Opposition Brief — Janet L. Himsel, et al., Petitioners v. 4/9 Livestock, LLC, et al.

No. 20-72

In the Supreme Court of the United States

JANET HIMSEL, ET AL.,

Petitioners,

v.

4/9 LIVESTOCK, LLC, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

Court of Appeals of Indiana

BRIEF OF THE NON-GOVERNMENTAL

RESPONDENTS IN OPPOSITION

CHRISTOPHER J. BRAUN

Counsel of Record

JONATHAN P. EMENHISER

JOSH S. TATUM

Plews Shadley Racher &

Braun LLP

1346 North Delaware Street

Indianapolis, Indiana

46202-6150

cbraun@psrb.com

ANDREW J. PINCUS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Non-Governmental Respondents

i

QUESTION PRESENTED

Indiana, like every other State, has adopted a

Right to Farm Act 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.” Indiana Code § 32-30-6-9(b). The

Act limits the availability of state-law nuisance

actions with respect to agricultural operations.

Petitioners’ properties are located in rural

Indiana near the land owned by one of the

Respondents—in an area that has long been farmed

and zoned for agricultural uses. The individual

Respondents, second- and third-generation farmers,

decided to establish a hog-farming operation on a

portion of their land. They obtained the necessary

zoning changes, construction and operation permits,

and environmental permits and began operations in

October 2013. Two years later, Petitioners

commenced this action alleging claims in trespass and

nuisance based on the odors and airborne emissions

produced by the hog-farming operation. The Indiana

courts held Petitioners’ nuisance claims were

precluded by the Right to Farm Act, ruled that

Petitioners’ trespass claims should be treated as

nuisance claims as a matter of state law because they

were a repackaged version of the nuisance claims, and

determined that the application of the Act did not

effect a regulatory taking of Petitioners’ property.

The question presented is:

Whether the application of Indiana’s Right to

Farm Act, Indiana Code § 32-30-6-9, to preclude

Petitioners’ nuisance claims constituted a regulatory

taking without compensation violative of the federal

Constitution.

ii

RULE 29.6 STATEMENT

Respondents 4/9 Livestock, LLC, and Co-Alliance,

LLP, are nongovernmental entities. Neither has a

parent company and neither has 10% or more of its

stock owned by a publicly held company

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED.......................................... i

RULE 29.6 STATEMENT .......................................... ii

STATUTE INVOLVED ...............................................1

STATEMENT ..............................................................2

A. Legal Background .............................................2

B. Factual Background .........................................5

C. Proceedings Below ............................................8

REASONS FOR DENYING THE PETITION .......... 12

A. The Indiana Right To Farm Act Does

Not Provide Respondents—Or Anyone

Else—With Complete Immunity From

Nuisance Or Trespass Liability. .................... 12

B. The Decision Below Does Not Conflict

With Any Decision Of A State Supreme

Court Or Federal Court Of Appeals. .............. 14

C. The Court Below Properly Rejected

Petitioners’ Takings Claim............................. 17

1. Petitioners failed to raise a physical

takings claim below and, in addition,

the record provides no support for

such a claim. .............................................. 19

2. The regulatory takings claim lacks

merit. ......................................................... 20

CONCLUSION .......................................................... 23

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Arkansas Game and Fish Commission

v. United States,

568 U.S. 23 (2012) ................................................ 21

Babb v. Lee Cnty. Landfill SC, LLC,

747 S.E.2d 468 (S.C. 2013) .................................. 20

Barrett v. Hamby,

219 S.E.2d 399 (Ga. 1975) ................................... 15

Borland v. Sanders Lead Co.,

369 So.2d 523 (Ala. 1979) .................................... 20

Bormann v. Board of Supervisors In &

For Kossuth County,

584 N.W.2d 309 (Iowa 1998).......................... 15, 16

City of Fayetteville v. Stanberry,

807 S.W.2d 26 (Ark. 1991) ................................... 14

Churchill v. Burlington Water Co.,

62 N.W. 646 (1895)............................................... 16

Duffield v. DeKalb County,

249 S.E.2d 235 (Ga. 1978) ......................... 15larkin

Ehler v. LVDVD, L.C.,

319 S.W.3d 817 (Tex. Ct. App. 2010)................... 11

John Larkin, Inc. v. Marceau,

959 A.2d 551 (Vt. 2008) ....................................... 20

v

TABLE OF AUTHORITIES—continued

Page(s)

