INDIANAPOLIS, Ind. – What do you do when you don’t like the ruling handed to you by the Hendricks County Superior Court, the Indiana Court of Appeals and the Indiana Supreme Court?

Nothing left to do but take your case to the U.S. Supreme Court. That’s what a local environmental group plans to do, believing that Indiana’s Right to Farm Act violates the federal constitution.

The Hoosier Environmental Council (along with a Harvard Law School Clinic) filed July 17 with the U.S. Supreme Court, asking it to review the case involving an 8,000-hog farm that moved adjacent to two Hendricks County families seven years ago and allegedly began causing harm.

Of concern to the plaintiffs is whether Indiana’s Right to Farm statute provided 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.

Indiana’s Right to Farm Act (RTFA) was designed, in part, to protect Indiana farmers who are providing an essential and desired service to society (the production of food) from the costs associated with nuisance lawsuits if certain conditions are met.

“What we have here is a law that doesn’t make sense,” said Kim Ferraro, senior staff attorney for the Hoosier Environmental Council (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.”

On Feb. 9, 2018, the Hendricks County Superior Court agreed with the defendants’ assertions that they had fully complied with the law and there was no evidence of any negligence. On April 22, 2019, the Indiana Court of Appeals upheld the Superior Court’s decision reaffirming the protections afforded Indiana farmers under the RTFA. On Feb. 20, 2020, the Indiana Supreme Court voted to uphold the Court of Appeals opinion and denied the plaintiffs’ petition for transfer.

On the flip side of this heated issue, Chris Braun, of the Indianapolis firm Plews Shadley Racher & Braun, said “enough is enough.”

“Our clients have spent five-plus years in litigation and we’ve won at every level,” Braun said. “There is no merit for this case to be filed. The Right to Farm Act has a negligence exception, which the plaintiffs conveniently omitted from their petition. If the farmer is a bad actor and fails to do things by the book then he doesn’t get the protection from the RTFA. But in this case our farmers did everything by the book and the plaintiffs complained that they don’t have any remedies or recourse, and that’s just not true.”

Braun said the plaintiffs had numerous opportunities to voice their concerns as there were a half dozen public hearings and could have appealed if they didn’t like the rezoning, the construction plans, the setback requirements or even the landscaping. “When our clients applied for the permits to construct and operate the farm there was no appeal,” Braun said. ‘We sent letters to neighboring property owners, giving them the chance to appeal. There was nothing.”

Amid the center of all this litigation is Richard Himsel, 79, who was born and raised in the Danville house that now stands a quarter mile from the hog concentrated animal feeding operation (CAFO). The CAFO was erected in 2013.

Himsel has complained of stinging eyes and throat, while his wife stays away from the house based on her doctor’s recommendation.

“Burning eyes? They dismissed their own personal injury claim because they had no support for it,” Braun said. “We asked to see their medical records and to see the expenses they incurred due to bodily injuries, but there was nothing.”

Plaintiffs also include Robert and Susan Lannon, who reside a mile from the CAFO. Both families are also upset that their property values have plummeted by nearly 50 percent, according to appraisals. The families filed a lawsuit in 2015 against the CAFO farmers, claiming a diminished quality of life and reduced property values.

Right-to-farm laws started to grow in prominence around the nation in the 1970s and 1980s; 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.

That protection disappeared, however, if there was a significant change on the farm, such as to its size, hours of operation or technology used. In those situations, a neighbor could file a nuisance claim.

The U.S. Supreme Court is asked to review more than 7,000 cases each year, and it usually accepts roughly 100 to 150. Ferraro and her staff know it’s a long shot, but feel it’s important to protect the rights of rural residents, not just in Indiana but across the country.

Braun and his firm continue to say, “enough is enough.”

“Look, if these guys can get dragged through the mud with five years of litigation, where they did absolutely nothing wrong, what’s to stop the next farmers from being harassed? 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.