The Transformation of Farming to Big Industry
Over the last few decades, the United States went from producing food on traditional farms to producing food from highly mechanized, industrial operations controlled by a handful of giant corporations. Now, instead of raising animals for food in pastures, livestock are intensively confined by the hundreds of thousands in production factories known as concentrated animal feeding operations or confined feeding operations (“CAFOs” or “CFOs”). These industrial-scale facilities also have industrial-scale environmental and public health impacts.
The Plight of Indiana’s Rural Communities
Like many who live in rural communities, two families in Hendricks County are suffering from the adverse impacts of this dramatic transformation. Richard and Janet Himsel and Robert and Susan Lannon, who have lived in Hendricks County for decades, have a new neighbor – a CAFO with 8,000 hogs. These hogs produce over 38,000 gallons of manure every day – as much raw sewage as a small town would produce — and emit thousands of pounds of noxious gases, including ammonia, hydrogen sulfide, methane, and nitrous oxide, as well as carbon dioxide and volatile organic compounds. These gases are released from the CAFO upwind of where the Himsels and Lannons live and predictably invade their homes and properties. The constant invasion of these noxious gases and have made living conditions unbearable at times, devalued their properties, and destroyed their rural way of life.
“Right to Farm” Laws Strip Property Rights of Rural Hoosiers
Unfortunately, there is little protection for families in these situations. Federal and state regulations limit nutrient pollution from CAFOs but do not impose limits on pathogens, air pollution or odors. Making matters worse, Indiana has two “Right to Farm” laws that serve only to protect the interests of corporate conglomerates, not farmers. The Right to Farm Act (“RTFA”) provides factory farms that harm their neighbors with legal immunity when the neighbors seek relief in court. In turn, Senate Enrolled Act 186 (“SEA 186”) enacted in 2014 requires regulators and courts to “construe” state law so as not to interfere with the industry’s “right” to use its preferred “livestock production practices,” regardless of the harm those practices cause. No other industry or economic sector enjoys the privilege of knowing state government agencies and courts must interpret the law to serve and protect that industry’s special interests.
HEC is Challenging These Unjust Laws
The Himsels and Lannons decided to do something about their unfortunate situation. They partnered with the Hoosier Environmental Council to challenge the constitutionality of Indiana’s unjust Right to Farm laws which violate their equal protection and due process rights, and amount to an unconstitutional taking of their property rights. Since filing their Complaint in Hendricks County, HEC has retained an air pollution expert who conducted air testing at the Himsels’ and Lannons’ properties and confirmed that they are being exposed to elevated and unhealthy levels of odorous compounds including ammonia from the hog factory. HEC also had an expert property value assessment conducted confirming that the Himsels’ and Lannons’ properties have dropped in value by 50% and 60%, respectively. HEC has taken depositions, survived numerous procedural hurdles, and briefed the court on why Indiana’s right to farm laws are unconstitutional.
Unfortunately, the CAFO owner/operators and corporate integrator/hog supplier, joined by powerful lobby groups as amicus curiae (“friends of the court) convinced the Indiana Court of Appeals to reject established Indiana law and broadly interpret the RTFA to bar any remedy whatsoever for the Himsels and Lannons.
This remarkably unjust opinion has gained national attention including by a renowned legal scholar, Professor Roger A. McEowan who teaches and publishes extensively in the area of agricultural law. In a recent post on the Law Professors Blog Network on Agricultural Law and Taxation, Professor McEowan had this to say:
“The plaintiffs in Himsel were found to have essentially “come to the nuisance” because one of them chose to retire from farming and remain on the land that he had lived on for nearly 80 years, and the other didn’t move from the rural home they built in 1971… While the original idea behind right-to-farm legislation in general was to protect and incentivize multi-generation farming operations that are often significantly tied to the land and the local communities, the decision is difficult to square with those ideals.”
We agree with Professor McEowen that the Court of Appeals got it wrong and the future of Indiana’s rural countryside is at stake. If allowed to stand, the Court’s opinion will effectively strip the property rights of all rural Hoosiers to protect their homes and families from the proliferation of factory farms–even generational farmers like the Himsels who retire, and want to live out their retirement years on their farmland, are not protected. The Court’s opinion also breaks significantly with established Indiana law that requires a narrow, strict reading of statutes like the RTFA that are written to provide limited legal immunity from liability, not absolute immunity as the Court has wrongly held.
For these reasons and others, HEC filed a Petition for Rehearing asking the appellate court to reconsider its Opinion. Several national organizations representing the interests of independent family farmers and consumers filed Amicus (“friends of court”) Briefs in support of HEC’s Petition for Rehearing including a joint brief by Public Justice, Food & Water Watch, Indiana Farmers’ Union and Family Farm Action. In addition, a group of law professors from around the country filed an amicus brief explaining how the Court’s Opinion departs from long established tort and administrative law. Finally, the Humane Society of the United States filed an amicus brief on how the appellate court wrongly interpreted the RTFA far beyond its plain language and intended scope which impedes HSUS’s mission to protect farm animals.