Lindsey v. DeGroot,

898 N.E.2d 1251 (Ind. Ct. App. 2009) ................. 16

Loretto v. Teleprompter Manhattan

CATV Corp.,

458 U.S. 419 (1982) ........................................ 19, 20

Overgaard v. Rock County Board of

Commissioners,

No. 02-601, 2003 U.S. Dist. LEXIS

13001 (D. Minn. July 25, 2003) ........................... 16

Penn Cent. Transp. Co. v. New York

City,

438 U.S. 104 (1978) .................................. 19, 20, 21

Pennsylvania Coal Co. v. Mahon,

260 U.S. 393 (1922) .............................................. 19

Webb’s Fabulous Pharmacies, Inc. v.

Beckwith,

449 U.S. 155 (1980) .............................................. 16

Wendt v. Kerkhof,

594 N.E.2d 795 (Ind. Ct. App. 1992) ..................... 4

Statutes

Indiana Code § 32-30-6-6 ............................................ 3

Indiana Code § 32-30-6-9(a) .................................. 4, 13

Indiana Code § 32-30-6-9(b) ........................................ 3

vi

TABLE OF AUTHORITIES—continued

Page(s)

Indiana Code § 32-30-6-9(d) ........................................ 4

Indiana Code § 32-30-6-9(d)(1)(A) & (B)..................... 4

Indiana Code § 32-30-6-9(d)(2) ................................. 10

Indiana Code § 32-244-1-1 ........................................ 17

Other Authorities

Jacqueline P. Hand, Right-to-Farm

Laws: Breaking New Ground in the

Preservation of Farmland, 45 Pitt. L.

Rev. 289 (1984) ....................................................... 3

National Agricultural Law Center,

Right-To-Farm: Typical Provisions

(Jan. 2020),

https://nationalaglawcenter.org/state

-compilations/right-to-farmprovisions/ .............................................................. 3

STATUTE INVOLVED

Indiana’s Right to Farm Act, Indiana Code

§ 32-30-6-9, provides1:

(a) This section does not apply if a nuisance

results from the negligent operation of an agricultural

or industrial operation or its appurtenances.

(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.

(c) For purposes of this section, the continuity of

an agricultural or industrial operation shall be

considered to have been interrupted when the

operation has been discontinued for more than one (1)

year.

(d) An agricultural or industrial operation or any

of its appurtenances is not and does not become a

nuisance, private or public, by any changed conditions

1 The petition (Pet. 3) omits subsections (a)-(c) of the Indiana

statute.

2

in the vicinity of the locality after the agricultural or

industrial operation, as the case may be, has been in

operation continuously on the locality for more than

one (1) year if the following conditions exist:

(1) There is no significant change in the type

of operation. A significant change in the type of

agricultural operation does not include the

following:

(A) The conversion from one type of

agricultural operation to another type of

agricultural operation.

(B) A change in the ownership or size of the

agricultural operation.

(C) The:

(i) enrollment; or

(ii)

reduction

participation;

or

cessation

of

of the agricultural operation in a

government program.

(D) Adoption of new technology by the

agricultural operation.

(2) The operation would not have been a

nuisance at the time the agricultural or industrial

operation began on that locality.

STATEMENT

A. Legal Background

Right to farm laws “share the common goal of

encouraging farmers to continue devoting their land

to agricultural purposes” and embody “recognition of

the fact that a serious effort must be made to prevent

the destruction of America's agricultural base.”

3

Jacqueline P. Hand, Right-to-Farm Laws: Breaking

New Ground in the Preservation of Farmland, 45 Pitt.

L. Rev. 289, 289 (1984). These laws vary in their

particular provisions, but typically provide farmers

with a defense against nuisance actions based on

farming operations. Every State has adopted a right

to farm law. See National Agricultural Law Center,

Right-To-Farm: Typical Provisions (Jan. 2020),

https://nationalaglawcenter.org/statecompilations/right-to-farm-provisions/.

The Indiana Right to Farm Act (“RTFA”) declares

that it is the State’s policy “to conserve, protect, and

encourage the development and improvement of its

agricultural land for the production of food and other

agricultural products” and finds that “when

nonagricultural land uses extend into agricultural

areas, agricultural operations often become the

subject of nuisance suits,” which discourage

“investments in farm improvements.” Indiana Code

§ 32-30-6-9(b). The purpose of the law is “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.” Ibid.2

To qualify for the statute’s protection, an

agricultural operation must (1) have operated

continuously for more than a year; (2) have not

undergone a “significant change” as defined by the

statute—which does not include a change “from one

2 Under Indiana law, a nuisance is “[w]hatever is (1) injurious to

health; (2) indecent; (3) offensive to the senses; or (4) an

obstruction to the free use of property; so as essentially to

interfere with the comfortable enjoyment of life or property, is a

nuisance, and the subject of an action.” Indiana Code § 32-30-66.

