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Another CAFO legal attack

Numerous plaintiffs take a different approach to stop a big livestock farm

Lawyers continue to target concentrated animal feeding operations (CAFOs) in Indiana. It is reported that livestock agriculture contributes more than $2.5 billion in cash to the Indiana economy each year.

Trial lawyers in Indiana have brought multiple lawsuits challenging Indiana’s CAFO rules.  Their lawsuits have not been successful.

Robert F. Kennedy, Jr., President of the Waterkeeper Alliance, claims CAFOs are “a tremendous insult to the environment and to the neighbors.”

On November 6, 2014, a new legal action was filed in Indiana’s Jackson County. The case involving numerous plaintiffs is filed not only against the CAFO, but the Jackson County Zoning Board of Appeals and its members. The complaint requests that a court disapprove the application of Kyle Broshears, to construct a new CAFO. Generally, complaints are filed once the CAFO is operating.

Recent cases challenging CAFO operations in Indiana made claims under Indiana nuisance law and claimed  CAFO operations were nuisances because they generate harmful odors, mismanage millions of gallons of manure, mismanage odor, generate highly aggressive flies; some complaints even state that neighbors suffer skin irritations, nausea, headaches, breathing difficulties, sinus infections, stress, burning eyes and noses.

Discovery in these cases has generally discredited these claims.

A different course

In Jackson County, plaintiffs’ attorney takes a different course of action. The November complaint attacks the decision of the Jackson County Board of Zoning Appeals for approving a special exception to Mr. Broshears and his operation. Plaintiffs ask that the court reverse the Board of Zoning Appeals and annul its prior decision approving the CAFO operation. Further, the plaintiffs want a finding that they have been prejudiced by the granting of the CAFO application and void any permits that might have already been granted.

Plaintiffs presumably are aware of the Lindsey v DeGroot Dairy, LLC case, where the constitutionality of the Right to Farm Act was upheld and also established that certain violations were not negligence as a matter of law.

Again, in 2013, the U.S. Court of Appeals 7th Circuit held that plaintiffs had no case against Country View Family Farms, LLC by saying that even though nonfarming neighbors had arrived in the general area before the hog farm was built, the Indiana Right to Farm Act applied and protected the CAFO operator.

Plaintiffs in the Jackson County case apparently are aware of all these losses. They are attempting to kill the project before any concrete is poured. Plaintiffs claim the zoning board illegally granted a special exception to build the CAFO in Jackson County. They claim the exception is “…illegal; was not supported by substantial evidence and was not warranted by the facts; was an abuse of discretion; was arbitrary and capricious; and was unauthorized and contrary to the purposes and provisions of the zoning ordinance and Indiana law.” 

The complaint stays away from the Indiana Right to Farm statute, but claims the Board of Zoning Appeals approved an exception to the zoning laws approving the CAFO which is “illegal” and “unjust.”

Plaintiffs do pick up some of the language from earlier court cases. They claim “their real property will be subject to diminution in value, limitation of use and infringement of enjoyment due to its proximity to the hazards and nuisances associated with the Broshears’ CAFO and manure application areas…an unreasonable risk of groundwater and surface water contamination…a substantial increase in noxious odors, noise, dust, truck traffic, pests and associated health risks, and visual impacts.”

Certain plaintiffs claim they have wells on their property for drinking purposes and their wells are likely in the same groundwater table which will be under or near the Broshears’ CAFO.

Also there is an allegation in the complaint that the chairman of the local zoning board has a conflict of interest because she and/or members of her family own property in the area of the proposed CAFO and that she had apparently “…expressed bias and prejudice in favor of the applicants.” 

CAFO applicants in Indiana have a new challenge. It is clear the courts are following the law and the policy of Indiana to encourage investment by young families in the future of Indiana. This case in Jackson County is a different legal approach to stop a CAFO and it should be watched closely.

The opinions of Gary Baise are not necessarily those of Farm Futures or the Penton Farm Progress Group.

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