Right-to farm win after a long and costly battle

By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina

Right-To-Farm (RTF) laws deny nuisance lawsuits against farmers who use accepted and standard farming practices and have been in prior operation, even if these practices harm or bother adjacent property owners or the general public. On Oct. 5, 2020, the U.S. Supreme Court denied the plaintiffs’ petition for certiorari in Himsel v. Himsel. The Indiana Court of Appeals ruling that the plaintiffs’ nuisance and trespass claims are barred by the RTF laws stands as the final decision.

            Samuel Himsel has farmed in rural Hendricks County, Indiana his entire life. His sons, Cory and Clinton, also make their living farming in the county. In 2012, the three decided to start a hog-raising operation at 3042 North 425 West in Danville. This property had been in their family for more than two decades. Samuel’s parents acquired this farmland in the early 1990s, and the land had been used for agricultural purposes since at least 1941. From 1994 until 2013, this ground had been used consistently for crops.

            In February 2013, Samuel submitted a rezoning petition to the Hendricks County Area Plan Commission to rezone 58.42 acres of farmland. The land was zoned agricultural residential (AGR), and Samuel petitioned for it to be rezoned agricultural intense (AGI) which allows for CAFOs. Following a public hearing on March 12, 2013, at which Richard Himsel (a neighbor and a cousin of Samuel Himsel) spoke in opposition to the rezoning, the Plan Commission unanimously recommended approval of the requested rezoning.

            On March 28, 2013, the County Commissioners unanimously approved the rezoning and adopted the Plan Commission’s findings. The Plaintiffs did not appeal the rezoning decision. Before improvement location permits were granted, the Plan Commission held two public hearings regarding the siting, design and construction plans for the farm’s CAFO, which included the construction of two 4000-hog production buildings. In May 2013, the Indiana Department of Environmental Management approved two permits to construct and operate the CAFO buildings. The Plaintiffs did not appeal IDEM’s permit approvals.

            The Plaintiffs live in the immediate vicinity of the CAFO. Richard and Janet Himsel moved into their home in 1994. Their residence is on a farm where they raised livestock and grew crops until 2000, when they retired and sold much of their farmland. Richard grew up on this farm, and the farmhouse has stood since 1926, Robert Lannon built his home in 1971 and married his wife, Susan, in 1974. They have never farmed on their property but are accustomed to the usual smells that come with living in farm country, having lived there for over 40 years.

            On Oct. 6, 2015, the Plaintiffs filed a lawsuit, raising claims of nuisance, negligence and trespass and asserting the RTF law was unconstitutional. Samuel Himsel and his sons answered, raising the RTF defense and moved for summary judgment.

            In 2018, the trial court granted Samuel’s motion for summary judgment on all claims. The neighbors appealed this decision.

            On April 22, 2019, the Indiana Court of Appeals held that the Plaintiffs’ nuisance, negligence and trespass claims are barred by the RTF law. Further, the Court held that the Plaintiff’s various claims that the RTF law is unconstitutional are unavailing. The trial court properly granted summary judgment in favor of the Defendants on all claims.

            In their decision, the Indiana Court of Appeals discusses the land in question. Crops were grown on the property during the period of 1994 through 2013, although the property had been farmland since 1941. So long as the use was agricultural, the type of agriculture didn’t matter. The RTF law protected the agricultural activities on the property as they were conducted using accepted practices.

            The Plaintiffs argued that their property values had diminished due to the CAFO. Again, so long as the requirements for the RTF law were met, the Court was not concerned by this allegation. The decision specifically mentions that the Plaintiffs were all long-time rural residents who were familiar with the sounds, sights and smells of agriculture.

            The Indiana Court of Appeals was also not persuaded by any arguments that the RTF law was unconstitutional.

            The Court, however, specifically discussed the CAFO process and the significant local and administrative hurdles a farmer must overcome before being allowed to build a CAFO. The Court mentions that the Plaintiffs never participated in this process nor filed any appeals.

            The Plaintiffs requested transfer to the Indiana Supreme Court. This was denied on Feb. 21, 2020. The Justices voted 3-2 to deny transfer, which means the Indiana Supreme Court will not issue a substantive opinion in the matter. It leaves the Court of Appeals’ favorable decision and the years of precedent that came before it in place.

            On July 17, 2020, the Plaintiffs sought relief from the U.S. Supreme Court. The Hoosier Environmental Council and a Harvard Law Clinic filed a petition asking the U.S. Supreme Court to review the case. On October 5, 2020, the Supreme Court denied the petition.

            Five years and four courts later, the Indiana RTF law stands and Samuel, Cory and Clinton Himsel raise hogs.

Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.