4

type of agricultural operation to another type of

agricultural operation” or a “change in the ownership

or size of the agricultural operation”; and (3) not have

been a nuisance at the time agricultural operations

began at the locality. Indiana Code § 32-30-6-9(d).

Even when the RTFA applies, the law does not

provide complete immunity for agricultural

operations. An agricultural operation loses the law’s

protection if the complained of nuisance resulted from

the negligent operation of the agricultural operation.

Indiana Code § 32-30-6-9(a).

Prior to 2005, the Indiana law did not define the

“significant change” in agricultural operations that

would make the statutory protections unavailable. In

2005 the Indiana legislature adopted the definition of

“significant change” that excludes a change in the

type or size of the agricultural operation. See Indiana

Code § 32-30-6-9(d)(1)(A) & (B).

The amendment’s guidance regarding the

meaning of “significant change” was necessary to

clarify that term in light of dicta in Wendt v. Kerkhof,

594 N.E.2d 795 (Ind. Ct. App. 1992). Wendt involved

a nuisance action against a farm that had grown crops

for decades and converted to raising hogs. The court

determined that the challenged operation did not

constitute a nuisance. But it went on to state, in dicta,

that the RTFA’s limitation of nuisance actions would

not have applied because “the Farm did not begin its

hog operation until approximately five years after the

plaintiffs had become adjacent landowners.” Id. at

798.

Wendt’s dicta suggested that a conversion from

growing crops to raising hogs constituted a significant

change eliminating the RTFA’s protections. The

5

Indiana legislature’s 2005 amendment made it clear

that such a conversion from one type of agricultural

operation to another does not constitute a “significant

change” that would otherwise interrupt the Act’s

protections by resetting the clock on the one-year

continuous operation requirement.

B. Factual Background

1. In late 2012, Samuel Himsel and his sons, Cory

and Clint (the “Individual Respondents”)—lifelong

second- and third-generation Hendricks County,

Indiana farmers—decided to establish a hog-raising

operation. In particular, they planned to construct

and operate a “concentrated animal feeding

operation” (“CAFO”) that would include eight

thousand hogs. To accomplish this, the Individual

Respondents formed 4/9 Livestock, LLC (“4/9”) as an

Indiana limited liability company. Pet. App. 4, 6.

After consulting with experts on an appropriate

site, the Individual Respondents decided to locate

their hog-raising operation on a portion of existing

farmland that Samuel Himsel owned at 3042 North

425 West, Danville, Indiana (the “Farm Site”). As the

court below explained, the land had been owned by the

Himsel family for more than two decades and “used

for agricultural purposes since at least 1941. Between

at least 1994 and 2013” it “had been used consistently

for crops.” Pet. App. 4.

The area surrounding the Farm Site has been

dominated by agricultural uses for decades. Those

uses have included, among other things, (1) raising

livestock (including hogs) and (2) spreading manure

as organic fertilizer on nearby fields. The nearest

town is over five miles away from the Farm Site, and

6

the nearest residential subdivision is two miles away.

Pet. App. 8.

2. The Individual Respondents were required to

satisfy a number of local and state requirements in

order to establish their hog-raising operation.

First, they petitioned the Hendricks County Area

Plan Commission to rezone a portion of the Farm Site

from Agriculture Residential (“AGR”) to Agriculture

Intense (“AGI”), to allow for the development of a

CAFO. Pet. App. 4. The Plan Commission’s staff

recommended approval of the petition, stating that

the proposed use was “consistent and compatible”

with “the historic agricultural and rural residential

land use pattern of the area” and “the planned future

agricultural and rural residential land use pattern of

the area.” C.A. App. IV:53.3

Following a public hearing at which Petitioner

Richard Himsel spoke in opposition to the petition,

the Plan Commission unanimously approved the

rezoning petition and issued findings that the use of a

portion of the Farm Site for a CAFO (1) complies with

the recommendations of the Hendricks County

Comprehensive Plan, which “expressly lists confined

animal feeding operations as a recommended land use

in the area under consideration”; (2) is consistent and

compatible with current uses in the area and that “the

area is a well-established, longstanding agricultural

community”; (3) represents the most desirable use of

the land and “represents a longstanding community

desire to see this area remain agricultural”; (4)

3 “C.A. App.” refers to the appendix filed by Petitioners in the

Indiana Court of Appeals on June 22, 2018.

