« Ind. Gov't. - "St. Joseph Co. Democrats file public records complaint against county commissioners" | Main | Ind. Courts - Still more on "Couple wrongfully accused of child death settles for $31M" »

Thursday, October 08, 2015

Ind. Courts - HEC files suit challenging the Constitutionality of State’s Right to Farm Laws

Some quotes from yesterday's news release:

(DANVILLE, IN)- The Hoosier Environmental Council filed suit in Hendricks County Superior Court today, with the aim of protecting long-suffering rural families and, more broadly, to challenge the constitutionality of Indiana’s so-called Right to Farm laws.

The plaintiffs in the case include a retired farm family from Hendricks County whose quality of life and property values have been greatly diminished due to air pollution and extreme odors from a newly built concentrated animal feeding operation (CAFO) with 8,000 hogs. Unfortunately, Indiana’s Right to Farm Act (RTFA) and a new “right to farm” law passed in 2014 (SEA 186), provide special legal protections to industrial-scale livestock operations that effectively eliminate the ability of retired farmers and other long-time rural residents, like the plaintiffs, to protect their homes and families from the life-disrupting pollution of a nearby CAFO.

“Our family has lived on this property and farmed it for generations,” said Richard Himsel, one of the named plaintiffs. “I grew up on this farm and my wife and I raised our children here. But this CAFO has literally ruined our lives. The odors are so foul and so invasive, that it makes it difficult to eat or sleep, our throats hurt constantly, we have to keep the windows and doors closed all the time, and we can’t even sit outside and enjoy the fresh air because there isn’t any. My wife now lives with our daughter because my wife can’t take it anymore. No one wants to buy our property because of the smell, so we can’t even move away – we’re prisoners in our own home.”

“Indiana’s Right to Farm laws can be profoundly harmful to rural Hoosiers like the Himsels who, in many cases, have lived in their homes for decades, and suddenly find themselves living next door to thousands of animals that produce the same amount of raw sewage as a small, town would,” said Kim Ferraro, senior attorney with the Hoosier Environmental Council. “A favorable court ruling in this case will not only end our clients’ suffering and restore their property rights, but will also restore balance in Indiana policy with respect to agriculture so that the rights and interests of rural Hoosier families are given equal protection and no longer take a back seat to the special interests of the corporate livestock industry.”

Indiana’s Right to Farm Act (RTFA) was originally enacted in 1981 in response to urban sprawl – to prevent urban/suburban newcomers to rural areas from suing farmers because they don’t like the ordinary smells of agriculture. But farmers generally no longer raise livestock in traditional pasture settings. Now, primarily, contract growers confine thousands of animals in warehouses controlled by giant corporations. These giant corporations, not traditional family farmers, are the ones unfairly protected by the RTFA. Also, due to the powerful livestock agriculture industry lobby, the RTFA was amended to prevent longtime rural residents -- including retired farmers who didn’t move to the country but were there first -- from defending themselves when a CAFO moves in next door.

Making matters worse, Indiana lawmakers recently passed SEA 186 to require regulators and courts to interpret and apply state law in a way that does not impede -- and in fact protects -- the livestock industry’s use of its preferred industry practices which include the use of CAFOs. 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 and both laws violate Plaintiffs’ equal protection and due process rights, and amount to an unconstitutional taking of their property rights.

Almost all states have some sort of Right to Farm laws on the books originally intended to protect real farmers. But with the transformation of farming to a corporate-controlled industry, some states are rethinking whether such laws are fair and still serving their intended purpose. In 1998, Iowa became the first state to repeal its Right to Farm Act.

The ILB has obtained a copy of the 19-page, worth reading in full, complaint in Himsel v. Himsel.

The Indianapolis Star this morning has a long story by Kristine Guerra about the lawsuit. Some quotes:

[Richard] Himsel, his wife, Janet, and two neighbors are suing 4/9 Livestock LLC, located less than a mile from his property, as well as his cousin, Sammuel Himsel; and his children, Cory and Clinton Himsel, who operate 4/9 Livestock.

Himsel said the problem began about two years ago, when the livestock company operated by his relatives built a concentrated animal feeding operation, or CAFO, next door to his home. The feedlot included two 33,500-square-foot buildings that warehoused up to 8,000 hogs and collected, stored and disposed of millions of gallons of feces and urine in the fields near Himsel's property, according to a 19-page complaint filed in Hendricks Superior Court.

Himsel is one of four plaintiffs who are alleging that the presence of the feedlot near their properties have diminished the quality of their lives. The civil lawsuit also challenges the constitutionality of Indiana's Right to Farm laws, which, the complaint says, unfairly protects giant corporations and industrial-scale livestock operations. The nonprofit Hoosier Environmental Council filed the lawsuit on behalf of the plaintiffs Wednesday.

Himsel came from a farm family. He owns a 26-acre farm in rural Danville where he planted crops and raised livestock until he retired in 2000. He now lives alone in the two-story wooden home he inherited from his parents. His children have moved out and so did his wife, who now lives with her daughter. Himsel said the odor coming from the livestock less than a mile southwest of his home causes his wife to have headaches and a sore throat. * * *

The lawsuit alleges that the defendants built the feedlot close to where people live, despite the health hazards involved. Such facilities generate large quantities of wastes, as well as air pollutants, such as ammonia, hydrogen sulfide and methane, the suit says. Health problems could include bronchitis, pulmonary disease and asthma.

More broadly, the lawsuit says, Indiana's Right to Farm laws, which are meant to help farm families, only protects the interests of giant corporations that control contract growers confining thousands of animals. * * *

The state's Right to Farm Act, in particular, which was originally enacted to protect farmers from lawsuits by urban and suburban residents who moved to rural areas, now protects conglomerates, not individual farmers, Ferraro said.

"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," according to the lawsuit, which also alleges violation of the plaintiffs' equal protection and due-process rights.

The property where the feedlot is located also was not zoned for a massive agricultural operation. That property was zoned agricultural residential. But the defendants, according to the complaint, received approval in 2013 from the Hendricks County Commissioners to rezone the property to allow for a more intense agricultural operation.

Construction of the feedlot was finished in September 2013 and about 8,000 hogs were moved in the following month.

The plaintiffs are seeking compensatory damages. They're also asking the court to issue an injunction ordering the defendants to end what they say has been a nuisance.

The ILB has had a number of posts over the years re statutes and case law on the "right to farm" in Indiana, as well as on legislative efforts to continue to expand it, including by constitutional amendment. The most recent post may be this July 24, 2014 post on the Randolph County Maxwell Farms cases.

Another, even longer list of related ILB entries is found via a search for the term "CAFO".

Posted by Marcia Oddi on October 8, 2015 10:18 AM
Posted to Indiana Courts