Petition for Writ of Certiorari — Janet L. Himsel, et al., Petitioners v. 4/9 Livestock, LLC, et al.
Supreme Court briefJul 17, 2020
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FILED
Apr 22 2019, 5:29 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANTS
ATTORNEYS FOR APPELLEES
Kim E. Ferraro
Samuel J. Henderson
Gary, Indiana
Christopher J. Braun
Jonathan P. Emenhiser
Justin A. Allen
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
HENDRICKS COUNTY
Gregory E. Steuerwald
Graham T. Youngs
Danville, Indiana
ATTORNEY FOR AMICUS CURIAE
THE INDIANA BANKERS ASSOCIATION
Kyle A. Lansberry
Brandon W. Ehrie
Indianapolis, Indiana
ATTORNEYS FOR APPELLEESINTERVENOR STATE OF INDIANA
Martha R. Lehman
Indianapolis, Indiana
Curtis T. Hill, Jr.
Attorney General of Indiana
ATTORNEYS FOR AMICUS CURIAE
Aaron T. Craft
Deputy Attorney General
Indianapolis, Indiana
INDIANA AGRICULTURAL LAW
FOUNDATION, INC.
Todd J. Janzen
Brianna J. Schroeder
Indianapolis, Indiana
ATTORNEYS FOR AMICUS CURIAE
INDIANA PORK PRODUCERS
ASSOCIATION, INC.
Daniel P. McInerny
Andrew M. McNeil
Indianapolis, Indiana
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IN THE
COURT OF APPEALS OF INDIANA
Janet L. Himsel, Martin Richard
Himsel, Robert J. Lannon, Susan
M. Lannon,
April 22, 2019
Appellants-Plaintiffs,
Appeal from the Hendricks
Superior Court
v.
Samuel Himsel, Cory M.
Himsel, Clinton S. Himsel, 4/9
Livestock, LLC and Co-Alliance,
LLP,
Court of Appeals Case No.
18A-PL-645
The Honorable Mark A. Smith,
Judge
Trial Court Cause No.
32D04-1510-PL-150
Appellees-Defendants,
and
State of Indiana,
Appellee-Intervenor.
Altice, Judge.
Case Summary
[1]
Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon, and Susan M.
Lannon (collectively, the Plaintiffs) filed a complaint, alleging nuisance,
negligence, and trespass, against Samuel T. Himsel, Cory M. Himsel, Clinton
S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP (collectively, the
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Defendants). Specifically, the Plaintiffs alleged in their complaint that the
concentrated animal feeding operation (CAFO) placed on 4/9 Livestock’s
property in 2013 created noxious odors that are so extreme as to greatly
diminish the Plaintiffs’ quality of life, reduce their property values, and alter
their daily activities. In their complaint, the Plaintiffs also challenged the
constitutionality of Ind. Code § 32-30-6-9, which is commonly known as the
Right to Farm Act (the RTFA), and Ind. Code § 15-11-2-6(a), 1 which requires
the Indiana Code to be construed to “protect the rights of farmers to choose
among all generally accepted farming and livestock production practices,
including the use of ever changing technology.”
[2]
The Defendants moved for summary judgment on all claims, and, thereafter,
the Plaintiffs filed a motion for partial summary judgment regarding their
constitutional challenges. Following a hearing, the trial court granted summary
judgment in favor of Clinton, Cory, and Samuel Himsel (the Individual Himsel
Defendants) but otherwise denied both motions for summary judgment. The
Defendants filed a motion to correct error, once again seeking summary
judgment on all claims against them. Amici curiae – the Indiana Agricultural
Law Foundation (IALF) and Hendricks County – filed briefs in support of the
Defendants’ motion to correct error. In addition to opposing the Defendants’
1
We will refer to this statute as the Agricultural Canon.
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motion to correct error, the Plaintiffs asserted cross-error regarding the trial
court’s grant of summary judgment to the Individual Himsel Defendants.
[3]
The trial court granted the Defendants’ motion to correct error and then entered
summary judgment in favor of the Defendants on all claims. On appeal, the
Plaintiffs challenge the entry of summary judgment.
[4]
We affirm.
Facts & Procedural History
[5]
Samuel Himsel has farmed in rural Hendricks County his entire life. His sons,
Cory and Clinton, also make their living farming in the county. In 2012, the
three decided to start a hog-raising operation, and, in January 2013, they
formed 4/9 Livestock. The Individual Himsel Defendants are the sole
members of 4/9 Livestock. The Individual Himsel Defendants decided to
locate the 4/9 Livestock operation at 3042 North 425 West in Danville (the
Farm), which property had been in their family for more than two decades.
Samuel’s parents acquired this farmland in the early 1990s, and the land had
been used for agricultural purposes since at least 1941. Between at least 1994
and 2013, the Farm had been used consistently for crops.
[6]
In February 2013, Samuel submitted a rezoning petition to the Hendricks
County Area Plan Commission to rezone 58.42 acres of farmland on the Farm.
The land was zoned agricultural residential (AGR), and Samuel petitioned for it
to be rezoned agricultural intense (AGI), which allows for CAFOs. Following
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a public hearing on March 12, 2013, at which Richard Himsel spoke in
opposition to the rezoning, the Plan Commission unanimously recommended
approval of the requested rezoning. In doing so, the Plan Commission made
the following written findings:
(1) The comprehensive plan[:] The Commission finds that the
proposal does substantially comply with the
recommendations of the Hendricks County Comprehensive
Plan…. The Comprehensive Plan expressly lists confined
animal feeding operations as a recommended land use in the
area under consideration.
(2) Current conditions and the character of current structures
and uses in each district[:] The Commission finds that the
proposal is consistent and compatible with the character of
current structures and uses in the zoning district…. The area
is a well-established, longstanding agricultural community.
Furthermore, the proposed use is an agricultural use expressly
recognized in the current Comprehensive Plan.
(3) The most desirable use for which the land in each district is
adapted[:] The Commission finds that the proposal does
represent the most desirable use for which the land is adapted.
The 1983, 1998, and 2008 Comprehensive Plans have
consistently recommended that the area be for agricultural
use. This represents a longstanding community desire to see
this area remain agricultural in character. The proposed use
is expressly listed in the current Comprehensive Plan as a
characteristic and desirable use in this area.
(4) The conservation of property values throughout the
jurisdiction[:] The Commission finds that the proposal does
conserve property values….
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(5) Responsible development and growth[:] The Commission
finds that the proposal does represent responsible
development and growth. The area under consideration is an
integral part of the historically rural agricultural west side of
Hendricks County. The last three Comprehensive Plans have
recognized this part of the County as being characteristically
agricultural and have reserved the area for agricultural uses in
the future. This reflects the County’s longstanding desire to,
in general, plan for urbanization of its east side while
maintaining the rural character of its agricultural west side.
The proposal under consideration is consistent and
compatible with the County’s long term land use planning
goals.
Appellants’ Appendix Vol. IV at 107-08.
[7]
On March 26, 2013, the County Commissioners unanimously approved the
rezoning and adopted the Plan Commission’s findings. After the property was
rezoned, it was transferred from Samuel to 4/9 Livestock. The Plaintiffs did
not appeal the rezoning decision. Thereafter, before improvement location
permits were granted, the Plan Commission held two public hearings regarding
the siting, design, and construction plans for the Farm’s CAFO, which included
the construction of two 4000-hog production buildings. Additionally, in May
2013, the Indiana Department of Environmental Management (IDEM)
approved two permits to construct and operate the CAFO buildings on the
Farm. The Plaintiffs did not appeal IDEM’s permit approvals.
[8]
On July 1, 2013, 4/9 Livestock entered into a hog finishing contract with CoAlliance. Under the contract, Co-Alliance would supply the hogs and 4/9
Livestock would raise them. 4/9 Livestock was to operate as an independent
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contractor. Once fully grown, which was within about six months, the hogs
would be shipped out of the CAFO by Co-Alliance and a new batch of young
hogs would come into the CAFO. On July 19, 2013, 4/9 Livestock and PNC
Bank entered into a convertible line of credit note for a seven-figure amount to
finance the construction of the CAFO. Shortly after construction was
completed, the CAFO buildings were populated with hogs on October 2, 2013.
Since the CAFO began operating there have been no violations cited by either
IDEM or Hendricks County relating to its operation.
[9]
The Plaintiffs live in the immediate vicinity of the Farm. Richard and Janet
Himsel (collectively, the Himsel Plaintiffs) moved into their home in 1994.
Their home is on a farm where the Himsel Plaintiffs raised livestock and grew
crops until 2000, when they retired and sold much of their farmland. Richard
grew up on this farm, and the farmhouse has stood since 1926. Robert Lannon
built his home in 1971 and married his wife Susan in 1974. They have never
farmed on their property but are accustomed to the usual smells that come with
living in farm country, having lived there for over forty years.
[10]
The Farm and the Plaintiffs’ properties are located in western Hendricks
County in an area that the county’s Board of Commissioners has expressly
designated for agricultural purposes since the adoption of the county’s first
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comprehensive plan in 1983. 2 The nearest town is over five miles away, and
the nearest residential subdivision is about two miles away.
[11]
Agricultural uses have dominated in the area surrounding the Farm and the
Plaintiffs’ properties. In addition to row crops, those uses have included raising
livestock such as cattle, hogs, chicken, goats, and sheep. In fact, Richard
Himsel and his father raised livestock, including 200 head of hogs and 200 head
of cattle at a time, in the area directly adjacent to their home for years. For
about two years, Richard had a confinement building on his property,
approximately 700 feet from his home, that held up to 400 head of hogs. This
building was destroyed by fire and not rebuilt. Another farmer, John Hardin,
has a hog confined feeding operation located near the Plaintiffs’ properties.
Hardin has been operating his hog farm for many years and periodically applies
hog manure to fields as close as twenty feet from the Himsel Plaintiffs’ home.
[12]
On October 6, 2015, the Plaintiffs filed the instant action raising claims of
nuisance, negligence, and trespass against the Defendants and seeking a
declaratory judgment that the Agricultural Canon is facially unconstitutional.
The Defendants’ answer raised the RTFA as an affirmative defense. The State
of Indiana intervened to defend the constitutionality of the challenged statute.
2
Similar plans were adopted in 1998 and 2008. Notably, the AGI zoning district was not created until the
2008 comprehensive plan. The AGI district “serves to provide adequate and appropriate locations for intense
agricultural uses such as CAFO’s [sic] or agricultural businesses that may emit intense odors, vibrations, air
pollution, or other disruptions.” Appellants’ Appendix Vol. VIII at 22.
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Thereafter, the Plaintiffs amended their complaint to add as-applied
constitutional challenges to application of the RTFA as a defense in this case.
[13]
The Defendants moved for summary judgment with respect to all claims in
November 2016, and the Plaintiffs then filed a motion for summary judgment
on the constitutionality of the RTFA and the Agricultural Canon. The motions
were extensively briefed and supported by a significant amount of designated
evidence. On September 27, 2017, the trial court held a summary judgment
hearing regarding both motions.
[14]
On October 24, 2017, the trial court entered a summary judgment order with
extensive findings and conclusions. The court granted summary judgment in
favor of the Individual Himsel Defendants but otherwise denied the summary
judgment motions. Thereafter, on November 22, 2017, the Defendants filed a
motion to correct error. Briefs in support of the motion were filed by putative
amici IALF and Hendricks County. The trial court granted the amici’s motions
for leave to appear. Thereafter, on December 21, 2017, the Plaintiffs filed their
response to the motion to correct error and asserted cross-error regarding the
grant of summary judgment to the Individual Himsel Defendants.
[15]
The trial court held a hearing on the motion to correct error on January 24,
2018. Four days later, the trial court issued an order granting the motion to
correct error, amending its prior conclusions, and granting summary judgment
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in favor of the Defendants on all claims. The Plaintiffs now appeal.3
Additional information will be provided below as needed.
Standard of Review
[16]
Summary judgment orders are reviewed de novo on appeal, and we apply the
same standard of review as the trial court. Knighten v. E. Chicago Hous. Auth., 45
N.E.3d 788, 791 (Ind. 2015). The moving party must show there are no
genuine issues of material fact and it is entitled to judgment as a matter of law.
Id. In deciding whether summary judgment is proper, we consider only the
designated evidence and construe all factual inferences in favor of the nonmoving party. Id.
Discussion & Decision
Application of the RTFA
[17]
The Plaintiffs’ complaint alleges that their use and enjoyment of their homes, as
well as their homes’ values, were ruined by noxious odors and airborne
emissions coming from the CAFO. The RTFA, however, limits the
circumstances under which agricultural operations 4 may be subject to nuisance
claims. See I.C. § 32-30-6-9(d). The Defendants argue that the RTFA bars
3
Several amici curiae briefs have been filed in support of the Defendants and the State as intervenor. Amici
include the IALF, Indiana Pork Producers Association, Inc., Hendricks County, and the Indiana Bankers
Association.
4
I.C. § 32-30-6-1 defines “agricultural operation” to include “any facility used for the production of crops,
livestock, poultry, livestock products, poultry products, or horticultural products or for growing timber.”
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Plaintiffs’ nuisance claim, as well as their other related claims. The material
facts in this case are not in dispute. Rather, the disagreement centers on the
legal effect of the facts and interpretation of subsection (d)(2) of the RTFA.
[18]
The RTFA, I.C. § 32-30-6-9, provides in relevant part:
(a) This section does not apply if a nuisance results from the
negligent operation of an agricultural … operation….
(b) The general assembly declares that it is the policy of the state
to conserve, protect, and encourage the development and
improvement of its agricultural land for the production of food
and other agricultural products. The general assembly finds that
when nonagricultural land uses extend into agricultural areas,
agricultural operations often become the subject of nuisance
suits. As a result, agricultural operations are sometimes forced to
cease operations, and many persons may be discouraged from
making investments in farm improvements. It is the purpose of
this section to reduce the loss to the state of its agricultural
resources by limiting the circumstances under which agricultural
operations may be deemed to be a nuisance.
***
(d) An agricultural or industrial operation … is not and does not
become a nuisance … by any changed conditions in the vicinity
of the locality after the agricultural … operation … 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.
….
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(D) Adoption of new technology by the agricultural
operation.
(2) The operation would not have been a nuisance at the
time the agricultural … operation began on that locality.
The Plaintiffs concede that the agricultural operation here has been in operation
continuously for more than one year. Indeed, the record establishes that the
farmland in question has been actively farmed for decades. The 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. 5 See Parker v. Obert’s Legacy Dairy, LLC, 988 N.E.2d 319, 324 (Ind.
Ct. App. 2013) (holding that cropland-to-CAFO conversion is not a significant
change under the RTFA).
[19]
The Plaintiffs contend that the RTFA is not a bar to their nuisance action,
however, because the CAFO would have been a nuisance when farming
originally began on the Farm. In other words, the Plaintiffs rely upon
subsection (d)(2) of the RTFA, which requires that “[t]he operation would not
have been a nuisance at the time the agricultural … operation began on that
locality.”
5
Prior to an amendment to its current form in 2005, the RTFA required no significant change in the hours
and type of operation. In addition to removing the no-significant-change-in-hours condition, the amendment
set out a list of changes that do not amount to a significant change in the type of operation, including a change
in the type of agricultural operation (i.e., changing from crops to livestock), a change of ownership or size of
the operation, and the adoption of new technology. In light of the amendment, it is difficult to imagine what
would constitute a significant change in the type of operation.
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[20]
Contrary to the Plaintiffs’ suggestion on appeal, we need not determine
precisely when farming originally began on the Farm. The designated evidence
establishes that the land had been used for row crops since at least 1941.6
Further, the record clearly establishes that the Plaintiffs’ non-farming use of
their properties began well after 1941. The Lannons built their non-farming
residence in 1971, and the Himsel Plaintiffs began using their home as a nonfarming residence in 2000 after deciding to retire and sell most of their acreage.
[21]
“The [RTFA], by its plain terms, was intended to prohibit nonarigultural land
uses from being the basis of a nuisance suit against an established agricultural
operation.” TDM Farms, Inc. of North Carolina v. Wilhoite Family Farm, LLC, 969
N.E.2d 97, 111 (Ind. Ct. App. 2012). It is essentially a codification of the
doctrine of coming to the nuisance. Id. at 110; see also Shatto v. McNulty, 509
N.E.2d 897, 900 (Ind. Ct. App. 1987) (“People may not move to an established
agricultural area and then maintain an action for nuisance against farmers
because their senses are offended by the ordinary smells and activities which
accompany agricultural pursuits.”). 7
6
During his deposition, Richard Himsel testified that the Farm had been used for farming his entire life and
that prior to the CAFO the land had been used for “rotating crops, corn, soybeans, wheat, oats, probably had
a year or two of hay in it when old Bill Wilder had it.” Appellants’ Appendix Vol. III at 191.
7
Applying the original version of the RTFA from 1981 (Ind. Code § 34-1-52-4), this court observed: “[P]ork
production generates odors which cannot be prevented, and so long as the human race consumes pork,
someone must tolerate the smell. [The RTFA] addresses that fundamental fact and protects pork production
when it is confined to its natural habitat, that is, rural farm communities such as Jennings County.” Shatto,
509 N.E.2d at 900.
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[22]
This is not a case where the Plaintiffs moved to the nuisance as that expression
is typically understood. Indeed, the Farm did not change from crop farming to
pig farming until well after the Lannons built their home and the Himsel
Plaintiffs moved into theirs. Prior to the 2005 amendment to the RTFA, this
would have constituted a significant change in the agricultural operation
making the RTFA inapplicable. See Wendt v. Kerkhof, 594 N.E.2d 795, 798
(Ind. Ct. App. 1992) (farm changed from decades of grain farming to hog
farming five years after plaintiffs became adjacent landowners), trans. denied. As
noted above, however, the Plaintiffs acknowledge that in light of the 2005
amendment, the change in the agricultural operation here from crops to hogs
did not constitute a significant change in the type of operation. See Parker, 988
N.E.2d at 324 (“By specifying that a conversion from one agricultural operation
to another is not a significant change, the Act removes claims against existing
farm operations that later undergo a transition from one type of agriculture to
another.”). Thus, the coming to the nuisance doctrine, as applied by the
RTFA, now encompasses coming to the potential future nuisance.
[23]
Agricultural uses have dominated the landscape surrounding the Plaintiffs’
properties, with a number of farmers in the area owning or having owned
livestock. Richard Himsel, prior to retiring from farming, even had livestock on
his property. The county’s Plan Commission and County Commissioners
recognized the well-established, longstanding agricultural community in which
the Farm was situated and indicated the county’s ongoing desire to maintain
the rural character of Hendricks County’s agricultural west side. Further, the
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Comprehensive Plan for the area in question expressly lists CAFOs as a
recommended land use.
[24]
Robert Lannon knowingly built his residential home in the middle of farm
country, and the Himsel Plaintiffs lived and farmed on their property for a
number of years before selling off much of their land and changing the use of
their home to purely residential. None of the Plaintiffs can now be heard to
complain that their residential use of their property is being negatively impacted
because the use of the Farm changed from crops to hogs, a use that would not
have been a nuisance in or around 1941 when the agricultural operation began
on the locality.
[25]
The Plaintiffs contend that applying the RTFA in this manner will “have the
extraordinary effect of removing any evidentiary burden by allowing CAFOs of
any size to be built anywhere there is any history of agricultural activity.”
Appellants’ Brief at 27 (emphases in original). We are not so sure. Moreover, we
observe that requiring a defendant farmer to establish that his or her particular
CAFO (rather than hog farming or CAFOs generally) would not have been a
nuisance when the agricultural operation began on the locality would eviscerate
the protections of the RTFA.
[26]
The Plaintiffs’ argument also ignores the significant local and administrative
hurdles a farmer must overcome before being allowed to build a CAFO. In this
case, after a number of public hearings and notices to adjoining landowners, the
Defendants obtained rezoning of the Farm and building permits from the
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county approving the specific siting, design, and construction plans for the
CAFO’s two buildings. The Plaintiffs did not seek judicial review of these
decisions by county officials. The Defendants also applied for permits from
IDEM for the construction and operation of the CAFO. The Plaintiffs did not
appeal issuance of these permits. The Plaintiffs were provided ample due
process to challenge the size and/or placement of the CAFO buildings on the
Farm, yet they decided instead to wait and file a nuisance action more than two
years later. In light of the RTFA, they put their eggs in the wrong basket. Their
general nuisance claim fails as a matter of law.
