Indiana Justices hear arguments in Right to Farm dispute

A Hendricks County battle over whether a hog farming operation is protected by Indiana’s Right to Farm Act arrived at the Indiana Supreme Court on Thursday with opposing counsel arguing the limits and the intent of the statute.

Martin Richard and Janet Himsel and Robert and Susan Lannon filed a lawsuit after their neighbors expanded their farm into a confined animal feeding operation with 8,000 hogs. The Himsels and Lannons claimed the noxious odors from the CAFO impacted their health and reduced their property values.

However, the Himsels and Lannons have not found any relief in the courts. The Hendricks Superior Court and the Indiana Court of Appeals both ruled in favor of the defendants in Janel L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton s. Himsel, 4/9 Livestock LLC and Co-Alliance, LLP, 18A-PL-645.

The plaintiffs were denied a rehearing by the appellate court, so they petitioned for transfer to the Indiana Supreme Court. Before deciding to grant transfer, the justices opted to hear oral arguments first.

The justices spent time quizzing the opposing attorneys on the statutory construction of Indiana’s Right to Farm Act, Indiana Code Section 32-30-6-9.

In petitioning the Supreme Court for transfer, the plaintiffs argued the law says the farm is not a nuisance if the operation would not have been a nuisance at the time farming began on that land.

They noted the Court of Appeals found that because many farmers in the area owned or did own livestock, the CAFO would not have been a nuisance if it had existed in the 1940s. But, they asserted, that ignores the evidence that CAFOs are dramatically different from traditional livestock farms because of the nature of the industrial operation and the impact on the public health, the environment and neighbors’ enjoyment of their property. The smaller neighboring livestock farms did not create untenable living conditions like the CAFO does.

Defendants countered in their brief opposing transfer that under the plain language of the Right to Farm Act, the question is whether the farm, and not the current version of that farm, would have been a nuisance when it began operating.

They argued the appellate court correctly concluded that hog farming would not have been a nuisance when the agricultural operations began on that property. Moreover, the plaintiffs’ interpretation of the statute undermines farmers’ ability to change the type of size of their operations and is inconsistent with the evidence that shows livestock have been raised in the area for generations.

Before the Supreme Court, Plaintiffs’ attorney Kim Ferraro of the Hoosier Environmental Counsel focused on the construction of the statute and specifically its phrasing as “would not have been.”

“It doesn’t say ‘was not,’” Ferraro argued. “The Legislature certainly knows how to say ‘was not a nuisance’ if that’s what it had intended to do.”

Amicus counsel David Muraskin, who represented the Indiana Farmers Union, continued the argument, saying the statute’s goal is to preserve and protect existing agricultural communities, which it does in 32-30-6-9(D)(2). The statute would protect a farming operation that had started and expanded into an industrial operation before other farms and other people had moved nearby.

“What the statute does not protect is defendants moving into an established area with established farms and then acting in a way that harms those farms,” he said.

Defendants’ attorney, George Plews, partner at Plews Shadley Racher & Braun, said the state’s Right to Farm Act was not meant to preserve farms as they used to be. Rather the intent was to “let agriculture experiment, innovate, advance, try different things in order to tend to the vital interests we have in producing food.”

However, Justice Geoffrey Slaughter pressed Plews on the use of “would not have been” in subsection D-2.

“The plaintiffs point out that the meaning that you ascribe to the statute would be equally available if the Legislature had written D-1 using the past tense ‘was not a nuisance,’” Slaughter said. “For better or worse, the Legislature didn’t use that formulation. Instead it used the subjunctive. What should we make of that?”

Plews replied, “When you step back and look at the statutes as a whole, and most importantly the 2005 amendments … it’s clear what the Legislature was doing. And you can’t preserve what’s added by that amendment and construe D-2 the way the plaintiffs do.”

Slaughter asked, “Would your position about the meaning be the same if D-2 said, ‘was not a nuisance’?”

Plews responded, “I think it would be the same.”

Slaughter pressed, “So the question for us is … if the meaning that you ascribe to the statute would be conveyed by D-2 saying, ‘was not a nuisance,’ what, if anything, should we infer from the fact that that was not the formulation the Legislature used?”

Plews replied, “I’d say you’d have to look at it as a whole and you’d have to say what makes sense given the legislative purpose expressed in the statute … (and) the most recent actions of the Legislature in 2005 which respect to D-1. …Your job would be, I would say, to harmonize those to try to ascertain what the legislative intent was rather than to lay down the absolute ‘it has to be one or the other.’”