7

conserves property values in the jurisdiction; and (5)

represents responsible growth. Pet. App. 5-6.

At a subsequent public hearing, the Hendricks

County Commissioners unanimously approved the

rezoning petition and adopted the Plan Commission’s

findings. Petitioners could have—but chose not to—

appeal the decisions of the Plan Commission or the

County Commissioners approving the rezoning

petition. Pet. App. 6.

Second, 4/9 Livestock then sought approval by the

Plan Commission of its siting, design, and

construction plans for the hog barns. Those public

hearings addressed whether the design and

construction plans were appropriate for the location—

taking into account the size and location of the barns,

setback requirements for the barns, manure

containment pits under the barns, and landscaping.

The Commission issued the requested permits. Pet.

App. 6; C.A. App. X: 91–123. Members of the public

are permitted to participate in the Commission’s

public hearings—but Petitioners chose not to- appeal

the permitting decisions. Pet. App. 6.

Third, 4/9 Livestock timely applied to the Indiana

Department of Environmental Management (“IDEM”)

for two permits to construct and operate the hograising facility. Following notice to surrounding

property owners, IDEM approved the application and

issued the two permits. Again, Petitioners could have

participated in the administrative process and sought

review of the permit approvals—but they chose not to.

Pet. App. 6.

3. 4/9 Livestock completed construction of the

barns on September 19, 2013. The first hogs arrived

on October 2, 2013. Pet. App. 7, 286.

8

Hog-raising operations have continued since that

date, and none of the Respondents has ever received

any citations or notices of violation from IDEM or

Hendricks County. Pet. App. 7; C.A. App. III:125.

C. Proceedings Below

Petitioners “live in the immediate vicinity of the

Farm Site.” Pet. App. 7. Robert Lannon purchased his

property in 1971. Richard and Janet Himsel moved

into their home in 1994. Pet. App. 7.

Petitioners’ properties, like the Farm Site, are

located in western Hendricks County, Indiana, “in an

area that the County Board of Commissioners has

expressly designated for agricultural purposes since

the adoption of the county’s first comprehensive plan

in 1983.” Pet. App. 8.

The Indiana Court of Appeals explained that

“[a]gricultural uses have dominated in the area

surrounding the Farm [Site] and [Petitioners’]

properties. In addition to row crops, those uses have

included raising livestock such as cattle, hogs,

chicken, goats, and sheep.” Pet. App. 8. Indeed, the

court stated:

[Petitioner] 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 [Petitioners’] properties. Hardin has

been operating his hog farm for many years

9

and periodically applies hog manure to fields

as close as twenty feet from the Himsel

[Petitioners’] home.

Pet. App. 8.

On October 6, 2015—more than two years after

4/9 Livestock’s hog barns began operating—

Petitioners instituted this action in Indiana state

court asserting claims of nuisance, negligence, and

trespass against the Individual Respondents, 4/9

Livestock, and Co-Alliance LLP (which supplies the

hogs raised by 4/9 Livestock). Respondents raised the

Indiana RTFA as an affirmative defense, and the

State of Indiana intervened to defend the

constitutionality of the statute. Pet. App. 8-9.

Petitioners challenged the constitutionality of the Act

as applied to them on a number of grounds, including

that the Act effected an uncompensated taking in

violation of the federal Constitution. Ibid.

The trial court initially granted summary

judgment in favor of the Individual Respondents, but

otherwise denied the cross-motions for summary

judgment. Pet. App. 29-40. All Respondents filed a

motion to correct error, which the trial court granted,

entering summary judgment in favor of Respondents

on all claims. Pet. App. 9-10, 41-42.

The court of appeals unanimously affirmed. Pet.

App. 1-28. It held that the RTFA barred Petitioners’

nuisance claims and Petitioners’ trespass claims,

which it found to be repackaged nuisance claims,

because all of the statutory pre-requisites were

satisfied:

•

“the agricultural operation here has been in

operation continuously for more than one

year. Indeed, the record establishes that the

10

farmland in question has been actively farmed

for decades” (Pet. App. 12);

•

because the property had been used for

agricultural operations, establishing the hograising facility did not constitute a “significant

change” under the definition of that term in

subsection (d)(1) (Pet. App. 12); and

•

hog farming “would not have been a nuisance

at the time” agricultural operations began in

the area (Indiana Code § 32-30-6-9(d)(2)—

“[n]one 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 [Site] 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”

(Pet. App. 15).

