Plaintiffs in protracted CAFO litigation hit with counterclaim

Farmers and neighbors who battled over an 8,000-hog confined animal feeding operation in Hendricks County are starting a second round of fighting with the farmers filing a counterclaim, arguing the lawsuit brought by their neighbors and litigated for multiple years through four courts was “frivolous.”

The lawsuit, Martin Richard Himsel, Janet L. Hmsel, Robert J. Lannon and Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton s. Himsel, 4/9 Livestock, LLC and Co-Alliance, LLP, 32D04-1510-PL-000150, was presented to the Hendricks Superior Court and the Indiana Court of Appeals, where the defendant Himsels and 4/9 Livestock successfully argued for summary judgment. Plaintiffs petitioned to the Indiana Supreme Court and the U.S. Supreme Court but neither judicial body took the case.

“They played defense for five years,” Christopher Braun, partner at Plews Shadley Racher & Braun and attorney for the defendants, said. “It’s time to play offense.”

However, the plaintiffs’ attorney, Kim Ferraro of the Hoosier Environmental Council, sees the counterclaim as retaliation meant to intimidate and deter future lawsuits.

“We think the plaintiffs have already suffered a lot,” Ferraro said. “They went through five years of litigation to get their lives back but they were told they had to live with it. Now the defendants take this legal step. It’s an unfortunate statement about the legal system.”

At a scheduling conference Wednesday, Hendricks Superior Judge Mark Smith denied the plaintiffs’ motion to strike. He issued an order outlining the deadlines for briefing and setting an April 15, 2021, hearing for summary judgment.

In their counterclaim, the defendants assert the Himsels and the Lannons continued to litigate certain claims even after they became “frivolous, unreasonable or groundless.” The farmers are asking the court award “reasonable attorneys’ fees” incurred as a result of having to defend against the legal action.

Neighbors first filed their complaint in 2015. They asserted the air emissions from the CAFO were harmful to their health and diminished their property values. Although the trial court initially let some of the claims stand, it held a hearing on cross-motions to correct errors and ultimately granted summary judgment to all the defendants.

The Court of Appeals affirmed. It then denied the neighbors’ petition for a rehearing with Judge Elizabeth Tavitas dissenting although she did not write separately to explain her decision. Likewise the Indiana Supreme Court denied transfer after hearing arguments, but Chief Justice Loretta Rush and Justice Christopher Goff dissented.

The neighbors argue their claims are valid because public interest organizations and legal scholars from around the country filed amicus briefs in support. Also, the director of Harvard Law School’s Animal Law & Policy Clinic represented them in petitioning the U.S. Supreme Court.

Ferraro said the lawsuit was not frivolous because the plaintiffs lost. The neighbors had rational, reasonable arguments as demonstrated by the outside parties who supported their effort to challenge the CAFO and Indiana’s Right to Farm Act.

“This is an industry used to getting its way at every level of the game,” Ferraro said of agricultural operations. She said the industry does not like “pesky lawsuits” so it will “intimidate, retaliate and harass.”

Braun countered the defendants were the ones harassed with the lawsuit. The farmers filed their counterclaim early in the litigation process, including it in 2017 in their answer to the amended complaint. Once discovery was completed, Braun said, the defense invited the plaintiffs to walk away because the case had not basis.

Instead, he said, the Hoosier Environmental Council continued its pattern of litigation behavior by going after agricultural clients. The organization gets its “clock cleaned over and over” but still goes after other farmers, he said.

In Hendricks County, the Himsel farmers and 4/9 Livestock did “everything by the book” in establishing the CAFO, Braun said. They notified their neighbors, went through the rezoning process, attended public hearings on the matter, and secured permits from the Indiana Department of Environmental Management. Then after two years of running the CAFO with no violations, they were sued.

Braun asserted HEC has used this lawsuit as a fundraising tool, actively soliciting donations to support the neighbors’ litigation. He said he does not mind when the environmental nonprofit “plants trees and cleans rivers” but it cannot “threaten livelihoods with no sound basis.”

The HEC has represented the Himsels and Lannons pro bono throughout the entire litigation. Ferraro described the defendants’ counterclaim as a “real unfortunate thing,” especially coming from attorneys who are of the caliber as the defense counsel.

“They should be better than this,” Ferraro said. “This (counterclaim) is unfortunate and uncivil.”