PLEWS SHADLEY RACHER & BRAUN - INDIANA COURT OF APPEALS UPHOLDS THE RIGHT TO FARM ACT
INDIANA COURT OF APPEALS UPHOLDS
THE RIGHT TO FARM ACT
Todd J. Janzen
In 1981, the Indiana legislature passed a “Right to Farm Act,” a law that protects farmers as well as other industries from “nuisance” suits against their operations, provided the operation is in the proper locale and has alleged nuisance began. IND. CODE § 32-30-6-9. Right to Farm Acts have been passed by all fifty states in some form.
In 1987, Indiana’s Right to Farm Act received its first test in Shatto v. McNulty, 509 N.E.2d 897 (Ind. Ct. App. 1987). The Shatto case provided a typical example of the act’s protections—a non-farming rural resident attempted to shut down his neighbor’s hog farm because it smelled like manure. The court of appeals applied the Right to Farm Act, stating: “We must observe that pork production generates odors which cannot be prevented, and so long as the human race consumes pork, someone must tolerate the smell.”
A lot changed in rural Indiana and rural America since the 1987 Shatto case. Today’s rural countryside has even more non-farming residents and today’s farms have become bigger (and some would say smellier) than ever before. Surprisingly, however, the Supreme Court of Iowa—a Midwestern agricultural state— struck down the Iowa Right to Farm Act as unconstitutional in Bormann v. Bd. of Supervisors, 584 N.W.2d 309 (Iowa 1998). The Iowa court held that the Iowa Right to Farm Act created a government “taking” of property without compensation. The Iowan justices reasoned that the Right to Farm Act allows the farmer to fill the air above his neighbor’s property with the smell of manure and other farm odors, thus creating an “easement” that is created without just compensation.
On Jan. 12, 2009, the Indiana Court of Appeals addressed Bormann in Lindsey v. DeGroot, 898N.E.2d 1251 (Ind. Ct. App. 2009). Don and Jacquelyn Lindsey moved to rural Indiana in 1998,purchasing 10 acres of grassland and woods in Huntington County, a prime agricultural area. Neither Don nor Jacquelyn were farmers when they moved into the country and they paid little attention to the small old hog farm approximately one-half mile away. But a few years later, the old hog farm was sold to Johannes DeGroot, who converted it into a modern 1,500 cow dairy farm. After the dairy farm had been in operation for more than 1 year, the Lindseys filed suit alleging “nuisance”—the farm created unpleasant smells, noise, and flies on the Lindseys’ property.
DeGroot asserted the Right to Farm Act as a defense. DeGroot argued that the dairy could not be a legal “nuisance” because it was located in an established rural locale and it had been in operation for more than 1 year at the time the Lindeys filed suit. DeGroot also alleged that his farm was not a nuisance, indeed, the evidence showed that the Lindseys’ rural home had actually increased in value after DeGroot arrived. The trial court granted DeGroot summary judgment.
On appeal, the Lindseys challenged the Indiana Right to Farm Act’s constitutionally, asking the Indiana Court of Appeals to apply the reasoning of Bormann. Citing precedent from Texas, Barrera v. Honda Creek Cattle Co., 132 S.W.3d 544 (Tex. App. 2004), and Idaho, Moon v. North Idaho Farmers Ass’n, 96 P.3d 637 (Idaho 2004), where those state courts had refused to apply Bormann to the Right to Farm Act, the Indiana Court of Appeals refused to apply it to DeGroot’s operations. The court wrote: “We note that like the Idaho and Texas Courts, we have foundnothing to suggest that Indiana has adopted the seemingly unique Iowa holding the right to maintain a
nuisance is an easement.” Indiana’s Right to Farm Act is constitutional and applied to bar the Lindseys’ nuisance claim.
The Lindseys also claimed that their nuisance case fell under the “negligence” exception to the Right to Farm Act. Like many Right to Farm Acts, the Indiana Right to Farm Act does not apply where the nuisance results from the negligence of the operation. The Lindseys asserted that DeGroot had a history of environmental regulatory violations under the Indiana Department of Environmental Management’s confined feeding operation (CFO) rules. Because of these violations, the Lindseys asserted, the Right to Farm Act’s protections did not apply to DeGroot’s operations.
To analyze this question, the Indiana Court of Appeals looked to negligence per se principles. Negligence per se requires a court to examine (1) the purpose of a statute and (2) the class of persons the statute intended to protect, in order to determine whether violation of that statute could be negligence as a matter of law. For example, in Town of Montezuma v. Downs, 685 N.E.2d 108, 112 (Ind. Ct. App. 1997), a pipeline company had failed to follow statutory regulations, resulting in a gas explosion destroying a home. One of the central tenets of Montezuma was that the violation of a statutory duty may be actionable where it was “the proximate cause of the injury.”
Applying these principles and Montezuma to DeGroot’s operations, the court found proximate cause lacking. The Lindseys claimed that an alleged manure spill, occurring a mile downstream from their home, was a statutory violation that interfered with the use of their property. The court held that the statutes allegedly violated, the Indiana Department of Environmental Management’s CFO rules, were for the purpose of protecting of groundwater. The Lindseys designated no evidence that their groundwater had been impacted by this alleged manure spill. In fact, DeGroot designated evidence that two samples from the Lindseys’ groundwater tested negative for any manure-related contamination. There was no link between the alleged environmental regulatory violations and the Lindseys’ nuisance claim.
The court also found that DeGroot’s operations had not devalued the Lindseys’ home. The Lindseys failed to designate any evidence that their home had decreased in value since DeGroot moved in nearby. Mr. Lindsey testified that their home was worth $400,000. This was a substantial increase from the $280,000 appraisal done before DeGroot began its operations.
Finally, the Lindseys argued that DeGroot operated its farm in such a manner as to cause intentional infliction of emotional distress. The court dismissed this argument, stating, “DeGroot Dairy operated a CFO dairy operation largely, if not entirely, compliant with Indiana regulations and a farming operation does not appear to be unlike any other farming operation one might expect to find operating in Indiana.” DeGroot’s farming operations were not atrocious or utterly intolerable. Thus, the Lindseys’ claim that a dairy farm can be operated in such a manner as to cause emotional distress to the farm’s neighbors, failed as a matter of law.
The Indiana Court of Appeal’s ruling means the end of the Lindseys’ “nuisance” suit. More notably, the case puts Indiana in the column of states declining to follow the Iowa Supreme Court’s rejection of its Right to Farm Act in Bormann. Farmers in Indiana and elsewhere can now breathe a little easier, knowing the smell from their hogs, chickens, and cows is less likely to result in a successful nuisance suit against their operations.
Todd J. Janzen is an associate at the law firm of Plews Shadley Racher & Braun LLP, Indianapolis, Indiana. Mr. Janzen served as counsel for DeGroot Dairy, LLC and is the former chair of the Agricultural Law Section of the Indiana State Bar Association.