SANCTIONING NUISANCE: HOW THE MODERN RIGHT TO FARM IMPERMISSIBLY BURDENS NEIGHBORS.

• Author: Pinkerton, Ginger

CONTENTS INTRODUCTION I. THE RISE OF CONCENTRATED ANIMAL FEEDING OPERATIONS AND THEIR IMPACT ON NEIGHBORS II. THE RIGHT TO FARM AND CREATE NUISANCE IN THE PROCESS A. Nuisance and its Underlying Property Interest B. Immunization of Agricultural Operations from Nuisance Actions III. INDIANA'S RIGHT TO FARM ACT IV. CONSTITUTIONAL CONCERNS A. Fundamentality of the Affected Property Interests B. Affected Liberty Interests C. Distinctions in Rational Basis CONCLUSION INTRODUCTION

Richard and Janet Himsel found that living on their property--land Richard's family had owned since 1940--had become utterly unbearable. (1) The stench and side effects of the emissions from the hog-raising facilities that had been erected less than a half-mile away had forced Janet to cease living in their home on advice of her doctor, (2) and kept the Himsels' children and grandchildren from visiting. (3) The emissions from the facilities stung their eyes and throats, and made it difficult to eat and sleep. (4) The facilities were so close to the Himsels' residence that the hog-raising buildings could be seen from the second floor of the Himsels' home, just beyond the corn field that buffered the neighboring property. (5)

Richard considered the prospect of selling the property--including the house he was born in over 70 years prior and had occupied with his wife since 1994--but knew that no buyer would be motivated to purchase a property directly adjacent to an industrialized hog facility. (6) Even just considering selling the property was painful--Richard and Janet had created their life together there, and they had planned to spend their retirement there. (7) Moreover, the property was now worth less than half what it was prior to construction of the Concentrated Animal Feeding Operation (CAFO). (8) Richard and Janet had themselves farmed on their land up until 2000, (9) but their own history of farming did not deter them from bringing a nuisance suit in 2015 against their neighbors--neighbors who happened to be Richard's cousin and nephews. (10)

The Himsel defendants had, for nearly twenty years, used their property primarily for crop agriculture. (11) In 2013, they successfully petitioned for a rezoning of their land from agricultural residential (AGR) to agricultural intense (AGI). (12) This enabled them to switch from crop agriculture to the operation of concentrated hog raising facilities--an operation that the previous zoning restrictions would not have permitted. (13) Richard Himsel, and other community members, vocally opposed the rezoning to no avail. (14) The Himsel defendants proceeded with construction and operation of "two 4,000-hog production buildings," wherein a new batch of hogs would come in roughly every six months to replace the grown hogs that were shipped out. (15) Within seven months of the rezoning, Richard and Janet found themselves living within a half-mile of 8,000 hogs and the accompanying pits of those hogs' excrement (16)--pits collecting nearly four million gallons of waste annually. (17) This became the reality of the Himsels' lives--a reality which Indiana courts upheld under Indiana's Right to Farm Act. (18)

This Note discusses the general origins and evolution of the right to farm as it has been memorialized in the legislation of each of the fifty states, (19) with a particular focus on Indiana's Right to Farm Act, as applied in Himsel to immunize a concentrated hog feeding operation from a nuisance claim brought by rural neighbors. (20) Such concentrated, industrial, agricultural operations, compared to traditional, smaller-scale agricultural operations, impose unique and wide-ranging effects on those living around them. A full discussion of those effects follows in Part I.

Significant policy concerns arise from the immunization of these agricultural operations from nuisance liability, particularly when immunization is applied outside of the context of urban encroachment and where the neighbor did not "come to the nuisance." (21) This immunization challenges the resolution of the individual property interest--the interest on which the action of nuisance has been founded for centuries. (22)

This Note subsequently analyzes the right to farm--specifically, broad formulations of the right to farm such as that of Indiana--under a due process framework. (23) At least as applied to the Himsels, the right to farm has impermissibly and inappropriately burdened property and liberty interests. Ultimately, it asserts that the right to farm as it exists now in many states, including Indiana, has failed to accomplish an appropriate balancing between the interests of agricultural operations and those of neighboring property owners. This has led to absurd and unjust outcomes for property owners such as the Himsels.