The court further concluded that Petitioners could

not invoke the exception to the RTFA for negligently

operated facilities because Petitioners’ evidence

“provides no indication that the [hog-farming facility]

has been negligently operated by 4/9 Livestock or has

violated [state environmental] regulations.” Pet. App.

16.

The court pointed to “the significant local and

administrative hurdles a farmer must overcome

before being allowed to build a CAFO,” and observed

that Petitioners had not challenged the rezoning of

the Farm Site, the approval of the siting, design and

construction plans for the two hog-farming buildings,

or the issuance of state environmental permits.

Petitioners “were provided ample due process to

challenge the size and/or placement of the CAFO

11

buildings on the Farm [Site], yet they decided instead

to wait and file a nuisance action more than two years

later,” the court stated. Pet. App. 16. “In light of the

RTFA, they put their eggs in the wrong basket. Their

general nuisance claim fails as a matter of law.” Ibid.4

The court of appeals rejected Petitioners’

contention that the application of the RTFA effected

an unconstitutional taking—addressing together the

takings claims under the state and federal

Constitutions based on its precedent holding that it

“construe[d]

and

analyze[d]

the

‘textually

indistinguishable’ takings clauses identically.” Pet.

App. 20-23. It observed that Petitioners “assert a

regulatory takings claim, as they acknowledge that

there has been no direct seizure of their property.”

Pet. App. 21.

The court determined that Petitioners had “not

been deprived of all or substantially all economic or

productive use of their properties,” observing that the

properties “retained significant economic value”;

Petitioners “continue to reside in their residences,

The court concluded that Petitioners’ “repackaged” trespass

claim was really just a nuisance claim. It reached this conclusion

because the claim alleged “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.” Pet. App. 17, 27. The court continued, “Despite

artful pleading, we observe that application of the RTFA does not

turn on labels. The trial court properly concluded that

[Petitioners’] trespass claim is barred by the RTFA.” Ibid. (citing

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.”)).

4

12

making valuable use of their properties, and have

alleged no distinct, investment-backed expectations

that have been frustrated by the [hog-farming

operation]”; that there has been no physical intrusion

into Petitioners’ property, and that “the regulation is

reasonably related to the promotion of the common

good.” Pet. App. 22-23.

The court of appeals denied Petitioners’ request

for rehearing; one judge dissented. Pet. App. 43.

Petitioners then sought transfer of the case to the

Indiana Supreme Court and—following briefing and

oral argument—that Court denied the petition for

transfer with two Justices dissenting. Pet. App. 44.

REASONS FOR DENYING THE PETITION

Petitioners argue that review by this Court is

warranted for multiple reasons: they assert that the

RTFA imposes a blanket ban on nuisance and

trespass claims; they contend that there is a conflict

among the lower courts regarding the question

presented; and they argue that the Indiana court

reached the wrong conclusion on the takings claim.

The question presented does not implicate any

legal issue warranting this Court’s attention, there is

no conflict among the lower courts, and there is no

warrant for this Court to review the Indiana court’s

fact-bound conclusion that Petitioners failed to

establish a takings claim here.

A. The Indiana Right To Farm Act Does Not

Provide Respondents—Or Anyone Else—

With Complete Immunity From Nuisance

Or Trespass Liability.

Petitioners engage in unsupportable hyperbole

when they assert that the RTFA “provides complete

13

immunity from nuisance and trespass liability.” Pet.

i.; see also Pet. 15 (“the Indiana Court of Appeals held

that the amended RTFA categorically bars any

remedy.”)

The court below applied the RTFA to bar

Petitioners’ nuisance claims only after it first

determined that Respondents satisfied the prerequisites for application of the RTFA—that

agricultural operations had been in place

continuously for a year at the relevant location, and

that agricultural operations would not have

constituted a nuisance when they first began at that

location. See Pet. App. 12-15.

The court also assessed whether Petitioners had

adduced evidence demonstrating that 4/9 Livestock

had operated the hog-raising facility negligently,

because the RTFA provides that its limitations on

nuisance actions do not apply “if a nuisance results

from the negligent operation of an agricultural or

industrial operation or its appurtenances.” Indiana

Code § 32-30-6-9(a). But this exclusion did not apply,

the court concluded, because Petitioners failed to

adduce any evidence of negligence. Pet. App. 16.

