Petition for Writ of Certiorari — Janet L. Himsel, et al., Petitioners v. 4/9 Livestock, LLC, et al.

No. _________

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In The

Supreme Court of the United States

-----------------------------------------------------------------JANET L. HIMSEL, MARTIN RICHARD HIMSEL,

ROBERT J. LANNON, AND SUSAN M. LANNON,

Petitioners,

v.

4/9 LIVESTOCK, LLC, CO-ALLIANCE. LLP,

SAMUEL T. HIMSEL, CORY M. HIMSEL,

CLINTON S. HIMSEL, and STATE OF INDIANA,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The Court Of Appeals Of Indiana

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------KATHERINE A. MEYER

Counsel of Record

Director

HARVARD ANIMAL LAW AND POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

KIM E. FERRARO

Senior Staff Attorney

HOOSIER ENVIRONMENTAL COUNCIL

3951 N. Meridian, Suite 100

Indianapolis, IN 46208

(317) 685-8800

kferraro@hecweb.org

Counsel for Petitioners

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Does a state statute violate the Takings Clause of

the United States Constitution when it provides complete immunity from nuisance and trespass liability

for an industrial-scale hog facility newly sited next to

long-standing family homes, even though the facility

causes noxious waste substances to continuously invade those homes, making it impossible for the families to use and enjoy their properties where they have

lived for decades?

ii

PARTIES TO THE PROCEEDINGS

Petitioners Janet L. Himsel, Martin Richard

Himsel, Robert J. Lannon, and Susan M. Lannon were

the Plaintiffs and Appellants below. Respondents 4/9

Livestock LLC, Co-Alliance, LLP, Samuel T. Himsel,

Cory M. Himsel, and Clinton S. Himsel were the Defendants and Appellees below. The State of Indiana

was an Intervenor-Defendant and Appellee below.

STATEMENT OF RELATED CASES

Himsel v. Himsel, No. 32D04-1510-PL-150, Hendricks

County Superior Court. Judgment entered October 24,

2017.

Himsel v. Himsel, No. 32D04-1510-PL-150, Hendricks

County Superior Court. Judgment entered February 9,

2018.

Himsel v. Himsel, No. 18A-PL-645, Court of Appeals of

Indiana. Judgment entered April 22, 2019.

Himsel v. Himsel, No. 18A-PL-645, Court of Appeals of

Indiana. Judgment entered July 12, 2019.

Himsel v. 4/9 Livestock, LLC, No. 18A-PL-645, Indiana

Supreme Court. Judgment entered Feb. 20, 2020.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

PARTIES TO THE PROCEEDINGS ...................

ii

STATEMENT OF RELATED CASES ..................

ii

TABLE OF CONTENTS ......................................

iii

TABLE OF AUTHORITIES ................................. viii

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL PROVISIONS AND INDIANA

STATUTE AT ISSUE .......................................

2

STATEMENT OF THE CASE..............................

4

I.

Legal Framework: Indiana Law of Nuisance,

Trespass, and the Right to Farm Act ..........

4

II.

The Himsels and Lannons .........................

7

III.

The Industrial Nature, Scale and Impact

of CAFOs ....................................................

8

IV.

Respondents’ CAFO and its Impact on the

Himsels and Lannons ................................ 11

V.

Procedural History of the Litigation ......... 13

REASONS FOR GRANTING THE WRIT............ 17

I.

The Indiana Decision Conflicts with This

Court’s Takings Jurisprudence .................. 17

A. The RTFA has Deprived these Families

of Their Vested Property Rights of

Exclusive Possession and Use ............... 18

iv

TABLE OF CONTENTS—Continued

Page

B. This Court’s Regulatory Takings Jurisprudence .............................................. 20

C. The Indiana Court of Appeals

Erroneously Held that the RTFA Was

Not a Per Se Takings Under Loretto .... 24

D. The Court of Appeals Also Erroneously

Held that the RTFA Passed Constitutional Muster Under the Penn Central

Balancing Test ...................................... 26

a) Economic Impact ............................ 27

b) Investment-Backed Expectations ....

28

c) Character of the Government Action .................................................. 30

II.

The Indiana Court Has Decided An

Important Federal Question That Conflicts

With Decisions Of Other State Courts And

That This Court Should Settle .................... 32

CONCLUSION..................................................... 40

APPENDIX

Court of Appeals of Indiana Opinion 18A-PL645, Janet L. Himsel, et al. v. 4/9 Livestock,

LLC, et al. (Apr. 22, 2019), Certified (Feb. 25,

2020) ................................................................. App. 1

v

TABLE OF CONTENTS—Continued

Page

Hendricks Superior Court Order Granting Defendants’ Motion for Summary Judgment in

Part and Denying Plaintiffs’ Motion for Summary Judgment and Motion to Strike, Himsel,

et al. v. Himsel, et al., Case No. 32D04-1510PL-000150 (Oct. 24, 2017).............................. App. 29

Hendricks Superior Court Order Granting Defendants’ Motion to Correct Errors and Granting Summary Judgment, Himsel, et al. v.

Himsel, et al., Case No. 32D04-1510-PL000150 (Feb. 9, 2018) ..................................... App. 41

Court of Appeals of Indiana Order Denying Petition for Rehearing, Himsel, et al. v. 4/9 Livestock, LLC, et al., Case No. 18A-PL-645 (July

12, 2019) ......................................................... App. 43

Indiana Supreme Court Order Denying Petition

to Transfer, Janet L. Himsel, et al. v. Samuel

Himsel et al., Court of Appeals Case No. 18APL-00645 (Feb. 20, 2020) ............................... App. 44

Indiana Code § 32-30-6-9 (2005) ....................... App. 45

U.S. Constitution, 5th Amendment ................... App. 47

U.S. Constitution, 14th Amendment ................. App. 48

Portions of Deposition of Plaintiff Janet Himsel ... App. 49

Portions of Deposition of Plaintiff Richard Himsel .................................................................... App. 71

Portions of Deposition of Plaintiff Susan

Lannon ......................................................... App. 101

vi

TABLE OF CONTENTS—Continued

Page

Portions of Deposition of Plaintiff Robert Lannon ................................................................ App. 111

Bureau of Labor Statistics inflation calculator

(Dec. 13, 2016) .............................................. App. 125

Portions of the Hendricks County Zoning Ordinance (2008) ................................................. App. 127

Affidavit of Nick A. Tillema ............................. App. 131

Defendant Samuel Himsel’s Petition for Rezoning (2013) ...................................................... App. 160

Hendricks County Grant of Defendant’s Rezoning Petition (Ord. 2013-03) .......................... App. 164

Portions of Deposition of Defendant Samuel

Himsel .......................................................... App. 166

Portions of Deposition of Defendant Co-Alliance

CEO, Kevin Still ........................................... App. 189

Affidavit of Charles McGinley, P.C. ................. App. 204

American Society of Agricultural & Biological

Engineers, Management of Manure Odors,

ASAE EP379.5 APR2012 ............................. App. 216

Affidavit of Mark Chernaik, Ph.D. .................. App. 223

Portions of Deposition of Samuel Moffit ......... App. 245

Portions of Deposition of Defendant Cory

Himsel .......................................................... App. 252

Portions of Deposition of Defendant Clinton

Himsel .......................................................... App. 270

vii

TABLE OF CONTENTS—Continued

Page

Ind. Dept. of Environmental Mgmt. Notice of

Completion of Construction ......................... App. 286

Hendricks County GIS Aerials........................ App. 287

Defendants’ Letter of Intent to Hendricks

County Bldg. Dept. ....................................... App. 291

Ind. Dept. of Environmental Mgmt. Inspection

Report (Feb. 19, 2014) .................................. App. 295

Hog Finishing Contract between Co-Alliance

and 4/9 Livestock ......................................... App. 298

Defendants’ Manure Generation Estimate .... App. 316

Printout of “What IDEM Regulates” (Dec. 13,

2016) ............................................................. App. 317

Letter from Richard Himsel to Defendants (Jan.

