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October 5, 2020   •   News

Huge Win at United States Supreme Court for Indiana’s Farmers and Agricultural Community


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October 5, 2020   •   News

Huge Win at United States Supreme Court for Indiana’s Farmers and Agricultural Community


Defense counsel Chris Braun and Jonathan Emenhiser, partners at Plews Shadley Racher & Braun LLP, announce “a huge win today at the United States Supreme Court for Indiana’s farmers and the entire agricultural community, which allows farmers to modernize their farming operations and change the use of their farmland while being protected from nuisance lawsuits by neighbors who disagree.” The Court rejected an appeal by neighbors complaining about odors from a farm’s hog raising operation and who unsuccessfully asserted numerous constitutional challenges to Indiana’s Right to Farm Act.

Braun Chris No Glasses 8 17 Blue BkndThe 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.  The facility is owned and operated by the Hendricks County, Indiana farming family of defendants Samuel Himsel and his two sons, Cory and Clinton Himsel and supplied with hogs and feed by defendant Co-Alliance, LLP.  At each stage of this protracted and costly litigation the defendants have been successful in defeating all of the plaintiffs’ claims against all defendants at the Hendricks County trial court level, Indiana Court of Appeals, Indiana Supreme Court and, now, the U.S. Supreme Court.

As Indiana’s legislature has declared, the Indiana Right to Farm Act, Indiana Code 32-30-6-9 (“RTFA”), is vitally important to Indiana’s agricultural economy and the protection of farmer’s rights related to livestock agriculture and the use of their farmland. As the Indiana Court of Appeals held in this case, the RTFA declares that it is the State’s policy “to conserve, protect, and encourage the development and improvement of its agricultural land for the production of food and other agricultural products” and finds that “when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” which discourage “investments in farm improvements.” Indiana Code § 32‑30‑6‑9(b). The purpose of the law is “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.”

The U.S. Supreme Court’s decision comes after Indiana’s Court of Appeals had previously determined the RTFA to be constitutional – a decision the Indiana Supreme Court upheld when it denied the Plaintiffs’ petition to transfer.  Today the U.S. Supreme Court similarly refused to accept any of the neighbors’ constitutional challenges to Indiana’s RTFA.

The U.S. Supreme Court’s denial of Plaintiffs petition comes almost exactly five years after the plaintiffs filed their lawsuit in Hendricks County against 4/9 Livestock, Sam, Cory and Clint Himsel and Co-Alliance, LLP.  After receiving news of the Supreme Court’s decision defendant Sam Himsel stated:

 “We are extremely pleased that the U.S. Supreme Court brought the plaintiffs’ claims and lawsuit against us to a close.  The Supreme Court’s refusal to change the Indiana courts’ prior decisions ruling in our favor and upholding Indiana’s Right to Farm Act is fantastic news for all farmers and livestock producers in Indiana. Our family takes great pride in following all of the rules and regulations required to safely, efficiently and economically operate our farm and provide food necessary to feed America.  That is why we were so upset and frustrated by the Plaintiffs’ claims and allegations over the years trying to shut down our family’s hog-raising operation and threaten our livelihood. We want to thank our excellent attorneys Chris Braun and Jonathan Emenhiser at Plews Shadley Racher & Braun for their dedication, expertise and unwavering support as we dealt with the burdens, stresses and expenses arising from this lawsuit. We are thankful that justice has prevailed in our favor at every court level.”

Kevin Still, President and CEO of defendant Co-Alliance LLP, had the following to say after learning of the Supreme Court’s decision:

“Co-Alliance, LLP is very pleased to see justice served as the United States Supreme Court has rejected the plaintiffs’ constitutional challenges and request to reverse the long line of Indiana court decisions upholding the Indiana Right to Farm Act. Given the tremendous importance of agriculture to Indiana’s economy, the decision by each of these courts to uphold Indiana’s Right to Farm Act is critically important to both the rights of Indiana farmers and the entire agricultural community in Indiana.

