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 L. HIMSEL, ET AL.,

Petitioners,

v.

4/9 LIVESTOCK, LLC, ET AL.,

Respondents.

____________________________________

On Petition for Writ of Certiorari

to the Court of Appeals of Indiana

____________________________________

RESPONDENT STATE OF INDIANA’S

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

____________________________________

CURTIS T. HILL, JR.

Attorney General

Office of the Attorney General THOMAS M. FISHER

IGC South, Fifth Floor

Solicitor General*

302 W. Washington St.

AARON T. CRAFT

Indianapolis, IN 46204

Section Chief,

(317) 232-6255

Civil Appeals

Tom.Fisher@atg.in.gov

KIAN J. HUDSON

Deputy Solicitor

General

*Counsel of Record

JULIA C. PAYNE

Deputy Attorney

General

Counsel for Respondent

i

QUESTION PRESENTED

Whether a State may, without interference by the

Takings Clause, modify the common law to provide a

limited defense to a private nuisance action.

ii

TABLE OF CONTENTS

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

TABLE OF AUTHORITIES ................................... iii

INTRODUCTION .................................................... 1

STATEMENT OF THE CASE ................................. 2

I.

Indiana’s Right to Farm Act ............................ 2

II.

Factual Background ......................................... 3

III. Procedural Background ................................... 4

REASONS TO DENY THE PETITION .................. 6

I. The Decision Below Does Not Contravene the

Court’s Precedents .............................................. 6

A. This case is inappropriate for considering

an expansion of Loretto ................................. 7

B. The court below did not misapply the Penn

Central factors ............................................. 10

II. The Lower Court’s Decision Does Not Create a

Genuine Split with Any Other State Court ..... 15

CONCLUSION ....................................................... 20

iii

TABLE OF AUTHORITIES

CASES

Ark. Game & Fish Comm’n v. United

States,

568 U.S. 23 (2012) ................................................12

Bormann v. Bd. of Supervisors for Kossuth

Cnty.,

584 N.W.2d 309 (Iowa 1998) .........................17, 18

Born v. Exxon Corp.,

388 So. 2d 933 (Ala. 1980) .....................................9

City of Fayetteville v. Stanberry,

807 S.W.2d 26 (Ark. 1991) .............................15, 16

Concrete Pipe & Prods. of Cal., Inc. v.

Constr. Laborers Pension Trust for S.

Cal.,

508 U.S. 602 (1993) ..............................................11

Duffield v. DeKalb Cty.,

249 S.E.2d 235 (Ga. 1978) ....................... 15, 16, 17

Florida v. Powell,

559 U.S. 50 (2010) ................................................17

Hadacheck v. Sebastian,

239 U.S. 394 (1915) ..............................................11

Honomichl v. Valley View Swine, LLC,

914 N.W.2d 223 (Iowa 2018) ...............................18

Horne v. Dep’t of Agriculture,

576 U.S. 350 (2015) ............................................6, 7

iv

CASES [CONT’D]

Johnson v. Paynesville Farmers Union

Coop. Oil Co.,

817 N.W.2d 693 (Minn. 2012)................................9

Lindsey v. DeGroot,

898 N.E.2d 1251 (Ind. Ct. App. 2009) .................18

Loretto v. Teleprompter Manhattan CATV

Corp.,

458 U.S. 419 (1982) ........................................6, 8, 9

Lucas v. S.C. Coastal Council,

505 U.S. 1003 (1992)............................ 6, 11, 12, 19

McLane Co. v. E.E.O.C.,

137 S. Ct. 1159 (2017)............................................8

Moon v. North Idaho Farmers Ass’n,

96 P.3d 637 (Idaho 2004) .....................................18

Murr v. Wisconsin,

137 S. Ct. 1933 (2017)............................................6

Overgaard v. Rock Cty. Bd. of Comm’rs,

No. 02-601, 2003 WL 21744235 (D.