20, 2015) ....................................................... App. 320

Hendricks County Assessor’s Record for Richard

and Janet Himsel’s Property ....................... App. 322

Plaintiffs’ First Amended Complaint for Declaratory, Injunctive and Compensatory Relief

and Action for Inverse Condemnation and Notice of Claim that Two Indiana Statutes are

Unconstitutional (Aug. 8, 2016) ................... App. 330

viii

TABLE OF AUTHORITIES

Page

CASES

Arkansas Game and Fish Commission v. United

States, 568 U.S. 23 (2012)........................................27

Armstrong v. United States, 364 U.S. 40 (1960) .........19

Barrett v. Hamby, 235 Ga. 262 (Ga. 1975) .................34

Biddle v. BAA Indianapolis, LLC, 860 N.E.2d

570 (Ind. 2007) ........................................................32

Bormann v. Board of Sup’rs In & For Kossuth

County, 584 N.W.2d 309 (Iowa 1998) ................ 34, 35

City of Fayetteville v. Stanberry, 305 Ark. 210

(1991) .......................................................................33

Dolan v. City of Tigard, 512 U.S. 374 (1994) ..............25

Duffield v. DeKalb County, 242 Ga. 432 (Ga.

1978) ........................................................................33

First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S.

304 (1987) ................................................................19

Hawkins v. Barney’s Lessee, 30 U.S. 457 (1831) .........19

Himsel v. 4/9 Livestock, LLC, 2020 Ind. LEXIS

111 (Ind., Feb. 20, 2020) ............................................1

Himsel v. Himsel, 122 N.E.3d 935 (Ind. Ct. App.

2019) ................................................................ passim

Himsel v. Himsel, No. 32D04-1510-PL-150

(February 9, 2018) .....................................................1

Himsel v. Himsel, No. 32D04-1510-PL-150

(October 24, 2017) .....................................................1

ix

TABLE OF AUTHORITIES—Continued

Page

Indiana Michigan Power Co. v. Runge, 717

N.E.2d 216 (Ind. Ct. App. 1999) ................................4

Indiana Motorcycle Ass’n v. Hudson, 399 N.E.2d

775 (Ind. Ct. App. 1980) ............................................4

Kaiser Aetna v. United States, 444 U.S. 164

(1979) .......................................................................25

Lever Bros. Co. v. Langdoc, 655 N.E.2d 577 (Ind.

Ct. App. 1995) ............................................................4

Lindsey v. DeGroot, 898 N.E.2d 1251 (Ind. Ct.

App. 2009) ................................................................35

Lingle v. Chevron U.S.A. Inc., 544 U.S. 528

(2005) ............................................................... passim

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982) ......................................... passim

Lucas v. S.C. Coastal Council, 505 U.S. 1003

(1992) ............................................................... passim

Marbury v. Madison, 5 U.S. 137 (1803) ......................19

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825

(1987) .......................................................................25

Overgaard v. Rock Cty. Bd. of Comm’rs, No. 02601, 2003 U.S. Dist. LEXIS 13001 (D. Minn.

July 25, 2003) ..........................................................35

Pa. Coal Co. v. Mahon, 260 U.S. 393 (1922) ... 20, 28, 29

Palazzolo v. Rhode Island, 533 U.S. 606 (2001) .........26

Penn Cent. Transp. Co. v. City of New York, 438

U.S. 104 (1978) ................................................ passim

x

TABLE OF AUTHORITIES—Continued

Page

Pumpelly v. Green Bay Co., 80 U.S. 166 (1871) ..........25

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

1987) ..........................................................................5

Stop the Beach Renourishment, Inc. v. Fla. Dep’t

of Envtl. Prot., 560 U.S. 702 (2010) .........................26

William Aldred’s Case, (1611) 77 Eng. Rep. 816,

9 Co. Rep. 57a (K.B.) ...............................................18

STATUTES

28 U.S.C. § 1257(a) ........................................................2

COLO. REV. STAT. § 35-3.15-102 (2000) .......................37

IND. CODE § 32-30-6-6 (2002) ........................................4

IND. CODE § 32-30-6-9 (2005) ............................ 2, 4, 5, 7

IND. CODE § 34-1-52-4(f ) (1981) ....................................5

N.C. GEN. STAT. ANN. § 106-701(a)(1) (LexisNexis

2013) (amended 2018) .............................................37

NEB. REV. STAT. ANN. § 2-4403(2) (LexisNexis

2019) ........................................................................38

OKLA. STAT. ANN. tit. 50 § 1.1 (LexisNexis 2017)

(amended 2019) .......................................................38

UTAH CODE ANN. § 4-44-102(2) (LexisNexis

2019) ........................................................................38

xi

TABLE OF AUTHORITIES—Continued

Page

OTHER AUTHORITIES

1 USDA 2017 CENSUS AGRIC. pt. 51 (2019) .............9

2 WILLIAM BLACKSTONE, COMMENTARIES .......................5

Carlos A. Ball, The Curious Intersection of

Nuisance and Takings Law, 86 B.U. L. REV.

819 (2006) ................................................................36

Carrie Hribar, Nat’l Assoc. of Local Bds. of

Health, Understanding Concentrated Animal

Feeding Operations and Their Impact on

Communities (Mark Schultz ed., 2010) .............. 9, 10

Claudia Copeland, Air Quality Issues and Animal Agriculture: A Primer, Congressional Research Service 2–5 (Dec. 22, 2014) .........................10

Dick Heederik et al., Health Effects of Airborne

Exposures from Concentrated Animal Feeding

Operations, 115 ENVTL. HEALTH PERSP. 298

(2007) .......................................................................10

H.B. 545, 155th Gen. Assemb., Reg. Sess. (Ga.

2020) ........................................................................38

H.B. 2774, 84th Leg., 2nd Sess. (W. Va. 2020) ............38

Kelley J. Donham, et al., Community Health and

Socioeconomic

Issues

Surrounding

Concentrated Animal Feeding Operations, 115

ENVTL. HEALTH PERSP. 317 (2007)...........................10

Melius De Villiers, Nuisances in Roman Law, 13

L.Q. REV. 387 (1897) ...............................................18

U.S. EPA, Risk Assessment Evaluation for Concentrated Animal Feeding Operations (2004)..... 9, 10

xii

TABLE OF AUTHORITIES—Continued

Page

William D. McBride & Nigel Key, U.S. Dep’t of

Agric. Econ. Res. Serv., U.S. Hog Production

from 1992 to 2009: Technology, Restructuring,

and Productivity Growth (2013) ...............................8

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. V ....................................... 2, 17, 20

U.S. CONST. amend. XIV ................................... 2, 17, 20

1

OPINIONS BELOW

The relevant Indiana court opinions include:

The decision of the Indiana Court of Appeals, reported at Himsel v. Himsel, 122 N.E.3d 935 (Ind. Ct.

App. 2019), reproduced in Petitioners’ Appendix (“Pet.

App.”) at 1–28; the Indiana Court of Appeals’ Order

Denying the Himsel’s and Lannons’ Petition for Rehearing, reported at Himsel v. Himsel, 2019 Ind. App.

LEXIS 314 (Ind. Ct. App., July 12, 2019), and reproduced in Pet. App. at 43; the Indiana Supreme Court’s

Order Denying the Himsel’s and Lannons’ Petition to

Transfer, reported at Himsel v. 4/9 Livestock, LLC,

2020 Ind. LEXIS 111 (Ind., Feb. 20, 2020), reproduced

in Pet. App. at 44.

The Hendricks County Superior Court Order

Granting Defendants’ Motion for Summary Judgment

in Part and Denying Plaintiffs’ Motion for Summary

Judgment, Himsel v. Himsel, No. 32D04-1510-PL-150

(October 24, 2017), is reproduced in Pet. App. at 29–40.

The Hendricks County Superior Court Order Granting

Defendants’ Motion to Correct Errors and Granting

Summary Judgment, Himsel v. Himsel, No. 32D041510-PL-150 (February 9, 2018), is reproduced in Pet.

App. at 41–42.

------------------------------------------------------------------

JURISDICTION

The Indiana Court of Appeals entered its judgment on April 22, 2019 upholding the trial court’s

2

grant of summary judgment for Respondents. Pet. App

at 1–28. By a 3–2 vote, on February 20, 2020 the Indiana Supreme Court denied review of that decision. Pet.

App. at 44. The Himsels and Lannons now appeal the

decision of the Indiana Court of Appeals and invoke

the jurisdiction of this Court under 28 U.S.C. § 1257(a).

------------------------------------------------------------------

CONSTITUTIONAL PROVISIONS AND

INDIANA STATUTE AT ISSUE

At issue in this case are the following provisions of

the United States Constitution and Indiana statute,

reproduced below and in the Pet. App. at 45–48.

The Takings Clause of the Fifth Amendment

to the United States Constitution provides that no

“private property [shall] be taken for public use, without just compensation.”