Update: On July 12, 2019, the panel of three appeals court justices issued an order denying our petition for rehearing but with one justice dissenting! Consequently, we filed a Petition to Transfer the case to the Indiana Supreme Court. Amicus briefs were also filed in support by Indiana Farmers Union, Family Farm Action, Food & Water Watch, Public Justice, a nationwide group of law professors and the Humane Society of the United States. We are hopeful that our State’s highest court will do what is right by the Himsels, Lannons, and Indiana’s rural communities by reversing the unjust opinion of the appeals court.
Update: The Indiana Supreme Court heard oral argument on our Petition to Transfer for January 30, 2020. This is a positive development considering that out of the roughly 800 such petitions that the Court receives every year, it schedules oral argument in only around 50 of them. Watch a video of Kim Ferraro’s oral argument.
Update: The Indiana Supreme Court issued a narrow, split decision (3-2) denying our Petition to Transfer. On February, 22, 2020, the Indiana Supreme Court issued an order denying our Petition to Transfer. However, the decision was very close with two of the five justices, including Chief Justice Loretta Rush, voting to grant transfer. Given this split, we are considering taking the case to the U.S. Supreme Court…stay tuned…we are not giving up!
Update: HEC files Petition for Certiorari with the U.S. Supreme Court (“SCOTUS”). On July 17, 2020, HEC in partnership with the Harvard Animal Law & Policy Clinic filed a Cert Petition with SCOTUS asking the nation’s high Court to take the case because Indiana’s RTFA has, in effect, deprived the Himsels and Lannons of their property rights without compensation or any remedy in violation of the Takings Clause of the U.S. Constitution. In addition, we’ve asked SCOTUS to take the case because many states, at the behest of powerful livestock industry trade groups, have amended their RTFAs–or are on the verge of doing so–to enact similar provisions to Indiana’s RTFA that deprive homeowners of any recourse for nuisance and trespass damages against CAFOs. Demonstrating the national significance of this issue, sustainable farmers, rural groups, and social justice and consumer protection organizations from around the country have joined in asking the nation’s highest court to hear our case.
Update: SCOTUS Denies HEC Cert Petition. On October 5, 2020, the U.S. Supreme Court denied our Petition for Writ of Certiorari, allowing the Indiana Court of Appeals’ interpretation of the RTFA as barring any remedy whatsoever for Himsels and Lannons to stand. SCOTUS’ decision not to review this case ends a costly, and incredibly stressful five-year legal battle that the Himsels and Lannons were forced to bring because federal, state, and local government agencies were unable or unwilling to help. And, because the Indiana Appeals Court ruling now stands, the legal system is a dead end for them too. For that matter, without HEC’s legal aid, these families would not have been able to even access the courts in the first place. Such an unjust outcome underscores how insidious of a law the RTFA is. It eliminates any possibility that CAFOs in Indiana will be held liable for fouling the air, upending people’s lives, and trampling on the property rights of our fellow citizens in rural communities. As a result, unless the Indiana General Assembly steps in and repeals the “significant change” provision of the RTFA, the monopolistic titans of the meat industry are now free to expand their polluting factory farms in Indiana with impunity. To understand why, read our analysis of Appeals Court opinion. HEC is not giving up the fight for legislative change and we need your help to make it happen.
Update: HEC defeats the livestock industry’s harassing SLAPP suit and will not be bullied! On May 24, 2021, the Hendricks County Superior Court ruled against the countersuit brought by the Defendants in this case and their livestock industry backers against HEC in an attempt to intimidate HEC from continuing to provide legal representation to people harmed by factory farms. The Defendants demanded that HEC and our clients pay for their exorbitant attorney fees, which would have bankrupted HEC and our retiree clients, the Himsels and Lannons.
Defendants unbelievably argued that the five-year legal battle we undertook to challenge Indiana’s unjust Right to Farm Act and vindicate the Himsels and Lannons’ right to live in their own homes in peace and dignity was somehow frivolous, unreasonable, and groundless. Defendants made this spurious claim even though the Indiana Supreme Court selected the case for oral argument — a rare event, given that the Court receives around 800 transfer petitions each year and decides to hear only around 50 of them — and the fact that public interest attorneys from around the country submitted amicus briefs in support of our legal challenge. The Defendants threatened to bankrupt HEC, which serves as one of the only legal aid resources in the state that helps Hoosiers suffering from factory farm pollution, precisely to scare us away from continuing to do so.
We knew that challenging Indiana’s unjust RTFA would not be easy. What we did not know is that we would have to deal with the industry’s scorched-earth litigation and scare-tactics. We stood up to those threats because the suffering families we represent have every right to pursue their available legal remedies in court without fear and intimidation.
Our victory makes clear that HEC will not be bullied and will continue to stand up for Hoosiers fighting to protect their health, families, and communities from big-industry polluters.
Litigation is Costly — Please Support Our Work
To support HEC’s efforts to help families suffering from factory farms, please go to our donate page.
The public significance of this case is reflected by the state and national media attention it has received including articles in the IndyStar, USAToday, Indianapolis Business Journal, WTHR, Fox 59, and WFYI. The Appeals Court opinion has likewise attracted media attention by the Indiana Lawyer, and Indianapolis Star. And, similarly, the Indiana Supreme Court’s decision and our recent filing with SCOTUS has garnered statewide media coverage in the Indiana Lawyer, Indianapolis Star and the Indiana Environmental Reporter.
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