Minn. July 25, 2003) ............................................19

Penn Central Transportation Co. v. City of

New York,

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

Penn. Coal Co. v. Mahon,

260 U.S. 393 (1922) ..............................................14

v

CASES [CONT’D]

Phillips v. Washington Legal Foundation,

524 U.S. 156 (1998) ..............................................19

Rabun County v. Mountain Creek Estates,

LLC,

632 S.E.2d 140 (Ga. 2006) ...................................17

Shatto v. McNulty,

509 N.E.2d 897 (Ind. Ct. App. 1987) .....................2

Tahoe-Sierra Preservation Council, Inc. v.

Tahoe Reg’l Planning Agency,

535 U.S. 302 (2002) ................................................7

Vill. of Euclid v. Ambler Realty Co.,

272 U.S. 365 (1926) ........................................11, 16

Yee v. City of Escondido,

503 U.S. 519 (1992) ................................................8

STATUTES

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

Ind. Code § 32-30-6-9 .................................. 2, 3, 14, 15

Pub. L. No. 288, § 1, 1981 Ind. Acts 2302 ..................2

Pub. L. No. 23-2005, § 1, 2005 Ind. Acts

1389 ........................................................................3

OTHER AUTHORITIES

Sup. Ct. R. 10 ............................................................10

1

INTRODUCTION

To conserve Indiana’s rich agricultural heritage

and to encourage the development of land for food production, the Indiana General Assembly enacted the

Right to Farm Act to reduce the threat of nuisance

lawsuits to farming operations. The Act confers immunity on farms from most nuisance suits if the farm

meets the Act’s requirements.

Applying the factors identified in Penn Central

Transportation Co. v. City of New York, 438 U.S. 104,

124 (1978), the Indiana Court of Appeals held that the

Act did not “take” private property when it blocked

petitioners’ nuisance claims against a neighboring

large-scale hog farm. The Indiana Supreme Court did

not think the case sufficiently worth its time and denied transfer.

Petitioners urge this Court to grant review largely

on the basis of a sweeping legal theory they did not

raise below—and that the decision below accordingly

did not address—namely, that a state law conferring

limited immunity from nuisance suits categorically

violates the Takings Clause. Petitioners’ only preserved argument is that the lower court erred in applying the well-established Penn Central factors to

the evidence here. But there was no error in the lower

court’s decision, and no lower court conflict or serious

issue of national significance—properly preserved or

not—justifies this Court’s review.

2

STATEMENT OF THE CASE

I. Indiana’s Right to Farm Act

In 1981, fearing the depletion of Indiana’s agricultural resources caused by nuisance suits brought

against farming operations, the Indiana General Assembly enacted the Indiana Right to Farm Act “to conserve, protect, and encourage the development and

improvement of its agricultural land for the production of food and other agricultural products.” Pub. L.

No. 288, § 1, 1981 Ind. Acts 2302, 2302 (codified as

amended at Ind. Code § 32-30-6-9). The General Assembly found “that when nonagricultural land uses

extend into agricultural areas, agricultural operations often become the subject of nuisance suits,” with

the consequence that “agricultural operations are

sometimes forced to cease operations, and many persons may be discouraged from making investments in

farm improvements.” Ind. Code § 32-30-6-9(b); see

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

App. 1987) (“The policy of the legislature is clear. 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.”).

The Right to Farm Act restricts the circumstances

under which a neighboring landowner may maintain

a private nuisance suit against a farm, thus removing

a major disincentive to agricultural investment and

development. But it confers immunity only in limited

circumstances. Specifically, the Act provides that an

agricultural operation “is not and does not become a

3

nuisance . . . by any changed conditions in the vicinity

of the locality” if (1) the agricultural operation “has

been in operation continuously on the locality for

more than one . . . year,” (2) there has been “no significant change in the type of operation,” and (3) “[t]he

operation would not have been a nuisance at the time

the agricultural . . . operation began on that locality.”

Ind. Code § 32-30-6-9(d); see also Ind. Code § 32-30-63(1) (defining “locality”); Ind. Code § 32-30-6-9(c) (defining continuous operation); Ind. Code § 32-30-69(d)(1)(A)–(D) (defining what does not constitute a

“significant change”); Pub. L. No. 23-2005, § 1, 2005

Ind. Acts 1389, 1389–90 (amending the Act to clarify

changes that do not qualify as “significant”).

