Unique nuisance case produces unique Right to Farm Act ruling

Indiana’s courts have traditionally been very strong supporters of the Right to Farm Act, a law that shields farms from being sued for creating a “nuisance” because a neighbor dislikes the sights, smells or sounds of the nearby farm.  If you live in the country, you should expect to smell manure once in while.  That’s what the Indiana Court of Appeals stated more eloquently in 1987, when it upheld the Right to Farm Act in a nuisance suit against an Indiana hog farmer:

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. [The Right to Farm Act] addresses that fundamental fact and protects pork production when it is confined to its natural habitat, that is, rural farm communities . . . 

Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind.Ct.App. 1987).

Years later I defended DeGroot Dairy, a 1500 cow dairy CAFO in Huntington, Indiana, against a constitutional challenge to the Right to Farm Act.  Neighbors sued the dairy claiming nuisance.  They asserted the Right to Farm Act was unconstitutional, claiming it amounted to a “taking” of their property without compensation.  The Court of Appeals rejected this argument, once again upholding the Right to Farm Act.  See Lindsey v. DeGroot Dairy, 898 N.E.2d 1252, 1298 (Ind.Ct.App. 2009)

Recently, in TDM Farms v. Wilhoite Family Farm, the Court of Appeals was faced with an unusual nuisance suit involving two hog farmers.  The Wilhoite farm lost a significant portion of its swine herd after a “PRRS” virus outbreak.  After an investigation, Wilhoite sued a nearby farm after it learned the farm had intentionally inoculated its gilts with a strain of the PRRS virus so that they would build up immunity, creating a “gilt acclimation facility.”  Wilhoite’s herd had not been exposed to PRRS previously, but the virus found in the swine was “99% genetically identical” to that found at the nearby TDM Farms gilt acclimation facility.  Wilhoite sued under various counts, including nuisance.

TDM Farms raised the Right to Farm Act as a defense, since it was engaged in farming and the Act was passed to shield farmers from nuisance suits. The Court of Appeals, however, disagreed. Citing the policy statement included in the Right to Farm Act—“The general assembly finds that when nonagricultural land uses extend into agricultural areas, agricultural operations often become the subject of nuisance suits”—the court held:

[The Right to Farm Act] has no applicability to the manner in which two farmers . . . conduct their operations. . . The Act, by its plain terms, was intended to prohibit nonagricultural land uses from being the basis of a nuisance suit against an established agricultural operation.

Because both litigants were “agricultural operations,” the Right to Farm Act did not apply.

The result of this ruling will be interesting to watch. No doubt neighbors that don’t like the sights, sounds, and smells of their farming neighbors will develop evidence that they are “farmers” too.

By Todd Janzen

UPDATE April 30, 2013:   Please read about Parker v. Obert's Legacy Dairy, LLC, a case which significantly limited the holding of TDM Farms v. Wilhoite Family Farms.  My post on this new case is found here:  Parker v. Obert's Legacy Dairy, LLC.