cropland to livestock farming is not a statutorily ‘significant change,’ which would remove the Act’s protections.”
The farm has been used for agricultural purposes 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, Schroeder says.
"We were definitely glad the way they came down on the constitutionality issue; that’s an important protection for our farmers," says Josh Trenary, executive director of the Indiana Pork Producers.
This case is a good reminder of how important it is to go through the proper county and state permitting processes before construction, Schroeder says. And once the farm is operating, pork producers should comply with the state or local environmental regulations.
“The Indiana Right to Farm act has an exception and does not provide protection to situations where the alleged nuisance is caused by negligent operation,” she notes. “Compliance with regulations is good evidence the farm has not been negligent. All in all, the Himsel decision follows decades of Right to Farm Act case law in Indiana. We’re happy the Court of Appeals recognized this case as a clear-cut application of the Act.”
The neighbors have 45 days to petition the Indiana Supreme Court to accept transfer of the case.
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