Furthermore, this limited immunity does not apply if the “nuisance results from the negligent operation” of the farm. Ind. Code § 32-30-6-9(a).

II. Factual Background

1. Respondents Sam Himsel and his sons, Clint

and Cory Himsel, are farmers in rural Hendricks

County, Indiana. App. 4, 254. In 2013, they formed 4/9

Livestock, LLC, to commence a concentrated animal

feeding operation (CAFO) involving hogs. App. 4,

254–56. They built their CAFO on rural property that

had long been used by working farms that grow crops

and raise livestock. App. 4, 80.

In early 2013, Sam Himsel asked the county to rezone the proposed CAFO location from agricultureresidential to agriculture-intense to allow construction and operation of the CAFO. App. 4, 129, 160, 292.

The county commissioners approved the plan. App. 4–

6, 96, 164, 280. In late 2013, 4/9 Livestock completed

4

construction and started raising hogs for Co-Alliance,

LLP. App. 6–7, 83, 168, 196–97.

2. Petitioners Richard and Janet Himsel—Richard

is Samuel Himsel’s cousin, App. 264—and Robert and

Susan Lannon have owned homes near the location of

the 4/9 Livestock CAFO since 1994 and 1971, respectively. App. 7, 333–34.

According to petitioners, the 4/9 Livestock CAFO

produces noxious gases that hinder their use and enjoyment of their respective lands. Pet. 8, 12; App. 340–

41. They also claim that the CAFO’s operation has depressed the value of their homes on the order of about

50–60%. Pet. 28; App. 22, 144.

III.

Procedural Background

About two years after 4/9 Livestock began operating its CAFO, petitioners sued respondents for nuisance, negligence, and trespass arising from the

smell. App. 8, 330–56. Respondents invoked the Right

to Farm Act as a defense to the suit, but petitioners

alleged the Act to be unconstitutional on multiple

grounds, including that it effects a taking without

compensation. App. 8–9, 347–49. The State intervened to defend the statute’s constitutionality, App.

8, and the trial court granted summary judgment to

all respondents on all claims, App. 9–10, 29–42.

The Indiana Court of Appeals affirmed, holding,

with respect to the Takings claim, that petitioners

“acknowledge that there has been no direct seizure of

their property,” App. 20–21, and had failed to demonstrate a regulatory taking under Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124

(1978). App. 20–23.

5

Applying the Penn Central factors, the court determined that petitioners “have not been deprived of all

or substantially all economic or productive use of their

properties” because their properties “have retained

significant economic value.” App. 22. A “diminution in

property value, standing alone, does not establish a

taking” where a “land-use regulation [is] reasonably

related to the promotion of the general welfare.” Id.

(citing Penn Central, 438 U.S. at 131); see also App.

22–23 (noting that the Court has rejected takings

challenges even where property values have decreased by 75%, citing Vill. of Euclid v. Ambler Realty

Co., 272 U.S. 365 (1926)). The Court also explained

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 CAFO.” App.

23. With regard to the character of the government

action, the court rejected petitioners’ contention that

the Act “has permitted a physical invasion of their

property” and determined that petitioners “cannot

dispute that the regulation is reasonably related to

the promotion of the common good.” Id.

Petitioners unsuccessfully sought both rehearing

in the Indiana Court of Appeals and transfer to the

Indiana Supreme Court. App. 43–44. Their petition

for rehearing focused exclusively on statutory arguments. Appellants’ Reh’g Pet. 6–17. And their petition

for discretionary review to the Indiana Supreme

Court relegated their takings argument to a single

paragraph in which they argued that the Court of Appeals had improperly applied the Penn Central factors. Appellants’ Trans. Pet. 17.

6

REASONS TO DENY THE PETITION

I. The Decision Below Does Not Contravene

the Court’s Precedents

Petitioners challenge the lower court’s decision on

two constitutional theories, neither of which merit the

Court’s consideration: The first they failed to raise below, and the second merely quibbles with the lower

court’s assessment of evidence.

