News/Pubs/Events

Indiana Court of Appeals Upholds Right to Farm Act in CAFO Case

On April 22, 2019, the Court of Appeals of Indiana affirmed a trial court’s decision upholding Indiana’s Right to Farm Act (RTFA).  While the plaintiffs are likely to seek transfer to the Indiana Supreme Court, the important takeaways from the recent decision are as follows:

1) The Court of Appeals upheld the applicability of the RTFA to the plaintiffs’ nuisance claim;

2) The judges rejected the plaintiffs’ efforts to “re-package” their nuisance claim as one for negligence or trespass; and,

3) The Court of Appeals of Indiana upheld the constitutionality of the RTFA.      

Bose McKinney & Evans LLP attorneys Dan McInerny and Andrew McNeil represented The Indiana Pork Producers Association on an amicus brief in this appeal involving a hog concentrated animal feeding operation (CAFO) in Hendricks County, Indiana. Other entities also weighed in on the case, including The State of Indiana, Hendricks County, Indiana Bankers Association and Indiana Agricultural Law Foundation, Inc. 

InJanet L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC and Co-Alliance, LLP and State of Indiana, the plaintiffs alleged that the hog CAFO added to 4/9 Livestock’s property in 2013 created nuisance conditions. The plaintiffs also challenged the constitutionality of Ind. Code § 32 -30 -6-9, also known as the RTFA, and Ind. Code § 15 -11 -2-6(a), which requires the Indiana Code to 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.”  The judges upheld the applicability of the RTFA, which limits the circumstances under which agricultural operations may be subject to nuisance claims, to the plaintiffs’ claims.

The plaintiffs also couched their nuisance claims in terms of negligence and trespass, but the Court ruled those claims also were barred. 

Finally, the Court of Appeals upheld the constitutionality of the RTFA under the Open Court Clause, the Takings Clause, and the Equal Privileges and Immunity Clause of the Indiana Constitution, and under the federal Takings Clause.

For more information on this case and how it may impact your business, please contact Dan McInerny or any member of the Bose McKinney & Evans Agribusiness Group