By STAN MADDUX

Indiana Correspondent

INDIANAPOLIS, Ind. — A denied appeal over provisions of Indiana’s Right to Farm Act has moved to the state’s highest court.

The Indiana Farmers Union, Family Farm Action, Public Justice, and Food & Water Watch are asking the Indiana Supreme Court to hear the case of Richard and Janet Himsel and Robert and Susan Lannon, reluctant neighbors of 8,000 pigs.

Arguments for taking up the case were filed with the court on August 12, said Kim Ferraro, senior legal counsel with the Hoosier Environmental Council, representing the Himsels and Lannons in the case.

In April, the Indiana Court of Appeals ruled against the Hendricks County residents in their bid to shut down a concentrated animal feeding operation (CAFO) near their homes. The Himsels and Lannons argued they were victims of trespass and intrusion of “extreme noxious odors” from an operation that came in generations after they started residing in the area.

The appellate judges acknowledged that the hog operation established in 2013 was new to the area. However, they ruled the CAFO land, previously used for raising crops, has consistently been in agriculture production since at least 1941 – before the Himsels established residency in 1994 and the Lannons, in 1974.

The judges also mentioned the area is no stranger to livestock production and neither is Richard Himsel, who grew up on a farm once home to as many as 400 head of hogs and cattle before he sold much of the productive land around his home and retired in 2000.

“Agricultural uses have dominated the landscape surrounding the plaintiffs’ properties, with a number of farmers in the area owning or having owned livestock,” the judges stated in their formal ruling.

While the Lannons have never farmed their property, the judges ruled they are “accustomed to the usual smells from living in farm country.” They pointed out, though, that the CAFO would not be protected under Right to Farm, had it not been for a 2005 change in the state statute.

The amendment defined the switch from crops to livestock as not a significant change in land use, allowing farm animals to be “grandfathered” in. Ferraro believes the appellate court was not correct in its interpretation of the entire act.

She said the Himsel residence has been in the husband’s family since 1926. Therefore, she said the defendants must show a CAFO at that point in time would not have had a negative impact on neighbors. She also said the number of hogs once raised by Himsel pale in comparison to the scale of a CAFO.

“Traditional hog farming, where you have a couple of hundred hogs on your property, is very different from an 8,000-hog CAFO, both in terms of environmental impact and the impact on neighbors’ use and enjoyment of their properties,” Ferraro explained.

The defendants include 4/9 Livestock LLC, the owner of the CAFO, and Co-Alliance, a large agriculture supply company. They have 20 days to file written arguments on why the Indiana Supreme Court should not hear the challenge.

The defendants are supported in the case by the Indiana Agricultural Law Foundation. IALF Director John Shoup said a request by the plaintiffs for the appellate court to reconsider the case was denied on July 12.

“The Indiana Right to Farm Law has been well-litigated. It’s clear and the prior decisions of our court of appeals have been consistent in its application,” he said.

IALF, an extension of Indiana Farm Bureau, works heavily on educating farmers and stakeholders and gets involved in significant precedent-setting legal cases working their way through the system, he said.

In a joint statement, the groups petitioning the high court said the appellate ruling strips independent farmers and rural residents of any defenses against CAFOs.

“These are not farms. These are industrial facilities that produce huge profits that often go out of state and into the pockets of multinational agribusiness monopolies. Meanwhile, Indiana’s farmers and rural communities are left holding the bag in the form of polluted air and water,” the organizations stated.

Shoup disagreed that there is no legal recourse now against CAFOs, and said the CAFO in this case is well-run and a great example of the legislature’s intent behind right-to-farm in the state. “I think our right to farm law contemplates the ability for a farm to adapt to modern circumstances and with modern technology to produce pork in an efficient, cost-effective way.”

He said there might be some divide in agriculture over factory farms but he hasn’t seen it. He also said there are options in farming, or any other business.

“There’s room for all types of production. It’s about meeting consumer demand. If you find a market for your product that’s produced in a certain way, that’s fine. That’s fine,” Shoup added.

Jackie Filson, a spokesperson for the Washington, D.C.-based Food & Water Watch, said her not-for-profit group is involved in the case because one of its major focuses is fighting global warming. She said climate change is one of the biggest threats to healthy food and water, and methane released from the digestive systems of livestock is among the ways CAFOs contribute to greenhouse gases in the atmosphere.

“All of these issues are super intertwined, so that’s why we work on a whole slew of them,” Filson said.