The Fourteenth Amendment to the United

States Constitution provides that:

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

State deprive any person of life, liberty, or

property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

Indiana’s Right to Farm Act, IND. CODE § 32-306-9 (2005) provides that:

3

(d) An agricultural or industrial operation

or any of its appurtenances is not and does not

become a nuisance, private or public, by any

changed conditions in the vicinity of the locality after the agricultural or industrial operation, as the case may be, has been in operation

continuously on the locality for more than one

(1) year if the following conditions exist:

(1) There is no significant change in the

type of operation. A significant change in

the type of agricultural operation does

not include the following:

(A) The conversion from one type

of agricultural operation to another

type of agricultural operation.

(B) A change in the ownership or

size of the agricultural operation.

(C)

The:

(i)

enrollment; or

(ii) reduction or cessation of

participation;

of the agricultural operation in a government program.

(D) Adoption of new technology by

the agricultural operation.

(2) The operation would not have been a

nuisance at the time the agricultural or

industrial operation began on that locality.

------------------------------------------------------------------

4

STATEMENT OF THE CASE

I.

Legal Framework: Indiana Law of Nuisance,

Trespass, and the Right to Farm Act

Indiana law provides a cause of action to abate

conditions that are “offensive to the senses” or “an obstruction to the free use of property” “so as to essentially interfere with the comfortable enjoyment of life

or property.” IND. CODE § 32-30-6-6 (2002). This statute

codifies the age-old common law doctrine of nuisance,

which protects the property right to reasonably use

and enjoy one’s land. See Indiana Motorcycle Ass’n v.

Hudson, 399 N.E.2d 775, 778 (Ind. Ct. App. 1980). Indiana’s trespass law provides a cause of action for violations of the property right to exclusively possess

one’s land. See Indiana Michigan Power Co. v. Runge,

717 N.E.2d 216, 227 (Ind. Ct. App. 1999) (“trespass actions are possessory actions and . . . the right interfered with is the plaintiff ’s right to the exclusive

possession of a chattel or land.”). As in other states,

nuisance and trespass claims under Indiana law are

often brought at the same time when the interference

with property rights is caused by the invasion of noxious substances. See, e.g., Lever Bros. Co. v. Langdoc,

655 N.E.2d 577, 583 (Ind. Ct. App. 1995).

In 2005, the Indiana legislature amended the

state’s Right to Farm Act (“RTFA”), IND. CODE § 32-306-9 (2005), eliminating these remedies for existing

landowners when large industrial farms are sited next

to their property. As originally enacted in 1981, the

RTFA protected only existing farms from nuisance

5

lawsuits by newcomer plaintiffs who “moved to the nuisance.” Specifically, the 1981 version of the RTFA provided that “[n]o agricultural . . . operation or any of its

appurtenances shall be or become a nuisance . . . by

any changed conditions in the vicinity” of the operation

(i.e., the arrival of new neighbors), after one year of

continuous operations, as long as the nuisance is not

created by a “significant change” in the hours or type

of operation. IND. CODE § 34-1-52-4(f ) (1981), cited in

Shatto v. McNulty, 509 N.E.2d 897, 899–900 (Ind. Ct.

App. 1987). Thus, the prior version of the statute codified the age-old “coming to the nuisance” doctrine. See

2 WILLIAM BLACKSTONE, COMMENTARIES *402 (“If my

neighbour makes a tan-yard, so as to annoy and render

less salubrious the air of my house or gardens, the law

will furnish me with a remedy; but if he is first in possession of the air, and I fix my habitation near him, the

nuisance is of my own seeking, and may continue.”).

In 2005, the Indiana legislature radically altered

the RTFA’s scope by re-defining what is meant for an

agricultural operation to undergo a “significant

change” that would otherwise allow a nuisance claim.

IND. CODE § 32-30-6-9(d)(1) (2005). As a result of the

amendment, a “significant change” in an agricultural

operation no longer includes “[t]he conversion from one

type of agricultural operation to another,” the “[a]doption of new technology,” or a “change in the . . . size of

the agricultural operation.” IND. CODE § 32-30-6-9

(d)(1)(A), (B), (D) (2005); Pet. App. at 12, fn. 5. In other

words, no matter how large, damaging, or odious the

transformed operation may be, injured landowners

6

who were there first no longer have any nuisance remedy. Therefore, as observed by the Indiana Court of

Appeals in this case, “[i]n light of the amendment, it is

difficult to imagine what would constitute a significant

change in the type of operation.” Pet. App at 12, fn. 5.

As that Court also acknowledged, “the coming to the

nuisance doctrine, as applied by the RTFA, now encompasses coming to the potential future nuisance.” Pet.

App. at 14 (emphasis added).

Such is the situation here, where Respondents

built an industrial-scale concentrated animal feeding

operation (“CAFO”) with 8000 confined hogs and massive waste pits on former cropland next to the Himsels’

and Lannons’ homes, where they and their families

have lived for decades. As demonstrated below, that

change was “significant” enough to cause unhealthy

levels of noxious gases from millions of gallons of decomposing pig waste to continuously invade these families’ properties, make living conditions unbearable,

and cause their property values to plummet. Were it

not for the 2005 amendment to the RTFA, that gross

interference with the Himsels’ and Lannons’ lives and

property would be an actionable nuisance for which

state law would provide a remedy. Himsel, 122 N.E.3d

at 943; Pet. App. at 15. That extreme interference

would also be an actionable trespass but for the RTFA.

See id. at 945; Pet. App. at 17. Put another way, the

Indiana RTFA has stripped the Himsels’ and Lannons’

of their treasured property rights and deprived them

of any remedy for the ongoing violation of those rights.

7

II.

The Himsel’s and Lannons

Petitioners Richard and Janet Himsel are a retired couple who reside on a twenty-six-acre farm in

rural Hendricks County, Indiana. Their farmhouse was

built in 1926 by Richard Himsel’s parents, and is

where Richard Himsel was born in 1941, grew up, and

has lived most of his life. Janet Himsel, Richard’s second wife, joined him there when the two were married

in 1994. The couple stopped farming the land in 2000,

but have continued to live out their retirement years

in their family home. Pet. App. at 7, 30, 51, 73–75, 80,

134, 320–21, 324. Petitioners Robert and Susan Lannon live a short distance from the Himsel’s. Robert

Lannon built their home in 1971 on land that he already owned; Susan Lannon moved in after they were

married in 1974. Their home of nearly 50 years is

where the Lannons planned to live out their retirement years. Pet. App. at 7, 30, 103, 113–14, 122, 134.

For as long as the Himsels and Lannons have resided in their Hendricks County homes, they have

lived happily alongside agriculture, including traditional livestock agriculture. Until 2013, when Respondents built their 8000-hog CAFO on nearby land,

the Himsel’s and Lannons’ properties were surrounded

by traditional farms that raise row crops and livestock.

In particular, the Respondents’ land where the CAFO

now sits had always been cropland since at least 1941.

None of those farms ever created untenable living conditions or adversely impacted the Himsel’s and Lannons’ properties in any way. Pet. App. at 4, 80, 89, 114,

119.

8

Prior to construction of the CAFO in 2013, the

Himsels and Lannons greatly enjoyed gardening,

growing flowers, and other outdoor activities. Pet. App.

at 65–66, 94–95, 106, 119. Like other homeowners,

they had every reason to believe that the law protected

their vested property rights from unreasonable interference. Pet. App. at 120, 127–30. Accordingly, over the

years they invested in developing and improving their

properties with additions and outbuildings, and they

beautified their homes with gardens and flowers. Pet.

App. at 53–54, 65–66, 119, 147. Both couples also had

every reasonable expectation of being able to sell their

homes, if they so desired, for a substantial return on

their investment. Pet. App. at 82, 116, 144. These expectations of profitable sale are consistent with the

value of comparable parcels in the area that do not

have a CAFO contaminating the air and property. Pet.

App. at 131–44. However, neither couple had any plans

to move. Pet. App. at 53, 122.

III. The Industrial Nature, Scale and Impact of

CAFOs

The kinds of traditional farms in the area stand

in sharp contrast to CAFOs, which have been proliferating in recent decades due to the industrialization

and corporate consolidation of the meat industry. See

e.g., William D. McBride & Nigel Key, U.S. Dep’t of

Agric. Econ. Res. Serv., U.S. Hog Production from 1992

to 2009: Technology, Restructuring, and Productivity

Growth, 10–15 (2013) [hereinafter McBride & Key, U.S.

Hog Production] (reporting that between 1992 and

9

2009 “hog production consolidated considerably as

fewer and larger farms accounted for an increasing

share of total output” due in large part to vertical integration and production contracts between growers and

corporate meat packers). Indeed, as of December 31,

2017, more than 70% of all farmed hogs in the United

States were raised in confinement facilities with 5000

or more animals, 1 USDA 2017 CENSUS AGRIC. pt.