[27]
The RTFA provides an exception where an alleged nuisance results from the
negligent operation of the agricultural operation or its appurtenances. See I.C. §
32-30-6-9(a). The designated evidence provides no indication that the CAFO
has been negligently operated by 4/9 Livestock or has violated IDEM
regulations. See Lindsey v. DeGroot, 898 N.E.2d 1251, 1260-62 (Ind. Ct. App.
2009) (addressing alleged operational negligence based on violations of IDEM
regulations and concluding, on summary judgment, that the violations were not
the proximate cause of the alleged injury); see also Dalzell v. Country View Family
Farms, LLC, 517 F. App’x 518, 520 (7th Cir. 2013) (“Unless the nuisance
‘results from’ the negligence, and not just from the agricultural operation, the
Act applies and defeats plaintiffs’ claim.”). Further, we agree with the
Defendants and amici that the Plaintiffs’ claim of negligent siting (i.e., the
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decision to build and operate a CAFO at a particular location) 8 cannot
constitute negligent operation under the RTFA. If allowed, it would simply
create an end run around the protections of the RTFA.
[28]
The Plaintiffs also brought a trespass claim purportedly based on “the unlawful
physical intrusion of the CAFO’s noxious emissions into their properties and
homes.” Appellants’ Brief at 39. They allege that the emissions – “animal waste,
air pollutants, harmful gases, and noxious odors” – are chemical compounds
that result in a physical, space-filling invasion into their homes. Appellants’
Appendix Vol. III at 10. Despite artful pleading, we observe that application of
the RTFA does not turn on labels. The trial court properly concluded that the
Plaintiffs’ trespass claim is barred by the RTFA. See Ehler v. LVDVD, L.C., 319
S.W.3d 817, 824 (Tex. Ct. App. 2010) (“Permitting the [plaintiffs] to avoid the
application of [the Texas RTFA] by pleading a nuisance action as a trespass
would eviscerate the statute and deny [the defendants] the protection intended
by the Legislature when it passed the Right to Farm Act.”).
Constitutional Claims
[29]
The Plaintiffs contend that the RTFA is unconstitutional as applied to them
because it violates the Open Courts Clause, the Takings Clause, and the Equal
8
The Plaintiffs assert that “the CAFO Operators negligently sited, designed and built their 8,000-hog CAFO
in an inappropriate location” and have continued to operate the CAFO “despite the now unmistakable effect
on their neighbors”. Appellants’ Brief at 34. They claim that the Defendants had a duty to take reasonable
care to “keep emissions of their CAFO from injuring their neighbors.” Id. at 35. We reject the Plaintiffs’
attempt to repackage their nuisance claim to avoid the effects of the RTFA.
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Privileges and Immunities Clause of the Indiana Constitution, as well as the
federal Takings Clause. In sum, they assert that application of the RTFA has
deprived them of their ability to enforce their long-vested property rights in their
homes. The Plaintiffs also assert a facial challenge to the Agricultural Canon.
[30]
We review the constitutionality of a statute de novo. See Tyson v. State, 51
N.E.3d 88, 90 (Ind. 2016). Statutes come before us “clothed with the
presumption of constitutionality until clearly overcome by a contrary showing.”
Zoeller v. Sweeney, 19 N.E.3d 749, 751 (Ind. 2014). “The party challenging the
constitutionality of a statute bears the burden of proof, and all doubts are
resolved against that party and in favor of the legislature.” Id.
Open Courts Clause
[31]
The Plaintiffs first contend that the RTFA violates the Open Courts Clause,
Article 1, Section 12 of the Indiana Constitution, which provides in relevant
part: “All courts shall be open; and every person, for injury done to him in his
person, property, or reputation, shall have remedy by due course of law.” Our
Supreme Court has made clear that this clause “does not prohibit all conditions
on access to the courts, but it does prevent the legislature from arbitrarily or
unreasonably denying access to the courts.” KS&E Sports v. Runnels, 72 N.E.3d
892, 905 (Ind. 2017).
The right of access presupposes an underlying cause of action to
which the right of access attaches and for which the law affords a
remedy. The legislature has wide latitude in defining the
existence and scope of a cause of action and in prescribing the
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available remedy. In McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind.
2000), we reaffirmed the legislature’s longstanding prerogative
“to modify or abrogate the common law.” Id. at 977 (citations
omitted). An important corollary is that “[i]f the law provides no
remedy, [Article 1,] Section 12 does not require that there be
one.” Id. at 979.
Id. at 906.
[32]
The Plaintiffs assert that they have a vested right to use and enjoy their property
and that the RTFA has been unconstitutionally applied to deny their access to
the courts to enforce that right. This argument misses the mark. The Open
Courts Clause does not require the substantive law to provide a remedy, and
individuals have no vested or property right in any rule of common law.9
McIntosh, 729 N.E.2d at 978. Accordingly, “the General Assembly can make
substantial changes to the existing law without infringing on citizen rights.” Id.
[33]
Here, the legislature has exercised its broad discretion and modified the
substantive law of nuisance by eliminating a nuisance cause of action against
agricultural operations except where the alleged nuisance is the result of
negligent operation or where the conditions of I.C. § 32-30-6-9(d) are not met.
9
The Plaintiffs curiously direct us to Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999), to support their claim
that they have a vested right to pursue a nuisance claim to protect their properties. Martin, however, is
inapposite. In that case, the Supreme Court observed, “it cannot be questioned that, had plaintiff filed her
medical malpractice claim within the two-year period, she could have pursued her otherwise valid tort
claim.” Id. at 1283. In this case, however, the Plaintiffs never had a valid tort claim because the facts
underlying their nuisance claim occurred well after the RTFA went into effect and barred such a claim.
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The RTFA is rational and falls comfortably within the legislature’s legitimate
constitutional authority.
Takings Clauses
[34]
Article 1, Section 21 of the Indiana Constitution provides in part: “No person’s
property shall be taken by law, without just compensation; nor, except in case
of the State, without such compensation first assessed and tendered.” The Fifth
Amendment to the United States Constitution, applicable to the states through
the Fourteenth Amendment, includes the same proscription against the taking
of property without just compensation. Lindsey, 898 N.E.2d at 1257-58. We
construe and analyze the “textually indistinguishable” takings clauses
identically. See Redington v. State, 992 N.E.2d 823, 835 (Ind. Ct. App. 2013),
trans. denied; see also State v. Kimco of Evansville, Inc., 902 N.E.2d 206, 211-12
(Ind. 2009) (“our state constitutional takings analysis is the same as federal
constitutional eminent domain law”), cert. denied.
[35]
“To be a taking in the constitutional sense, the state action at issue must be
more than a consequential limitation on the use or enjoyment of property; a
taking involves an actual interference with a property right.” Lindsey, 898
N.E.2d at 1258 (rejecting plaintiffs’ argument that the RTFA amounts to an
unconstitutional taking because the act essentially awarded the defendant a
nuisance easement over their property). In this case, the Plaintiffs assert a
regulatory takings claim, as they acknowledge that there has been no direct
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seizure of their property. 10 Regulation, however, effects a taking only where it
“deprives an owner of all or substantially all economic or productive use of his
or her property.” Biddle v. BAA Indianapolis, LLC, 860 N.E.2d 570, 577 (Ind.
2007) (citing Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 538-40 (2005)); see also
Lingle, 544 U.S. at 539 (“our regulatory takings jurisprudence…aims to identify
regulatory actions that are functionally equivalent to the classic taking in which
government directly appropriates private property or outs the owner from his
domain”). “Factors considered under the foregoing test include the economic
impact of the regulation on the property owner, the extent to which the
regulation has interfered with distinct investment-backed expectations, and the
character of the government action.” Kimco, 902 N.E.2d at 211 (citing Penn
Cent. Transp. Co. v. New York City, 438 U.S. 104, 124 (1978)).
[36]
The State, as intervenor, asserts that a constitutional taking occurs only where
the government, as opposed to a private party, directly or proximately causes
the interference with the claimant’s property. The State argues further that the
Plaintiffs have no property interest in a particular cause of action or remedy.
We find the State’s argument compelling, but we need not make a
determination in this regard because, even considering the regulatory takings
factors, the Plaintiffs lose.
10
The Plaintiffs’ reliance on Arkansas Game & Fish Comm’n v. U.S., 568 U.S. 23 (2012), and other similar
flooding cases, is misguided and improperly conflates physical takings with regulatory takings. See id.
(addressing recurrent government-induced flooding invasions and holding that such temporary physical
occupations can constitute a compensable taking of property).
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[37]
In Biddle, homeowners near the Indianapolis International Airport (owned by a
municipal corporation) claimed that airplanes flying over their homes
constituted a regulatory taking because the noise disturbed the use and
enjoyment of their properties “by disrupting activities such as sleeping, talking,
watching television or listening to the radio, hosting outdoor parties, reading,
and opening windows.” 860 N.E.2d at 573. Additionally, the homeowners
claimed that their property values had decreased up to thirty-three percent. Our
Supreme Court affirmed the grant of summary judgment in favor of the airport.
In concluding as a matter of law that the aircraft noise had not effected a taking,
the Court acknowledged that the noise was “no doubt considerable” but found
that it did not “amount to a ‘practical destruction’ or ‘substantial impairment’
of Homeowners’ use of their property.” Id. at 580. The Court continued,
“Homeowners still make many valuable uses of their properties in spite of the
noise.” Id.
[38]
Similarly, here, the Plaintiffs have not been deprived of all or substantially all
economic or productive use of their properties. The designated evidence reveals
that the Plaintiffs’ properties have retained significant economic value. Indeed,
their own expert valued the Lannons’ property at $51,500 (at an estimated 60%
loss in value) and the Himsel Plaintiffs’ property at $181,2000 (at an estimated
49.5% loss in value) with the CAFO nearby. Cf. Penn. Cent., 438 U.S. at 131
(with respect to land-use regulations, reasonably related to the promotion of the
general welfare, diminution in property value, standing alone, does not
establish a taking); Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (75%
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diminution in value caused by zoning law not found to be a taking). Moreover,
they continue to reside in their residences, making valuable use of their
properties, and have alleged no distinct, investment-backed expectations that
have been frustrated by the CAFO. Finally, with respect to the character of the
governmental action, we do not agree with the Plaintiffs that the RTFA has
permitted a physical invasion of their property. While their property rights are
clearly affected by application of the RTFA, the Plaintiffs cannot dispute that
the regulation is reasonably related to the promotion of the common good. In
sum, we conclude that the odorous emissions from 4/9 Livestock’s CAFO do
not effect a taking.
Privileges and Immunities Clause
[39]
Article 1, Section 23 of the Indiana Constitution provides: “The General
Assembly shall not grant to any citizen, or class of citizens, privileges or
immunities, which, upon the same terms, shall not equally belong to all
citizens.” Our Supreme Court has set out a two-part standard for determining a
statute’s validity where the statute grants unequal privileges or immunities to
differing classes of persons.
First, the disparate treatment accorded by the legislation must be
reasonably related to inherent characteristics which distinguish
the unequally treated classes. Second, the preferential treatment
must be uniformly applicable and equally available to all persons
similarly situated. Finally, in determining whether a statute
complies with or violates Section 23, courts must exercise
substantial deference to legislative discretion.
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Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994); see also Whistle Stop Inn, Inc. v. City
of Indianapolis, 51 N.E.3d 195, 198 (Ind. 2016). Presuming the statute to be
constitutional, we place the burden on the challenger to “negative every
conceivable basis which might have supported the classification.” Collins, 644
N.E.2d at 80. Classification under Section 23 is primarily a legislative question,
and it becomes a judicial question only where the lines drawn by the legislature
appear arbitrary or manifestly unreasonable. Id.
[40]
The Plaintiffs assert that the RTFA splits county dwellers into two camps: (1)
those currently engaged in agricultural operations on land that has been
consistently farmed for at least the last year and (2) all others who live in the
county. Those in the first group may sue those in either group for nuisance,
while those in the second group may only sue those in their own non-farming
group for nuisance.
[41]
Indeed, the RTFA affords preferential treatment to farmers, under certain
statutory conditions, by conferring immunity from nuisance suits that are not
based on operational negligence. 11 The RTFA, itself, explains the policy behind
this disparate treatment:
The general assembly declares that it is the policy of the state to
conserve, protect, and encourage the development and
improvement of its agricultural land for the production of food
11
While the Act also applies to protect industrial operations from nuisance suits, it provides broader
immunity to agricultural operations. See I.C. § 32-30-6-9(d)(1) (providing a list of changes that, for
agricultural operations, do not constitute a significant change in the type of operation).
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and other agricultural products. The general assembly finds that
when nonagricultural land uses extend into agricultural areas,
agricultural operations often become the subject of nuisance
suits. As a result, agricultural operations are sometimes forced to
cease operations, and many persons may be discouraged from
making investments in farm improvements. It is the purpose of
this section to reduce the loss to the state of its agricultural
resources by limiting the circumstances under which agricultural
operations may be deemed to be a nuisance.
I.C. § 32-30-6-9(b). This rationale provides a reasonable basis for treating
farmers differently than their non-farming neighbors. 12 Cf. KS&E Sports, 72
N.E.3d at 906-07 (“One explanation may be that the legislature … perceived
that recent lawsuits against the firearms industry threatened its stability and
jeopardized the continued availability of firearms even to law-abiding citizens
wishing to exercise their Second Amendment. This rationale would provide a
reasonable basis for treating sellers of firearms, which face such litigation
threats, differently than sellers of knives, which do not.”). With respect to the
second prong of the Collins test, we conclude that the RTFA’s preferential
treatment is uniformly and equally available to all agricultural operations and
although agricultural operations are treated differently under the RTFA than
12
The Plaintiffs note prior cases in which we have held that the RTFA does not apply between two farmers.
See TDM Farms, 969 N.E.2d at 110 (“the Act does not apply in this action between two established farming
operations”); Stickdorn v. Zook, 957 N.E.2d 1014, 1016 n.5 (Ind. Ct. App. 2011) (the RTFA “has no
applicability to the manner in which two farmers…conduct their operations). The Plaintiffs claim that the
Himsel Plaintiffs could have brought this action if only they had not retired from farming in 2000 and that
this fact makes the disparate treatment arbitrary. This is incorrect. The RTFA still applies where one farmer
asserts nonagricultural land uses as the basis of his or her nuisance suit against another farmer. See Parker,
988 N.E.2d at 323.
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industrial operations, the two are not similarly situated and the express intent of
the RTFA is to protect agricultural land. The RTFA does not violate Article 1,
Section 23.
Constitutional Challenge to the Agricultural Canon
[42]
The Agricultural Canon, enacted in 2014, provides:
The general assembly declares that it is the policy of the state to
conserve, protect, and encourage the development and
improvement of agriculture, agricultural businesses, and
agricultural land for the production of food, fuel, fiber, and other
agricultural products. The Indiana Code shall be construed to
protect the rights of farmers to choose among all generally
accepted farming and livestock production practices, including
the use of ever changing technology.
I.C. § 15-11-2-6(a). The Plaintiffs contend that the Agricultural Canon is
unconstitutional for various reasons.
[43]
The Agricultural Canon is a rule of statutory construction signaling the
legislature’s intent to courts called upon to construe ambiguous statutes
affecting farmers. In other words, where a statute is clear and unambiguous,
the Agricultural Canon will not be applied. Cf. Crowel v. Marshall Cty. Drainage
Bd., 971 N.E.2d 638, 646 (Ind. 2012) (“where the statute is clear and
unambiguous, we apply it as drafted without resort to the nuanced principles of
statutory interpretation”). Further, our primary goal in applying a statute is
always to ascertain and give effect to the legislature’s intent. See id. at 645.
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[44]
Through the RTFA, the legislature spoke clearly and unambiguously regarding
its intent to protect the rights of farmers by limiting the circumstances under
which farmers are subject to nuisance actions. This includes protecting
agricultural operations that change from one type of agricultural operation to
another or that adopt new technology. Given the clear language of the RTFA,
this is not a case in which the Agricultural Canon needs to be applied. See
KS&E Sports, 72 N.E.2d at 898 (“before interpreting a statute, we consider
‘whether the Legislature has spoken clearly and unambiguously on the point in
question’”) (quoting Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009)).
Accordingly, we do not address the various constitutional challenges raised by
the Plaintiffs regarding the Agricultural Canon. See Barlow v. Sipes, 744 N.E.2d
1, 6 n.1 (Ind. Ct. App. 2001) (“Indiana has long adhered to the doctrine of
judicial restraint” where “a constitutional question will not be anticipated in
advance of the necessity of deciding the constitutional issue”), trans. denied.
Conclusion
[45]
We hold that the Plaintiffs’ nuisance and repackaged negligence and trespass
claims are barred by the RTFA. Further, the Plaintiffs’ various claims that the
RTFA is unconstitutional are unavailing, and we do not reach the question of
the constitutionality of the Agricultural Canon due to judicial restraint. The
trial court properly granted summary judgment in favor of the Defendants on
all claims.
[46]
Judgment affirmed.
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Brown, J. and Tavitas, J., concur.
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App. 30
App. 31
4.
Prior to 2013, all four (4) plaintiffs lived alongside agriculture, including livestock,
as a result of surrounding farm ground consisting of row crops and livestock farms.
5.
The land located at 3042 North 425 West, Danville, Indiana (the “Property”) has
been used for agricultural purposes for decades. Since at least 1941 the Property has been used
for agricultural purposes, principally for growing crops.
6.
In the early 1990’s Defendant Sam Himsel’s parents, Lee and Doris Himsel,
acquired the Property. The Himsels continued the agricultural use of the Property by growing
crops on the Property.
7.
The entire area surrounding the Property has been dominated by agricultural uses,
including the raising of livestock, for decades.
8.
The agricultural nature of this area has been reflected in the Hendricks County
Comprehensive Plans, first adopted in 1983 by Hendricks County and the Board of Commissioners
of Hendricks County.
9.
Richard Himsel was formerly a member of the Hendricks County Board of
Commissioners.
10.
The 1983 Comprehensive Plan designated the western half of Marion Township,
where the Property is located, for agricultural purposes.
11.
In 1998 the Comprehensive Plan was updated again by Hendricks County and the
Board of Commissioners of Hendricks County, which continued to designate the western half of
Marion Township, including the Property, for agricultural purposes.
12.
Hendricks County amended its Comprehensive Plan again in 2008 creating the
AGR-Agricultural Residential and AGI-Agricultural Industrial districts. The new AGR district
3
App. 32
replaced the previous “Rural Residential” (R-A) district which applied to Plaintiffs’ properties
and the Property.
13.
The County’s stated intent for establishing the AGR district in 2008 was: “to
permit the establishment of individual single-family dwellings while maintaining a primarily
rural character [and] . . . protect land best suited for agricultural use from the encroachment of
incompatible land uses.”
14.
The stated intent for establishing the AGI district was: “to provide adequate and
appropriate locations for intense agricultural uses such as CAFO’s or agricultural businesses that
may emit intense odors, vibrations, air pollution, or other disruptions.”
15.
Consistent with the 1983 and 1998 Comprehensive Plans, the 2008 Comprehensive
Plan recommended that the area under consideration, including Marion Township as a whole and
the Property in particular, be reserved for agricultural use.
16.
In 2012 the Individual Defendants decided to form a hog-raising operation.
17.
On January 16, 2013, 4/9 Livestock was formed as an Indiana limited liability
company, with each Individual Defendant being a member of 4/9 Livestock.
18.
The Individual Defendants made the decision to locate the hog-raising operation
(“4/9 Farm”) on the Property.
19.
In February 2013, Samuel Himsel, on behalf of 4/9 Livestock, submitted a Petition
for Rezoning of Property to the Hendricks County Area Plan Commission (“Plan Commission”).
20.
The rezoning petition sought to rezone 58.42 acres of existing farmland at the
Property from AGR-Agriculture Residential to AGI-Agriculture Intense to allow for a confined
animal feeding operation (“CAFO”) at the Property.
4
App. 33
21.
On March 1, 2013, written notice of the Plan Commission’s March 12, 2013
meeting with a letter of intent was provided to nearby landowners and was published in local
newspapers.
22.
On March 5, 2013, the Plan Commission staff recommended approval of the
Petition for rezoning the Property from AGR to AGI finding, generally, that the proposal “has
complied with the applicable application and/or notice requirements” and that it “complies with
the Hendricks County Comprehensive Plan.”
23.
On March 12, 2013, the Plan Commission held a public meeting on the 4/9 Farm
rezoning petition. Nearby landowners and the Plaintiffs had an opportunity to speak at the March
12, 2013 meeting. Plaintiff Richard Himsel spoke against the Petition.