Thus, the RTFA barred Petitioners’ nuisance

claims because Petitioners failed to adduce the

evidence that would have rendered the statute

inapplicable.

In addition, the RTFA does not limit affected

parties’ ability to participate in state and local

permitting proceedings—or to seek review of decisions

granting the necessary permits. But, as the court

below observed, Petitioners chose not to take

advantage of those multiple opportunities. They “were

provided ample due process to challenge the size

14

and/or placement of the CAFO buildings on the Farm

[Site], 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.”

Pet. App. 16.

B. The Decision Below Does Not Conflict

With Any Decision Of A State Supreme

Court Or Federal Court Of Appeals.

Petitioners erroneously assert that review is

warranted because the ruling below rejecting

Petitioners’ takings claim conflicts with the decisions

of other courts. Pet. 32-39. There is no conflict.

Petitioners first invoke City of Fayetteville v.

Stanberry, 807 S.W.2d 26 (Ark. 1991). See Pet. 33. The

question in that case—which involved leakage from a

city-constructed sewer line on to the plaintiff’s

property—was whether the trial court had erred in

rejecting a jury instruction proffered by the City

requiring the jury to find a permanent rather than

temporary intrusion into the plaintiff’s property. The

Arkansas Supreme Court held that the court had

properly rejected the instruction, stating that “[w]hile

we need not provide a definitive statement of what

constitutes a taking, we will say it does not require

permanency nor an irrevocable injury, as urged by the

City.” 807 S.W.2d at 28-29.

The holding that a temporary intrusion can

constitute a taking has nothing to do with the

question in this case, which is whether the

elimination of Petitioners’ nuisance claim constitutes

a taking. Indeed, City of Fayetteville arose in the

context of the entry of a physical contaminant on to

the plaintiff’s property—and, as the court below made

15

clear, Petitioners do not allege such a physical

intrusion here. See Pet. App. 23.

Next, Petitioners discuss Duffield v. DeKalb

County, 249 S.E.2d 235 (Ga. 1978). Pet. 33. But that

decision analyzes an inverse condemnation claim

under the particular provisions of the Georgia

Constitution based entirely on decisions of Georgia

courts. 249 S.E.2d at 236. The cited constitutional

provisions differ significantly from the federal

Constitution’s Takings Clause. See Georgia Const.

art. 1, § 1, par. 1 (“[n]o person shall be deprived of life,

liberty, or property except by due process of law”); id.

art. 1, § 3, par. 1 (“[e]xcept as otherwise provided in

this Paragraph, private property shall not be taken or

damaged for public purposes without just and

adequate compensation being first paid”) (emphasis

added). The ruling therefore is wholly irrelevant to

the federal Constitution’s Takings Clause.

Petitioners cite, in a footnote, a concurring opinion

in a different Georgia Supreme Court case to try to

create the impression that the Georgia Constitution’s

takings clause is interpreted in accordance with

federal precedents. Pet. 33-34 n.3 (citing Barrett v.

Hamby, 219 S.E.2d 399, 403 (Ga. 1975) (Gunter, J.,

concurring)). But Justice Gunter’s concurrence

related to “the application of the constitutional

concept of ‘substantive due process of law,’” and did

not mention takings jurisprudence. 219 S.E.2d at 404.

Petitioners also rely on Bormann v. Board of

Supervisors In & For Kossuth County, 584 N.W.2d 309

(Iowa 1998). But, as Petitioners acknowledge in a

footnote (Pet. 35 n.4), that ruling rested on a longestablished peculiarity of Iowa law—that the right to

maintain a nuisance action constitutes an easement

under Iowa law—in holding that the restriction of the

16

nuisance action constituted a taking because it

eliminated that property right. See 584 N.W.2d at 315

(citing Churchill v. Burlington Water Co., 62 N.W.

646, 647 (1895)).

Indiana has rejected Iowa’s characterization of

nuisance actions as an easement. See Lindsey v.

DeGroot, 898 N.E.2d 1251, 1257–59 (Ind. Ct. App.

2009) (declining to adopt Iowa’s rule that the right to

maintain a nuisance creates an easement). Because

property rights rest on state law, Webb’s Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 161

(1980), this important difference means the Iowa

court’s holding does not conflict with the ruling

below—because it turns on the different state-law

rules regarding property rights.

