Parker v. Obert's Legacy Dairy: Court Affirms Right to Farm Act

A few years ago, the Obert family decided that in order for their dairy farm to continue on to the next generation, it would need to expand.  The family consulted with experts in the industry and ultimately decided to build a new, modern milking parlor and  new freestall barn.  The location selected for the new barns was on a 67 acre tract of ground adjacent to their historical farmstead, where the Oberts have farmed since the early 1800s when their ancestors immigrated from Bavaria, Germany, to Gibson County, Indiana. Unfortunately, following the expansion, a neighbor sued the farm for "nuisance," claiming that although he was  fine living next to the old 100 cow dairy, he was not fine with living next to the new 760 cow dairy.

I was lead counsel for the Obert family.  We asserted the Right to Farm Act as a defense.  The Right to Farm Act is a statute that bars nuisance suits against farms that have been in operation for more than one year at the time the nuisance suit is commenced.  On April 30, 2012, the  Indiana Court of Appeals ruled that the Right to Farm Act protected the Obert's dairy farm from the neighbor's nuisance suit.  As lawyer and friend of the Obert family, this was great day.

The ruling has some important holdings.  First, the ruling establishes that "expansion" of a farm does make the resulting farm "different" under the Right to Farm Act.  If the old, historical farm was protected under the Act, the new, expanded farm should also be protected.  The court noted that both the old farm and expansion farm were covered by the same CAFO permit and function as one farm.

Second, the case establishes that a farmer can switch from one type of agriculture to another without losing the protections of the Right to Farm Act.  In the Obert's case, the neighbor argued that the conversion of a corn field into a dairy farm was a "significant change" in the type of farming, such that Right to Farm Act should not apply during the expansion farm's first year of operation.  The court disagreed, and citing statute, stated that farmers are allowed to change the type of farming on a parcel of land without losing the Right to Farm Act's protections.

Finally, in a previous ruling, the Court of Appeals had suggested that the Right to Farm Act might not apply if one farmer sued another farmer for nuisance. (Read prior post: Unique nuisance case produces [hopefully] unique ruling).  The court clarified that prior ruling and explained that the Right to Farm Act applies to a farmer's nuisance suit against a neighboring farmer if their claim is really about "odor" and "devaluation of property values."

To read the entire opinion, click here:  Parker v. Obert's Legacy Dairy LLC

By Todd Janzen