March 31, 2015
Recently Indiana became ground zero for high-powered trial lawyers who targeted Maxwell Farms in four separate cases in an attempt to wipe out concentrated animal feeding operations in the state.
Related: Another CAFO Legal Attack
Although nuisance cases aren't new to farmers, right-to-farm statutes continue to help farmers defend their actions as long as they're not negligent. And agriculture got a big win when the court found that Indiana's Right to Farm Act is constitutional.
That win could open the door for farmers in other states feeling pressure from those less familiar with agriculture.
State right-to-farm statutes stand up in court; Ag attorney urges farmers: 'Don't let radical rabble-rousers run you off the playing field'
"These recent four cases should encourage farmers," says Gary Baise, lead lawyer for Maxwell Farms and co-head of the litigation team at OFW Law. "Don't let radical rabble-rousers run you off the playing field."
These lawsuits were seeking damages from farms for creating a nuisance with regards to odor, manure management practices and location of farms. Under scrutiny were Maxwell Farms' 5,000-sow unit, 17,000-head nursery and two contract grower finishing units with 8,000-head capacity each.
Related: Do You Have The Right To Farm?
In each of the four cases, Judge Marianne Vorhees found that the plaintiffs failed to prove negligence in the way the farms were operated and located.
"It's been a painful experience to defend this case because the practices we were using are common throughout the Midwest," explains Bob Ivey, general manager of hog operations for North Carolina-based Maxwell Farms.
Ivey explains that because of how well-written the right-to-farm law was in Indiana, it allows farmers to do what they love, which is farm. "This is a win for all agriculture, not just Maxwell Farms. Farmers can farm instead of being worried about being tied up in litigation for four to five years."
All 50 states have a right-to-farm law. This act protects farms using commonly accepted agricultural practices from being considered a nuisance in agriculturally zoned areas. This act is seen by legislatures in all 50 states as the Unites States' ability to protect its own food, fuel and fiber production.
Indiana went a step further and in 2005 updated its law to include additional protections and flexibility for farmers. The Indiana statute protects a producer if three conditions are met:
• The ag business was in operation continuously on the property for at least a year prior to the suit being filed.
• No major change occurred in the type of agricultural operation. (The statute provides that changing from crop to hog production, or changing ownership or size of the operation does not constitute a significant change.)
• The agricultural operation would not have been a nuisance when it began on the property.
Baise says the cases didn't meet the suit filing within a year and the provision allowing for the type of agricultural change was also important. The farm property at issue has been used continuously as a farm since the early 1900s.
The judge notes, "In 2005, the Legislature made the Right to Farm Act even more restrictive to potential lawsuits. The Legislature has made its intent known to protect farming operations against nuisance actions, even if the operation grows from a few hogs to several thousand, and even if the operation changes from growing corn to raising thousands of hogs."
Baise adds it's important for farmers to know that right-to-farm statutes offer a mighty defense for producers who are following the extensive guidelines for water, air and other regulations already required by state and federal governments.
"If you're following all the regulations, you've got a friend in the right-to-farm statute. You can win these challenges and not go through a terribly expensive trial," he says.
Baise also recommends farmers check their insurance policy and have a lawyer look over it to make sure they're covered for defense costs and for punitive damages.
Indiana now has two right-to-farm acts, plus there have been efforts to add it to the Indiana Constitution. Baise said he's involved in similar new cases in Pennsylvania, California and Illinois.
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