51, at 24 tbl.21 (2019) (reporting 52,701,285 hogs on

farms with herd sizes of 5000 or more out of 72,381,007

total hogs), as compared to less than 50% in 1998.

McBride & Key, U.S. Hog Production at 10, fig. 4.

Unlike the archetypical pig farm, a CAFO is optimized to produce thousands of animals quickly in a

factory-like setting where the animals are confined indoors, densely packed in pens or crates. U.S. EPA, Risk

Assessment Evaluation for Concentrated Animal Feeding Operations 6-9 (2004) [hereinafter EPA, Risk Assessment]; Carrie Hribar, Nat’l Assoc. of Local Bds. of

Health, Understanding Concentrated Animal Feeding

Operations and Their Impact on Communities, 1 (Mark

Schultz ed., 2010) [hereinafter Hribar, Understanding

CAFOs]. The tremendous quantities of waste the animals generate at just one CAFO are either collected in

outdoor manure “lagoons” or in giant waste pits underneath the slatted-floor confinement buildings. EPA,

Risk Assessment at 9, 13–14. As the waste decomposes

in these cesspits, dangerous chemical compounds are

released that would harm the animals if allowed to

accumulate inside the confinement buildings. To avoid

this outcome, the buildings are equipped with giant

10

ventilation fans that blow these hazardous emissions

into surrounding lands, creating unlivable conditions

and significant health risks for people living nearby.

EPA, Risk Assessment at 63–66, 69; Hribar, Understanding CAFOs at 5–7; see also Pet. App. at 192.

Air pollutants from CAFOs are well-known to produce extremely noxious odors from a complex mixture

of chemical compounds including volatile fatty acids,

phenols and cresols, sulfides and mercaptans, ammonia, amines, nitrogen heterocycles and particulates.

Long-term exposure to these chemical compounds can

cause bronchitis, pulmonary disease, asthma, memory

loss, heart disease, and even death. See Claudia

Copeland, Air Quality Issues and Animal Agriculture:

A Primer, Congressional Research Service 2–5 (Dec.

22, 2014); see also Hribar, Understanding CAFOs at

5–8; see also Dick Heederik et al., Health Effects of

Airborne Exposures from Concentrated Animal Feeding Operations, 115 ENVTL. HEALTH PERSP. 298, 299–

300 (2007). And, unlike traditional farm smells, the

noxious emissions from CAFOs greatly diminish

quality of life, reduce property values, and alter the

daily activities of people who live nearby. See Kelley J.

Donham, et al., Community Health and Socioeconomic

Issues Surrounding Concentrated Animal Feeding

Operations, 115 ENVTL. HEALTH PERSP. 317–19 (2007).

11

IV. Respondents’ CAFO and its Impact on the

Himsels and Lannons

In 2013, Respondent Samuel Himsel rezoned his

vacant cropland from “AGR-Agriculture Residential” to

“AGI-Agriculture Intense.” Pet. App. at 160, 164, 292.

That rezoning allowed the land to be used for “intense

agricultural uses such as CAFOs that emit intense

odors, vibrations, air pollution, or other disruptions,”

while all surrounding properties, including the Himsel’s and Lannsons’ remain AGR-zoned where CAFOs

are still prohibited. Pet. App. at 120, 129–30, 184, 266.

Shortly after the rezoning, Samuel Himsel transferred

his land to Respondent 4/9 Livestock, LLC (“4/9”),

which then entered into a hog production contract with

Respondent Co-Alliance, LLP (“Co-Alliance”). Pet. App.

at 196–97, 255–56, 281, 298–310.

That contract required 4/9 to construct the new

CAFO to Co-Alliance’s specifications for the purpose of

raising continuous batches of 8000 newly weaned pigs

owned by Co-Alliance until they reach market weight,

are shipped out, and a new batch of piglets is brought

in—approximately every six months. Pet. App. at 292,

298. The CAFO has two 33,500 square-foot hog confinement buildings, each with a massive waste pit underneath for collecting the nearly four million gallons of

hog feces, urine and other animal waste that is generated annually by the facility. Pet. App. at 174, 192, 292,

316. Respondents, emboldened by their understanding

that they would be sheltered from liability by Indiana’s

RTFA, Pet. App. at 177, 193, then built their hog factory a quarter-mile upwind of the Himsels’ home, and

12

a half-mile upwind of the Lannons’ home. Pet. App. at

209–10, 286–90.

Since then, the CAFO’s pig waste emissions are

continuously blown by the ventilation fans and carried

with the prevailing winds directly to the Himsels’ and

Lannons’ homes and properties. Pet. App. 192, 241–42,

320. In fact, elevated levels of ammonia from the CAFO

were measured by air testing at the Himsel’s and Lannons’ homes at 25.5–118.2 parts per billion (“ppb”)—

far exceeding ordinary levels of 0.2–4.0 ppb in an analogous rural area that has no CAFO fouling the air. Pet.

App. at 236–38. Similarly, the concentration of volatile

fatty acids on their properties has been measured to

be about twenty-eight times higher than the level at

which people typically begin to smell these substances.

Pet. App. at 230–36. Although invisible to the naked

eye, these emissions are chemical compounds that

burn the Himsel’s and Lannons’ noses, throats and

eyes. Pet. App. at 55, 67, 83–84, 88–89, 108. Indeed, as

explained by Petitioners’ uncontested expert, these

emissions are “space-filling compounds” that “occupy a

discrete portion of the Himmel’s and Lannons’ properties.” Pet. App. at 241–42.

Even with the windows and doors shut, the putrid

emissions at times permeate the inside of Petitioners’

homes, making it difficult for them to live, eat, and

sleep. Pet. App. at 60, 62, 84, 108, 119, 320. Indeed, Janet Himsel was advised by her physician to limit her

contact with these emissions to avoid the adverse effects on her health. Pet. App. at 55, 83, 320. The families’ ability to enjoy social and family gatherings,

13

including holiday traditions, has been ruined, and the

Himsel’s grandchildren no longer visit. Pet. App. at 83–

84, 94–95, 122. Overall, the frequent invasion of the

CAFO’s noxious emissions has rendered the Himsel’s

and Lannons’ homes unlivable at times; their longowned properties are worth less than half what they

were before the CAFO was built, Pet. App. at 144; and

their ability to enjoy the outdoors and the rural way of

life that they and their families had enjoyed for decades has been greatly diminished. Pet. App. at 320–21.

V.

Procedural History of the Litigation

On October 6, 2015, the Himsels and Lannons filed

suit against Respondents asserting nuisance and trespass claims for the CAFO’s toxic emissions invading

their property and destroying their ability to use and

enjoy it. Pet. App. at 338–43, 345. Regarding their trespass claim, Petitioners specifically alleged that “[f ]rom

October 6, 2013 to the present date, the Defendants

negligently and/or knowingly and intentionally caused

or allowed animal waste, air pollutants, harmful gases,

and noxious odors to regularly enter and invade properties owned and/or possessed by Plaintiffs thereby

causing a continuing trespass on property owned

and/or possessed by Plaintiffs.” Pet. App. at 345. Petitioners also alleged that if the RTFA is held to bar their

claims without just compensation, this would be an unconstitutional takings in contravention of the Takings

Clauses of both the Indiana and Federal Constitutions.

Pet. App. at 347–49. On December 18, 2015, the State

14

of Indiana was granted intervention to defend the constitutionality of the statute. See Pet. App. at 8.

Respondents moved for summary judgement on

all of the claims. Petitioners opposed summary judgment, and, in support of their opposition, submitted expert reports demonstrating that the CAFO was in fact

spewing noxious odors and particles onto their land.

See, e.g., Affidavit of Mark Chernaik, Ph.D., Pet. App.

at 241–42 (“[t]he evidence I gathered demonstrates

that chemicals with noxious odors emitted by the

CAFO have traveled onto the Himsel’s and Lannons’

property”) (emphasis added); see also id. (“the fatty acids and ammonia found on the Himsel’s and Lannons’

properties at levels above their odor detection thresholds are space-filling compounds that were occupying

a discrete portion of the Himsel’s and Lannons’ properties”) (emphasis in original); see also id. (this invasion “of noxious chemicals emitted by defendants’

CAFO is ongoing”). Petitioners also provided expert

testimony that, as a direct result of this contamination,

their property values had dropped significantly. See

Affidavit of Nick A. Tillema, Pet. App. at 144 (assessing a 60% devaluation of the property value for the

Himsels, and a 49.5% devaluation for the Lannons).

