U.S. Supreme Court rejects Indiana’s factory farm case

The issue in the petition to the court was whether Indiana’s Right to Farm statute provides complete immunity for nuisance and trespass liability to confined feeding operations, and in doing so, violates the Takings Clause of the Constitution. That clause says that private property shall not be taken for public use without just compensation.

Richard and Janet Himsel — along with another neighboring couple — filed a lawsuit in 2015 after an 8,000-hog barn moved in next door two years before and allegedly began causing harm. 

This livestock operation less than a mile away from Richard Himsel’s property, on County Road 425 West in Hendricks County. Himsel lives on a Danville farm his family has owned since 1940. Himsel has filed a lawsuit challenging the constitutionality of Indiana’s Right to Farm laws, saying it protects corporations and large farming operations over the rights of smaller farmers and individuals. (Photo: Doug McSchooler / For The Star)

The defendants included Richard Himsel’s cousin and two nephews — Samuel, Cory and Clinton Himsel — their company, 4/9 Livestock LLC, and Co-Alliance, a large agriculture supply company. 

Right-to-farm laws started to grow in prominence around the nation in the 1970s and 1980s, and Indiana’s was enacted in 1981. These laws were enacted as a way to protect existing farmers from urban sprawl as city-dwellers moved to the countryside unprepared for the smells of agriculture. Such newcomers could not sue for nuisance as they moved to or “came to the nuisance,” said Andy Stawasz, a Harvard Law student who worked on the petition to the Supreme Court through the school’s Animal Law & Policy Clinic.  

That protection disappeared, however, if there was a significant change on the farm — such as to its size, the hours of operation, technology used, etc. In those situations, a neighbor could file a nuisance claim.

But in 2005, Indiana’s statute was amended to eliminate those remedies, according to the petition. As a result of the amendment, a “significant change” no longer includes the conversion of one type of agricultural operation to another, use of a new technology or a change in the farm’s size.

The case moved its way through Indiana’s court system. First, the trial court denied the defendant’s motion for summary judgment before suddenly reversing that opinion. The Indiana Court of Appeals then affirmed that a 2005 amendment to Indiana’s Right to Farm statute bars all of the Himsels’ and Lannons’ claims because the switch from crops to a confined animal feeding operation, often called a factory farm, no longer constitutes a “significant change.” 

The Appeals Court’s acknowledged that “it is difficult to imagine what would constitute a significant change” and went on to say that the “coming to the nuisance doctrine, as applied by the [Right to Farm Act], now encompasses coming to the potential future nuisance.”

Ferraro then petitioned to have the case transferred to the Indiana Supreme Court. Following oral arguments, the court denied the transfer in a split 3-2 decision, allowing the Appeals Court opinion to stand. 

Kim Ferraro, a senior attorney at the Hoosier Environmental Council, makes her case to the Indiana Supreme Court regarding Indiana’s Right to Farm Act, at the Indiana Statehouse, Thursday, Jan. 30, 2020. Some homeowners have alleged an 8,000-hog factory farm next to their property has diminished their quality of life, and are challenging Indiana’s Right to Farm laws, arguing that they unfairly protect large corporate-owned farms.  (Photo: Michelle Pemberton/IndyStar)

Ferraro said at that time that she took the split decision to mean that they presented a meritorious case: “It didn’t signal to me that we got things wrong, signaled to me that there is a larger issue here.” 

The question then became, she said in July, whether the law violates the federal Constitution.

At the time, Braun said that he did not feel the petition or the case qualified as a “viable candidate” for the U.S. Supreme Court. He echoed that sentiment in yesterday’s statement: “The Court’s decision means that the plaintiffs’ efforts over the past five years to shut down a state-of-the art hog raising operation of a family-owned farm were completely unsuccessful.”