Plaintiffs In CAFO, Right To Farm Lawsuit Want A Rehearing

May 24, 2019

Two Hendricks County couples are petitioning the Indiana Court of Appeals to rehear their case against a neighboring farm with 8,000 hogs. They say the smell from the confined animal feeding operation or CAFO is making it difficult for them to eat or sleep. 

In April, the court said Indiana’s Right to Farm Act prevents the couple from bringing a nuisance suit. The land that now has the CAFO was farmed before the plaintiffs turned their property from farmland to residential. 

But the couples’ attorney, Kim Ferraro with the Hoosier Environmental Council, says the court didn’t interpret the act correctly. For example, she says the Right to Farm Act doesn’t apply to negligence.

“They knew or should have known that putting this CAFO within a quarter mile and upwind of the plaintiffs would have predictably caused the harm that it’s causing,” Ferraro says.

READ MORE: Bill Regulating CFOs Voted Down In Committee

But Todd Janzen, whose law firm filed a brief in the case on behalf of the Indiana Agricultural Law Foundation, says he thinks the court was right.

“It viewed the negligence and the trespass claims that the petitioners had brought as really just another attempt to repackage the nuisance suit into different causes of action,” he says. 

Janzen says it’s rare for the courts to grant a petition for a rehearing. Ferraro says letting the court’s decision stand would prevent rural Hoosiers from bringing nuisance suits against CAFOs.

Several groups also filed amicus briefs in the case — including Public Justice, Food & Water Watch, Family Farm Action, Indiana Farmers Union, Humane Society of the United States, as well as a national group of law professors. 

CLARIFICATION: The original story said the farm that now is home to a confined animal feeding operation was there before the plaintiffs moved in. In fact, the plaintiffs were on their property before the CAFO was there, but were farming at the time. The plaintiffs' property later went from farmland to residential use. 

Indiana Environmental reporting is supported by the Environmental Resilience Institute, an Indiana University Grand Challenge project developing Indiana-specific projections and informed responses to problems of environmental change.