24.
After considering the Petition and the public comments at the March 12,
2013 meeting, the members of the Plan Commission unanimously recommended approval
of the zoning amendment and specifically concluded that the rezoning petition was
consistent and compatible with the County’s long term land use planning goals.
25.
On March 26, 2013, the Board of County Commissioners of Hendricks
County (“County Commissioners”) unanimously approved Ordinance 2013-03 which
amended the Property’s zoning designation from AGR to AGI.
26.
The Plaintiffs did not appeal the rezoning decisions of the Plan Commission or the
County Commissioners.
27.
The Plan Commission subsequently held a series of public meetings regarding the
CAFO’s design, location and construction plans – including the size and location of the barns,
setback requirements, manure containment pits and the landscaping – to determine whether they
5
App. 34
were appropriate for this location. The Plan Commission approved the siting, design, location and
construction plans for the CAFO.
28.
The Plaintiffs did not appeal any of the Plan Commission’s decisions regarding the
CAFO’s design, location and construction plans.
29.
In April 2013, 4/9 Livestock applied to the Indiana Department of Environmental
Management (“IDEM”) for two permits to construct and operate a CAFO at the Property.
30.
On May 6, 2013, the Property was transferred by quitclaim deed by Samuel Himsel
to 4/9 Livestock.
31.
On May 31, 2013, IDEM approved 4/9 Livestock’s permit applications. IDEM sent
its letter of permits approval to the surrounding property owners including the Plaintiffs. The letter
described how, where and by when the IDEM permitting decisions could be appealed.
32.
The Plaintiffs did not appeal IDEM’s decision to issue permits to 4/9 Livestock to
construct and operate a CAFO on the Property.
33.
On July 1, 2013, 4/9 Livestock and Co-Alliance, LLP (“Co-Alliance”) entered into
the Hog Finishing Contract (the “Contract”).
34.
Per the Contract, Co-Alliance owns the hogs and 4/9 Livestock raises the hogs
owned by Co-Alliance.
35.
Per the Contract, 4/9 Livestock is the owner and operator of the 4/9 Farm and the
equipment located at the 4/9 Farm.
36.
Per the Contract, Co-Alliance can unilaterally end it at any time at its sole discretion
if it determines that 4/9 is providing substandard care or the conditions in which the hogs are kept
are substandard.
6
App. 35
37.
Per the Contract, 4/9 may not raise hogs for anyone else, let anyone into the CAFO
or take pictures of the hogs without Co-Alliance’s permission.
38.
Per the Contract, Co-Alliance retains the right of control over certain practices such
as the right to update the management practices that 4/9 must follow.
39.
Per the Contract, Co-Alliance established thirteen (13) separate recommended
practices which 4/9 must follow.
40.
On July 19, 2013, 4/9 Livestock and PNC Bank entered into a Convertible Line of
Credit Note for a seven-figure amount to finance the construction of the 4/9 Livestock CAFO.
41.
Construction of the CAFO barns at the 4/9 Farm was completed by September 19,
42.
The first hogs were delivered to the 4/9 Farm on October 2, 2013.
43.
The 4/9 Farm has been in continual agricultural operation as a CAFO since that
44.
Since the 4/9 Livestock CAFO began operating there have been no violations cited
2013.
time.
by either IDEM or Hendricks County relating to its operations.
45.
On October 6, 2015 the Plaintiffs filed their Complaint against the Defendants. The
Plaintiffs’ Complaint asserted claims against the Defendants in Nuisance, Negligence and
Trespass.
46.
The Plaintiffs further sought a declaratory judgment that Indiana Code §15-11-2-
6(a) was unconstitutional on its face.
47.
On April 4, 2017, this Court issued an Order that deemed as filed an Amended
Complaint, originally submitted by the Plaintiffs on August 8, 2016. In addition to the previously-
7
App. 36
App. 37
(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.
2.
3.
The RTFA protects farmers against nuisance claims if three conditions are met:
(1)
The agricultural operation was in operation continuously on the
locality for more than one year prior to the plaintiff’s lawsuit;
(2)
No significant change occurred in the type of agricultural operation
on the locality; and
(3)
The agricultural operation would not have been a nuisance when it
began on the locality.
Plaintiffs concede that Defendants’ CAFO is an agricultural operation that was
operated continuously for more than one (1) year and has undergone no significant change as
defined in I.C. §32-30-6-9(d)(1).
4.
However, the Plaintiffs assert that the Defendants are not entitled to immunity
pursuant to the RTFA because the Defendants have not shown that their CAFO would not have
been a nuisance when agricultural operations began at the Property pursuant to I.C. §32-30-69(d)(2).
5.
Construing the designated in evidence in the light most favorable to the Plaintiffs,
the Court finds that there is a genuine issue of material fact whether the CAFO would have been a
nuisance when agricultural operations began at the Property. There is no ambiguity in the meaning
of “would have been” and the clear legislative intent means that there is a genuine issue of material
fact whether the CAFO would have been a nuisance at least as early as 1941, and likely much
earlier.
6.
The RTFA contains an exception that provides that the RTFA “does not apply if a
nuisance results from the negligent operation of an agricultural or industrial operation or its
9
App. 38
appurtenances.” IND. CODE § 32-30-6-9(a). Plaintiffs contend that the Defendants are not entitled
to immunity pursuant to the RTFA because Defendants have not affirmatively negated Plaintiffs’
claim of negligent operation. Plaintiffs have also asserted a claim against Defendants alleging
negligence in the siting, design, construction, maintenance, management, operation, direction and
control of the CAFO.
7.
Construing the designated evidence in the light most favorable to the Plaintiffs, the
Court finds there are genuine issues of material fact precluding the entry of summary judgment on
the issue of negligent operation and the separately alleged negligence siting claim.
8.
The Plaintiffs challenge the constitutionality of the RTFA claiming that it: (1)
violates Article I, Section 1 of the Indiana Constitution; (2) violates Article I, Section 12 of the
Indiana Constitution (the “Open Courts provision”); (3) violates the Fifth Amendment of the U.S.
Constitution and Article I, Section 21 of the Indiana Constitution (the “Takings Clause(s)”); and
(4) violates Article I, Section 23 of the Indiana Constitution (the “Equal Privileges and Immunities
provision”).
9.
Because there are fact issues precluding the entry of summary judgment, the Court
finds the question of the constitutionality of the RTFA as applied unripe at this time.
10.
The Plaintiffs also argue that IND. CODE § 15-11-2-6(a) violates the Indiana
Constitution. The Court denies the Plaintiffs’ motion for summary judgment that IND. CODE § 1511-2-6(a) is unconstitutional on its face. There remains a possibility that the issues may be
resolved on other grounds and the issue of the constitutionality of this statute is not absolutely
necessary to a disposition of the case at this time.
11.
The Plaintiffs’ trespass claim is based on their assertion that odors from the 4/9
Farm have entered their properties and, as a result, the value of their properties have been
10
App. 39
App. 40
October 24, 2017
App. 41
STATE OF INDIANA
HENDRICKS COUNTY
)
) SS:
)
MARTIN RICHARD HIMSEL, JANET L.
HIMSEL, ROBERT J. LANNON and
SUSAN M. LANNON,
Plaintiffs,
v.
SAMUEL T. HIMSEL, CORY M.
HIMSEL, CLINTON S. HIMSEL,
4/9 LIVESTOCK, LLC, and
CO-ALLIANCE, LLP,
Defendants.
IN THE HENDRICKS SUPERIOR COURT
CASE NO. 32D04-1510-PL-000150
)
)
)
)
)
)
)
)
)
)
)
)
)
)
ORDER GRANTING DEFENDANTS’ MOTION TO CORRECT ERRORS AND
GRANTING SUMMMARY JUDGMENT
This matter came before the Court on January 24, 2018 for a hearing on cross motions to correct
errors. After considering the motions, briefs, cases and arguments of counsel, the Court now
corrects its Findings of Fact and Conclusions of Law entered on October 24, 2017 as follows:
After carefully reviewing and reconsidering the holdings from relevant cases, The Court’s
Conclusions of Law are hereby corrected as follows:
Construing the designated in evidence in the light most favorable to the Plaintiffs, the Court
finds that there are no genuine issues of material fact and Defendants are entitled to summary
judgment as a matter of law as to all of the Plaintiffs’ claims including negligent siting and
negligent operation claims, the “would not have been a nuisance” element of the RTFA claim, the
negligence and trespass claims and the liability of Co-Alliance.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED that
App. 42
(1)
The Defendants’ Motion for Summary Judgment is granted in total as to all claims and
all parties;
(2)
Final judgment is entered in favor of all Defendants and against the Plaintiffs as to all
issues and claims;
(3)
Pursuant to Indiana Trial Rule 54(B) and finding no just cause for delay, the Court
directs the clerk to enter final judgment accordingly.
Date:
February 9, 2018
Judge,
udge, Hendricks Superior Court
Distribution:
Christopher J. Braun
Jonathan P. Emenhiser
Justin A. Allen
PLEWS SHADLEY RACHER & BRAUN LLP
1346 North Delaware Street
Indianapolis, Indiana 46202
Kim E. Ferraro
Samuel Henderson
Hoosier Environmental Council
407 E. Lincolnway, Suite A
Valparaiso, IN 46383
Rebecca Loeffler
Jefferson Garn
Office of Indiana Attorney General
Indiana Government Center South, 5th Floor
302 West Washington Street
Indianapolis, IN 46204-2770
Kyle A. Lansberry
Brandon W. Ehrie
LEWIS WAGNER LLP
501 Indiana Avenue, Suite 200
Indianapolis, IN 46202-6150
App. 43
IN THE
COURT OF APPEALS OF INDIANA
Janet L. Himsel, et al.,
Appellants,
Court of Appeals Case No.
18A-PL-645
v.
4/9 Livestock, LLC, et al.,
FILED
Appellees.
Jul 12 2019, 3:17 pm
CLERK
Order
Indiana Supreme Court
Court of Appeals
and Tax Court
[1]
Appellants, by counsel, have filed a Petition for Rehearing. Appellees, by respective
counsel, have filed a Response Brief in Opposition to Petition for Rehearing.
[2]
Having reviewed the matter, the Court finds and orders as follows:
Appellants’ Petition for Rehearing is denied.
[3]
Ordered ____________________.
Brown, Altice, JJ., concur. Tavitas, J., dissents.
For the Court,
Chief Judge
Page 1 of 1
App. 44
In the
Indiana Supreme Court
Janet L. Himsel, et al.,
Appellant(s),
Court of Appeals Case No.
18A-PL-00645
Trial Court Case No.
32D04-1510-PL-150
v.
Samuel Himsel, et al.,
Appellee(s).
FILED
Feb 20 2020, 5:36 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
Order
This matter has come before the Indiana Supreme Court on a petition to transfer
jurisdiction, filed pursuant to Indiana Appellate Rules 56(B) and 57, following the issuance of a
decision by the Court of Appeals. The Court has reviewed the decision of the Court of Appeals,
and the submitted record on appeal, all briefs filed in the Court of Appeals, and all materials
filed in connection with the request to transfer jurisdiction have been made available to the
Court for review. 7KH&RXUWKDVKHDUGRUDODUJXPHQWDQGHach participating member has had
the opportunity to voice that Justice’s views on the case in conference with the other Justices
(ach participating member of the Court has voted on the petition.
Being duly advised, the Court DENIES the petition to transfer. All other pending
motions are denied as moot.
Done at Indianapolis, Indiana, on ___________
.
FOR THE COURT
Loretta H. Rush
Chief Justice of Indiana
All Justices concur, except Rush, C.J., and Goff, J., who vote to grant the petition to transfer.
App. 45
App. 46
App. 47
App. 48
App. 49
In the Matter Of:
MARTIN RICHARD HIMSEL, ET AL.
-vsSAMUEL HIMSEL, ET AL.
JANET HIMSEL, VOL. I
May 19, 2016
37 to 40
Janet Himsel, Vol. I
May 19, 2016
37
App. 50
39
·1· · · ·A.· · ·Out of the seven.
·1· ·name now.
·2· · · ·Q.· · ·Out of a week?
·2· · · ·A.· · ·Julie Ann Igo.
·3· · · ·A.· · ·Yeah.
·3· · · ·Q.· · ·Can you spell that last name?
·4· · · ·Q.· · ·Okay.· Your husband yesterday testified that
·4· · · ·A.· · ·I-G-O.
·5· ·your schedule was usually that you would be back out at
·5· · · ·Q.· · ·Oh, that's easy.· Where does Julie live?
·6· ·the -- at his farm from Friday evening to Sunday evening;
·6· · · ·A.· · ·Lexington.· Lexington, Kentucky.
·7· ·is that correct?
·7· · · ·Q.· · ·And your other children?
·8· · · ·A.· · ·Yes.
·8· · · ·A.· · ·David Allen Clodfelter.
·9· · · ·Q.· · ·You heard him testify to that, right?
·9· · · ·Q.· · ·Where does David Allen live?
10· · · ·A.· · ·Kind of the Beechgrove area of Indianapolis. 10· · · ·A.· · ·Yes.
11· · · ·Q.· · ·Do you have a job that you do out in New
11· · · ·Q.· · ·Then your third child?
12· ·Palestine -12· · · ·A.· · ·Krista Sue Cooper.
13· · · ·A.· · ·No.
13· · · ·Q.· · ·Does Krista live in New Palestine?
14· · · ·Q.· · ·-- during the week?
14· · · ·A.· · ·Yes.
15· · · ·Q.· · ·How many children does Julie Ann have? 15· · · ·A.· · ·No.
16· · · ·Q.· · ·Do you watch Krista's son during the week?
16· · · ·A.· · ·None.· The only one that has a child is
17· · · ·A.· · ·I do.
17· ·Krista.· I have one grandson.
18· · · ·Q.· · ·You do?· Okay.
18· · · ·Q.· · ·How old is your grandson?
19· · · ·A.· · ·Well, he's old enough he doesn't need
19· · · ·A.· · ·Thirteen.
20· ·watching, but he doesn't like being home alone, so... and
20· · · ·Q.· · ·What's his name?
21· ·I'm a basketball grandma, baseball grandma.
21· · · ·A.· · ·Pardon?
22· · · ·Q.· · ·And does Krista's work schedule, is it such
22· · · ·Q.· · ·Oh, I'm sorry.· What's his name?
23· ·that she works from Monday through Friday?
23· · · ·A.· · ·Alex.
24· · · ·A.· · ·Yes.
24· · · ·Q.· · ·Alex.· That's a good -25· · · ·Q.· · ·Where does she work?
25· · · ·A.· · ·Alex Ray cooper.
38
40
·1· · · ·Q.· · ·Alexander?
·2· · · ·A.· · ·No.· Just Alex.· He was going to be Alexis,
·3· ·but I turned out to be Alex.
·4· · · ·Q.· · ·Alex is a good name.· That's what my son's
·5· ·name is.
·6· · · · · · · Mrs. Himsel, where are you living currently?
·7· · · ·A.· · ·Well, I use my address as 3581 Danville,
·8· ·which I get my mail there and -·9· · · ·Q.· · ·That's where your husband lives?
10· · · ·A.· · ·Right.
11· · · ·Q.· · ·Okay.
12· · · ·A.· · ·I live part-time at my daughter's.
13· · · ·Q.· · ·At Krista Sue Cooper's?
14· · · ·A.· · ·Yes.
15· · · ·Q.· · ·In New Palestine.· You said you live there
16· ·part-time?
17· · · ·A.· · ·Mm-hmm.
18· · · ·Q.· · ·How often are you at your daughter's house?
19· · · ·A.· · ·Probably five days.· Depends.· I still use the
20· ·doctors that I've always used here, and so, some days
21· ·that I have doctors' appointments or we have things like
22· ·this, or, you know, just various things that we've always
23· ·done together, I come back and do.
24· · · ·Q.· · ·Okay.· So, when you say five days, five days
25· ·out of what?
·1· · · ·A.· · ·Allison Transmission, Indianapolis.
·2· · · ·Q.· · ·What's -- what schedule does she work, what
·3· ·time?
·4· · · ·A.· · ·She leaves home at 6:15, 6:30, because her
·5· ·work starts at 7:30, and she lives on the east side and
·6· ·works on the west side around Eagle Creek.· So, it takes
·7· ·a while to drive that.
·8· · · ·Q.· · ·Does she -- is that 6:30 in the morning?
·9· · · ·A.· · ·Yes.
10· · · ·Q.· · ·Okay.· And then what time does she typically
11· ·get home from work?
12· · · ·A.· · ·5:15 or so, because she leaves at 4:30, but
13· ·she has a 45-minute drive.
14· · · ·Q.· · ·So, is Alex in school?
15· · · ·A.· · ·Yes.
16· · · ·Q.· · ·Okay.· Does he ride a bus to school?
17· · · ·A.· · ·No.
18· · · ·Q.· · ·No?· Who -- how does he get to school?
19· · · ·A.· · ·Either his dad or myself.
20· · · ·Q.· · ·Okay.· Drop him off at school?
21· · · ·A.· · ·Right.
22· · · ·Q.· · ·How does he get home from school?
23· · · ·A.· · ·He does come home most of the time on the bus.
24· · · ·Q.· · ·Okay.· When does he come home from school?
25· · · ·A.· · ·He gets home a little before 3:00.
Connor Reporting
www.connorreporting.com
317.236.6022
YVer1f
45 to 48
Janet Himsel, Vol. I
May 19, 2016
45
App. 51
47
·1· · · ·Q.· · ·Do you know, does any of your medication
·1· · · ·A.· · ·Yes.
·2· ·affect your sense of smell?
·2· · · ·Q.· · ·Did you live in Hendricks County prior to
·3· · · ·A.· · ·Not that I know of.
·3· ·that?
·4· · · ·Q.· · ·How many years in total -- I could probably
·4· · · ·A.· · ·No.
·5· · · ·Q.· · ·Okay.· So, you moved from out in Rockville to ·5· ·add it up, but I'll -- I'm leery of doing that because
·6· ·your counsel said math and attorneys don't usually mix.
·6· ·Richard's farm?
·7· ·How many years in total did you live out at your parents'
·7· · · ·A.· · ·Mm-hmm.
·8· ·farm?
·8· · · ·Q.· · ·Okay.· And when you were out in Rockville
·9· · · ·A.· · ·You mean as -- as married, it would be -·9· ·still, were you out at your parents' farm?
10· · · ·Q.· · ·Either, you know, as a child growing up -10· · · ·A.· · ·When I lived in Rockville still?
11· ·total.· As a child married -- as a child growing up or
11· · · ·Q.· · ·Yeah.
12· ·when you were married and living -- you had a separate
12· · · ·A.· · ·No.· I owned my own home.
13· ·house out there when you were married, is that -13· · · ·Q.· · ·Okay.
14· · · ·A.· · ·Before Dick and I married, I owned my own home 14· · · ·A.· · ·Yes.
15· · · ·Q.· · ·But it was still located on the family farm,
15· ·there.
16· · · ·Q.· · ·And was that located in town?· Where was that 16· ·right?
17· · · ·A.· · ·Yes.
17· ·located?
18· · · ·Q.· · ·So, I'm talking in total.· How much time did
18· · · ·A.· · ·It was in town, about three blocks from where
19· ·you live on the family farm?
19· ·I worked.
20· · · ·A.· · ·Well, accountants aren't any better at math
20· · · ·Q.· · ·In Rockville?
21· ·because they're used to using a calculator.· I'm sorry.
21· · · ·A.· · ·Yes.
22· · · ·Q.· · ·That's not comforting, if you say that.
22· · · ·Q.· · ·Okay.· So, after that, that's when you moved
23· · · ·A.· · ·So, from -- we moved to the farm in 1956. I
23· ·to Hendricks County.· The first time you moved into
24· ·lived there until I was 18; 17, 18.· And then we moved -24· ·Hendricks County was 1994?
25· ·we actually lived in a small house we rented for a while,
25· · · ·A.· · ·Mm-hmm.
46
48
·1· · · ·Q.· · ·Has anyone else lived with you out at
·2· ·Richard's farm other than Richard?
·3· · · ·A.· · ·No.
·4· · · ·Q.· · ·So, you divorced from your first husband in
·5· ·1993.· Were you remarried prior to remarrying Richard?
·6· · · ·A.· · ·1983.
·7· · · ·Q.· · ·Eighty -- I said '93.· '83.· Were you married
·8· ·to anyone else between that time and marrying Richard?
·9· · · ·A.· · ·No.
