By: Kim E. Ferraro
Attorney and Director of Agriculture and Water Policy
Hoosier Environmental Council
Indiana’s agricultural industry supports HB 1091, a bill that proposes to shut the door of the courthouse to families seeking redress from odors, water pollution and plummeting property values from nearby confined animal feeding operations (CAFOs). To generate support for the bill, the industry and its supporters argue that it is needed to address a problem that, quite frankly, does not exist.
Indiana law gives Hoosiers the right to bring a lawsuit to protect themselves and their properties from a nuisance defined as “whatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property so as essentially to interfere with the comfortable enjoyment of life or property.” Ind. Code § 32-30-6-6. Proponents of HB 1091 contend that it will “give farmers a legal defense” to such suits. Yet, Indiana already has a Right to Farm Act (Ind. Code § 32-30-6-9) which protects all agricultural operations, including farmers, with absolute immunity from nuisance lawsuits except in very narrow circumstances. Indeed, no other Indiana business or industry enjoys such broad protection from nuisance lawsuits as that afforded to farmers under Indiana’s Right to Farm Act. HB 1091 does nothing to amend or change this existing, broad protection.
Proponents also assert that the HB 1091 “applies to situations where new housing developments are put in next to long established farming operations” and “essentially tells a neighbor who complains about a farming operation, the nuisance did not come to you, you came to the nuisance. If you don’t like it, it is your fault for moving here. ” This suggested interpretation of the bill is not plausible. The language of HB 1091 simply and plainly states that it would require a trial court to impose the defendant’s costs of litigation and attorney fees on a plaintiff who brings a nuisance lawsuit against a CAFO that is found to be frivolous. There is no mention in the proposed legislation that it applies only to people who move from urban to agricultural areas and then bring such suits. Rather, that is the policy behind already existing law and the very purpose of Indiana’s Right to Farm Act.
Another argument made by supporters of HB 1091 is that the bill is needed to “discourage activists from using the court system to advance their radical agendas” and because activists “have used lawsuits to harass farming operations of which they do not approve. ” This is unfounded considering that a mere ten nuisance lawsuits have been filed against CAFOs in the last decade, and not one of them has been dismissed for being frivolous.
More importantly, if an agricultural operation, or any other business, is the target of a frivolous lawsuit, Indiana law already empowers a trial court to impose the defendant’s litigation costs and attorney fees on the plaintiff who filed the baseless suit. Ind. Code § 34-52-1-1. Also, Rule 3.1 of the Indiana Rules of Professional Conduct prohibits lawyers from bringing frivolous lawsuits or risk losing their law license.
We at the Hoosier Environmental Council have long advocated at the Statehouse for policies that will protect the environment and improve quality of life for all Hoosiers. Although we are passionate about our work, we abide by an unwavering commitment to promoting or opposing legislation based on thorough understanding of all relevant issues, facts, law, technology, and sound science. The reality is that HB 1091 is wholly unnecessary and, if enacted, will serve only to frighten people from exercising their legal rights against CAFOs for fear of retribution with a costly SLAPP suit. Because this is a matter of fundamental fairness and equal access to the courts for all Hoosiers, we urge the agricultural industry and other proponents of HB 1091 to be forthcoming about the real reason they want our legislature to enact this bill.
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1 See Hoosier Ag Today, Right to Farm Bill Advances at Statehouse (Jan. 29, 2012) (quoting Bob Kraft, Farm Bureau Director of State Government Relations).