Although Defendants took the position that such testimony was irrelevant as a legal matter, they did not produce any contrary evidence on either point.

The trial court initially denied the Parties’ crossmotions for summary judgment, finding that genuine

issues of material fact remained for both the nuisance and trespass claims, thereby rendering the

15

constitutional questions unripe for review. Pet. App. at

37–40. However, in response to a “Motion to Correct

Error” filed by Respondents, the trial court then reversed itself and, with no further explanation, stated

that “there are no genuine issues of material fact and

Defendants are entitled to summary judgment as a

matter of law on all of Plaintiffs’ claims.” Pet. App. at

41–42.

The Indiana Court of Appeals affirmed, concurring

that the RTFA’s 2005 amendment bars all of the Himsel’s and Lannons’ tort claims because Respondents’

switch from crops to a CAFO no longer constitutes a

“significant change . . . in the type of agricultural operation . . . as strictly defined under subsection (d)(1) of

the RTFA.” Pet. App. at 12–17 (emphasis added). The

Indiana Court of Appeals also rejected the Himsel’s

and Lannons’ state and federal takings claim. Pet. App.

at 20–23.

Thus, notwithstanding the fact that as a direct result of the CAFO’s operation, noxious chemical compounds and other noisome and toxic pig waste particles

regularly invade the Himsel’s and Lannons’ properties,

and greatly interfere with their ability to live comfortably in their own homes, the Indiana Court of Appeals

held that the amended RTFA categorically bars any

remedy. Underscoring how the Appellate Court’s decision was governed by the plain text of the 2005 RTFA

amendment, the Court explained that “[t]his is not a

case where the Plaintiffs moved to the nuisance as that

expression is typically understood.” Pet. App. at 14 (emphasis added). Instead, in the wake of the statutory

16

amendment providing that a change “from crops to

livestock” is no longer considered a “significant change

in the type of operation,” the court held that “no significant change has occurred . . . as strictly defined” by

the RTFA. Pet. App. at 12. Indeed, the Court of Appeals

acknowledged that, in light of this statutory amendment, “it is difficult to imagine what would constitute

a significant change in the type of [agricultural] operation.” Pet. App. at 12, fn. 5 (emphasis added). Nevertheless, the Court understood that it was bound to follow

the plain text of the statute.1 Thus, in the words of the

Court of Appeals, “the coming to the nuisance doctrine,

as applied by the RTFA, now encompasses coming to

the potential future nuisance.” Pet. App. at 14 (emphasis added).

Based on this plain language, the Court of Appeals

also held that “Plaintiffs’ trespass claim is barred by

the RTFA.” Pet. App. at 17. In reaching that conclusion,

the Court declared that “application of the RTFA does

not turn on labels,” and that the trespass claim was

nothing more than “artful pleading.” Pet. App. at 17.

The Court of Appeals also rejected the Himsel’s

and Lannons’ claim that the RTFA effects an unconstitutional takings of their property rights. Pet. App. at

20–23. In so doing, the Court agreed that their “property rights are clearly affected by application of the

1

For this same reason, the Court of Appeals noted that “[t]he

Plaintiffs also acknowledge that no significant change has occurred in the type of the agricultural operation at the Farm, as

strictly defined under subsection (d)(1) of the RTFA.” Pet. App. at

14.

17

RTFA,” but held that the Indiana statute is not a takings because the Himsels and Lannons “have not been

deprived of all or substantially all economic or productive use of their properties,” and because the RTFA is

“reasonably related to the promotion of the common

good.” Pet. App. at 22–23.

The Himsels and Lannons petitioned for transfer

to the Indiana Supreme Court (Indiana’s equivalent of

a petition for certiorari). Following oral argument, that

Court denied the petition in a split 3–2 decision,

thereby allowing the Appeals Court opinion to stand.

Pet. App. at 44. Accordingly, the Himsels and Lannons

now seek redress from this Court because their case

raises important issues of federal constitutional law

that are far broader than their individual claims for

relief.

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

I.

The Indiana Decision Conflicts with This

Court’s Takings Jurisprudence.

This Court should grant certiorari because the

Indiana Court of Appeals decided an important issue

of federal constitutional law that should be decided by

this Court—i.e., whether a state may, consistent with

the Takings provisions of the Fifth and Fourteenth

Amendments of the U.S. Constitution, eliminate all

remedies for the invasion of noxious fumes and particles from a large industrial hog farm that is sited next

to existing landowners and ruins the families’ ability

18

to enjoy their homes and property where they have

lived for decades. Because the Indiana Court of Appeals held that such a law is not a taking, contrary to

this Court’s jurisprudence, and the Indiana Supreme

Court has allowed that erroneous decision to stand,

certiorari review is warranted and necessary.

A. The RTFA has Deprived these Families

of Their Vested Property Rights of Exclusive Possession and Use.

Indiana’s amended RTFA interferes with a maxim

more ancient and universal than even the common

law—i.e., the universal understanding that the owner

of property may not use it in a way that unreasonably

injures his neighbor. See generally Melius De Villiers,

Nuisances in Roman Law, 13 L.Q. REV. 387 (1897) (detailing the treatment of neighbors’ liability for nuisances in ancient Rome as compiled in the Digest of

Emperor Justinian). This long-held legal principle

arose in agricultural societies and was developed in

the earliest reported nuisance cases that often, as

here, related to concentrations of hogs. See, e.g., William

Aldred’s Case, (1611) 77 Eng. Rep. 816, 9 Co. Rep. 57a

(K.B.) (holding that “an action on the case lies for erecting a hog stye so near the house of the plaintiff that

the air thereof was corrupted”).

The ancient rights of neighbors to be free from

neighborly invasion, whether the kind of invasion

that interferes with exclusive possession (trespass)

or the kind that interferes with use and enjoyment

19

(nuisance), have always been a key part of the “bundle

of rights” that make up “property.” Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433

(1982). Thus, the government’s power to spirit away

any one of these fundamental property rights without

just compensation is extremely limited. See Lingle v.

Chevron U.S.A. Inc., 544 U.S. 528, 536–37 (2005) (explaining that the “Takings Clause ‘does not prohibit

the [government] taking of private property, but instead places a condition on the exercise of that power’ ”

by “ ‘barring Government from forcing some people

alone to bear public burdens which, in all fairness and

justice, should be borne by the public as a whole.’ ”

(quoting First English Evangelical Lutheran Church of

Glendale v. County of Los Angeles, 482 U.S. 304, 314

(1987) and Armstrong v. United States, 364 U.S. 40, 49

(1960)).

Yet, when the Indiana legislature amended the

RTFA in 2005 to eliminate remedies that vindicate already vested property rights, it overstepped these foundational constitutional limits. Indeed, this Court has

long recognized that there is “no right without a remedy.” Hawkins v. Barney’s Lessee, 30 U.S. 457, 463

(1831); see also Marbury v. Madison, 5 U.S. 137, 163

(1803) (“The government of the United States has been

emphatically termed a government of laws, and not of

men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of

a vested legal right.”) (emphasis added). Yet, that is

precisely what the RTFA has done here by depriving

the Himsels and Lannons of any remedy for the

20

violation of their long-vested legal property rights to

use, enjoy and exclusively possess their land and

homes.

B. This Court’s Regulatory Takings Jurisprudence

Under this Court’s takings jurisprudence, a government regulation of private property that goes “too

far” is a takings in violation of the Fifth and Fourteenth Amendments to the United States Constitution

unless accompanied by just compensation. Pa. Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922). What it means

for a regulation to go “too far” is not always clear, but

this Court has recognized at least “two categories of

regulatory action that generally will be deemed per se

takings.” Lingle, 544 U.S. at 538; see also Lucas v. S.C.

Coastal Council, 505 U.S. 1003, 1015–16 (1992);

Loretto, 458 U.S. at 430; Penn Cent. Transp. Co. v. City

of New York, 438 U.S. 104, 124 (1978).

One per se takings is when a law “requires an

owner to suffer a permanent physical invasion of her

property—however minor—it must provide just compensation,” because the right of exclusive possession is

“perhaps the most fundamental of all property interests.” Lingle, 544 U.S. at 538, 539 (emphasis added)

(citing Loretto, 458 U.S. at 433; other internal citations

omitted). Indeed, in Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419 (1982), a relatively minor

physical invasion allowed by a newly enacted state

law—i.e., requiring the owner of an apartment

21

building to allow installation of small cables and metal

boxes on her rooftop to facilitate tenants’ access to

cable television services—was found to be a takings.