10· · · ·Q.· · ·And you married Richard in 1994?
11· · · ·A.· · ·Yes.
12· · · ·Q.· · ·When did your former spouse die; do you
13· ·recall?
14· · · ·A.· · ·It's been, I think, two years now.
15· · · ·Q.· · ·Mrs. Himsel, are you a smoker?
16· · · ·A.· · ·No.
17· · · ·Q.· · ·Do you have any allergies?
18· · · ·A.· · ·Latex, I guess.· That's about all.· The
19· ·dentist says.
20· · · · · · · · ·COURT REPORTER:· I'm sorry?
21· · · ·A.· · ·I said, the dentist tells me that.
22· · · ·Q.· · ·Do you take any medications?
23· · · ·A.· · ·I am diabetic and I have -- I take the
24· ·medications required for that and a high blood pressure
25· ·medication.
·1· ·but then we built a house on my parents' farm.· That was
·2· ·in 1998 until 1983, '82, '83, when we got a divorce.
·3· · · ·Q.· · ·You said 19 -- that was 1998 until 1983.· Did
·4· ·you mean 1968?
·5· · · ·A.· · ·Yes.· I'm sorry.
·6· · · ·Q.· · ·No.· That's fine.· That's fine.
·7· · · · · · · And during that entire time that you were
·8· ·living there, were there cattle, pigs, and chickens?
·9· · · ·A.· · ·Chickens, no, other than one rooster and one
10· ·duck.· I mean, at that point -- most of the animals came
11· ·after my kids got old enough to be in 4H and they had
12· ·sheep and pigs and cattle, but there was never but a
13· ·few -- like two of each.
14· · · ·Q.· · ·Okay.· And I think you said earlier that the
15· ·highest number of pigs on that farm at any one point was
16· ·ten?
17· · · ·A.· · ·When my dad was operating it as a farm.
18· · · ·Q.· · ·How about -- how about when you guys lived out
19· ·there on the farm?
20· · · ·A.· · ·He didn't have livestock then except a few
21· ·cattle that roamed in the back in the woods.
22· · · ·Q.· · ·He didn't have any pigs then?
23· · · ·A.· · ·No.· He and my mother went to Florida, and so
24· ·they didn't have anything like that that had to be fed
25· ·and watched.
Connor Reporting
www.connorreporting.com
317.236.6022
YVer1f
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Janet Himsel, Vol. I
May 19, 2016
App. 52
49
51
·1· · · ·Q.· · ·Did your children raise pigs for 4H?
·2· · · ·A.· · ·One year.
·3· · · ·Q.· · ·How many did they raise?
·4· · · ·A.· · ·I think they had two.
·5· · · ·Q.· · ·Okay.· When your father was operating the
·6· ·farm, what did he do with the hog manure that was
·7· ·generated?
·8· · · ·A.· · ·Well, they were out -- I mean, we had fences.
·9· ·They were out on the fields just kind of gleaning the
10· ·fields in a small, you know, fenced in area.· So, they
11· ·weren't -- the manure was out on the ground.
12· · · ·Q.· · ·Did -- let me ask this:· With regard to the
13· ·pigs that were in the barns, did your father ever clean
14· ·out the barns and spread manure on his property that he
15· ·cleaned out from the barns?
16· · · ·A.· · ·Not from the pigs.· I think he did from the
17· ·chickens.
18· · · ·Q.· · ·Okay.
19· · · ·A.· · ·Because there was more of that.
20· · · ·Q.· · ·Okay.· How did he apply the chicken manure?
21· · · ·A.· · ·With an old manure spreader.
22· · · ·Q.· · ·And that was just put it on the surface of the
23· ·field?
24· · · ·A.· · ·Yes.
25· · · ·Q.· · ·Okay.· How close were those fields that your
·1· · · ·A.· · ·No.
·2· · · ·Q.· · ·Mrs. Himsel, have you ever been convicted of a
·3· ·crime?
·4· · · ·A.· · ·Well, not yet, that I know of.
·5· · · · · · · · ·MS. FERRARO:· Keep it that way.
·6· · · · · · · · ·THE WITNESS:· Pardon?
·7· · · · · · · · ·MS. FERRARO:· Keep it that way.
·8· · · · · · · · ·THE WITNESS:· I stay away.· Kind of hard to
·9· ·get convicted when you're at home all the time, so...
10· · · ·Q.· · ·Your husband mentioned a civil lawsuit
11· ·involving the repair of a car.· Do you recall that?
12· · · ·A.· · ·Mm-hmm.
13· · · ·Q.· · ·Other than that lawsuit -- and I assume you
14· ·were a party to that lawsuit as well, right?
15· · · ·A.· · ·Right.
16· · · ·Q.· · ·And that's how he described it.
17· · · · · · · Other than that lawsuit, have you been a party
18· ·to any civil lawsuits?· And do you understand what I mean
19· ·by a civil lawsuit?
20· · · ·A.· · ·Yeah.· I haven't been as far as -21· · · ·Q.· · ·And obviously, I mean -- and I should have
22· ·said this -- other than the present lawsuit where you're
23· ·a plaintiff.
24· · · ·A.· · ·Yeah.
25· · · ·Q.· · ·Okay.· You haven't been a party to any civil
50
52
·1· ·father was doing that on to where you were living at the ·1· ·lawsuits?
·2· ·time?
·2· · · ·A.· · ·Hm-mmm.
·3· · · ·A.· · ·The field was right behind our house,
·3· · · ·Q.· · ·Other than the car repair?· Have you ever
·4· ·alongside our house, so -·4· ·filed for bankruptcy?
·5· · · ·Q.· · ·So, it surrounded your property?
·5· · · ·A.· · ·No.
·6· · · ·A.· · ·Yeah.
·6· · · ·Q.· · ·Richard yesterday mentioned that he had filed
·7· · · ·Q.· · ·Okay.· Did that smell?
·7· ·for bankruptcy.· And as we're sitting here this
·8· · · ·A.· · ·I -- I don't remember it smelling.· We had a
·8· ·afternoon, I can't recall if that would have been before
·9· ·hog farmer down the road from us.· His smelled when he -- ·9· ·or after you were married.
10· ·but it was when he spread his on the ground.
10· · · ·A.· · ·Before me.
11· · · ·Q.· · ·How did that neighboring farm -- hog farmer
11· · · ·Q.· · ·And yesterday, he described your house in
12· ·spread his manure?· Was he surface applying it?
12· ·Hendricks County, the farm there, and I want to go
13· · · ·A.· · ·I think so.· I -- I just remember smelling it.
13· ·through that a little bit with you.
14· ·It smelled for, you know, a couple of days, and it was
14· · · · · · · First, you've lived in Hendricks County since
15· ·gone.
15· ·1994, correct?
16· · · ·Q.· · ·Do you recall any odors from the hogs that you 16· · · ·A.· · ·Yes.
17· ·were raising or that you attributed to the hogs that you 17· · · ·Q.· · ·Okay.· So, that's -- again, lawyers and
18· ·were raising -- or your father was raising, I'm sorry?
18· ·math -- roughly 22 years?
19· · · ·A.· · ·Not really.
19· · · ·A.· · ·Mm-hmm.
20· · · ·Q.· · ·Did your father do anything to try to control
20· · · ·Q.· · ·And when you moved to that location in
21· ·odor either from the chickens, from the hogs, from the 21· ·Hendricks County out to the farm where you live
22· ·cattle?
22· ·currently, you understood that there were farming
23· · · ·A.· · ·No.
23· ·operations, and there were fields and farms that
24· · · ·Q.· · ·Did you consider any aspect of your father's
24· ·surrounded your property, correct?
25· ·farm to be offensive or a nuisance?
25· · · ·A.· · ·Yes.
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Janet Himsel, Vol. I
May 19, 2016
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·1· · · ·Q.· · ·Do you think that's why he hasn't had -- why
·2· ·you haven't had it listed since December -·3· ·November/December of 2013?
·4· · · ·A.· · ·Personally, I think that is why.
·5· · · ·Q.· · ·Has anybody told you that your property is
·6· ·worth -- the house and the 26.7 acres is worth nothing?
·7· · · ·A.· · ·I was with him the night he spoke with one of
·8· ·the Realtors, and that's what the Realtor said.
·9· · · ·Q.· · ·What Realtor said that?
10· · · ·A.· · ·Jack Lawson.· It was just a casual -- you
11· ·know, we know them, and they stopped by our table when we
12· ·were eating.
13· · · ·Q.· · ·You have suggested to your husband that maybe
14· ·you should try re-listing the home for sale?
15· · · ·A.· · ·I did early on, right after all of this took
16· ·place, but...
17· · · ·Q.· · ·What was his response?
18· · · ·A.· · ·Kind of -- no.· Like, you know, he just -19· ·he's attached there.· So...
20· · · ·Q.· · ·Sure.· Do you know, have you contacted any
21· ·real estate agent since December 2013 to even discuss the
22· ·possibility of re-listing the house?
23· · · · · · · · ·MS. FERRARO:· Asked and answered.· You can
24· ·answer.
25· · · ·A.· · ·Oh.· I guess I've discussed it with one person
·1· · · ·Q.· · ·Did you initiate the conversation?
·2· · · ·A.· · ·I don't recall.
·3· · · ·Q.· · ·Well, did she approach -·4· · · ·A.· · ·I just -·5· · · ·Q.· · ·I'm sorry.· Go ahead.
·6· · · ·A.· · ·I mentioned our situation, and, you know,
·7· ·well, would you list this, and she wasn't interested in
·8· ·it so -- I mean, I wasn't asking her to list it.· It's
·9· ·just she -- after she found out what was there, it was a
10· ·no.
11· · · ·Q.· · ·Okay.· Did your husband know that you had
12· ·asked this Christy Brickler about the possibility of
13· ·whether she would list the farm?
14· · · ·A.· · ·I don't think so.
15· · · ·Q.· · ·Is there -- have you told him that you had
16· ·that conversation?
17· · · ·A.· · ·I may have.· I don't know -- I don't -- I
18· ·think again at that point, he wasn't, you know,
19· ·interested in re-listing it anyway, so...
20· · · ·Q.· · ·Do you think this is where he wants to live?
21· · · ·A.· · ·I think so.· Well, I know so.· We -- like I
22· ·said, he's always said, I'm going to die here.
23· · · ·Q.· · ·Has he continued to say that since 4/9 built
24· ·the hog farm?
25· · · ·A.· · ·He hasn't said it, no.
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88
·1· ·that I knew was a Realtor, and she pretty much said, oh,
·2· ·I don't think I would want to take that on as a place to
·3· ·sell, so...
·4· · · ·Q.· · ·Who did you discuss it with?
·5· · · ·A.· · ·My boss's daughter is a Realtor.
·6· · · ·Q.· · ·Okay.· What's her name?
·7· · · ·A.· · ·Last name is Brickler, but I can't remember
·8· ·now what her -- Chris -- Chris or something.· Christine.
·9· · · ·Q.· · ·Where is she a Realtor at?
10· · · ·A.· · ·I am not real sure what company she's with
11· ·now.· I think -- I don't know.· I mean, it's not somebody
12· ·that I see.· I just knew that she was a Realtor, and...
13· · · ·Q.· · ·Do you know where her office is located?
14· · · ·A.· · ·I think maybe she works at home.· I'm not
15· ·sure.
16· · · ·Q.· · ·Do you know where she lives, then?
17· · · ·A.· · ·I think she lives around Eagle Creek.
18· · · ·Q.· · ·In Marion County?
19· · · ·A.· · ·Yeah.· Kind of in the -- where the Colts'
20· ·complex is.· I think she lives kind of south of that
21· ·somewhere.· Like I said, that was just a casual
22· ·conversation.
23· · · ·Q.· · ·When was that conversation?
24· · · ·A.· · ·Well, I didn't work there this year so, it was
25· ·probably the end of 2014.
·1· · · ·Q.· · ·Do you believe that that's his thinking,
·2· ·though?
·3· · · ·A.· · ·I think so.
·4· · · · · · · · ·MS. FERRARO:· I'll just object,
·5· ·speculation.
·6· · · ·Q.· · ·You are his wife of 22 years, correct?
·7· · · ·A.· · ·Yes.
·8· · · ·Q.· · ·Would you say you know the man pretty well?
·9· · · ·A.· · ·Probably better than I want to.
10· · · · · · · · ·MS. FERRARO:· Touche', counsel.
11· · · ·A.· · ·I'm sorry.· Most of the time I show my heart a
12· ·bit.
13· · · ·Q.· · ·That's okay.· You have talked to any other
14· ·Realtors about the possibility of selling the home and
15· ·the property?
16· · · ·A.· · ·No.
17· · · ·Q.· · ·Are there any major defects with the house
18· ·that you think might affect the value of the home?
19· · · ·A.· · ·Since 2013, we have -- we don't spend any
20· ·money on it, so I'm sure there's defects.· You know, it's
21· ·an old house, two or three years sitting out in the wind
22· ·and sun and rain and all that.
23· · · ·Q.· · ·Is there anything that the 4/9 hog farm is
24· ·doing that is preventing you from, I guess,
25· ·maintaining -- I'll call that maintenance.· Maintaining
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Janet Himsel, Vol. I
May 19, 2016
App. 54
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91
·1· ·the home?
·2· · · ·A.· · ·Well, we don't want to spend money on
·3· ·something that we don't know what's going to happen next.
·4· ·We don't know how bad our smells are going to be.
·5· · · ·Q.· · ·There's nothing that the farm is doing,
·6· ·though, that is physically prohibiting you from
·7· ·maintaining the home, correct?
·8· · · ·A.· · ·No.· Just the fact that it's there.
·9· · · ·Q.· · ·Do you know, does the home have any problems
10· ·with mold?· Has it been inspected for mold?
11· · · ·A.· · ·I don't think so, and I don't know that it has
12· ·any problems with it.
13· · · ·Q.· · ·Has it always had a basement?
14· · · ·A.· · ·Yes.
15· · · ·Q.· · ·Have you ever had the basement tested for
16· ·radon?
17· · · ·A.· · ·I -- I don't think so.
18· · · ·Q.· · ·So, you wouldn't know if there was a radon
19· ·issue in the basement?
20· · · ·A.· · ·I don't know.
21· · · ·Q.· · ·I think I know the answer to this question
22· ·based on your previous answer, but I'll ask it anyways.
23· ·Have you made any improvements to the home since January,
24· ·2013?
25· · · ·A.· · ·I guess the only thing is put some different
·1· ·living at the home year-round?
·2· · · ·A.· · ·Yes.
·3· · · ·Q.· · ·In other words, you didn't go to somewhere
·4· ·during the wintertime and spend your winters elsewhere?
·5· · · ·A.· · ·No.
·6· · · ·Q.· · ·When did you first learn that 4/9 wanted to
·7· ·build a CAFO on the property out there?
·8· · · ·A.· · ·I can't remember.· I've got whatever calendar
·9· ·it was I was trying to keep, and I think you've already
10· ·got a copy of this.· I brought it for my own.· It was
11· ·about April the 30th that we started hearing about it.
12· · · ·Q.· · ·What year?
13· · · ·A.· · ·2013.
14· · · ·Q.· · ·Can I see that?
15· · · ·A.· · ·I think it should be in your papers.
16· · · ·Q.· · ·Yeah.· What is J. Smith at Abstract & Title?
17· · · ·A.· · ·I don't know.
18· · · ·Q.· · ·Okay.
19· · · · · · · · ·MR. EMENHISER:· We can go off the record.
20· ·I'm sorry.· We don't need to tape this.
21· · · · · · · · ·THE VIDEOGRAPHER:· We are off the record.
22· ·The time is 4:12 p.m.
23· ·(RECESS, 4:12 p.m. - 4:16 p.m.)
24· · · · · · · · ·THE VIDEOGRAPHER:· We are back on the
25· ·record.· The time is 4:16 p.m.
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·1· ·flooring in the bathroom I guess is the only thing.
·2· · · ·Q.· · ·About how much was that, was that flooring in
·3· ·the bathroom?· Would it be proper to call it a bathroom
·4· ·renovation?
·5· · · ·A.· · ·No.
·6· · · ·Q.· · ·Okay.· New flooring in the bathroom.· How much
·7· ·did you spend on new flooring?
·8· · · ·A.· · ·Very little, mainly because we had the tile,
·9· ·the flooring.
10· · · ·Q.· · ·I wanted to kind of button up this appraisal
11· ·issue.
12· · · · · · · To the best of your knowledge, the most recent
13· ·appraisal on the home, is it fair to say that that would
14· ·be the C.M. Bottama appraisal?
15· · · ·A.· · ·As far as I know.
16· · · ·Q.· · ·As far as you know, okay.
17· · · ·A.· · ·The one that I have seen anything about
18· ·anyway.
19· · · ·Q.· · ·And what you saw of that C.M. Bottama
20· ·appraisal was the first page, correct?
21· · · ·A.· · ·Yes.
22· · · ·Q.· · ·Did the first page have a dollar amount on it?
23· · · ·A.· · ·I have no idea.· I mean, I -- it's been a
24· ·while since I've even seen it, so I don't remember.
25· · · ·Q.· · ·Sure.· That's fine.· Prior to 2013, were
·1· ·(Deposition Exhibit 51, handwritten notes, marked for
·2· ·identification.)
·3· ·BY MR. EMENHISER:
·4· · · ·Q.· · ·Mrs. Himsel, I'm handing you Deposition
·5· ·Exhibit 51.· Can you tell me what that is?
·6· · · ·A.· · ·You're asking me about this particular page?
·7· · · ·Q.· · ·Yes.· Yes.· Tell me what 51 is.
·8· · · ·A.· · ·I think it was just a note.· I tried to keep
·9· ·notes, but I gave up.· This is probably about the last.
10· · · ·Q.· · ·You had -- if you would, pull out Deposition
11· ·Exhibit 40.· And I'm going to have several questions for
12· ·you later on this, but I kind of want to tie this up as
13· ·to what 51 is.
14· · · · · · · Do you have Exhibit 40?
15· · · ·A.· · ·I do.
16· · · ·Q.· · ·Okay.· Now, do you have 51 with you as well?
17· ·If you could turn to the last page of Exhibit 40.· Are
18· ·you there?
19· · · ·A.· · ·Yes.
20· · · ·Q.· · ·Do you see that there's a date entry there
21· ·that appears to me to say November 16 and 17; is that
22· ·correct?
23· · · ·A.· · ·Right.
24· · · ·Q.· · ·Okay.· If you'll look at that entry and then
25· ·look at page 51, does that give you a sense of what date
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Janet Himsel, Vol. I
May 19, 2016
App. 55
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·1· ·tried to contact them and, you know, we didn't get any
·2· ·response from any of them.
·3· · · ·Q.· · ·Did someone suggest that you send this letter
·4· ·to the Himsels?
·5· · · ·A.· · ·I am not sure.
·6· · · ·Q.· · ·Did your counsel suggest that you send this
·7· ·letter?
·8· · · · · · · · ·MS. FERRARO:· Objection.· Privileged, as to
·9· ·what I may or may not have advised or consented or
10· ·suggested.
11· · · ·Q.· · ·If you look at the second paragraph there, it
12· ·says because of your hog operation, Janet and I are now
13· ·constantly coughing and have sore throats.· Is that a
14· ·statement that you would agree with?
15· · · ·A.· · ·Yes.
16· · · ·Q.· · ·How long were you constantly coughing and
17· ·having sore throats?
18· · · ·A.· · ·I would say we still are.
19· · · ·Q.· · ·When did it start?
20· · · ·A.· · ·When all of this went into effect.· I don't
21· ·think it was like the first day, but, you know, after all
22· ·of that gets in the air, you start breathing, breathing
23· ·in the bad air and that's why we are concerned.
24· · · ·Q.· · ·Have you seen a doctor about your coughing and
25· ·sore throats?
·1· ·consider above which it becomes a factory?
·2· · · ·A.· · ·I'd say anything over a thousand in a
·3· ·building, but that's too many.
·4· · · ·Q.· · ·Have you ever complained about the Hardens'
·5· ·farm?
·6· · · ·A.· · ·No.
·7· · · ·Q.· · ·Did you know that the Hardens' farm have over
·8· ·6,000 hogs on their farm?
·9· · · ·A.· · ·I don't have any idea how many they have.
10· · · ·Q.· · ·Would you be surprised if they had that many
11· ·hogs on their farm?
12· · · ·A.· · ·Probably not.
