Lawsuit takes on Indiana’s right-to-farm laws

The Hoosier Environmental Council has filed a lawsuit on behalf of a pair of Hendricks County families who say they face “intolerable living conditions” created by odors coming from a nearby 8,000-hog farm that opened two years ago.

The suit, filed Wednesday in Hendricks Superior Court, deals with an individual case, but will be used as a launching pad for the HEC to challenge the constitutionality of Indiana’s “Right to Farm” laws through the legal system. The group has been stymied in the legislative process in recent years.

The plaintiffs are two couples who live in rural Danville: Richard and Janet Himsel and Robert and Susan Lannon.

The Himsels have owned a 26-acre farm at 3581 W. 350 N. since 1994. The property was previously owned and farmed by Richard Himsel’s parents. The Lannons have owned property and lived at 3868 W. 350 N. since 1971.

The Himsels and Lannons are suing two businesses and three individuals involved in the operations of a concentrated animal feeding operation, or CAFO, at 3042 N. 425 W.

4/9 Livestock LLC of Danville owns and manages the hog farm, while Co-Alliance LLC of Avon owns the hogs that are warehoused at the property.

Sammuel Himsel, Cory Himsel and Clint Himsel are all owners of 4/9 Livestock and responsible for operations and management of the hog farm. Sammuel Himsel and Richard Himsel are cousins.

An attorney for the defendants could not be reached Wednesday morning.

According to the suit, the CAFO consists of two 33,500-square-foot buildings that house 4,000 hogs each. Concrete pits under the building collect and store 4 million gallons of liquid hog waste, the lawsuit says. Waste from the pits is spread via hose on land surrounding the barns.

The hog farm property is about 1,400 feet from the Himsel property and about 2,500 feet from the Lannon property, the suit says.

“The odors and air contaminants” from the hog farm “are so foul and revolting that plaintiffs are often unable to go outdoors without gagging and having to cover their nose and mouth,” the lawsuit says. “The stench burns their noses, throats and eyes and makes it difficult to breathe. Even with the windows and doors shut, the putrid smells and contaminants permeate the inside of plantiffs’ homes, making it difficult for them to live, eat and sleep.”

The plaintiffs say conditions have become so unhealthy that Janet Himsel has moved from her property and now lives with a daughter.

The lawsuit says the Himsels and Lannons informed the defendants of “the intolerable living conditions” created by the CAFO. “Nevertheless, the defendants have refused to take any action to reduce the noxious odors and harmful air emissions generated by those practices.”

The suit said the CAFO is showing a “blatant disregard” for the plaintiffs’ “health, safety, well-being, and property.”

That unreasonable conduct constitutes “the negligent operation of an agricultural operation,” which removes it from protection under the Indiana Right to Farm Act, the lawsuit contends.

The plaintiffs are seeking unnamed damages and an injunction to force the CAFO owners to take steps to “abate the continuing nuisance” on their properties.

HEC attorney Kim Ferraro said similar cases have been difficult to win because large corporate farms are protected by Indiana's right-to-farm laws. The environmental group has fought the laws in the Legislature, saying they violate the equal protection and due-process rights of surrounding residents, and “amount to an unconstitutional taking of their property rights.”

The HEC intends to pursue the case all the way up the legal ladder if necessary, Ferraro said.

“A favorable court ruling in this case will not only end our clients’ suffering and restore their property rights, but will also restore balance in Indiana policy with respect to agriculture so that the rights and interests of rural Hoosier families are given equal protection and no longer take a back seat to the special interests of the corporate livestock industry,” Ferraro said in a written statement.

A judge in a similar case in Randolph County last year ruled Indiana's right-to-farm law protects large hog farms from such lawsuits because farmers have the right to use "generally accepted" practices, and those practices are common at large corporate farms.