458 U.S. at 421–22, 438.

Like the Indiana Appellate Court’s conclusion

here that the RTFA is not a takings because it serves

the “common good” and has not completely obliterated

all “economic or productive use” of the Himsel’s and

Lannons’ properties, Himsel, 122 N.E.3d at 947–48, the

lower court in Loretto held that the state law at issue

was not a takings because it served “the legitimate

public purpose” of increasing cable TV access and did

not have “an excessive economic impact.” Loretto, 458

U.S. at 425. Categorically rejecting that view, this

Court held that when a government action results in

any permanent physical invasion of property, a takings

has occurred “without regard to whether the action

achieves an important public benefit or has only minimal economic impact on the owner.” Id. at 434–35 (emphasis added).

The second category of per se regulatory takings is

when regulation “completely deprive[s] an owner of ‘all

economically beneficial us[e]’ of her property.” Lingle,

544 U.S. at 538 (second alteration in original) (quoting

Lucas, 505 U.S. at 1019). Notably, in establishing this

per se rule, this Court has unequivocally limited its

application to those instances where the regulation

goes beyond “the restrictions that background principles of the State’s law of property and nuisance already

place upon land ownership.” Lucas, 505 U.S. at 1029.

22

Specifically, in Lucas v. S.C. Coastal Council, 505 U.S.

1003 (1992), this Court explained:

A law or decree with such an effect must, in

other words, do no more than duplicate the result that could have been achieved in the

courts—by adjacent landowners (or other

uniquely affected persons) under the State’s

law of private nuisance, or by the State under

its complementary power to abate nuisances

that affect the public generally, or otherwise.

On this analysis, the owner of a lakebed, for

example, would not be entitled to compensation when he is denied the requisite permit to

engage in a landfilling operation that would

have the effect of flooding others’ land. Nor

the corporate owner of a nuclear generating

plant, when it is directed to remove all improvements from its land upon discovery that

the plant sits astride an earthquake fault.

Such regulatory action may well have the effect of eliminating the land’s only economically productive use, but it does not proscribe

a productive use that was previously permissible under relevant property and nuisance

principles. The use of these properties for

what are now expressly prohibited purposes

was always unlawful, and (subject to other

constitutional limitations) it was open to the

State at any point to make the implication of

those background principles of nuisance and

property law explicit.

505 U.S. at 1029–30 (emphasis added). This principle

stands in stark contrast to what Indiana has done here

23

by enacting a statute that encourages the creation of

harmful nuisances and trespasses that are otherwise

unlawful.

Aside from these two per se categories, all other

regulatory takings challenges—i.e., those not based on

physical invasions or total economic deprivations—are

analyzed under the test established in Pennsylvania

Central Transportation Co. v. City of New York, 438 U.S.

104 (1978). Lingle, 544 U.S. at 538. Under Penn Central, courts apply a balancing test that considers: (1)

“the economic impact of the regulation on the claimant

and, particularly”; (2) “the extent to which the regulation has interfered with distinct investment-backed

expectations”; and (3) “the character of the government

action.” Lingle, 544 U.S. at 538–39 (cleaned up) (citing

Penn Central, 438 U.S. at 124). Each of these three inquiries as reflected in Loretto, Lucas, and Penn Central,

“aims to identify regulatory actions that are functionally equivalent to the classic takings” and, “[a]ccordingly, focuses directly upon the severity of the burden

that government imposes upon private property rights.”

Lingle, 544 U.S. at 539 (emphasis added). For this reason, “[a] permanent physical invasion, however minimal the economic cost it entails, eviscerates the

owner’s right to exclude others” and is a per se takings.

Id.

Contrary to all of this settled precedent, the Indiana Court of Appeals found no takings here, even

though it held that the RTFA bars the Himsel’s and

Lannons’ trespass claim based on the ongoing physical

invasion of their property, and also bars their nuisance

24

claim for the continuing and extreme interference with

their ability to use and enjoy their homes. Thus, based

solely on the wording of Indiana’s amended RTFA, the

Indiana Court of Appeals has forced the Himsels and

Lannons to relinquish their fundamental property

rights of exclusive possession, use and enjoyment,

without any remedy whatsoever. Such a holding is contrary to what this Court has found the Takings Clause

to require, and hence, particularly because as explained infra, such legislation is on the rise in many

states throughout the country, cries out for relief from

this Court.

C. The Indiana Court of Appeals Erroneously Held that the RTFA Was Not a Per

Se Takings Under Loretto.

The Court of Appeals misapplied this Court’s clear

precedent when it summarily rejected Petitioners’

trespass claim as demonstrating a per se takings of the

Himsel’s and Lannons’ property under Loretto. As discussed above, Loretto draws a bright-line rule that “a

permanent physical occupation authorized by government is a takings without regard to the public interests

that it may serve.” 458 U.S. at 426. Indeed, in that case

this Court stressed that “a permanent physical occupation of another’s property . . . is perhaps the most

serious form of invasion of an owner’s property.” Id. at

435. This is because “property law has long protected

an owner’s expectation that he will be relatively undisturbed at least in the possession of his property.” Id.

at 436 (emphasis added). Here, however, as the

25

uncontested record below demonstrates, the Himsels

and Lannons are very disturbed in the possession of

their property—i.e., due to the noxious fumes and particles that regularly invade their land, they are actually forced to vacate their homes from time to time, and

can no longer even have their grandchildren over to

visit. Pet. App. 83–84.

This Court has repeatedly and unambiguously reaffirmed the Loretto rule. See, e.g., Lingle, 544 U.S. at

539; Dolan v. City of Tigard, 512 U.S. 374, 384 (1994);

Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 831–32

(1987); Kaiser Aetna v. United States, 444 U.S. 164, 176

(1979). Moreover, this Court has also made clear that

such physical invasions are not limited to the erection

of unwanted structures such as the cable boxes in

Loretto. Rather, they also include invasions “by superinduced additions of water, earth, sand, or other material.” Loretto, 458 U.S. at 427 (emphasis added)

(quoting Pumpelly v. Green Bay Co., 80 U.S. 166, 181

(1871)). Here, the record unequivocally demonstrates

that the CAFO blows both acrid fumes and “spacefilling” noxious chemicals onto Petitioners’ lands. Pet.

App. at 241.

The Indiana Court of Appeals ignored Loretto

when it held that that the RTFA may constitutionally

preclude Himsel’s and Lannons’ trespass claim.

Although acknowledging that they had alleged an “unlawful physical invasion” by substances including “animal waste” and other CAFO emissions—“chemical

compounds that result in a physical, space-filling invasion into their homes,”—the Court nevertheless held

26

that the amended RTFA categorically bars their trespass claim. Pet. App. at 17. That is, without providing

for just compensation, the state court interpreted Indiana’s RTFA as barring the Himsel’s and Lannons’ attempt to remedy a permanent physical invasion, in

direct contradiction of the bright-line rule articulated

by this Court in Loretto, 458 U.S. at 426, and reaffirmed

many times. See, e.g., Palazzolo v. Rhode Island, 533

U.S. 606, 617 (2001); Lingle, 544 U.S. at 539; Stop the

Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot.,

560 U.S. 702, 713 (2010). Therefore, the Court should

grant certiorari for this reason alone.

D. The Indiana Court Also Erroneously

Held that the RTFA Passed Constitutional Muster Under the Penn Central

Balancing Test.

Although this case involves a per se takings under

Loretto, the Court of Appeals also misapplied this

Court’s takings doctrine when it held that the Himsels

and Lannons also had not suffered a regulatory takings under the balancing test set forth in Penn Central.

Again, that test requires a court to consider: (1) the

economic impact of the regulation, (2) the extent to

which the regulation has interfered with the plaintiff ’s

reasonable investment-backed expectations, and (3)

the character of the government action. Penn Central,

438 U.S. at 124. Ignoring the Himsel’s and Lannons’

evidence entirely, the Indiana Court of Appeals declared that these families “have alleged no distinct,

investment-backed expectations that have been

27

frustrated by the CAFO,” Himsel, 122 N.E.3d at 948,

and that the amended RTFA serves the important policy of “encourag[ing] the development and improvement of its agricultural land for the production of food

and other agricultural products.” Id. at 948 (quoting

IND. CODE § 32-30-6-9(b) (2005) to explain the RTFA’s

preferential treatment of farmers). As discussed below,

the Court of Appeals’ statement about Petitioners’

demonstrated expectations is patently wrong, and, in

fact, each of the three Penn Central factors are met

here.

a) Economic Impact

The economic impact factor addresses “the nature

and extent of the interference with rights in the parcel

as a whole.” Penn Central, 438 U.S. at 130–31. At the

extreme end of the spectrum, a complete deprivation

of economically viable use of land is a per se takings.

