A local environmental group believes that Indiana’s Right to Farm Act violates the federal constitution, and they are asking the U.S. Supreme Court to weigh in.

The Hoosier Environmental Council has teamed up with a Harvard Law School Clinic and together they filed a petition with the nation’s highest court on July 17 asking it to review the case. This petition comes nearly 5 years after this case first began in an Indiana trial court, and roughly 7 years after an 8,000-hog factory farm moved in next to two Hendricks County couples and allegedly began causing harm.

The issue at hand: Whether Indiana’s Right to Farm statute provides complete immunity for nuisance and trespass liability to factory farms, 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.

“What we have here is a law that doesn’t make sense; it’s crazy,” said Kim Ferraro, senior staff attorney for HEC and the plaintiff’s counsel. “I maintain a very strong belief that the law and facts are on our side and our clients’ side, and that the lower courts got it wrong.”

The counsel for the defendants, the owners and operators of the concentrated animal feeding operation or CAFO, said they are still reviewing the petition and evaluating their options.

“The Plaintiffs’ needless filing of the petition places an undue burden on our judicial system and the Defendants,” said Chris Braun of Indianapolis-firm Plews Shadley Racher & Braun.

“Despite fully complying with the law in properly operating the farm facility, and winning on all counts in three different Indiana courts,” he added, “the Defendants find themselves being forced to continue spending considerable time and expense defending themselves against the Plaintiffs’ unsupported claims.”

Born there, retired there

Richard Himsel, 79, was born and raised in the Danville house where he now lives with his wife, Janet. All growing up, his house was surrounded by crop land and the occasional traditional livestock farm.

It’s the same house in which they began and planned to live out their retirement.

But in 2013, two barns housing thousands of hogs began operating just about a quarter mile from the edge of his property and his home. And underneath them are the large tanks that hold thousands of gallons of waste the animals produce.

The odors that waft from the barns often make being at the house unbearable, according to Richard Himsel. The emissions sting his eyes and throat. His wife regularly doesn’t stay at the house, he said, based on her doctor’s recommendation. His children and grandchildren don’t like to visit the house.

But he couldn’t sell his house even if he wanted, Himsel said. An appraisal found that the property value of his home has dropped by nearly 60%. No one wants to move next to a factory farm, he said.

The Lannons are facing similar issues. Robert and Susan Lannon bought their land, just a quarter mile from the Himsels and half mile from the hog concentrated animal feeding operation, or CAFO, in 1971 and similarly planned to retire there. Their property value has dropped by nearly 50%, according to the appraisal.

Together the Himsels and Lannons filed a lawsuit in 2015 against the CAFO farmers. The defendants include Samual, Cory and Clinton Himsel — Richard’s cousin and two nephews — their company 4/9 Livestock, LLC, and Co-Alliance, a large agriculture supply company.

That first lawsuit alleged that the CAFO diminished their quality of life and reduced their property values. In other words, it constitutes a nuisance and a trespass, Ferraro claims. But the law has left them no remedy or recourse, she added.

No remedy or recourse

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.

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.

“In other words, no matter how large, damaging, or odious the transformed operation may be, injured landowners who were there first no longer have any nuisance remedy,” the petition reads.

Prior to starting the CAFO, the land did undergo a change: In 2013 it was rezoned from “agriculture residential” to ”agriculture intense.” And prior to the 2005 amendment, Katherine Meyer feels confident that this change would have been grounds for nuisance claims under the law.

“It would have been cut and dry because they were there first and then the nuisance came in,” said Meyer, the executive director of Harvard’s Animal Law & Policy Clinic that worked on the petition with Ferraro. “Now they can’t sue for damages and they can’t get the value out of their house. It just doesn’t seem fair, let alone the legal and constitutional issues.”

This case has 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 the 2005 amendment bars all of the Himsel’s and Lannons’ claims because the switch from crops to a CAFO no longer constitutes a “significant change.”

In the Appeals Court’s decision, it 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.”

“Even articulating that is mind-boggling because how do you come to a future nuisance?” Meyer said. “Even the words don’t make sense. You can’t come to something that doesn’t exist yet.”

Ferraro then petitioned to have this case transferred to the Indiana Supreme Court. Following oral arguments, the court denied the transfer — the equivalent of accepting the case — in a split 3-2 decision. That allowed 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. Michelle Pemberton/IndyStar

“The Plaintiffs and their counsel refuse to accept the sound, well-reasoned decisions of an Indiana trial court, the Indiana Court of Appeals and the Indiana Supreme Court that have each considered and rejected the Plaintiffs’ unsupported claims,” Braun said to IndyStar.

But Ferraro took the state Supreme Court decision differently.

“The split decision told us we presented a meritorious case,” she said. “It didn’t signal to me that we got things wrong, signaled to me that there is a larger issue here.”

Role of the U.S. Supreme Court

Because the state Supreme Court did not grant transfer, that solidified the Appeals Court decision in how the law is to be interpreted. That no longer is up for debate, Ferraro said, as it was in the lower courts.

The question now, she said, is if the law — interpreted in the way that no longer allows for significant changes and removes any remedy for those changes — is a violation of the federal constitution.

Ferraro, her clients and the Harvard Clinic believe it is.

Any property owner has the right to reasonably use and enjoy one’s land, Stawasz said.

“The takings clause in the Federal Constitution says that if the government takes that away, it needs to pay you for that or it shouldn’t do that,” he said. “Seems in that sense a pretty clear violation of the Constitution not to compensate those homeowners at the very least.”

The petition filed with the U.S. Supreme Court is less about the merits of the case and more about why the highest court should take it on. Ferraro believes it is worthy of review because Indiana’s law now stands in stark contrast to Supreme Court jurisprudence or precedent on the Takings Clause, she said.

But beyond Indiana, these types of amendments are a growing trend among states, Ferraro added. There is divergent treatment on this issue across states and whether nuisance or trespass authorized by the government is a taking.

“The Court needs to provide some clarity to ensure that more people’s property isn’t unjustly taken,” she said.

Richard Himsel notes that many of the farms adjacent to his property are all family. He lives on the farm his family has had since 1940 in Danville, In. Himsel has filed a lawsuit challenging the constitutionality of Indiana’s Right to Farm laws. He says the presence of the industrial-sized hog farm adjacent to his property, 1,600 yards from his home, has diminished the quality of his life. Due to the odor, his wife no longer lives on the property. Doug McSchooler/For The Star

The Court is asked to review more than 7,000 cases each year, and it usually accepts only about 100 to 150, according to the Supreme Court procedures.

Ferraro and Meyer know it is a long shot, but they said it is a shot worth taking. And one they feel is important to protect the rights of rural residents not just in Indiana but across the country.

Braun said that neither the petition nor this case “appears to qualify as a viable candidate for the Supreme Court.” He added: “Consequently, we anticipate that the Plaintiffs and their counsel will lose, again, for the fourth time in this unnecessary and protracted lawsuit.”

The Supreme Court is in recess until October, and a decision on whether the case will be accepted likely will not come until the fall.