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Tuesday, January 14, 2014

Ind. Law - Put "right to farm" in the Indiana Code, again?

SB 186, referred to as the "right to farm bill," would amend IC 15-11-2-6, which it deals with the Indiana state department of agriculture. Currently, IC 15-11-2-6 concerns the "Promotion of agricultural business."

The amendment would insert a new subsection(a) into the current provision on promotion of agricultural business, to read:

(a) The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of agriculture, agricultural businesses, and agricultural land for the production of food, fuel, fiber, and other agricultural products. The Indiana Code shall be construed to protect the rights of farmers to choose among all generally accepted farming and livestock production practices, including the use of ever changing technology.
Notably, Indiana already has a statute which is commonly referred to as the "right to farm" law. It is located at IC 32-30-6 and deals with agricultural nuisances. Section 9 ( IC 32-30-6-9) reads (note the language I have boldfaced and compare it with the proposed amendment to Title 15):
Sec. 9. (a) This section does not apply if a nuisance results from the negligent operation of an agricultural or industrial operation or its appurtenances.

(b) The general assembly declares that it is the policy of the state to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products. The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits. As a result, agricultural operations are sometimes forced to cease operations, and many persons may be discouraged from making investments in farm improvements. It is the purpose of this section to reduce the loss to the state of its agricultural resources by limiting the circumstances under which agricultural operations may be deemed to be a nuisance.

(c) For purposes of this section, the continuity of an agricultural or industrial operation shall be considered to have been interrupted when the operation has been discontinued for more than one (1) year.

(d) An agricultural or industrial operation or any of its appurtenances is not and does not become a nuisance, private or public, by any changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation continuously on the locality for more than one (1) year if the following conditions exist:
(1) There is no significant change in the type of operation. A significant change in the type of agricultural operation does not include the following:
(A) The conversion from one type of agricultural operation to another type of agricultural operation.
(B) A change in the ownership or size of the agricultural operation.
(C) The:
(i) enrollment; or
(ii) reduction or cessation of participation;
of the agricultural operation in a government program.
(D) Adoption of new technology by the agricultural operation.
(2) The operation would not have been a nuisance at the time the agricultural or industrial operation began on that locality.
As added by P.L.2-2002, SEC.15. Amended by P.L.23-2005, SEC.1.

Stephanie Wang's Indianapolis Star story, dated yesterday, reports:
A state lawmaker framed his legislation as a simple declaration of Indiana’s support for agriculture: A right to farm.

But one clause in Senate Bill 186 could have implications that favor farmers’ rights over other property owners’ rights, environmentalists say — and allow for easy expansions of controversial factory farms that pose food safety and pollution concerns. * * *

The bill unanimously passed its first Senate committee hearing on Monday and would re-affirm existing Indiana code that establishes state policy to “conserve, protect, and encourage” agriculture.

“It just, I think, solidifies it a little bit more and makes it a little more clear as far as the direction we want Indiana to go,” Yoder said. “And if future issues come up, I think this will help ensure that Indiana farmers and ag producers have rights that won’t be trampled on.”

The measure is supported by the Indiana Farm Bureau, Indiana Soybean Alliance and national group Protect the Harvest.

The clause in Senate Bill 186 that concerns environmentalists would protect farmers’ rights to use any “generally accepted” practices or new technologies.

Hoosier Environmental Council attorney Kim Ferraro told the Senate agriculture panel Monday that the bill would give freedom to hog farms and large industrial farming complexes to grow and pollute unfettered while promoting the interests of large corporations.

“There is no need to create special and enhanced rights for one industry,” she said, arguing that the bill was unnecessary when farmers already garner federal and state support.

Yoder said he didn’t think the bill took away from others’ rights. He said that local governments would still set their own ordinances to control farming operations.

Dan Cole, a professor at the Indiana University Maurer School of Law, said the bill’s language is ambiguous and could potentially result in a “tremendous expansion of the property rights of farmers, at the expense of property rights of non-farming neighbors and communities.

ILB comments: Indiana has developed quite a lot of case law now construing the existing "right to farm" or "freedom to farm" statute. Here is a list of ILB entries.

Several years ago, the ILB received a note regarding a retired legislator in a rural county, from their son:

A [deleted] put a CAFO across the country road from their house, and they literally can't go outside any longer. They've lived in the house for 25 years, and it's really sad that the stink outside is so bad that they can barely breath. Do you know a good attorney who deals with these types of issues? I really appreciate it. They tried to sell the house, but no one will buy it now. I think my mother is embarrassed to come and visit because all of her clothes smell like pigs. It's terrible.
In my answer, inter alia, I pointed to the obstacles that might be posed by the "right to farm" act (I didn't ask if the retired legislator had voted for it) and provided this then-timely ILB link to indicate the problems the parents might face. I remembered that incident when I read this part of Stephanie Wang's story today (along with Prof. Cole's warning about "piling on"):
“It just, I think, solidifies it a little bit more and makes it a little more clear as far as the direction we want Indiana to go,” Yoder said. “And if future issues come up, I think this will help ensure that Indiana farmers and ag producers have rights that won’t be trampled on.”

Posted by Marcia Oddi on January 14, 2014 02:07 PM
Posted to Indiana Law