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In 2019, we continue to see decisions involving the application of the right-to-farm law (RTF) defense in a few states. Recently, the Court of Appeals of Indiana upheld a trial court’s decision applying the state’s RTF law. In this case, the RTF law applied to claims that a neighboring hog farm was creating a nuisance. Although over the past 18 months, we have seen decisions involving RTF laws not applying to agricultural companies being hit with large damage verdicts, it is crucial to remember that in many cases, the RTF defense continues to apply and prevent large verdicts.
Samuel Himsel’s family acquired farmland in the early 1990s which had been in agriculture since at least 1941. Between 1994 and 2013, the property was consistently used for crop production. In 2013, Himsel and his sons began to operate a hog operation on the farmland. Before starting the operation, Himsel petitioned the county planning commission to rezone the farmland from agricultural residential to agricultural intense, to allow for the development of the hog farm. At the public hearing, a few neighbors spoke in opposition of the rezoning request, including Richard Himsel (a cousin to Samuel Himsel). The county commissioners’ unanimously approved the planning commission’s findings approving the rezoning. None of the neighbors appealed the rezoning decision. Shortly after the rezoning approval, the Indiana Department of Environmental Management (IDEM) approved two permits to allow for construction and operation of the hog farm. No neighbors appealed the permits approvals by IDEM. By late 2013, Samuel and his sons had entered into contracts, raising hogs in the newly constructed buildings.
Neighboring Samuel Himsel was Richard Himsel, who had lived on his property since 1994 and had raised livestock there until 2000 when he retired and sold the farmland. At one point, Richard also operated a large hog farm on his farm for two years before a fire destroyed the barns and he did not rebuild. Robert Lannon, another neighbor, built his house in 1971 but his property had never been used for agriculture.
In 2015, Richard Himsel and Robert Lannon and their respective wives sued Samuel Himsel and his sons. In the lawsuit, the neighbors claimed nuisance, negligence, and trespass along with claims that the RTF law was unconstitutional. Samuel Himsel and his sons answered, raising the RTF defense, and moved for summary judgment. In 2018, the trial court granted Samuel’s motion for summary judgment on all claims. The neighbors appealed this decision.
Court of Appeals Decision
On appeal, the neighbors argued that the RTF defense did not apply based on language in the RTF law requiring the “operation would not have been a nuisance at the time the agricultural ... operation began on that locality.” (§ 32-30-6-9(d)(3)). With this argument, the court looks at when the farming operation began. A row crop operation had started on the land around 1941, and the neighbors’ non-agricultural uses began around 1971. The farm had changed to a hog farm in 2012. Based on 2005 amendments to the RTF law, the switch to a hog farm was not a significant enough change to the farm to bar the RTF defense. The amendments broadened the RTF’s coming to the nuisance defense to encompass all future nuisances.
To the court, agricultural uses dominated the area the neighbors had moved into. Some of the neighbors even kept livestock on their own properties. The county’s planning commission and county commissioners recognized the agricultural nature of the area where the hog farm was built and attempted to maintain the agricultural nature of that portion of the county. The nature of the area helped to demonstrate that the area in question was agricultural, not residential, and the hog farm would not have been a nuisance when established in 1941.
The court also disagreed with the neighbors’ arguments that allowing the RTF defense would allow large hog farms and other concentrated animal feeding operations (CAFO) of any size to be built in areas with a history of agricultural uses. To the court, this argument ignored the administrative process farmers must work through to build a large CAFO. In reviewing the regulatory process which farmers go through to build a CAFO, the court points out that the neighbors had an opportunity to challenge the building of the hog farm, but choose not to do so.
Looking at the exception to the RTF defense, nuisance suits resulting from negligent operation of the farm, the neighbors offered no evidence demonstrating the hog farm were negligently operated or violated any of the state regulations related to CAFOs. The neighbors did claim that the hog farm were negligently sited and should be construed as a negligent operation. Siting would be the decision on where to build and operate the hog farm. The court disagreed that negligent siting could create a claim of negligent operation to create an exception to the RTF defense.
RTF laws continue to be in the news as neighbors challenge nearby animal operations. Although we have seen stories over the past year highlighting a few decisions where courts have held RTF defenses do not apply, in the majority of states, the state’s RTF defense continues to be valid and offers a defense to nuisance claims. As discussed in prior posts, decisions like the Himsel case highlight why agricultural operators and neighbors must understand how RTF laws operate in their states.
I did not include any of the arguments from the neighbors that the RTF law was unconstitutional in today’s post. The court of appeals rejected these arguments. Many courts when presented with a case arguing that the state’s RFT law is unconstitutional typically reject these arguments. Currently, the only state where the RTF law has been found unconstitutional is Iowa.
The final issue not addressed is attorneys’ fees. Indiana’s RTF law allows for attorneys’ fees in certain situations. In Indiana, attorneys’ fees will be awarded when the court finds the nuisance action frivolous (§ 32-30-6-9.5). At this point, the neighbors may still appeal to the Supreme Court of Indiana, and we will have to see if the verdict is still upheld and if Samuel Himsel and his sons will request attorneys’ fees once the case is returned to the trial court.
Himsel v. Himsel, 18A-PL-645, 2019 WL 1758411 (Ind. Ct. App. April 22, 2019).
Ind. Code §§ 32-30-6-1, 32-30-6-9 to 32-30-36-9.5 (2019).