13· · · ·Q.· · ·And your husband today testified that the
14· ·Harden farm is about a mile-and-a-half southwest of your
15· ·property; is that about right?
16· · · ·A.· · ·I think it would be farther, but, you know,
17· ·three mile or less anyway.
18· · · ·Q.· · ·Okay.
19· · · ·A.· · ·I'm not sure of the exact mileage.
20· · · ·Q.· · ·Do you know what road the Harden farm is
21· ·located on?
22· · · ·A.· · ·I think it's on 200.
23· · · ·Q.· · ·200.· What's the nearest crossroad?
24· · · ·A.· · ·Well, there's 425 that Ts into 200, and then
25· ·the next crossroad would be -- I don't -- I'm not -- I
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·1· · · ·A.· · ·I have discussed it with my doctor.
·2· · · ·Q.· · ·What doctor?
·3· · · ·A.· · ·Dr. Jones.
·4· · · ·Q.· · ·Does Dr. Jones have a first name?
·5· · · ·A.· · ·Thomas H. Jones.
·6· · · ·Q.· · ·And he's in Danville?
·7· · · ·A.· · ·Yes, he is.
·8· · · ·Q.· · ·It says here, "Her doctor advised her to limit
·9· ·her exposure to noxious fumes."
10· · · · · · · Did your doctor actually say that?
11· · · ·A.· · ·Yes.
12· · · ·Q.· · ·Okay.· When did the doctor suggest this?
13· · · ·A.· · ·I guess when I first brought it up to him. I
14· ·don't remember the exact date.· I go quite often because
15· ·of being diabetic.
16· · · ·Q.· · ·When do you think you may have first brought
17· ·this up to your doctor?
18· · · ·A.· · ·It would have been in 2013.
19· · · ·Q.· · ·Was it prior to October 2013?
20· · · ·A.· · ·I don't know a specific date.
21· · · ·Q.· · ·In the next paragraph down, it says, "When
22· ·buyers learned about your hog factory..." what do you -23· ·what do you consider a hog factory to be?
24· · · ·A.· · ·Well, it's confined animals in a building.
25· · · ·Q.· · ·Mm-hmm.· Is there a certain number that you
·1· ·think it's 550.
·2· · · ·Q.· · ·You can get Exhibit 6 out.
·3· · · ·A.· · ·Yeah.· Right there.
·4· · · ·Q.· · ·Is the Harden farm on there?
·5· · · ·A.· · ·200.· I don't think so.· I was trying to think
·6· ·of what this is.· That might be part of their house, but
·7· ·then their hog facility is on down in here.
·8· · · ·Q.· · ·Okay.
·9· · · ·A.· · ·Out in the -- I mean, it's probably a quarter
10· ·to a half mile from their -11· · · ·Q.· · ·From their house?
12· · · ·A.· · ·From their house.· It's down in here.
13· · · ·Q.· · ·Do you think this might be their house there?
14· · · ·A.· · ·I -- I think so.
15· · · ·Q.· · ·Okay.· And that's on 200 north?
16· · · ·A.· · ·Yes.
17· · · ·Q.· · ·Okay.· And that map doesn't have the crossroad
18· ·where the house is located, does it?
19· · · ·A.· · ·No.· But this is 425 where the CAFO is, and
20· ·then there's -21· · · ·Q.· · ·What's the next road?· This appears to be the
22· ·next road over, correct?
23· · · ·A.· · ·No.
24· · · ·Q.· · ·No?
25· · · ·A.· · ·Oh, that's not a road.
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May 19, 2016
121 to 123
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·1· · · · · · · · ·MS. FERRARO:· That's fine.· How much more
·2· ·do you think you have for her?
·3· · · · · · · · ·MR. EMENHISER:· I've got a -- I've got a
·4· ·little bit.· Hopefully -- her deposition is going quicker
·5· ·than Mr. Himsel's.
·6· · · · · · · · ·We can go off the record.
·7· · · · · · · · ·THE VIDEOGRAPHER:· This ends volume one of
·8· ·the deposition of Janet L. Himsel.· We are off the
·9· ·record.· The time is 5:01.
10· ·(RECESS, 5:01.)
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·1· · · · · · · · · · E R R A T A· ·S H E E T
·2· ·IN RE:· Himsel/Lannon v. Himsel/4/9 Livestock, et al.
·3· ·NAME:· Martin Richard Himsel, Volume One
·4· ·RETURN BY:
·5· ·= = = = = = = = = = = = = = = = = = = = = = = = = = = =
·6· ·PAGE/LINE· · · · · · ·CORRECTION AND REASON
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· · · · ·(DATE)· · · · · · · · · (DEPONENT SIGNATURE)
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25· ·NOTARY PUBLIC:
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·1· · · · · · · · ·CERTIFICATE OF COURT REPORTER
·2· · · ·I, Marjorie Peters, Registered Merit Reporter,
·3· ·Certified Realtime Reporter, before whom the foregoing
·4· ·deposition was taken, do hereby certify that the witness
·5· ·was placed under oath according to the law; that the
·6· ·foregoing transcript is a true and correct record of the
·7· ·testimony given; that said testimony was taken by me
·8· ·stenographically and thereafter reduced to typewriting
·9· ·under my direction and that I am neither counsel for,
10· ·related to, nor employed by any of the parties to this
11· ·case and have no interest, financial or otherwise, in its
12· ·outcome.
13· · · · · · · I further certify that signature was not
14· ·waived by the witness.
15· · · · · · · I, Joanne Connor, Notary Public in the State
16· ·of Indiana, do hereby certify that the witness was placed
17· ·under oath according to the law.
18· · · · · · · IN WITNESS WHEREOF, I have hereunto set my
19· ·hand and affixed my seal this· · day of· · · · · ·, 2016.
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· · ·Marjorie Peters, RMR, CRR
22· ·Court Reporter
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· · ·Joanne Connor
25· ·Notary Public
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App. 58
In the Matter Of:
MARTIN RICHARD HIMSEL
vs
SAMUEL T. HIMSEL
JANET HIMSEL, VOL. II
May 20, 2016
183 to 186
Janet Himsel, Vol. II
May 20, 2016
App. 59
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185
·1· ·A· ·Yes.
·1· · · ·regard to the 4/9 CAFO?
·2· ·Q· ·Prior to the construction of the hog barns, the
·2· ·A· ·I don't know.
·3· · · ·land where the hog barns currently exist was
·3· ·Q· ·Okay.· Can you give me any examples of
·4· · · ·used for growing crops; correct?
·4· · · ·unreasonable conduct based -- again, based on
·5· ·A· ·Yes.
·5· · · ·your firsthand knowledge, of Co-Alliance with
·6· ·Q· ·Okay.· And they were used for growing crops all
·6· · · ·regard to the 4/9 CAFO?
·7· · · ·the way up until the hog barns were constructed;
·7· · · · · · MS. FERRARO:· I'm just going to object to
·8· · · ·correct?
·8· · · ·the extent that understanding what "unreasonable
·9· ·A· ·Yes.
·9· · · ·conduct" is within a legal context is.
10· ·Q· ·Okay.· Were there any conditions on that
10· · · · · · So I'll object, that calls for a legal
11· · · ·property, prior to the construction of the hog
11· · · ·conclusion, as to your prior three questions on
12· · · ·barns, that you would say were causing you
12· · · ·that.
13· · · ·injuries to your health?
13· · · · · · You may answer.
14· ·A· ·No.
14· ·A· ·And I don't know.
15· ·Q· ·Were there any conditions on the property where 15· ·Q· ·Mrs. Himsel, what do you consider unreasonable
16· · · ·the barns are located, prior to the construction
16· · · ·conduct?
17· · · ·of the barns, which you would say were indecent,
17· ·A· ·I guess I would think purposely dumping their
18· · · ·offensive?
18· · · ·manure outside their facility or, you know,
19· ·A· ·No.
19· · · ·harming the other neighbors.
20· ·Q· ·Were there any conditions on that property where 20· ·Q· ·Do you have any firsthand knowledge that any of
21· · · ·the 4/9 barns are located, prior to their being
21· · · ·those people, Samuel Himsel, Cory Himsel, or
22· · · ·construction -- constructed, that you would say
22· · · ·Clinton Himsel, or Co-Alliance have purposely
23· · · ·obstructed the use of your property?
23· · · ·dumped manure outside of the 4/9 facility?
24· ·A· ·No.
24· ·A· ·I have none.
25· ·Q· ·And were there any conditions on that property
25· ·Q· ·Okay.· Do you have any examples, based on your
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·1· · · ·where the 4/9 barns are now located that you
·1· · · ·firsthand knowledge, of conduct by 4/9 Livestock
·2· · · ·would say, prior to their construction,
·2· · · ·that you would consider unreasonable?
·3· · · ·interfered with your property or your style of
·3· ·A· ·No.
·4· · · ·living?
·4· · · · · · MS. FERRARO:· Continuing objection based on
·5· ·A· ·No.
·5· · · ·legal conclusion to that question as well.
·6· ·Q· ·Turn to paragraph 34 of Exhibit 39, if you
·6· ·Q· ·Mrs. Himsel, did you talk to any media outlets
·7· · · ·would.· Are you there?· I'm sorry.
·7· · · ·regarding the 4/9 CAFO?
·8· ·A· ·(The witness complies.)
·8· ·A· ·No.
·9· ·Q· ·Are you there?
·9· ·Q· ·Okay.· You were here during your husband's
10· ·A· ·I am, yes.
10· · · ·deposition and we talked about various articles
11· ·Q· ·Okay.· Paragraph 34 starts out by saying, "The
11· · · ·and -12· · · ·Defendants' unreasonable conduct."
12· ·A· ·Right.
13· · · · · · Can you give me any -- based on your
13· ·Q· · -- and interviews with various media outlets.
14· · · ·firsthand knowledge -- examples of what you
14· · · · · · Were you present during those interviews?
15· · · ·would consider "unreasonable conduct" by Samuel 15· ·A· ·No, I was not.
16· · · ·Himsel?
16· ·Q· ·Okay.· And have you submitted any letters to the
17· ·A· ·Well, regarding the CAFO, I don't know.
17· · · ·editors of papers regarding the 4/9 CAFO?
18· ·Q· ·Can you give me any examples, based on your
18· ·A· ·No.
19· · · ·firsthand knowledge, of what you would consider
19· ·Q· ·Is there any reason why you haven't spoke to any
20· · · ·unreasonable conduct by Cory Himsel with regard 20· · · ·media outlets regarding the 4/9 CAFO or this
21· · · ·to the 4/9 CAFO?
21· · · ·lawsuit?
22· ·A· ·I don't know.
22· ·A· ·I just was not there when they did that.
23· ·Q· ·Can you give me any examples based on your
23· ·Q· ·Okay.· Has anyone contacted you and asked to
24· · · ·firsthand knowledge of what you would consider
24· · · ·speak with you?
25· · · ·unreasonable conduct by Clinton Himsel with
25· ·A· ·No.
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Janet Himsel, Vol. II
May 20, 2016
App. 60
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·1· ·Q· ·Okay.· I asked your husband this and he chided
·2· · · ·me that based on his age, the answer should be
·3· · · ·obvious.· But I'll ask you whether you have a
·4· · · ·Facebook account?
·5· ·A· ·I do.
·6· ·Q· ·You do?· Okay.· What's the address for that?
·7· ·A· ·I guess I don't know.
·8· ·Q· ·Okay.
·9· · · · · · MS. FERRARO:· I'll just object based on
10· · · ·relevance.
11· · · · · · But you can answer.
12· ·A· ·I don't remember.· Does it come through on your
13· · · ·email account?
14· ·Q· ·I don't have a Facebook account so I don't know
15· · · ·if asking for the address is -16· ·A· ·I don't do anything on it.· I look at the little
17· · · ·dogs that jump up and down on the couch or
18· · · ·whatever.
19· ·Q· ·That was my next question is have you ever
20· · · ·commented on Facebook account, or any social
21· · · ·media, regarding either the 4/9 CAFO or this
22· · · ·lawsuit?
23· ·A· ·I don't comment on Facebook.
24· ·Q· ·Okay.
25· ·A· ·Except for cute dogs and babies.
·1· ·A· ·Yes.
·2· ·Q· ·Are those the -- are those items interfering
·3· · · ·with your enjoyment of your property?
·4· ·A· ·I think so, yes.
·5· ·Q· ·How -·6· ·A· ·The odor in particular does.
·7· ·Q· ·Okay.· How so?· Describe that for me.· How are
·8· · · ·they interfering with the use and enjoyment of
·9· · · ·your property?
10· ·A· ·You don't go outside and sit on the patio.· You
11· · · ·don't invite friends in.· You don't know what
12· · · ·day it's going to smell.· You just don't plan
13· · · ·things that involve people that might be -- you
14· · · ·know, a lot of people can't tolerate it.
15· ·Q· ·Prior to the construction of the 4/9 Farm, how
16· · · ·frequently would you host at your home outdoor
17· · · ·gatherings?
18· ·A· ·Probably once a year.
19· ·Q· ·Once a year?· Okay.
20· · · · · · Mrs. Himsel, do you consider all
21· · · ·objectionable smells to be nuisances or
22· · · ·offensive, or is it just that there's an
23· · · ·intensity or frequency that you can't tolerate?
24· ·A· ·There's an intensity to this and it makes it
25· · · ·hard to tolerate if you smell it, you know,
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·1· ·Q· ·Okay.· How about any other social media?
·1· · · ·several days in a row.
·2· ·A· ·No.
·2· ·Q· ·Okay.· And, so, in your own words, when does the
·3· ·Q· ·Do you believe that the 4/9 Farm has created
·3· · · ·smell cross the line from being, you know,
·4· · · ·conditions on your property that have injured
·4· · · ·something that's just objectionable to becoming
·5· · · ·your health?
·5· · · ·a nuisance?
·6· ·A· ·The odor that comes across our property.
·6· ·A· ·Kind of one of those things that's hard to say
·7· ·Q· ·Okay.
·7· · · ·when you don't have a meter on it, but when you
·8· ·A· ·As far as what it's going to do to our water and
·8· · · ·feel like you want to just throw up.· Your
·9· · · ·the creek, we don't know yet.
·9· · · ·stomach doesn't feel good.
10· ·Q· ·And do you find that odor indecent or offensive? 10· ·Q· ·Have you ever vomited as a result of the smell
11· ·A· ·Yes.
11· · · ·on the farm?
12· ·Q· ·Okay.· Other than the odor, is there anything
12· ·A· ·No, because I try to not be there a lot of
13· · · ·else that's obstructing your use of the
13· · · ·times.
14· · · ·property?
14· ·Q· ·If you would, pull out Exhibit 40 and 51, I
15· · · · · · MS. FERRARO:· Objection.· Calls for an
15· · · ·believe it is.
16· · · ·expert opinion.
16· · · · · · (Exhibits 40 and 51 previously marked for
17· ·Q· ·In your opinion -17· · · ·identification.)
18· ·A· ·Mainly, the odor.· My lack of sleep some nights
18· ·A· ·Uh-huh.
19· · · ·with the trucks.· Other than that, that's
19· ·Q· ·They look like this (indicating), okay?
20· · · ·probably about it.
20· ·A· ·Yeah.
21· ·Q· ·Okay.· So there's some occasional noise
21· · · · · · MR. EMENHISER:· Do you have it, Counsel?
22· · · ·associated with the semis?
22· · · · · · MS. FERRARO:· Yep.
23· ·A· ·Yes.
23· ·A· ·Oh, I didn't -- I have -- that's 5 -24· ·Q· ·Okay.· And I think you also mentioned the pickup 24· ·Q· ·That's 51.
25· · · ·truck as well?
25· ·A· ·That's 51.· It looked like a 7, I'm sorry.
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·1· ·Q· ·Okay.
·1· · · · · · So was October 3rd the first day that you
·2· ·A· ·It was just the construction of the buildings.
·2· · · ·noticed poor-smelling air?
·3· ·Q· ·Well, we'd ask you to go ahead and pull any
·3· ·A· ·I think it was a few days after.· I think I've
·4· · · ·pictures of the 4/9 Farm from your phone that
·4· · · ·got, what, the 4th and the 6th.
·5· · · ·you have and your counsel, we'd ask copies of
·5· ·Q· ·You're correct, yeah.· The next entry says,
·6· · · ·those.
·6· · · ·"October 4th, 2013, first day of poor air
·7· · · · · · MS. FERRARO:· Sure.
·7· · · ·quality."
·8· ·Q· ·Did you have permission to take pictures of the
·8· ·A· ·Uh-huh.
·9· · · ·4/9 property?
·9· ·Q· ·Is that consistent with your memory of the first
10· ·A· ·No.
10· · · ·day that there was poor air quality?
11· ·Q· ·Did you contact any of the Himsels and tell
11· ·A· ·Yes.
12· · · ·them, "Hey, I'm going to take some pictures of
12· ·Q· ·And, then, also on the 6th, it says, "Smell in
13· · · ·your buildings"?
13· · · ·our house is terrible."
14· ·A· ·No.· I wasn't on their property when I took the
14· · · · · · Is that correct?
15· · · ·pictures.
15· ·A· ·Yes.
16· ·Q· ·Okay.· Let me ask you, did you take any video as 16· ·Q· ·And did you write -- do you believe that you
17· · · ·well?
17· · · ·wrote these entries on those dates, October 3rd,
18· ·A· ·No.
18· · · ·October 4th, October 6th?
19· ·Q· ·The next page, which is Bates-labeled
19· · · · · · MS. FERRARO:· Objection.· Asked and
20· · · ·Plaintiffs-52, there's an entry for 10/3/13.
20· · · ·answered.
21· · · · · · Do you see that?
21· ·A· ·Yes.
22· ·A· ·Uh-huh.
22· ·Q· ·Okay.· Did you keep a diary or a -- I mean, just
23· ·Q· ·Says, "South barn" -- I believe this -- if I'm
23· · · ·note entries on the computer in addition to this
24· · · ·not reading this correctly, please, let me know.
24· · · ·written diary?
25· · · ·Says, "South barn of hog farm factory filled
25· ·A· ·I think only the ones that were prior in here
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·1· · · ·that I commented, I thought they were just
·1· · · ·with baby pigs."
·2· · · ·things I typed on the computer.
·2· · · · · · Is that what it says?
·3· ·Q· ·The notes that we talked about earlier?
·3· ·A· ·Uh-huh.
·4· ·Q· ·Is that your recollection of when the farm first ·4· ·A· ·Yes.· There were a couples pages, I think
·5· · · ·that -·5· · · ·was filled with pigs?
·6·
·Q· ·I think it was Exhibits 24 and 25, I believe.
·6· ·A· ·That's when we saw the first trucks -·7· ·A· ·Yeah, I don't remember.
·7· ·Q· ·Okay.
·8· ·Q· ·Mrs. Himsel, did you think it was important for
·8· ·A· ·-- going in.
·9· ·Q· ·Could it have been filled prior to that and you ·9· · · ·you to record when you were smelling
10· · · ·objectionable odors?
10· · · ·not know about it?
11· ·A· ·Well, there were times they could have put them 11· ·A· ·I believe so.
12· ·Q· ·Does your diary identify all the times that you
12· · · ·in there and maybe we weren't home.· I have no
13· · · ·were smelling objectionable odors?
13· · · ·idea.
14· · · · · · MS. FERRARO:· Objection.· Asked and
14· · · · · · But we did see trucks going in, you know,
15· · · ·answered.
15· · · ·right after they got the buildings built.
16· ·Q· ·So October 3rd is the first time that you saw 16· ·A· ·No.
17· ·Q· ·We've been going for a while here, Mrs. Himsel.
17· · · ·pigs going in?
18· · · ·Are you okay?· Do you need a break?
18· ·A· ·I assume there were pigs with the -- I don't
19· ·A· ·It would probably be nice.
19· · · ·think they run around with those trucks just for
20· · · · · · MR. EMENHISER:· Okay.· Why don't we take a
20· · · ·no reason.
21· · · ·break.
21· ·Q· ·Okay.
22· · · · · · THE VIDEOGRAPHER:· We are off the record at
22· ·A· ·I don't know, you know.
23· ·Q· ·And the next line says, "Fans going pushing 23· · · ·10:24 a.m.
24· · · ·smelly air directly to" -- or "direct to us with 24· · · · · · (A recess was taken.)
25· · · · · · THE VIDEOGRAPHER:· We are back on the
25· · · ·southwest prevailing wind."
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·1· ·Q· ·When the Hardins applied manure to the fields
·1· · · ·record at 10:32 a.m.