See Lucas, 505 U.S. at 1017–18. But takings need not

be so extreme. For example, in Arkansas Game and

Fish Commission v. United States, 568 U.S. 23 (2012),

this Court held that even the partial interference

with property rights caused by “government-induced

flooding of limited duration” was sufficient to require

just compensation by the government. 568 U.S. at

34.

Here, the operation of Respondents’ CAFO has

had drastic economic consequences for the Himsels

and Lannons, yet the RTFA strips them of all legal recourse. In purely monetary terms, the Lannons’ and

28

Himsel’s property values have decreased by approximately 60% and 49.5%, respectively. Pet. App. at 22.

Furthermore, by restricting all legal remedies, Indiana

is forcing the Himsels and Lannons to make the difficult decision of whether to continue to endure extreme

nuisance conditions—including overwhelming odors of

manure and ammonia; burning of the eyes, nose, and

throat; and toxic fumes with adverse health effects—

or to suffer significant economic loss by selling their

homes and moving. Their dilemma is directly and indisputably caused by the RTFA-immunized hog factory. Moreover, in addition to suffering quantifiable

economic loss, the Himsels and Lannons have been deprived of losses that are less quantifiable but no less

salient, including the ordinary pleasures of life such as

gardening, hosting gatherings of friends and family,

and, in the Himsel’s case, having their grandchildren

over to visit. Therefore, the first factor of Penn Central

weighs in favor of finding that the RTFA affects a takings here.

b) Investment-Backed Expectations

The second Penn Central factor is “the extent to

which the regulation has interfered with [the plaintiff ’s] distinct investment-backed expectations.” 438

U.S. at 124. A classic example is Pennsylvania Coal Co.

v. Mahon, 260 U.S. 393 (1922), where this Court found

unconstitutional a Pennsylvania statute that banned

mining to prevent subsidence (the gradual sinking of

an area of land), because the statute interfered with

the mining company’s reasonable investment-backed

29

expectation—specifically the right to cause subsidence—when it sold the surface rights over its mines.

260 U.S. at 414–15, cited in Penn Central, 438 U.S. at

127–28.

Like the mining company in Pennsylvania Coal,

the Himsels and Lannons purchased their homes with

the reasonable expectation of a return on their investment and the ability to use the property rights they

acquired. Furthermore, the Himsels and Lannons have

invested in more than their initial property rights,

which alone was sufficient to find distinct investmentbacked expectations in Pennsylvania Coal. The record

demonstrates that Petitioners also invested substantial time and money in making various home improvements. Thus, these families reasonably expected an

even higher return on their property investment that

they would have been able to realize were it not for the

fact that Indiana’s RTFA has allowed a feces-spewing

hog factory to be situated next to their homes, depriving them of any semblance of normal life, and cutting

their property values in half, with no attendant liability.

Indeed, the RTFA has had an especially severe

and direct impact here: the record shows that Respondents’ understanding that the RTFA would protect

them from all liability was a major reason they sited

their CAFO near the Himsels and Lannons. On the

other hand, the RTFA could not have informed any of

the Himsel’s and Lannons’ home investment decisions

because the law as amended in 2005 did not exist when

they purchased their homes, and had no relevance to

30

them until the CAFO began operating in 2013. Thus,

contrary to the Appeals Court declaration that these

families “alleged no distinct, investment-backed expectations that have been frustrated by the CAFO,”

Himsel, 122 N.E.3d at 948, the Himsels and Lannons,

alleged—and proved—that they had already purchased, maintained, and improved their homes with

the very real and reasonable expectation that they

would be able to live there in peace, and would be able

to sell their homes at a fair price should they decide to

move. By allowing the CAFO to cut their home values

in half, and forcing them to either live with unbearable

conditions or move at a substantial financial loss, the

RTFA has indisputably interfered with the Himsel’s

and Lannons’ distinct, investment-backed expectations. Accordingly, this factor also weighs in favor of

finding an unconstitutional takings here.

c) Character of the Government Action

The third Penn Central factor involves the character of the government action. 438 U.S. at 124. Under

this factor, a physical invasion of property is more

likely to be a takings than a regulatory program that

merely redistributes economic benefits in the public

interest. Id. In addition, a takings may occur if the government action “interfere[s] with interests that [are]

sufficiently bound up with the reasonable expectations

of the claimant to constitute ‘property’. . . .” Id. at 125.

Here, even if the Himsels and Lannons were not suffering a physical invasion, the government action is no

mere economic regulation. Rather, the RTFA allows

31

direct infringement on Petitioners’ property rights to

an extraordinary extent—putting the Himsel’s and

Lannons’ health at risk, and greatly degrading the

value, and limiting the use and enjoyment, of their

properties.

For that matter, the traditional role of government

has been to regulate private property to prevent nuisances, not to encourage them. See, e.g., Lucas, 505 U.S.

at 1022. This is in fact the essence of the “police power”

invoked in takings law, as giving the government the

power “to enjoin a property owner from activities akin

to public nuisances” without payment of just compensation. Id. In sharp contrast, the RTFA operates to incentivize otherwise unlawful and harmful nuisances—

precisely what occurred here.

Indeed, a decision by a state legislature that

homeowners who have resided lawfully in their existing homes for decades no longer have the right to live

there without sacrificing their health and overall quality of life—or can no longer enforce basic property

rights in court—could scarcely be anything but a takings. The RTFA abolishes the Himsel’s and Lannons’

long-vested property rights for the ostensible public

good of allowing industrial-scale pork production. It is

therefore precisely the kind of confiscatory legislation

that the federal Takings Clause is designed to prohibit.

See Penn Central, 438 U.S. at 123 (“[T]he ‘Fifth Amendment’s guarantee . . . [is] designed to bar Government

from forcing some people alone to bear public burdens. . . .’ ” (alteration in original)). Accordingly, for this

reason also, the Court should grant certiorari and

32

allow Petitioners to pursue their nuisance and trespass claims.

II.

The Indiana Court Has Decided An Important Federal Question That Conflicts

With Decisions Of Other State Courts And

That This Court Should Settle.

Review by this Court is also warranted to correct

divergent views among the states as to when an unconstitutional takings occurs—particularly with respect to the kind of nuisance and trespass caused by

siting a massive CAFO next to long-time homeowners’

properties.

In interpreting federal takings jurisprudence,

state courts have evinced a lack of uniformity regarding whether or when government-sanctioned physical

invasions and nuisances constitute regulatory takings.

As discussed above, the Indiana Court of Appeals concluded they do not. Instead, that Court stated that

“[r]egulation . . . effects a takings only where it ‘deprives an owner of all or substantially all economic or

productive use of his or her property.’ ” Pet. App. at 22

(quoting Biddle v. BAA Indianapolis, LLC, 860 N.E.2d

570, 577 (Ind. 2007)) (emphasis added). In addition to

being blatantly inconsistent with this Court’s takings

jurisprudence,2 Indiana’s test is at odds with the

standards applied by other state courts.

2

This Court in Lucas made clear that losing all economically

beneficial use of one’s property is just one sufficient condition for

establishing a per se takings. 505 U.S. at 1015.

33

For example, Arkansas courts take a starkly different approach. When a government-constructed sewage pipe overflowed—subjecting landowners to the

smells, health effects, and other problems associated

with the resultant waste—the Arkansas Supreme

Court held that “a continuing trespass or a continuing

nuisance over a long period of time upon [homeowners’] lands” was a takings within the meaning of the

federal Takings Clause. City of Fayetteville v. Stanberry, 305 Ark. 210, 213 (Ark. 1991). Thus, unlike in

Indiana, governmental imposition of continuing trespasses or nuisances is sufficient to find a takings in Arkansas, even if the imposition is impermanent and

revocable.

Georgia courts’ decisions on when a governmentsanctioned nuisance constitutes a takings further

evince the divergent application of this important constitutional doctrine. Georgia’s Supreme Court held

that property “owners have clearly stated a claim of

inverse condemnation in alleging that the odors and

noise from [a] county’s sewage plant have interfered

with their right to use, enjoy, and dispose of their property.” Duffield v. DeKalb County, 242 Ga. 432, 434 (Ga.