Finally, Petitioners point to Overgaard v. Rock

County Board of Commissioners, No. 02-601, 2003

U.S. Dist. LEXIS 13001 (D. Minn. July 25, 2003),

which they claim “found Bormann ‘persuasive.’” (Pet.

35.) But the Minnesota district court actually stated,

“While Bormann may seem persuasive at first glance,

the Court finds that Bormann’s holding is not

applicable to the Minnesota Right to Farm Act.” 2003

U.S. Dist. LEXIS at *21. The court also concluded that

“the neighboring landowners are not deprived of any

property rights.” Ibid.

In sum, there is no conflict among the lower

courts.

Petitioners also assert that the States’ widespread

adoption of right to farm laws justifies this Court’s

intervention. Pet. 37-39. But that factor actually

weighs against a grant of review—because the large

number of states with RTFA statutes and the lack of

a conflict regarding the takings issue indicate that the

17

question presented lacks sufficient importance to

warrant review.

C. The Court Below Properly Rejected

Petitioners’ Takings Claim.

Petitioners’ takings claim is in a peculiar posture.

Although the federal Constitution prohibits takings

by government entities without just compensation,

Petitioners named as defendants—and sought relief

against—only private parties. The State of Indiana

intervened to defend the constitutionality of its Right

to Farm Act, but Petitioners still did not seek relief

from the State.5

Perhaps because of this peculiarity, Petitioners

are somewhat vague about the act that constitutes the

taking of their property. They focus on the

construction and operation of the hog-raising facility,

but that is a purely private activity. They reference

the 2005 amendment of the Indiana Right to Farm

Act, but that occurred long before the hog-raising

operation came into existence in 2013.

To the extent the Petitioners’ claim is that the

“taking” is the RTFA’s preclusion of the nuisance

action Petitioners say they could have successfully

asserted prior to the 2005 amendment of the RTFA,

then they should be seeking relief from the State—not

Bizarrely, Petitioners at one point attempted to pursue an

inverse condemnation claim against 4/9 Livestock, the

Individual Respondents, and Co-Alliance, LLP (C.A. App. III:1920)—even though none of those parties have the power to

condemn property and even though Petitioners had not followed

the procedures specified by Indiana law for pursuing such an

action (see Indiana Code § 32-244-1-1). The trial court dismissed

those claims, and Petitioners did not appeal that decision. C.A.

App. VIII:177; C.A. Appellants’ Br. 8 n.1.

5

18

from private parties. Presumably that relief would be

in the form of “just compensation” damages from the

State: the reduction in value of Petitioners’ property

that is greater than the reduction in value that would

have resulted from 4/9 Livestock’s operation of a hograising facility that would not have been ruled a

nuisance under pre-2005 law. After all, the record

showed that hog farms had long operated in the area,

including a 400-hog facility operated by Petitioner

Richard Himsel (Pet. App. 8)—so Petitioners plainly

could not argue that a nuisance action could preclude

all hog farming on the Farm Site.

To recover those damages, Petitioners would have

had to prove the following: (1) that they could have

successfully asserted a nuisance action under the pre2005 RTFA; (2) that the incremental adverse effect

upon their property from a hog-raising operation

permitted under pre-2005 law, as compared to the

operation precluded by pre-2005 law, satisfied the

standard for a regulatory taking; and (3) the amount

of just compensation to which they would be entitled

as a result of that incremental effect.

Because Petitioners have not asserted a claim

seeking relief from the State and have not addressed

these issues—but rather focused on the claimed effect

on their property of the hog-raising operation, as if

they were litigating a nuisance action against 4/9

Livestock—this case is a poor vehicle for addressing

any takings issue.

Moreover, the court below properly rejected

Petitioners’ takings claims.

19

1. Petitioners failed to raise a physical

takings claim below and, in addition, the

record provides no support for such a

claim.

Citing Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982), Petitioners assert that the

court below erred by failing to find a physical taking.

Pet. 24-26. But Petitioners failed to raise such a claim

below and, in addition, the record does not support a

physical takings claim.

The court below stated that Petitioners had

asserted a “regulatory takings claim” (Pet. App. 2021)—and for good reason: Petitioners’ brief in the

Indiana Court of Appeals argued only that they had

been subjected to a regulatory taking under the

standard set forth in this Court’s opinions in Penn

Cent. Transp. Co. v. New York City, 438 U.S. 104, 127

(1978), and Pennsylvania Coal Co. v. Mahon, 260 U.S.