We are very appreciative of the hard work and excellent advocacy by our attorneys and the thoughtful and well-reasoned decisions by the courts.  It is extremely unfortunate that outstanding second and third generation farmers like Sam, Cory and Clint Himsel could be subjected to such stressful, time-consuming and expensive litigation over the past five years when they followed all of the rules and regulations required of them in designing, building and operating their hog-raising farm operation. It is Co-Alliance’s firm hope that the decisions by the courts in this case, including the latest decision by the U.S. Supreme Court, send a clear message of support by Co-Alliance to Indiana’s entire agricultural community that it will partner with farmers to defeat meritless lawsuits like this one.”

Plaintiffs’ Claims for Personal Injury and Property Damage Were Defeated

The Plaintiffs, who live near 4/9 Livestock’s hog farm, claimed that they suffered personal injury and property damages without compensation because unpleasant farm odors would periodically migrate from the farm and travel across the Plaintiffs’ properties. The Defendants proved that the Plaintiffs could not identify and had no basis to pursue any claims for personal injury, medical claims or bodily injury even though their Complaint alleged those claims.

Emenhiser Jonathan 8 17 Blue BkndDespite Plaintiffs’ allegations that their homes were uninhabitable and that they suffered diminution in property value due to the Defendants’ construction and operation of a concentrated animal feeding operation (“CAFO”), the Defendants defeated these claims as well. The Defendants proved that the assessed value of the Plaintiffs’ homes actually increased after the CAFO was built and that a home located close to the CAFO sold during the litigation in less than 30 days and for $5,000 more than the asking price.

The Defendants further demonstrated that the Plaintiffs failed to identify any acts or omissions by Co-Alliance giving rise to vicarious liability for the hog farm operation.  Nor did the Plaintiffs identify any basis to pierce the corporate veil of 4/9 Livestock to pursue claims against the Himsel Defendants in their individual capacities. Thus, the Defendants prevailed on summary judgment on all claims against all Defendants.

The Plaintiffs wholly failed to identify any specific examples of negligent or unreasonable acts, omissions, conduct, practices, or methods utilized by any Defendant in the operation of the 4/9 Livestock farm which would give rise to the alleged nuisance that would have removed the RTFA protections against nuisance claims. The Plaintiffs’ unsupported claims and arguments were not accepted by any of the courts.

Plaintiffs’ Claim That the RTFA Provided Complete Immunity to Farmers in violation of the Indiana and United States Constitutions Was Correctly Rejected by the Courts

During the litigation the Plaintiffs’ asserted numerous constitutional challenges to the RTFA, including claims that the Act violated the Indiana and/or U.S. Constitutions by: (a) providing certain privileges and protections only to farmers over their non-farming neighbors in violation of the Privileges and Immunities Clause of the Indiana Constitution; (b) precluding the assertion of certain claims contrary to the Open Courts clause of the Indiana Constitution; and (c) violating the Takings Clause of the Fifth Amendment.  The trial court, the Indiana Court of Appeals and the Indiana Supreme Court each considered and rejected the Plaintiffs’ various constitutional challenges to the RTFA.

Most recently the Plaintiffs argued that the U.S. Supreme Court should grant certiorari on the grounds that the RTFA violated the Takings Clause of the Fifth Amendment of the United States’ Constitution which provides that no “private property [shall] be taken for public use, without just compensation.” The Plaintiffs argued that the Supreme Court should have taken the case because the RTFA allegedly violated the Takings Clause by providing the Defendants with complete immunity from nuisance and trespass claims and that there was a conflict among lower courts regarding various states’ right to farm statutes. The Defendants pointed out that Indiana’s RTFA does not provide complete immunity from nuisance or trespass liability. Nor is there a conflict among various States and lower courts regarding right to farm statutes across the U.S.  The Supreme Court’s denial of Plaintiffs’ petition represents the latest, and final, court to reject Plaintiffs’ arguments.