1978). Thus, without clearly stating the test used to

reach that conclusion—and unlike the Indiana rule—

the Georgia Supreme Court also held that a government-imposed nuisance without just compensation

constitutes a takings.3

3

While the Georgia Supreme Court was formally analyzing

takings prohibitions under its state constitution, those

34

Of course, nothing in these courts’ tests is limited

to the context of human waste. Nor should that line be

drawn—livestock waste, like human waste, is animal

waste that can cause a myriad of health concerns, devalue property, and decimate the quality of life for

homeowners forced to live near it. Therefore, if the government commits a takings through the imposition of

feces-spewing structures and the denial of any remedy,

then, ipso facto, government action that creates the

same result by allowing a feces-spewing industrial hog

facility to be built near someone’s home, and then

denying that homeowner any remedy, must also be a

takings. Holding otherwise gives a special “pass” or

constitutional carve-out for one kind of industry over

others, even though the harms imposed by such industries are no less consequential.

Moreover, even within the narrower context of

CAFOs and RTFAs, disagreement about what constitutes a takings is widespread among the states. For example, in Bormann v. Board of Sup’rs In & For Kossuth

County, 584 N.W.2d 309 (Iowa 1998), the Iowa Supreme Court struck down Iowa’s RTFA, holding that

barring nuisance suits against CAFOs effects an easement and, therefore, violated the federal Takings

Clause. 584 N.W.2d at 321. Therefore, had Iowa’s legislature passed a statute identical to Indiana’s RTFA,

prohibitions are “the equivalent” of those “contained in the Fifth

and Fourteenth Amendments to the Federal Constitution.” Barrett v. Hamby, 235 Ga. 262, 267 (Ga. 1975) (Gunter, J., concurring).

35

the Iowa Supreme Court’s logic would have also

deemed that statute a takings.4

Moreover, Iowa is not alone in that interpretation.

In Minnesota, a district court found Bormann “persuasive,” though it ruled against the homeowners on other

grounds. Overgaard v. Rock Cty. Bd. of Comm’rs, No.

02-601, 2003 U.S. Dist. LEXIS 13001, at *21–22 (D.

Minn. July 25, 2003). Indiana, on the other hand, has

rejected Bormann, finding no support for the “seemingly unique” Iowa doctrine in Indiana law. Lindsey v.

DeGroot, 898 N.E.2d 1251, 1259 (Ind. Ct. App. 2009)

(“expressly declin[ing] the Lindseys’ invitation to

adopt Iowa’s proposition that the right to maintain a

nuisance [as] contained in the [RTFA] creates an easement.”).

These divergent outcomes based on states’ unique

property laws are themselves reasons for this Court to

review this matter. Under the Supremacy Clause, U.S.

Const. art. VI, ¶ 2, whether a government action is a

takings does not depend on the peculiarities of each

state’s property laws. See, e.g., Lucas, 505 U.S. at 1033

(“If the Takings Clause is to protect against temporary

deprivations, as well as permanent ones, its enforcement must not be frustrated by a shifting background

4

In Bormann, the court considered principles of state property law under which an invasion of private property creates an

easement. 584 N.W.2d at 315–16 (holding that the right to maintain a nuisance gives rise to an easement under Iowa state law,

and that such easements require just compensation under the

federal Takings Clause).

36

of state law.”) (Kennedy, J., concurring). Thus, if barring nuisance or trespass suits against a CAFO violates the Constitution in one state, then it should do so

in all states. Indeed, if it were otherwise, Iowa’s state

legislature could simply rewrite its state’s property

laws such that the same invasion causing the same

harm would no longer represent a takings. Surely such

end-runs around constitutional requirements should

not be countenanced.

As discussed supra, the conclusions reached by

courts in Arkansas, Georgia, Iowa, and Minnesota follow naturally from this Court’s precedents. However,

this Court has not yet drawn a precise line on the issue

of when a government-sanctioned nuisance constitutes

a takings. Therefore, courts, such as the Indiana Court

of Appeals, as well as legislators, like those who

adopted Indiana’s updated RTFA, seem unaware that

such a line even exists. Indeed, even academics have

observed “uncertainty, unpredictability, and general

lack of doctrinal coherence” in nuisance and takings

law that prevail “even more” when the two doctrines

intersect. Carlos A. Ball, The Curious Intersection of

Nuisance and Takings Law, 86 B.U. L. REV. 819, 821–

22 (2006). Therefore, settling this “seemingly ad hoc

nature of nuisance and takings analysis,” id. at 822—

and doing the same for the intersection of trespass

and takings—would provide these states some muchneeded uniformity.

This lack of uniformity among the states has

gained particular urgency in recent years, given the

37

pace at which states are amending their RTFAs at the

behest of the CAFO industry to add provisions like the

one at issue here. In 2000, Colorado became among one

of the first states to enact a RTFA amendment barring

nuisance suits when agricultural operations undergo

certain major changes, as the Indiana legislature has

now done. See COLO. REV. STAT. § 35-3.15-102 (2000).

More recently, in 2013 North Carolina amended its

RTFA, using language similar to the Indiana statute,

to limit the types of “changes” in operation that qualify

as “fundamental” and hence subject to nuisance claims.

N.C. GEN. STAT. ANN. § 106-701(a)(1) (LexisNexis

2013) (amended 2018) (establishing safe harbor from

nuisance suits for agricultural operations for “[a]

change in ownership or size,” “[e]mployment of new

technology,” or “[a] change in the type of agricultural

. . . product produced”).

Thus, under the amended Colorado, Indiana, and

North Carolina statutes, homeowners can no longer

sue an agricultural operation that implements any

new technology for a nuisance caused by that technology, no matter how intrusive the technology may be on

a homeowner’s property rights. In Indiana and North

Carolina, the same is true of changing the operation’s

size, no matter how large the operation becomes. The

result is that, in these states—like in Indiana—even if

a farm transitions from crops or small-scale livestock

farming to a massive CAFO spraying manure and

emitting noxious fumes onto neighboring land, nearby

homeowners have absolutely no recourse when they

lose the ability to use and enjoy their property.

38

Utah, Nebraska, and Oklahoma have more recently enacted RTFA legislation to include similar provisions as the one challenged here. UTAH CODE ANN.

§ 4-44-102(2) (LexisNexis 2019) (establishing safe harbor from nuisance suits for agricultural operations for

“[a] change in ownership or size,” “[e]mployment of a

new technology,” or “[a] change in the type of agricultural product produced”); NEB. REV. STAT. ANN. § 24403(2) (LexisNexis 2019) (establishing a two-year

statute of limitations for nuisance actions “against a

farm or farm operation” that commences “after the condition which is the subject matter of the suit reaches a

level of offense sufficient to sustain a claim of nuisance,” with no provisions for resetting that time for

any major, significant, or fundamental changes); OKLA.

STAT. ANN. tit. 50 § 1.1 (LexisNexis 2017) (amended

2019) (establishing safe harbor from nuisance suits for

agricultural operations if “[t]he physical facilities of

the farm or ranch are subsequently expanded or new

technology adopted”).

And West Virginia and Georgia currently have

such legislation pending. See H.B. 2774, 84th Leg., 2nd

Sess. (W. Va. 2020) (would establish safe harbor from

nuisance suits for agricultural operations for “[i]ntroducing technology to an existing agricultural operation” or “[a]ny other change that is related and applied

to an existing agricultural operation”); H.B. 545, 155th

Gen. Assemb., Reg. Sess. (Ga. 2020) (would create a

one-year statute of limitations for nuisance actions

“against any agricultural facility, agricultural operation, any agricultural operation at an agricultural

39

facility, agricultural support facility, or any operation

at an agricultural support facility,” and establishing

that such time does not reset for “[t]he addition or expansion of physical facilities,” “[t]he adoption of new

technology,” “[a] change in or size of an operation or facility”, “[a] change in type of operation,” or “[a] transfer

of ownership.”).

Therefore, a decision from this Court clearly delineating when a statute barring claims for nuisance and

trespass constitutes a takings is needed to provide uniformity for the states, courts, CAFO operators, and

homeowners alike. Otherwise, such inconsistent deprivations of valuable property rights will continue to proliferate, and families such as the Himsels and Lannons

who have lived peaceful rural lives for decades will be

unconstitutionally deprived of those rights, as well as

any ameliorative relief.

------------------------------------------------------------------

40

CONCLUSION

For the foregoing reasons, the Court should grant

the requested writ of certiorari.

Respectfully submitted,

KATHERINE A. MEYER

Counsel of Record

Director

HARVARD ANIMAL LAW AND

POLICY CLINIC

1607 Massachusetts Avenue

Cambridge, MA 02138

(617) 496-5145

kmeyer@law.harvard.edu

KIM E. FERRARO

Senior Staff Attorney

HOOSIER ENVIRONMENTAL COUNCIL

3951 N. Meridian, Suite 100

Indianapolis, IN 46208

(317) 685-8800

kferraro@hecweb.org

Counsel for Petitioners