·2· · · ·around your property, did you ever smell a
·2· ·BY MR. EMENHISER:
·3· ·Q· ·Mrs. Himsel, I want to talk about the smell that ·3· · · ·manure smell?
·4· ·A· ·Vaguely sometimes, but nothing that was -- that
·4· · · ·you mentioned earlier.
·5· · · ·irritated, you know.· It dissipates right away
·5· · · · · · Do you smell the objectionable smell from
·6· · · ·after they put it in, you know, maybe, you know,
·6· · · ·the outside of your home?
·7· · · ·that day or the next day you don't smell
·7· ·A· ·Outside, inside.
·8· · · ·anything.
·8· ·Q· ·Okay.· Does the intensity of the smell change,
·9· ·Q· ·Did you observe the Hardins putting the manure
·9· · · ·or is it consistent?
10· · · ·on the fields?
10· ·A· ·It depends on the wind.· It affects someone in
11· · · ·our neighborhood, you know, wherever they live. 11· ·A· ·I have a couple of times.
12· ·Q· ·And I think that you said that your recollection
12· · · ·There's someone that's always affected by it.
13· ·Q· ·You mentioned the wind.· Is it more frequent, 13· · · ·is they knife it in?
14· ·A· ·I think so.
14· · · ·less frequent, or more intense, less intense
15· ·Q· ·Okay.· And how far, estimated, number of feet
15· · · ·during certain other weather conditions?
16· · · ·from your home are the fields where the Hardins
16· ·A· ·Foggy.
17· · · ·apply manure?
17· ·Q· ·Foggy?
18· · · · · · MS. FERRARO:· Objection.· Asked and
18· ·A· ·Low ceiling, it holds it down there with us.
19· ·Q· ·Do you have any firsthand knowledge that the 19· · · ·answered.
20· ·A· ·One field's probably 20, 30 feet.
20· · · ·objectionable smells are caused by the 4/9 hog
21· ·Q· ·Okay.· And they've applied manure to that field?
21· · · ·operation?
22·
·A· ·Uh-huh.
22· · · · · · MS. FERRARO:· Objection.· Calls for an
23· ·Q· ·Have you seen -- well, have you seen the 4/9 -23· · · ·expert opinion.
24· · · ·anybody from 4/9 applying manure to fields?
24· ·A· ·We've never had them before until that went in.
25· ·A· ·I personally haven't, but this is the first year
25· ·Q· ·Do you have -- strike that.
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·1· · · · · · How long have the -- if you know, how long
·1· · · ·I actually would have been home every day,
·2· · · ·have the Hardins been operating their hog farm? ·2· · · ·but -- because I was at work.
·3· ·Q· ·Okay.
·3· ·A· ·Well, since I've actually just been a Hendricks
·4· ·A· ·And a lot of that stuff happens when -- during
·4· · · ·County person, since '94, and I know it was
·5· · · ·the day when I'm not there.
·5· · · ·there prior to that.· I don't know exactly when
·6· ·Q· ·Yeah, okay.· So you've never seen anybody you
·6· · · ·it began, but at least from '94.
·7· ·Q· ·And they're located southwest of your current ·7· · · ·believed to be associated with the 4/9 Farm
·8· · · ·applying manure?
·8· · · ·residence?
·9· ·A· ·Not recently.
·9· ·A· ·Yes.
10· ·Q· ·Well, "not recently" suggests to me that you
10· ·Q· ·Okay.· How do you know that the smell that
11· · · ·might have seen them at some point.
11· · · ·you're complaining of isn't attributable to the
12· ·A· ·Well, they have a farm that's directly east of
12· · · ·Hardin farm?
13· ·A· ·We never have smelled the Hardin farm prior to, 13· · · ·us that it's easier to see.· And I -- you know,
14· · · ·we're kind of in a rolling situation where we
14· · · ·you know, when the 4/9 went in.
15· · · ·don't really see.· You know, I'll see a tractor,
15· ·Q· ·Okay.
16· · · ·but I really don't pay attention to what's
16· ·A· ·We never smelled it.· I think our neighbors,
17· · · ·behind it.
17· · · ·there's some south that probably have because
18· · · · · · And that's been in prior years before this
18· · · ·they're on the same 200.· We have quite a
19· · · ·went in.· They've always spread manure and
19· · · ·barrier with the woods between us.
20· · · ·knifed it in.
20· ·Q· ·In all the years that you've lived out there
21· ·Q· ·And they knife it in?
21· · · ·from 1994 until 2013, had you ever smelled a
22· ·A· ·Yes.
22· · · ·manure smell at your residence?
23· ·Q· ·Okay.· That was going to be my question, if you
23· ·A· ·No.
24· · · ·seen how the 4/9 Livestock applies its manure.
24· ·Q· ·Never?
25· · · ·But your understanding is that at least with
25· ·A· ·No.
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·1· · · ·regard to the Himsels' other farms, they knife
·1· · · ·them.· I assume that's knifing it in.
·2· · · ·in their manure?
·2· ·Q· ·Okay.
·3· ·A· ·Yes.
·3· ·A· ·I'm not real familiar with all the equipment and
·4· ·Q· ·Do you have any firsthand knowledge of how 4/9 ·4· · · ·what it looks like.
·5· · · ·actually applies manure?
·5· ·Q· ·Where are the fields that they apply to located
·6· ·A· ·No.
·6· · · ·with regard to your house?
·7· ·Q· ·Have you ever -- well, strike that.
·7· ·A· ·Probably a mile.
·8· · · · · · Are you aware of the appropriate agronomic
·8· ·Q· ·A mile.· What direction?
·9· · · ·rates to use when applying manure?
·9· ·A· ·North.· North and west of us.
10· · · · · · MS. FERRARO:· Objection.· Calls for and
10· ·Q· ·North and west, okay.
11· · · ·expert opinion.
11· · · · · · Any other farmers?
12· ·Q· ·Do you have any personal knowledge of the
12· ·A· ·I'm sure there are.· I don't know them.· I don't
13· · · ·appropriate agronomic rates when using -13· · · ·see them.
14· ·A· ·I have no idea.
14· ·Q· ·Okay.· Have you ever associated any odors
15· ·Q· ·Have you made any suggestions to any of the
15· · · ·when -- or experienced any odors when the
16· · · ·defendants here in this case about how to lessen
16· · · ·Thomases were applying manures to field?
17· · · ·the odor problem that you're complaining of?
17· ·A· ·No.
18· ·A· ·I have not.
18· ·Q· ·Okay.· We've identified the Hardin farm.
19· ·Q· ·Why not?
19· · · · · · Do you know of any other livestock farms,
20· ·A· ·We just don't interfere in what they're doing,
20· · · ·let's say, within two or three miles of your
21· · · ·and I don't go tell them how to run their
21· · · ·home?
22· · · ·business.· Hopefully, they should be good
22· · · · · · MS. FERRARO:· Objection.· Asked and
23· · · ·managers and know how to do it themselves.
23· · · ·answered.
24· ·Q· ·Based on your own personal knowledge, can you 24· ·A· ·I think the Pruitts and the Pritchards, I'm not
25· · · ·think of anything that can be done to abate the
25· · · ·sure what their -- how their name's pronounced.
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·1· · · ·odor problem that you're complaining of?
·1· · · ·I think Pruitts have some cattle and hogs.· The
·2· ·A· ·I think there are products out there.· I don't
·2· · · ·others have cattle.
·3· · · ·know much about them.
·3· ·Q· ·Anyone else that you can recall?
·4· ·Q· ·Are they products -- do you believe that there
·4· ·A· ·Not in that close proximity, no.
·5· · · ·are products that can be placed into the pits to
·5· ·Q· ·What direction from your home are the Pruitts
·6· · · ·address the odor?
·6· · · ·located?
·7· ·A· ·I don't know what they do with them.· I've just
·7· ·A· ·East.
·8· · · ·heard there's additives or something they put in
·8· ·Q· ·Okay.· And the Pritchards?
·9· · · ·the feed, or -·9· ·A· ·East.
10· ·Q· ·So additives for the feed.
10· ·Q· ·Okay.· Do you know if those farms cause
11· · · · · · Do you think that there -- I'll just ask
11· · · ·objectionable odors?
12· · · ·you the question.· Do you think that there are
12· ·A· ·No, they don't.
13· · · ·things that can be added to the pits, as well,
13· ·Q· ·Have you been on those farms before?
14· · · ·to address the odor?
14· ·A· ·Not on them.· I drive by them.· Never have
15· ·A· ·I assume there is.· I don't know personally.
15· · · ·smelled anything.
16· ·Q· ·Other than the Hardins and the Himsels, are
16· ·Q· ·Mrs. Himsel, are you claiming that the
17· · · ·there any other farmers that you've seen
17· · · ·defendants have trespassed on your property?
18· · · ·applying manure to the fields around your
18· · · · · · MS. FERRARO:· Objection.· Calls for a legal
19· · · ·property?
19· · · ·conclusion.
20· ·A· ·Just one.
20· ·A· ·As far as the odor, yes.
21· ·Q· ·Who is that?
21· ·Q· ·Okay.· Other than the odor, are you claiming
22· ·A· ·Thomases.· I think they apply it to some of
22· · · ·that anything from the plaintiffs -- or the
23· · · ·their fields.
23· · · ·defendants have physically invaded your
24· ·Q· ·Do you know how the Thomases apply manure? 24· · · ·property?
25· ·A· ·I think they -- I know there's a tank behind
25· · · · · · MS. FERRARO:· Objection.· Calls for a legal
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·1· · · ·conclusion and an expert opinion.
·1· ·A· ·There's a lot of people suffering because they
·2· ·A· ·They don't normally come on our property.
·2· · · ·built a home there, the Stainfields in
·3· ·Q· ·Okay.· Has any manure from the 4/9 facility come ·3· · · ·particular, they were just devastated because
·4· · · ·onto your property?
·4· · · ·they had just moved out there.· They had taken
·5· ·A· ·I don't know that at the time.· We have a creek
·5· · · ·their retirement money out to buy a nice home
·6· · · ·that they're -- you know, they're afraid that
·6· · · ·and, you know, they just feel like they've kind
·7· · · ·might.
·7· · · ·of lost everything, and as we do too.
·8· ·Q· ·Do you have any firsthand knowledge that any
·8· ·Q· ·Mrs. Himsel, do you believe that any of the
·9· · · ·manure has come onto your property?
·9· · · ·defendants -- and when I say "any of the
10· ·A· ·No, no.
10· · · ·defendants," understand there's 4/9 Livestock is
11· ·Q· ·You've been talking about semis and trucks that 11· · · ·a defendant, Co-Alliance, and then the
12· · · ·got to the 4/9 property.
12· · · ·individual Himsels.
13· · · · · · Have any of those semis come onto your
13· · · · · · Do you believe that any of defendants are
14· · · ·property?
14· · · ·operating the farm in a careless or
15· ·A· ·No.
15· · · ·irresponsible manner?
16· ·Q· ·Have any of those trucks from the 4/9 property
16· · · · · · MS. FERRARO:· Objection.· Calls for a legal
17· · · ·come onto your property?
17· · · ·conclusion.
18· ·A· ·Not to my knowledge.
18· ·A· ·You know, I have no idea specifically what they
19· ·Q· ·Okay.· And you're not aware of 4/9 -- you don't 19· · · ·might have done.
20· · · ·have any firsthand knowledge that 4/9 has
20· ·Q· ·I think you said earlier you don't have any
21· · · ·applied manure to your property; correct?
21· · · ·knowledge of how 4/9 is operating the farm; is
22· ·A· ·No.
22· · · ·that correct?
23· ·Q· ·What damage do you believe has been caused by 23· ·A· ·I do not, no.
24· · · ·any trespass by the defendants?
24· ·Q· ·And do you have any knowledge of how, or if,
25· · · · · · MS. FERRARO:· Objection.· Calls for a legal
25· · · ·Co-Alliance is operating the farm?
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·1· ·A· ·I do not.
·1· · · ·conclusion and an expert opinion.
·2· ·Q· ·And you have no personal knowledge of how, or
·2· ·A· ·Well, again, it's the odor.
·3· · · ·if, in their individual capacities any of the
·3· ·Q· ·The odor?· Okay.
·4· · · ·individual Himsel Defendants, and by that I
·4· ·A· ·The odor is -- you know, you don't want to go
·5· · · ·mean, Sam, Cory, and Clint, are operating the
·5· · · ·outside.· You don't want to do anything.· You
·6· · · ·farm?
·6· · · ·don't want to have anyone come to your home. I
·7· · · · · · MS. FERRARO:· Objection.· Calls for a legal
·7· · · ·don't live there three-fourths of the time, so
·8· · · ·conclusion.
·8· · · ·that's damage.· I can't enjoy my home, so -·9· ·Q· ·Okay.· Do you have any firsthand knowledge that ·9· ·A· ·I don't -- I'm sorry.
10· · · · · · MS. FERRARO:· As to individual capacity.
10· · · ·Co-Alliance has done anything to cause odor to
11· · · · · · Go ahead, you can answer.
11· · · ·come onto your property?
12· ·A· ·I don't.
12· · · · · · MS. FERRARO:· Objection.· Calls for an
13· ·Q· ·Do you have any firsthand knowledge of spills of
13· · · ·expert opinion.
14· · · ·manure from the 4/9 Farm?
14· ·A· ·Well, if they provide the pigs.
15· ·A· ·I do not.
15· ·Q· ·Provide the -16· ·Q· ·Do you have any firsthand knowledge of any IDEM
16· ·A· ·That's where the odor comes from.
17· · · ·noncompliance associated with the 4/9 Farm?
17· ·Q· ·Mrs. Himsel, do you believe that any of the
18· ·A· ·I don't.
18· · · ·defendants are operating the farm in an illegal
19· ·Q· ·Do you have any firsthand knowledge of any
19· · · ·manner?
20· · · ·federal regulatory noncompliance related to the
20· · · · · · MS. FERRARO:· Objection.· Calls for a legal
21· · · ·4/9 Farm?
21· · · ·conclusion.
22· ·A· ·I don't.
22· ·A· ·I would say not.· They -- you know, they just
23· ·Q· ·Do you have any knowledge or evidence -- strike
23· · · ·made a bad choice of where to put it around all
24· · · ·that.
24· · · ·the homes that are there.
25· · · · · · Do you have any firsthand knowledge that
25· ·Q· ·Okay.
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·1· ·Q· ·Is -- well, let me scratch that.
·1· · · · MS. FERRARO:· We'll take a break.
·2· · · · THE VIDEOGRAPHER:· We are off the record at ·2· · · · · · When you say "physical maintenance," were
·3· · · ·you thinking about the remodeling, or were you
·3· ·11:27 a.m.
·4· · · ·thinking about your gardening and other things
·4· · · · (A lunch recess was taken.)
·5· · · ·that you could do outside that you have not been
·5
·6· · · ·able to do since the defendants' CAFO has been
·6
·7· · · ·built?
·7
·8· ·A· ·I don't do things outside.· I don't do gardening
·8
·9· · · ·anymore.· Gardening, for me, was doing the
·9
10· · · ·flowers and stuff; but I just don't do it
10
11· · · ·because I can't go out in the smell.
11
12· ·Q· ·Okay.· So would you, then, be sort of clarifying
12
13· · · ·your answer to counsel's question that there is
13
14· · · ·no reason why you haven't done physical
14
15· · · ·maintenance to your home?
15
16· ·A· ·Well, the fact that we can't go outside and
16
17· · · ·enjoy it.
17
18· ·Q· ·So there is a physical reason why you have
18
19· · · ·not -19
20· ·A· ·Right.
20
21· ·Q· ·-- done physical maintenance -21
22· ·A· ·Right.
22
23· ·Q· ·-- at least on the outside of your home?
23
24· ·A· ·Yeah.· I was thinking of, like, painting and
24
25· · · ·washing windows and things, which I don't go out
25
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·1· · · · · · · · · · AFTERNOON SESSION
·2· · · · · · THE VIDEOGRAPHER:· We are back on the
·3· · · ·record at 12:34 p.m.
·4· ·CROSS-EXAMINATION,
·5· · · ·QUESTIONS BY MS. KIM E. FERRARO:
·6· ·Q· ·Mrs. Himsel, I'm going to be jumping around a
·7· · · ·little bit.· We've covered quite a bit of ground
·8· · · ·with your testimony and answers to questions by
·9· · · ·Mr. Emenhiser who represents the defendants; so
10· · · ·bear with me a little bit.
11· · · · · · I'd like to go back to a topic that was
12· · · ·discussed yesterday.· You were asked about -13· · · ·you were asked about your inability, or whether
14· · · ·or not you had done maintenance on your home
15· · · ·since the defendants' CAFO had been built.
16· · · · · · Do you remember that testimony?
17· ·A· ·Yes.
18· ·Q· ·And I believe your answer to the question of
19· · · ·whether or not there was any reason that you
20· · · ·hadn't done physical work on your home since the
21· · · ·defendants' CAFO had been built, was there was
22· · · ·no reason for it, you didn't have any reason why
23· · · ·you hadn't done that maintenance.
24· · · · · · Do you recall that testimony?
25· ·A· ·Yes.
·1· · · ·and do that either for the same reason.
·2· ·Q· ·For the record, then, could you describe to us
·3· · · ·what it is that you used to do prior to the
·4· · · ·defendants' CAFO being built that you are no
·5· · · ·longer doing with respect to physically
·6· · · ·maintaining the outside of your home?
·7· ·A· ·Well, we used to apply, like, a truckload of
·8· · · ·mulch around all the flowers, have all the weeds
·9· · · ·pulled and, you know, of course, purchase new
10· · · ·flowers to put in, and always kept everything
11· · · ·manicured.· He mainly did the mowing.· It's
12· · · ·always been manicured.· It's not anymore.· So we
13· · · ·just can't enjoy our outside.
14· ·Q· ·I heard Richard testify yesterday that you
15· · · ·really enjoy gardening; is that true?
16· ·A· ·Yes.
17· ·Q· ·Do you garden outdoors any longer?
18· ·A· ·No, huh-uh.· Got weeds in the flowerbeds.
19· ·Q· ·How does that make you feel?
20· ·A· ·Well, it makes both of us feel bad because we've
21· · · ·not been used to living with things unkept like
22· · · ·they are now.
23· ·Q· ·So it's embarrassing to you?
24· ·A· ·Right.
25· ·Q· ·Is that also a reason why you --
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·1· · · ·because we just don't -- we don't know what's
·1· · · ·certain -- no?· Okay.
·2· · · ·going to happen.· You know, if we're going to
·2· ·Q· ·I believe defense counsel took you to -- let's
·3· · · ·see -- to page 45 of Exhibit 49, which is the
·3· · · ·have to live there like it is, we still don't
·4· · · ·want to spend any money on it if no one else is
·4· · · ·2008 Hendricks County Zoning Ordinance, and
·5· · · ·asked you to confirm whether or not a CAFO is
·5· · · ·going to want to live there like it is either.
·6· · · ·allowed in the AGI, or the Agricultural Intense
·6· ·Q· ·Okay.· I just want to confirm -- I'm going to
·7· · · ·switch gears for a minute.
·7· · · ·District.
·8· · · · · · Do you recall that testimony?
·8· · · · · · If you could pull out Exhibits 26 and 52.
·9· ·A· ·Yes.
·9· · · · · · (Exhibit 26 previously marked for
10· · · ·identification.)
10· ·Q· ·And you looked there and saw that there was a P
11· · · ·in the column under AGI and saw that, yeah, that
11· ·A· ·(The witness complies.)
12· · · ·CAFOs are allowed in the AGI district.
12· ·Q· ·Tell me when you're ready.
13· ·A· ·I'm ready.
13· · · · · · Do you remember that answer?
14· ·A· ·Yes, yes.
14· ·Q· ·You're ready.
15· ·Q· ·If you could look in the column right next to
15· · · · · · MS. FERRARO:· Counsel, do you have them?
16· · · · · · MR. EMENHISER:· I do, thank you.
16· · · ·under AGR, the Agriculture Residential District,
17· · · · · · MS. FERRARO:· You're not fumbling around
17· · · ·are CAFO's permitted in that district?
18· ·A· ·No.
18· · · ·like I was?
19· ·Q· ·Okay.· So I'm showing you Exhibit 26 which is
19· ·Q· ·And you heard the testimony of your husband
20· · · ·the partial transcript of the Hendricks County
20· · · ·yesterday, but, actually, I'll ask you, do you
21· · · ·know what your property is zoned as?
21· · · ·Area Plan Commission hearing, and it says, as
22· ·A· ·The AGR.