393 (1922). See C.A. Appellants’ Br. 55-58; C.A.

Appellants’ Reply Br. 20-22. Petitioners cited Loretto

only once, in their argument with respect to“[t]he

third Penn Central factor . . . the character of the

government action,” to support the assertion that

“[u]nder this factor, a physical invasion of property is

more likely to be a taking than a regulatory program

that merely makes some activities more remunerative

than others.” C.A. Appellants’ Br. 57.

Thus, Petitioners did not advance a takings claim

premised on an asserted physical occupation of their

property.

Nor could they. The court below, in applying the

Penn Central regulatory takings test, stated that it

“[did] not agree with [Petitioners] that the RTFA has

permitted a physical invasion of their property.” Pet.

20

App. 23. Rather, the court found that Petitioners’

claim was “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” hog-raising operation. Pet. App. 10.

However, nothing physical entered Petitioners’

property—no manure, pigs, trucks, or persons. C.A.

App. IV:14, 45–46, 129–30. And Petitioners never

alleged that the odors caused physical damage. They

simply did not assert the physical occupation that

Loretto requires.6

2. The regulatory takings claim lacks merit.

This Court has made clear that regulatory takings

claims are fact-specific. Penn Central stated that “this

Court, quite simply, has been unable to develop any

‘set formula’ for determining when ‘justice and

fairness’ require that economic injuries caused by

public action be compensated by the government,

rather than remain disproportionately concentrated

on a few people.“ 438 U.S. at 124. “Indeed,” the Court

stated, “we have frequently observed that whether a

particular restriction will be rendered invalid by the

government’s failure to pay for any losses proximately

caused by it depends largely ‘upon the particular

circumstances [in that] case.” Ibid.

The Penn Central Court stated that some of the

factors relevant to “these essentially ad hoc, factual

inquiries” include “[t]he economic impact of the

6 Courts routinely reject trespass claims based on odors when

there is neither a physical invasion of nor physical harm to the

property. See, e.g., Babb v. Lee Cnty. Landfill SC, LLC, 747

S.E.2d 468, 479—80 (S.C. 2013); John Larkin, Inc. v. Marceau,

959 A.2d 551, 555—56 (Vt. 2008); Borland v. Sanders Lead Co.,

369 So.2d 523, 530 (Ala. 1979).

21

regulation on the claimant”; “the extent to which the

regulation has interfered with distinct investmentbacked expectations”; and “the character of the

government action.” 438 U.S. at 124.

The Indiana Court of Appeals canvassed these

factors and concluded that Petitioners failed to

establish a regulatory taking. See Pet. App. 21-23.

There is no reason for this Court to review that factbound determination.

With respect to economic impact, the court below

found that “[t]he designated evidence reveals that

[Petitioners] properties have retained significant

economic value,” citing estimates that they retained

40% and 50% of their value respectively. Pet. App. 22.

It pointed to Penn Central’s statement that the

Court’s precedents “uniformly reject the proposition

that diminution in property value, standing alone, can

establish a ‘taking.’” Pet. App. 22 (citing Penn Central,

438 U.S. at 131).

Next, the court addressed the investment-backed

expectation prong, stating that Petitioners “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 [hog-raising operation].” Pet. App.

23.

Concerning the character of the government

action, the court rejected Petitioners’ argument that

the RTFA permitted a physical invasion of their

property. Pet. App. 23.

Petitioners’

attempt

to

dispute

that

determination, relying on Arkansas Game and Fish

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

wholly misplaced. The Court there held that physical

22

invasion of property by floodwaters could constitute a

taking. That provides no support for Petitioners’

argument that odors should similarly characterized as

a physical invasion.

In addition, it is significant that the RTFA—like

traditional zoning laws—not only imposes a burden

but also provides a significant reciprocal benefit to all

landowners in traditional agricultural areas by

protecting them against nuisance actions based on

agricultural operations.

Petitioners’ disagreement with the Indiana court’s

fundamentally factual analysis provides no warrant

for this Court’s intervention.

23

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHRISTOPHER J. BRAUN

Counsel of Record

JONATHAN P. EMENHISER

JOSH S. TATUM

Plews Shadley Racher &

Braun LLP

1346 North Delaware Street

Indianapolis, Indiana

46202-6150

cbraun@psrb.com

ANDREW J. PINCUS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

apincus@mayerbrown.com

Counsel for Non-Governmental Respondents

AUGUST 2020