In addition to placing heavy burdens on recognized due-process interests of neighbors, the vast and substantiated negative impacts of CAFOs on neighbors create serious policy concerns. (24) Right-to-farm legislation often leaves little-to-no realistic opportunity for neighbors to vindicate their property and liberty interests, protect their health, and preserve the meaningful bonds and associations they have created within their communities.

I therefore advocate that the right to farm be narrowed back to its original form--limited in application to circumstances in which the neighbor "came to the nuisance." (25) Doing so would establish a more appropriate balance between the interests of agricultural operations and their neighbors and would alleviate the due process and policy concerns that exist now.

1. THE RISE OF CONCENTRATED ANIMAL FEEDING OPERATIONS AND THEIR IMPACT ON NEIGHBORS

   Agriculture has long been an important American industry--so much so that some states have enshrined farming as a right protected by their state constitutions. (26) But the agricultural setting that exists in America today is dramatically different than that which existed mere decades ago. (27) The traditional family farm has been, and is being, gradually replaced by industrial agricultural operations. (28) Large-scale, corporate agriculture has surged over the last several decades, while the prevalence of smaller-scale, independent farming has dropped. (29)

   Among these industrial operations are CAFOs. (30) CAFOs are high-density facilities that contain non-aquatic animals for at least forty-five days per year and which do not sustain "crops, vegetation, or forage growth ... over a normal growing period." (31) These facilities are classified as either Large, Medium, or Small CAFOs, depending on various factors, including the number of animals they contain and the means by which the facility discharges waste into the water supply. (32) Large CAFOs commonly house tens of thousands of animals within the same building. (33) A Large CAFO dedicated to swine, for example, houses at least 2,500 swine weighing over 55 pounds each, or at least 10,000 swine weighing under 55 pounds each. (34) Such facilities are designed to optimize large-scale production, with speed and cost efficiency as predominant concerns, containing animals in a "factory-like setting where the animals are ... densely packed in pens or crates." (35) The animals' waste is typically collected in outdoor lagoons--"open-air storage ponds" (36)--or in pits underneath the animal confinement buildings. (37) The amount of waste accumulated through these facilities is far from insubstantial. Hogs, for example, produce up to eight times as much waste as humans, (38) with a single hog producing an average of 11 pounds of waste per day. (39) And unlike for humans, there exist no sewage-treatment facilities to deal with this waste safely. (40)

   The intensive production and dense animal confinement inherent in the operation of CAFOs are associated with more significant impacts on the surrounding environment and on neighbors. (41) Documented issues include degradation of surrounding water and air quality, health implications from aerial emissions, (42) increased prevalence of odors, insects, and noise, (43) and reduction in surrounding property values. (44)

   CAFOs produce greater levels of aerial emissions due to their size and concentration, and areas surrounding CAFOs experience reduced air quality as a result. (45) These emissions include gaseous emissions-such as ammonia, hydrogen sulfide, and methane--which are primarily caused by the decomposition of manure. (46) A testing of the ammonia levels on the Himsels' property, for example, discovered levels "far exceeding ordinary levels" of similarly rural properties not located near a CAFO. (47) Also contributing to reduced air quality is the emission of particulate matter--mostly dust from animal feed and dried excrement--which is spread by the animals' movement. (48)

   This reduced air quality can harm the health of neighboring communities. (49) This is particularly true for children, for whom closer proximity to a CAFO correlates with a greater risk of experiencing asthma symptoms. (50) Ammonia and hydrogen sulfide emissions can cause irritation to and inflammation of the skin, eyes, and respiratory tract, (51) and exposure to these gases at high concentrations can be fatal. (52) Exposure to particulate matter increases the risk of chronic bronchitis and chronic respiratory symptoms, as well as a decline in lung function. (53) Studies have shown that individuals living within two miles of swine operations report higher frequencies of nausea, respiratory problems, headaches, sore throat, and burning eyes, among other symptoms, compared to a control population residing outside of that two-mile radius. (54) Indeed, the Himsels experienced several of these symptoms. (55)

   In addition to these health implications, the intensified production of CAFOs creates odors that reduce the quality of life of those living on neighboring properties. (56) Depending on weather conditions and specific farming practices, odors from CAFOs...