22· · · ·I'm sure you can see it, the paragraph there,
23· · · ·"In the matter of zoning"-- well, "ZA 418/13
23· ·Q· ·And do you know what the -- do you know what the
24· · · ·Samuel T. Himsel; a zoning amendment change from 24· · · ·defendants' -- what Sam Himsel's property was
25· · · ·zoned prior to the rezoning?
25· · · ·AGR/Agricultural Residential District to
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·1· · · ·AGI/Agriculture Intense District."
·1· ·A· ·It was AGR before.
·2· · · · · · Do you see that?
·2· ·Q· ·And, so, both of your properties were
·3· ·A· ·Yes.
·3· · · ·respectively AGR districts?
·4· ·Q· ·And do you recall you were asked some questions ·4· ·A· ·Right.
·5· · · ·about who the applicant was for the rezoning
·5· ·Q· ·Since you've lived there in 1994, I believe -·6· · · ·decision, and I believe you testified that it
·6· · · ·no, you moved in in '97?
·7· · · ·was 4/9 Livestock.
·7· ·A· ·No, '94.
·8· · · · · · But in looking at this, does that change
·8· ·Q· ·'94.· Since that time -- from that time forward,
·9· · · ·your opinion about who the applicant for the
·9· · · ·there hadn't been a rezoning, to your knowledge?
10· · · ·zoning amendment change was?
10· ·A· ·No.
11· ·A· ·Yes.· It was just Sam, Sam Himsel.
11· ·Q· ·So the area was AGR, or that sort of a
12· ·Q· ·Similarly, the -- looking at Exhibit 52, which
12· · · ·residential -- ag residential use, to your
13· · · ·is the ordinance, the rezoned ordinance that was 13· · · ·knowledge, since 1997; correct?
14· · · ·actually issued on March 26th, 2013, do you see
14· ·A· ·Yes.
15· · · ·who that was issued to on there?
15· ·Q· ·If you could turn to page 415 -- I'm sorry.
16· · · · · · And I'm looking at section 1.· Do you see
16· · · ·Turn to page 4-17.
17· · · ·who the -17· ·A· ·(The witness complies.)
18· ·A· ·It was Sam Himsel also.
18· ·Q· ·And this is the district's intent, the county's
19· ·Q· ·Okay.· So not 4/9 Livestock?
19· · · ·intent for the AGR/Agricultural Residential
20· ·A· ·Right.
20· · · ·Districts.
21· ·Q· ·Okay.· If you could go to Exhibit 49.· This is
21· · · · · · Do you see that?
22· · · ·what it is, Zoning Ordinance.
22· ·A· ·Yes.
23· ·A· ·(The witness complies.)
23· ·Q· ·And it says that the county's intent in creating
24· · · · · · THE WITNESS:· Did you have these -- you had 24· · · ·the AGR district "is to permit the establishment
25· · · ·them separated.· Did you have them in a
25· · · ·of individual single-family dwellings while
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·1· · · ·defendants, including the named individual
·2· · · ·defendants were there; correct?
·3· ·A· ·Yes.
·4· ·Q· ·And they heard your concerns, presumably, if
·5· · · ·they were there; correct?
·6· ·A· ·Yes.
·7· ·Q· ·Okay.· So one can assume that they heard what
·8· · · ·you said; correct?
·9· ·A· ·I guess.· I would have to assume.· You know, you
10· · · ·don't know what someone else has heard, but -11· ·Q· ·Okay.· Well, in -- strike that.· We'll move on.
12· · · · · · I think this is probably going to be my
13· · · ·last question.
14· · · · · · You were also asked whether or not the
15· · · ·defendants, the named defendants, have caused
16· · · ·anything, any physical objects, or any physical
17· · · ·invasion of your property.
18· · · · · · Do you recall that testimony?
19· ·A· ·Yes.
20· ·Q· ·You said that you weren't aware of any manure
21· · · ·coming on your property; correct?
22· ·A· ·At this time, no.
23· ·Q· ·You did state that you felt odors had come onto
24· · · ·your property; correct?
25· ·A· ·Yes.
·1· · · ·be in the air at your home; is that correct?
·2· ·A· ·That's correct.
·3· ·Q· ·And the reason that you're not aware of what
·4· · · ·constituents may be in the air at your home is
·5· · · ·because in two years -- over two years since the
·6· · · ·CAFO has come into operation, you haven't had
·7· · · ·the -- you haven't bothered to have the air
·8· · · ·tested, have you?
·9· ·A· ·We didn't know that we could measure the air.
10· ·Q· ·You didn't know that air could be tested?
11· ·A· ·We've been to the planning zoning, the -12· · · ·Mrs. Stanfield.· Also, at the -- the Barbara Sha
13· · · ·Cox meetings.· You know, they said, "Well,
14· · · ·there's no way to test odor."· So we didn't
15· · · ·think there was any way to test odor.
16· ·Q· ·Okay.
17· ·A· ·And probably over three years that might have
18· · · ·changed, I don't know.
19· ·Q· ·Well, you haven't bothered to have your air
20· · · ·sampled; correct?
21· ·A· ·No, not -22· ·Q· ·How do you know that the air on your property is
23· · · ·contaminated then?
24· · · · · · MS. FERRARO:· Objection.· That
25· · · ·mischaracterizes her testimony.
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·1· ·Q· ·And you're not aware of what constituents may
·1· ·Q· ·Are you claiming that the air on your property
·2· · · ·be -- air pollutants might be in those odors;
·2· · · ·is contaminated?
·3· · · ·correct?
·3· ·A· ·With the odor, yes.· You know, the reason we had
·4· ·A· ·That's correct.· Yes.
·4· · · ·the sore throats and the eye irritation, the
·5· ·Q· ·But to the extent that there are some sort of
·5· · · ·dust that can come from the fans and the -- you
·6· · · ·air contaminants that may be causing those
·6· · · ·know, there's pig dander, there's feed dust.
·7· · · ·odors, those have physically come onto your
·7· ·Q· ·You have no idea of the amount of dust that's in
·8· · · ·property, haven't they?
·8· · · ·your air, though; correct?
·9· ·A· ·Yes, yes.
·9· ·A· ·No, not at this time.
10· · · · · · MS. FERRARO:· Mrs. Himsel, I thank you for
10· ·Q· ·And you have no idea of the amount of pig
11· · · ·sitting here yesterday and today, but I think
11· · · ·dan- -- you called it "pig dander," that might
12· · · ·that's all I have.
12· · · ·be in your air; correct?
13· · · · · · MR. EMENHISER:· I'll have some follow-up,
13· ·A· ·No, right.
14· · · ·but let's take a quick break.
14· ·Q· ·And that's because you haven't bothered to have
15· · · · · · MS. FERRARO:· Sure.
15· · · ·your air tested; right?
16· · · · · · THE VIDEOGRAPHER:· We are off the record at 16· · · · · · MS. FERRARO:· Objection.· Argumentative.
17· · · ·1:09 p.m.
17· · · ·"Bothered"?· I think she testified that she
18· · · · · · (A recess was taken.).
18· · · ·didn't know they could get their air tested.
19· · · · · · THE VIDEOGRAPHER:· We are back on the
19· ·Q· ·And that's because you haven't had your air
20· · · ·record at 1:14 p.m.
20· · · ·tested; correct?
21· ·REDIRECT EXAMINATION,
21· ·A· ·That is correct.· And I stated many times, I
22· · · ·QUESTIONS BY MR. JONATHAN P. EMENHISER: 22· · · ·know at least three or four, that, you know,
23· ·BY MR. EMENHISER:
23· · · ·they put that thing out there.· They should be
24· ·Q· ·Mrs. Himsel, you mentioned just a moment ago
24· · · ·protecting the people that are close to it.
25· · · ·that you were not aware of what constituents may
25· · · · · · We're not the only ones that are being
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·1· · · ·affected by it, even though they haven't filed a
·1· · · ·ability to object, the property was rezoned AGI;
·2· · · ·correct?
·2· · · ·lawsuit, they're still bothered by the smells,
·3· ·A· ·Yes.
·3· · · ·the dander -- or the, you know, dust particles,
·4· · · ·whatever is in it.· I guess because my kids
·4· ·Q· ·And being rezoned as AGI meant that one of the
·5· · · ·permitted uses was to place a CAFO on the
·5· · · ·showed 4-H, I've seen it come off of the pigs.
·6· · · ·property; correct?
·6· · · ·I'm sure they're in there rubbing against each
·7· · · ·other.
·7· ·A· ·Right in the middle of an AGR area where there
·8· ·Q· ·You've visually seen pig dander in the air; is
·8· · · ·are many homes, many homes.
·9· ·Q· ·But a property zoned AGI means that a permitted
·9· · · ·that correct?
10· · · ·use is a -- a CAFO is a permitted use on that
10· ·A· ·Not at my house, but I have seen it, yes.
11· ·Q· ·You mentioned early -- or your counsel asked you 11· · · ·property; correct?
12· ·A· ·I understand that, yes.
12· · · ·unreasonable actions, and you mentioned, or
13· · · ·counsel may have mentioned, dumping manure on 13· ·Q· ·And when the property was rezoned as AGI, that
14· · · ·your property.
14· · · ·occurred prior to 4/9 seeking a permit from IDEM
15· · · ·for the construction and operation of the CAFO;
15· · · · · · You're not claiming that 4/9, or any of the
16· · · ·defendants, have actually dumped manure on your 16· · · ·correct?
17· · · ·property, are you?
17· ·A· ·Correct.
18· ·Q· ·It occurred -- the rezoning decision to AGI
18· ·A· ·No, no.
19· · · ·occurred before 4/9 began constructing the
19· ·Q· ·Okay.· I just wanted to clarify that.
20· ·A· ·That was just an example of an infraction that I
20· · · ·barns; correct?
21· ·A· ·Yes.
21· · · ·would think would happen to us if -- but it has
22· ·Q· ·And the rezoning occurred prior to 4/9 operating
22· · · ·not at this point.
23· ·Q· ·And you also testified during examination by
23· · · ·the farm; correct?
24· ·A· ·Yes.
24· · · ·your counsel that you had the right to
25· ·Q· ·Okay.· Do you have any firsthand knowledge of
25· · · ·participate in the zoning hearings; correct?
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·1· · · ·what IDEM does and does not regulate?
·1· ·A· ·Yes.
·2· ·A· ·No.
·2· ·Q· ·And you attended the zoning hearings?
·3· ·Q· ·Okay.· Do you know if IDEM regulates CAFOs?
·3· ·A· ·I did.
·4· ·Q· ·And you could have retained an attorney to go to ·4· ·A· ·I don't know.· They're supposed to inspect them,
·5· · · ·I assume.
·5· · · ·the zoning hearings with you; correct?
·6· ·Q· ·Okay.· Do you believe that IDEM has inspected
·6· ·A· ·Uh-huh.
·7· ·Q· ·Is there any reason why you and your group did ·7· · · ·this CAFO?
·8· · · · · · MS. FERRARO:· Asked and answered.
·8· · · ·not retain an attorney?
·9· ·A· ·I don't get on their property.· I don't know
·9· ·A· ·I think we were like any other group that was
10· · · ·whether they have inspected it.
10· · · ·opposed to something.· We had no idea what we
11· ·Q· ·Okay.
11· · · ·were facing at that point.· That was early on.
12· ·A· ·And that's another reason I think we should be
12· · · ·I mean, we didn't just run out and start hiring
13· · · ·informed, you know, if there has been an
13· · · ·attorneys and trying to fight someone.
14· · · ·inspection, you know, it's -- to me, it would be
14· · · · · · I mean, none of us are really geared to
15· · · ·a common practice that they'd be required to do.
15· · · ·being combative or irritated at our neighbors.
16· ·Q· ·Have you ever been on the IDEM website?
16· · · ·But when someone does this to you, sure, you get
17· ·A· ·No, not on it specifically.
17· · · ·upset.· Everyone's upset.
18· ·Q· ·Okay.· I understand that you didn't contact IDEM
18· ·Q· ·And you had the right to appeal the zoning
19· · · ·with regard to the 4/9 Farm.
19· · · ·decision; correct?
20· · · · · · Did you ever contact the EPA with -- the
20· ·A· ·Yes.
21· ·Q· ·And you did not appeal the zoning decision, did 21· · · ·United States Environmental Protection Agency
22· · · ·with regard to the 4/9 Farm?
22· · · ·you?
23· ·A· ·No.
23· ·A· ·No.
24· ·Q· ·Do you know if the United States Environmental
24· ·Q· ·And after the hearing, after the ability to
25· · · ·Protection Agency monitors air?
25· · · ·participate in the hearing, and after the
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·1· ·deposition.· We are off the record at 1:31 p.m.
·2· · · · AND FURTHER THE DEPONENT SAITH NOT. ·2· · relative or attorney of either party, or otherwise
·3· · interested in the event of this action, and am not
·3
·4· · in the employ of the attorneys for either party.
· · · · · · · · · · · · _____________________________
·5· · · · ·IN WITNESS WHEREOF, I have hereunto set my
·4· · · · · · · · · · · · · ·JANET L. HIMSEL
·6· · hand and affixed my notarial seal this _______ day
·5
·7· · of __________________, 2016.
·6
·8
·7
·9· · · · · · · · · · · · _______________________________
·8
10· · · · · · · · · · · · · ·N O T A R Y· · P U B L I C
·9
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10
12· ·My Commission Expires:
11
· · ·March 25, 2024
12
13· ·County of Residence:
13
· · ·Marion County
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·1· · person in this cause of action; that I am not a
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·1· ·STATE OF INDIANA· · · · · ·)
· · · · · · · · · · · · · · · · )· SS:
·2· ·COUNTY OF MARION· · · · · ·)
·3· · · · ·I, Judith E. Bellinger, RPR, CRR, CSR No.
·4· · 94-R-1044, a Notary Public in and for the County of
·5· · Marion, State of Indiana at large, do hereby
·6· · certify that the deponent herein, JANET L. HIMSEL,
·7· · was by me first duly sworn to tell the truth, the
·8· · whole truth, and nothing but the truth in the
·9· · aforementioned matter;
10· · · · ·That the foregoing deposition was taken on
11· · behalf of the Defendants at the offices of
12· · Harrington Law, PC, 105 North Washington Street,
13· · Danville, Hendricks County, Indiana, on the 20th
14· · day of May, 2016, commencing at the hour of
15· · 8:57 a.m., pursuant to the Indiana Rules of Trial
16· · Procedure;
17· · · · ·That said deposition was taken down in
18· · stenograph notes and afterwards reduced to English
19· · under my direction, and that the transcript is a
20· · true record of the testimony given by said
21· · deponent; and that the signature of said deponent
22· · to her deposition was requested;
23· · · · ·That the parties were represented by their
24· · counsel as aforementioned.
25· · · · ·I do further certify that I am a disinterested
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In the Matter Of:
MARTIN RICHARD HIMSEL, ET AL.
-vsSAMUEL HIMSEL, ET AL.
MARTIN RICHARD HIMSEL, VOL. I
May 18, 2016
Martin Richard Himsel, Vol. I
May 18, 2016
App. 72
3
·1· · · STATE OF INDIANA )· · IN THE HENDRICKS SUPERIOR COURT
·1· ·COUNSEL PRESENT:
·2· · · · · · · · · · · ·)SS:
·2· ·For the Attorney General of Indiana:
·3· · · HENDRICKS COUNTY )· · CAUSE NO. 32D04-1510-PL-000150
·3· ·Brian L. Park, Esquire
·4
· · ·OFFICE OF INDIANA ATTORNEY GENERAL
·5· ·MARTIN RICHARD HIMSEL, JANET L.· · )
·4· ·302 West Washington Street
· · ·HIMSEL, ROBERT J. LANNON and· · · ·)
· · ·Indianapolis, IN 46204-770
·6· ·SUSAN M. LANNON,· · · · · · · · · ·)
·5· ·brian.park@atg.in.gov
· · · · · · · · · · · · · · · · · · · · )
·6· ·ALSO PRESENT:
·7· · · · · Plaintiffs,· · · · · · · · ·)
· · · · · · · · · · · · · · · · · · · · )
·7· ·Joanne Connor, videographer
·8· · · · · vs.· · · · · · · · · · · · ·)
·8· ·Elizabeth A. South
· · · · · · · · · · · · · · · · · · · · )
· · · · · Vice President and General Council, Co-Alliance
·9· ·SAMUEL T. HIMSEL, CORY M. HIMSEL,· )
·9
· · ·CLINTON S. HIMSEL, 4/9 LIVESTOCK,· )
10· · · · · · · · · · · · · ·I N D E X
10· ·LLC, and CO-ALLIANCE, LLP,· · · · ·)
11· ·EXAMINATION· · · · · · · · · · · · · · · · · · · ·PAGE
· · · · · · Defendant.· · · · · · · · · )
12· ·MARTIN RICHARD HIMSEL
11
13· · BY MR. PARK· · · · · · · · · · · · · · · · · · · ·7
12· · · · · · · · · · · · · · · - - - - 13· · · · · ·VIDEOTAPED DEPOSITION OF MARTIN RICHARD HIMSEL
14· · BY MR. EMENHISER· · · · · · · · · · · · · · · · ·20
14· · · · · · · · · · · · · · ·VOLUME ONE
15
15· · · · · · · · ·Wednesday, May 18, 2016, 8:59 a.m.
16· ·DEPOSITION EXHIBIT· · · DESCRIPTION· · · · · · · ·PAGE
16
17· · Exhibit 1- 1983 Comprehensive Plan· · · · · · · ·28
17· · · · · · · · · · · · ·Harringston Law, PC
18· · Exhibit 2- 2006 Comprehensive Plan· · · · · · · ·31
18· · · · · · · · · · ·105 North Washington Street
19· · Exhibit 3- 1998 Comprehensive Plan· · · · · · · ·32
19· · · · · · · · · · · · · Danville, Indiana
20· · Exhibit 4- Figure 7, 1998 Comprehensive Plan· · ·32
20
21· · Exhibit 5- future land use plan· · · · · · · · · 34
21
22· · Exhibit 6- aerial map· · · · · · · · · · · · · · 39
22
23· · Exhibit 7 - Indianapolis News article· · · · · · 59
23
24
24· · Exhibit 8 - newspaper article· · · · · · · · · · 71
25
25· · Exhibit 9 - abstracted judgment· · · · · · · · · 76
2
·1· · · ·VIDEOTAPED DEPOSITION OF MARTIN RICHARD HIMSEL,
·2· ·a witness herein, called by the Defendants for
·3· ·examination, taken pursuant to the Indiana Rules of Trial
·4· ·Procedure, by and before Marjorie Peters, a Registered
·5· ·Merit Reporter, Certified Realtime Reporter and Joanne
·6· ·Connor, Notary Public in and for the State of Indiana, at
·7· ·Harringston Law, PC, 105 North Washington Street,
·8· ·Danville, Indiana, on Wednesday, May 18, 2016, at
·9· ·8:59 a.m.
