122 N.E.3d 935
Ind. Ct. App.2019Background
- Neighbors (the Himsel and Lannon families) sued 4/9 Livestock and individual Himsel farmers for nuisance, negligence, and trespass, alleging severe noxious odors from a CAFO reduced use and property values. Plaintiffs also challenged the Right to Farm Act (RTFA) and the Agricultural Canon as unconstitutional.
- 4/9 Livestock converted family-owned cropland (long used for agriculture since at least 1941) into a hog CAFO in 2013 after rezoning (AGR to AGI), county hearings, and IDEM permits; Plaintiffs did not appeal those administrative decisions.
- The RTFA (I.C. § 32-30-6-9) immunizes established agricultural operations from nuisance suits except for negligent operation or where the operation "would have been a nuisance at the time the agricultural operation began on that locality." A 2005 amendment clarified what does not constitute a "significant change."
- On summary judgment the trial court initially granted judgment for some individual defendants, then (after a motion to correct error and amici briefing) granted summary judgment for all defendants; Plaintiffs appealed.
- The designated evidence showed no IDEM or county violations and no evidence of negligent operation; Plaintiffs alleged physical invasions by odors and economic losses but continued to use their properties.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the RTFA bars Plaintiffs' nuisance claim | RTFA inapplicable because CAFO would have been a nuisance when farming began on the locality | RTFA bars nuisance claims where operation has been continuous >1 year and would not have been a nuisance when farming began | RTFA bars Plaintiffs' nuisance claim; summary judgment for defendants affirmed |
| Whether "negligent siting" or design theory avoids RTFA immunity | Plaintiffs: negligent siting/design is negligent operation exception | Defendants: negligent siting is not negligent operation under RTFA and would eviscerate statutory protection | Court rejects negligent siting theory; no designated evidence of negligent operation |
| Whether RTFA violates Open Courts Clause (Ind. Const. art. I, §12) | RTFA denies access to courts to enforce vested property rights | Defendants/State: legislature may define and limit causes of action; RTFA is a valid substantive change | RTFA does not violate Open Courts Clause; statute presumed constitutional |
| Whether RTFA effects an unconstitutional taking (state and federal) | Loss of property value and enjoyment amounts to regulatory taking | Defendants/State: no physical or total regulatory taking; owners retain substantial uses and value | No taking: Plaintiffs retain substantial use/value; diminution alone insufficient |
Key Cases Cited
- Parker v. Obert’s Legacy Dairy, LLC, 988 N.E.2d 319 (Ind. Ct. App. 2013) (conversion from crops to CAFO not a "significant change" under RTFA)
- TDM Farms, Inc. v. Wilhoite Family Farm, LLC, 969 N.E.2d 97 (Ind. Ct. App. 2012) (RTFA codifies coming-to-the-nuisance principle protecting established agricultural operations)
- Shatto v. McNulty, 509 N.E.2d 897 (Ind. Ct. App. 1987) (toleration of ordinary farm odors in rural communities)
- McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000) (legislature may modify or abrogate common law; Open Courts Clause does not guarantee a particular remedy)
- Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570 (Ind. 2007) (aircraft noise, with substantial diminution in value, did not constitute a taking where owners retained significant uses)
- Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005) (regulatory takings framework and standards)
- Penn Cent. Transp. Co. v. New York City, 438 U.S. 104 (1978) (factors for regulatory takings: economic impact, investment-backed expectations, character of government action)
- Lindsey v. DeGroot, 898 N.E.2d 1251 (Ind. Ct. App. 2009) (negligent operation claims tied to regulatory violations and proximate cause analysis)
- Knighten v. E. Chicago Hous. Auth., 45 N.E.3d 788 (Ind. 2015) (standard of review for summary judgment)