The U.S. Supreme Court’s refusal to accept certiorari was not a surprise to lead defense counsel Chris Braun who noted that “While the Constitution prohibits takings by government entities without just compensation, the Plaintiffs named as defendants—and sought relief against—only private parties. The Plaintiffs did not seek relief from the State.  Additionally, the Plaintiffs were vague about the specific acts they claimed constituted a taking of their properties. They focused on the location, construction and operation of the hog barns, but those are purely private activities. They also referenced the Indiana legislature’s 2005 amendment of the Indiana RTFA, but that occurred long before the Defendants’ hog-raising operation came into existence in 2013. Finally, as the Indiana Court of Appeals noted, the Plaintiffs were not deprived of all the value of their properties.”

Braun further stated that “This case did not implicate any legal issue warranting the Supreme Court’s attention as there was no conflict among the lower courts, and there was nothing to warrant the Supreme Court’s review of the fact-bound conclusion by multiple Indiana Courts that the Plaintiffs had failed to establish a proper Constitutional takings claim.”  Braun concluded by stating  “We are extremely pleased for not only our clients, but also for all Indiana farmers, that the Supreme Court’s refusal to grant certiorari leaves intact the favorable decisions by the Indiana trial court, Court of Appeals and Indiana Supreme Court in favor of the Defendants in upholding Indiana’s Right to Farm Act.”

The Defendants’ Judicial Successes At Each Level in Defeating The Plaintiffs’ Claims and Challenges to the RTFA

On February 9, 2018, the Hendricks County Superior Court agreed with the Defendants assertions that they had fully complied with the law and the plaintiffs had failed to produce any evidence of any negligence by any of the Defendants in the operation of the farming facility. As the Court noted, since 4/9 Livestock began its operations in October 2013 it has never received a citation or notice of violation from either the Indiana Department of Environmental Management or Hendricks County.  As a result, the trial court granted the Defendants’ motion for summary judgment dismissing all of the plaintiffs’ claims against all of the Defendants.

On April 22, 2019, the Indiana Court of Appeals upheld the Hendricks County Superior Court’s decision. The Court of Appeals recognized that the RTFA is designed 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 Court of Appeals’ decision continued a long, consistent line of judicial decisions upholding the Indiana Legislature’s enactment of the RTFA.

In its thorough opinion the Indiana Court of Appeals noted that the Plaintiffs’ properties are located in rural Indiana near land that has long been farmed and zoned for agricultural uses.  The area surrounding the 4/9 Livestock farm and the Plaintiffs’ properties has been dominated by agricultural uses for decades.  As the Court of Appeals explained, “[a]gricultural uses have dominated in the area surrounding the Farm [Site] and [Petitioners’] properties. In addition to row crops, those uses have included raising livestock such as cattle, hogs, chicken, goats, and sheep.”

The Court of Appeals also recognized that considerable due process had been afforded the plaintiffs at the local and state levels noting “the significant local and administrative hurdles a farmer must overcome before being allowed to build a CAFO.” The Plaintiffs “were provided ample due process to challenge the size and/or placement of the CAFO buildings on the Farm [Site], yet they decided instead to wait and file a nuisance action more than two years later.” “In light of the RTFA, they put their eggs in the wrong basket. Their general nuisance claim fails as a matter of law.”

The Indiana Court of Appeals held that the Plaintiffs’ nuisance claims were precluded by the RTFA, that their trespass claims should be treated as nuisance claims as a matter of state law because they were simply a repackaged version of the nuisance claims.  The Court also held that the “designated evidence provides no indication that the CAFO has been negligently operated by 4/9 Livestock or has violated IDEM regulations.” Finally, the Court of Appeals determined that the application of the RFTA did not effect a regulatory taking of Plaintiffs’ property.

On February 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the Plaintiffs’ petition for transfer.

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