10· ·COUNSEL PRESENT:
11· ·For the Plaintiff:
12· ·Kim E. Ferraro, Esquire
· · ·Jordan Anne Chelovich, Esquire
13· ·HOOSIER ENVIRONMENTAL COUNCIL
· · ·407 E. Lincolnway
14· ·Suite A
· · ·Valparaiso, IN 46383
15· ·kferraro@hecweb.org
16· ·For the Defendants Samuel T. Himsel, Cory M. Himsel,
· · ·4/9 Livestock, LLC, and Co-Alliance, LLP:
17
· · ·Jonathan P. Emenhiser, Esquire
18· ·PLEWS SHADLEY RACHER & BRAUN LLP
· · ·1346 North Delaware Street
19· ·Indianapolis, IN 46202
· · ·jemenhiser@psrb.com
20
21· ·For the Defendant Clinton S. Himsel,
· · ·Brandon W. Ehrie, Esquire
22· ·LEWIS WAGNER LLP
· · ·501 Indiana Avenue
23· ·Suite 200
· · ·Indianapolis IN 46202-6150
24· ·behrie@lewiswagner.com
25
4
·1· ·DEPOSITION EXHIBIT· · · DESCRIPTION· · · · · · · ·PAGE
·2· ·Exhibit 10 - release of lien· · · · · · · · · · · ·78
·3· ·Exhibit 11 - articles· · · · · · · · · · · · · · · 83
·4· ·Exhibit 12 - articles· · · · · · · · · · · · · · · 85
·5· ·Exhibit 13 - warranty deed· · · · · · · · · · · · 104
·6· ·Exhibit 14 - warranty deed· · · · · · · · · · · · 106
·7· ·Exhibit 15 - title search report· · · · · · · · · 111
·8· ·Exhibit 16 - notice of federal tax lien· · · · · ·113
·9· ·Exhibit 17 - mortgage· · · · · · · · · · · · · · ·115
10· ·Exhibit 18 - assessment· · · · · · · · · · · · · ·118
11· ·Exhibit 19 - amendment to listing contract· · · · 121
12· ·Exhibit 20 - letter· · · · · · · · · · · · · · · ·131
13· ·Exhibit 21 - letter· · · · · · · · · · · · · · · ·142
14· ·Exhibit 22 - letter· · · · · · · · · · · · · · · ·143
15· ·Exhibit 23 - Kruse Consulting letter· · · · · · · 145
16· ·Exhibit 24 - (unidentified document)· · · · · · · 150
17· ·Exhibit 25 - notes· · · · · · · · · · · · · · · · 151
18· ·Exhibit 26 - excerpt of transcript· · · · · · · · 151
19· ·Exhibit 27 - County document· · · · · · · · · · · 165
20· ·Exhibit 28 - Hendricks County Area Planning· · · ·168
21· · · · · · · · Commission Findings of Fact/Law
22· ·Exhibit 29 - letter· · · · · · · · · · · · · · · ·173
23· ·Exhibit 30 - letter· · · · · · · · · · · · · · · ·179
24· ·Exhibit 31 - IDEM document· · · · · · · · · · · · 183
25· ·Exhibit 32 - email· · · · · · · · · · · · · · · · 204
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Martin Richard Himsel, Vol. I
May 18, 2016
App. 73
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·1· · · ·Q.· · ·Who do you live with at your current house?
·2· · · ·A.· · ·My wife, when she's able to be there.
·3· · · ·Q.· · ·What do you mean by that?
·4· · · ·A.· · ·She can't take the hogs' smell that strong.
·5· · · ·Q.· · ·Well, how frequently is your wife at the
·6· ·house?
·7· · · ·A.· · ·Basically from Friday evening until Sunday
·8· ·evening.
·9· · · ·Q.· · ·She's there on the weekends?
10· · · ·A.· · ·Yes.
11· · · ·Q.· · ·Does your wife work?
12· · · ·A.· · ·No.· Not right now.
13· · · ·Q.· · ·When she's not at your house, where does she
14· ·live?
15· · · ·A.· · ·Her daughter.
16· · · ·Q.· · ·What's her daughter's name?
17· · · ·A.· · ·Krista.
18· · · ·Q.· · ·Is that with a K?
19· · · ·A.· · ·Yes.
20· · · ·Q.· · ·What's Krista's last name?
21· · · ·A.· · ·Cooper.
22· · · ·Q.· · ·Where does Krista Cooper live?
23· · · ·A.· · ·New Palestine.
24· · · ·Q.· · ·Does anyone else live with you at your house?
25· · · ·A.· · ·No.
·1· · · ·Q.· · ·Any other children?
·2· · · ·A.· · ·Yes.
·3· · · ·Q.· · ·Okay.· Please give me their names.
·4· · · ·A.· · ·Richard Alan.
·5· · · ·Q.· · ·Where does Richard live?
·6· · · ·A.· · ·Beaver Dam, Ohio.
·7· · · ·Q.· · ·What does he do?
·8· · · ·A.· · ·He's the department head for Lowe's
·9· ·Corporation.
10· · · ·Q.· · ·Any other children?
11· · · ·A.· · ·Angela Ann Kim.
12· · · ·Q.· · ·Where does Angela live?
13· · · ·A.· · ·New York, Manhattan, and Sarasota, Florida.
14· · · ·Q.· · ·Mr. Himsel, what were the names of your
15· ·parents?
16· · · ·A.· · ·Arthur Robert and Helen Marvel Huls.
17· · · ·Q.· · ·Was your father a County Commissioner?
18· · · ·A.· · ·Yes.
19· · · ·Q.· · ·How long?
20· · · ·A.· · ·28 years.
21· · · ·Q.· · ·Was your father a County Commissioner when
22· ·Hendricks County approved its comprehensive land and
23· ·zoning plan?
24· · · ·A.· · ·Say that again.
25· · · ·Q.· · ·Sure.· Was your father a County Commissioner
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·1· ·when Hendricks County approved its comprehensive land and
·1· · · ·Q.· · ·Since 2013 has anyone other than your wife
·2· ·zoning plan?
·2· ·lived with you at your house?
·3· · · ·A.· · ·Probably.· I can't say for sure.
·3· · · ·A.· · ·No.
·4· · · ·Q.· · ·Did he have a role in that plan, do you know?
·4· · · ·Q.· · ·And you are currently married?
·5· · · ·A.· · ·I'm sure he did.
·5· · · ·A.· · ·Yes.
·6· · · ·Q.· · ·Let me get this.· Let's mark this as Exhibit
·6· · · ·Q.· · ·And your wife's full name?
·7· ·1.
·7· · · ·A.· · ·Janet Louise Himsel.
·8· ·(Deposition Exhibit 1, 1983 Hendricks County
·8· · · ·Q.· · ·And how long have you been married?
·9· ·Comprehensive Plan, was marked for identification.)
·9· · · ·A.· · ·Since September 10, 1994.
10· · · ·Q.· · ·Were you married prior -- were you previously 10· · · · · · · · ·MS. FERRARO:· So much for not killing
11· ·trees.
11· ·married to another person?
12· · · · · · · · ·MR. EMENHISER:· I killed a few.· I'll have
12· · · ·A.· · ·Yes.
13· ·you guys share this one.
13· · · ·Q.· · ·What was her name?
14· · · ·Q.· · ·Mr. Himsel, you've got what's been marked as
14· · · ·A.· · ·Jean Esther Himsel.
15· ·Deposition Exhibit 1 in front of you.· I'll represent to
15· · · ·Q.· · ·How long were you married to Jean Himsel?
16· ·you that it's the 1983 Hendricks County Comprehensive
16· · · ·A.· · ·Approximately 26 years.
17· ·Plan.· Have you seen this document before?
17· · · ·Q.· · ·When were you divorced?
18· · · ·A.· · ·No.
18· · · ·A.· · ·In the early '90s.
19· · · ·Q.· · ·No.
19· · · ·Q.· · ·Is your former spouse still alive?
20· · · · · · · Would you turn to page nine -- actually, I'm
20· · · ·A.· · ·Yes.
21· ·sorry, it's not -- it's not a numbered page.· I think
21· · · ·Q.· · ·Where does she live, do you know?
22· ·it's the ninth page in.· The ninth and the tenth page in.
22· · · ·A.· · ·Broadway Street here in Danville.
23· · · · · · · Kim, do you care if I help the witness?
23· · · ·Q.· · ·You said you have a son.· What's your son's
24· · · · · · · · ·MS. FERRARO:· Oh, go for it.· You may have
24· ·name, again?
25· ·to help me, too.
25· · · ·A.· · ·Christopher Arthur Himsel.
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Martin Richard Himsel, Vol. I
May 18, 2016
App. 74
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·1· ·want to look in the plan itself, you can find it about
·2· ·halfway through; but I wanted to ask you a question on
·3· ·it, and I thought color might be more helpful to you.
·4· · · · · · · If you take a look at Exhibit No. 4 in the
·5· ·legend, you will see that most of Marion Township, the
·6· ·vast majority of Marion Township is planned as
·7· ·agricultural use.
·8· · · · · · · Would you agree that that is -- that is an
·9· ·accurate statement as to what Figure 7 is showing?
10· · · ·A.· · ·Yes.
11· · · ·Q.· · ·And would you agree that that is how the
12· ·majority of land out in Marion Township was used in 1998
13· ·and going forward?
14· · · ·A.· · ·Yes.
15· · · ·Q.· · ·Now, Exhibit 2 is the 2006 Comprehensive Plan,
16· ·and I'll ask you, have you seen this document before?
17· · · ·A.· · ·No.
18· · · ·Q.· · ·Okay.· If you will, turn to the page that's
19· ·marked 55 on the 2006 plan.
20· · · · · · · · ·MS. FERRARO:· You're in Exhibit 2, is that
21· ·correct?
22· · · · · · · · ·MR. EMENHISER:· On Exhibit 2, yes.· Sorry.
23· · · ·Q.· · ·You will see that there is another land use
24· ·map for the 2006 Comprehensive Plan.· Again, there is a
25· ·color version of that.· I'm going to have that marked as
·1· ·background.
·2· · · · · · · Why don't you just start, after you graduated
·3· ·high school, what was your first job?
·4· · · ·A.· · ·Farming.
·5· · · ·Q.· · ·Farming.· Who did you farm for?
·6· · · ·A.· · ·Dad.· With Dad.
·7· · · ·Q.· · ·And did you farm at the location where you
·8· ·currently live?
·9· · · ·A.· · ·Yes.
10· · · ·Q.· · ·What did you farm; was it a livestock farm,
11· ·was it crops?
12· · · ·A.· · ·Mostly livestock.
13· · · ·Q.· · ·What type of livestock?
14· · · ·A.· · ·A few cattle and a few hogs.
15· · · ·Q.· · ·What's a few?
16· · · ·A.· · ·200 head of cattle and 200 head of hogs a
17· ·year.
18· · · ·Q.· · ·Where did you live in relation to that farm
19· ·that had 200 head of cattle and 200 head of hogs?
20· · · ·A.· · ·On the farm.
21· · · ·Q.· · ·Approximately how far away was the house from
22· ·where -- let's start with the cattle -- from where the
23· ·cattle were located?
24· · · ·A.· · ·400 feet.
25· · · ·Q.· · ·How far was the house from where the hogs were
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·1· ·Exhibit 5 to make things a little easier for reference
·2· ·here.
·3· ·(Deposition Exhibit 5, future land use plan, was marked
·4· ·for identification.)
·5· · · ·Q.· · ·If you will take a look at Exhibit 5, you will
·6· ·see that it says future land use plan; do you see that?
·7· · · ·A.· · ·I guess.
·8· · · ·Q.· · ·Exhibit 5 is the color version.
·9· · · · · · · And if you will look at the legend and the
10· ·coloring on that, would you agree that Marion Township,
11· ·once again, in the 2006 Comprehensive Plan is zoned for
12· ·agricultural purposes?
13· · · ·A.· · ·Yes.
14· · · ·Q.· · ·So, would you agree that all of the Hendricks
15· ·County Comprehensive Plans have zoned the land where you
16· ·live and the land surrounding where you live as
17· ·agricultural, at least as far back as 1983?
18· · · ·A.· · ·Yes.
19· · · ·Q.· · ·Mr. Himsel, are you a smoker?
20· · · ·A.· · ·No.
21· · · ·Q.· · ·Have you ever smoked?
22· · · ·A.· · ·No.
23· · · ·Q.· · ·Does your spouse smoke?
24· · · ·A.· · ·No.
25· · · ·Q.· · ·Let me ask you about your employment
·1· ·located?
·2· · · ·A.· · ·Basically the same.
·3· · · ·Q.· · ·Were they in the same barn?
·4· · · ·A.· · ·Same barn, and then on the fields around the
·5· ·house.· He was totally against confinement buildings.· He
·6· ·totally defied those things, and his belief was to run
·7· ·hogs out on the ground.
·8· · · ·Q.· · ·Would the hogs come into the barn
·9· ·occasionally?
10· · · ·A.· · ·I assume every day.
11· · · ·Q.· · ·Okay.· Well, how long did you farm with your
12· ·father?
13· · · ·A.· · ·Until his death in '83.
14· · · ·Q.· · ·So, that whole time that you were farming with
15· ·your father, were you living at the farm there?
16· · · ·A.· · ·No.
17· · · ·Q.· · ·Okay.· How long did you live at the farm when
18· ·you were farming with your father?
19· · · ·A.· · ·Until I was married in September 1966.
20· · · ·Q.· · ·Where did you move to in '66?
21· · · ·A.· · ·I lived in a home that at present David Himsel
22· ·lives in.
23· · · ·Q.· · ·Where is that located?
24· · · ·A.· · ·It's on Road 200 West, over by where all of
25· ·the hog smells are over east of us.
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Martin Richard Himsel, Vol. I
May 18, 2016
37
App. 75
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·1· · · ·Q.· · ·Okay.· Did you live there from '68 to '76?
·1· · · ·Q.· · ·Where the hogs smells are east of you?
·2· · · ·A.· · ·No.· I was married in '66.· Lived at Lee
·2· · · ·A.· · ·Where the main operation of the Himsel.
·3· ·Himsel's for two years until '68, and then from '68 I
·3· · · ·Q.· · ·Okay.· The 4/9 Livestock farm?
·4· ·moved to a home on Road 200.
·4· · · ·A.· · ·I have no idea where that's at.· I rented off
·5· · · ·Q.· · ·Okay.· I think earlier you had said that you
·5· ·of his dad, Lee Himsel, a small home, for two years.
·6· ·had lived at -- rented the place from Lee Himsel in '76
·6· · · ·Q.· · ·Did you have -- you farmed with your father.
·7· ·and '78; did you mean '66?
·7· ·Did you have your own farm as well at some point?
·8· · · ·A.· · ·Yes.· When we were first married.
·8· · · ·A.· · ·I had a 120-acre farm.
·9· · · · · · · · ·MR. EMENHISER:· Should have probably done
·9· · · ·Q.· · ·Where was that located?
10· ·this earlier.· Let's mark this.
10· · · ·A.· · ·On Road 200.
11· ·(Deposition Exhibit 6, aerial map, was marked for
11· · · ·Q.· · ·What did you raise there?
12· ·identification.)
12· · · ·A.· · ·Just a few hogs and a few cattle and some
13· · · ·Q.· · ·Mr. Himsel, you've been handed what's been
13· ·grain.
14· ·marked as Deposition Exhibit No. 6, which is an aerial
14· · · ·Q.· · ·Again, define for me "a few hogs."
15· ·satellite image.· Do you recognize the properties -- you
15· · · ·A.· · ·150 a year.
16· ·see that there are roads marked there.· Do you recognize
16· · · ·Q.· · ·What's "a few cattle"?
17· ·any of the properties on here?
17· · · ·A.· · ·30 head.
18· · · ·A.· · ·Yes.
18· · · ·Q.· · ·Over what period of time were you raising
19· · · ·Q.· · ·Do you recognize where your current residence
19· ·these hogs and the cattle at your farm on 200?
20· ·is located?
20· · · ·A.· · ·Repeat the question.
21· · · ·A.· · ·Yes.
21· · · ·Q.· · ·Sure.· Over what period of time were you
22· ·raising these hogs and cattle at your farm on Road 200? 22· · · ·Q.· · ·Can I have you put a circle around, or draw an
23· ·outline around your current residence with a -- I guess
23· · · ·A.· · ·From the time I purchased the farm in the '70s
24· ·with that pen.· And if you could mark it current
24· ·through the '90s.· To the '90s.
25· ·residence.
25· · · ·Q.· · ·Did you live at a house on that farm as well?
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·1· · · ·A.· · ·No.
·2· · · ·Q.· · ·No?
·3· · · ·A.· · ·(Witness shakes head back and forth.)
·4· · · ·Q.· · ·There was no house there?
·5· · · ·A.· · ·No.
·6· · · ·Q.· · ·Where were you actually living at at that
·7· ·time?
·8· · · ·A.· · ·Up until '76, I lived at home.· For two years,
·9· ·I lived at a rented house from Lee Himsel; and then after
10· ·that I moved to a home on Road 200, the first home where
11· ·I raised my family.
12· · · ·Q.· · ·I'm sorry.· The first.· Okay.
13· · · · · · · So, how long did you live at the house where
14· ·you rented from Lee Himsel?
15· · · ·A.· · ·Two years.
16· · · ·Q.· · ·Do you recall the period of time, the years?
17· · · ·A.· · ·'76 to '78, I would guess.
18· · · ·Q.· · ·Then you moved to a home on Road 200; correct?
19· · · ·A.· · ·Yes.
20· · · ·Q.· · ·Is that in 1978?
21· · · ·A.· · ·'68.
22· · · ·Q.· · ·Huh?
23· · · ·A.· · ·'68.
24· · · ·Q.· · ·You moved into a home on Road 200 in 1968?
25· · · ·A.· · ·Yes.
·1· · · ·A.· · ·(The witness marked the exhibit.)
·2· · · ·Q.· · ·Do you recognize where the 4/9 Livestock barns
·3· ·are?
·4· · · ·A.· · ·Yes.
·5· · · ·Q.· · ·Why don't you circle those and put 4/9 next to
·6· ·it.
·7· · · ·A.· · ·(The witness marked the document.)
·8· · · ·Q.· · ·Now I want to get back to where you said you
·9· ·lived on 200.· Is that on this map?
10· · · ·A.· · ·Yes.
11· · · ·Q.· · ·Could you circle that area, and put -- you
12· ·said you lived there from '70 -- or '68 to '87; is that
13· ·right?
14· · · ·A.· · ·Closer to around '90, I guess.
15· · · ·Q.· · ·Okay.· Well, could you circle that and put '68
16· ·to -- or whatever years you lived there.· And could you
17· ·put RH, and then the years that you lived there.
18· · · ·A.· · ·(The witness marked the exhibit.)
19· · · ·Q.· · ·Have you done that?
20· · · ·A.· · ·Yes.
21· · · ·Q.· · ·Where is that located, for my reference?· Is
22· ·that right there?· Okay.
23· · · ·A.· · ·(Nods head up and down.)
24· · · ·Q.· · ·Is that where the farm was as well, did you
25· ·have a farm there as well?
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Martin Richard Himsel, Vol. I
May 18, 2016
App. 76
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·1· · · ·A.· · ·Just 12 acres.
·2· · · ·Q.· · ·12 acres.· Okay.· You said that you were
·3· ·raising a few hogs, you said 150 per year, and a few
·4· ·cattle.· Is that the location of where you were raising
·5· ·those?
·6· · · ·A.· · ·No.
·7· · · ·Q.· · ·Is that farm located on here?
·8· · · ·A.· · ·Yes.
·9· · · ·Q.· · ·Where is that?
10· · · ·A.· · ·South of the factory.
11· · · ·Q.· · ·Well, is it still on 425 West?
12· · · ·A.· · ·Yes.
13· · · ·Q.· · ·Is that area now farm ground?
14· · · ·A.· · ·Yes.
15· · · ·Q.· · ·Okay.· Why don't you put a square around that,
16· ·and put RH Farm, and then put the years that you had it.
17· · · ·A.· · ·(The witness marked the exhibit.)
18· · · ·Q.· · ·Have you done that?
19· · · ·A.· · ·Yes.
20· · · ·Q.· · ·Can I see it.· Okay.· Put a square around some
21· ·buildings immediately south of the 4/9 barns.· Were those
22· ·buildings that were there when you were farming?
23· · · ·A.· · ·Yes.
24· · · ·Q.· · ·So, those were the buildings that you used?
25· · · ·A.· · ·Yes.
·1· ·hogs that you were raising and the cattle?
·2· · · ·A.· · ·Hog houses.
·3· · · ·Q.· · ·Hog houses.· How big was the hog house?
·4· · · ·A.· · ·Normally 16 foot by 10 foot.· And small,
·5· ·individual hog houses for use for baby pigs.
·6· · · ·Q.· · ·How big were those?
·7· · · ·A.· · ·Eight by eight.
·8· · · ·Q.· · ·How many hogs would each hog house hold?
·9· · · ·A.· · ·The big ones probably -- when they were
10· ·smaller, maybe 45, and up -- the big was 30.
11· · · ·Q.· · ·Okay.· How many of those hog houses did you
12· ·have?
13· · · ·A.· · ·I remember five.
14· · · ·Q.· · ·Did that include the smaller ones as well?
15· · · ·A.· · ·No.· I had eight small, individual ones that I
16· ·used for baby pigs.
17· · · ·Q.· · ·How many baby pigs would you put in the small
18· ·houses?
19· · · ·A.· · ·The mother, plus anywhere from seven to 11.
20· ·Once a year.
21· · · ·Q.· · ·Would you consider the hog operation that you
22· ·had to be a confined feeding operation?
23· · · ·A.· · ·No.
24· · · ·Q.· · ·Why not?
25· · · ·A.· · ·Didn't have exorbitant, fancy buildings with
42
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·1· · · ·Q.· · ·At the time you were using that area, you
·1· ·slats and manure pits and things like that.· Mos
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