The Court has long distinguished between permanent physical appropriations of property and other

regulations that affect property. Murr v. Wisconsin,

137 S. Ct. 1933, 1942–43 (2017); Horne v. Dep’t of Agriculture, 576 U.S. 350, 357–61 (2015). A permanent

physical occupation of property is a per se taking.

Loretto v. Teleprompter Manhattan CATV Corp., 458

U.S. 419, 526–35 (1982). Otherwise, government regulation of property effects a taking only if it deprives

the owner of “all economically beneficial or productive

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

1015 (1992), or “goes too far” in light of the “complex

of factors” identified in Penn Central Transportation

Co. v. New York City, 438 U.S. 104, 124 (1978), Murr,

137 S. Ct. at 1942–43 (internal quotation marks and

citations omitted).

Petitioners now raise theories under both Loretto

and Penn Central, but they neither raised Loretto below nor even now cite any precedents applying Loretto

where odors are the alleged “physical occupation.”

And with respect to Penn Central, the court below expressly applied the “complex of factors” that decision

identifies to the facts of this case, so on that score petitioners at best make a plea for mere error correction.

7

A. This case is inappropriate for considering

an expansion of Loretto

1. Below, petitioners did not present any argument

applying Loretto, and the Indiana Court of Appeals

therefore confined its analysis to the Penn Central

framework for regulatory takings. Cf. Horne, 576 U.S.

at 361 (observing the “longstanding distinction” between physical takings and regulatory takings); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l

Planning Agency, 535 U.S. 302, 323 (2002) (explaining that it is “inappropriate to treat cases involving

physical takings as controlling precedents for the

evaluation of a claim that there has been a ‘regulatory

taking,’ and vice versa”).

Indeed, in the Court of Appeals, petitioners’ takings argument was little more than an afterthought.

The lion’s share of their briefing concerned the interpretation of the Right to Farm Act and several state

constitutional challenges. Across five different briefs,

their takings argument consisted of a total of 9 pages

out of roughly 130 pages of briefs, see Appellants’ Br.

52–58; Appellants’ Reply Br. 20–22; Appellants’

Trans. Pet. 17; see also Appellants’ Reh’g Pet. 6–17

(no takings argument); Appellants’ Trans. Reply 3–6

(same). And over those nine pages, petitioners argued

only that the Penn Central factors tipped in their favor. Appellants’ Br. 55–58; Appellants’ Trans. Pet. 17.

Petitioners never argued that a government-authorized nuisance is categorically a taking because it

constitutes a permanent physical invasion of property. And while they now accuse the Indiana Court of

Appeals of holding that the Right to Farm Act “cate-

8

gorically bars their trespass claim,” Pet. 26, petitioners have never asserted that any defendant actually

set foot on their property. The decision below simply

rejected petitioners’ attempt to relabel their complaint about unpleasant odors as a trespass claim.

App. 17.

Regardless what one might think of that theory

under the law of trespass, petitioners never asserted

below that the Constitution secures an inviolable

right against unwanted smells. And this Court, of

course, generally does not review issues that petitioners did not raise, and courts did not address, below.

McLane Co. v. E.E.O.C., 137 S. Ct. 1159, 1170 (2017)

(“[W]e are a court of review, not of first view . . . .”

(quoting Cutter v. Wilkinson, 544 U.S. 709, 718, n. 7

(2005)); see also Yee v. City of Escondido, 503 U.S. 519,

533 (1992).

2. Nor is petitioners’ Loretto argument persuasive.

Loretto held that a state law compelling landlords to

permit the installation of cable facilities on their property effected a per se taking. 458 U.S. at 421. Critically, the law compelled a “permanent physical occupation of [the] owner’s property,” which, unlike a temporary invasion, is always a taking. Id. (emphasis

added).

This per se rule is grounded in the fact that a permanent physical invasion of property “does not simply

take a single ‘strand’ from the ‘bundle’ of property

rights: it chops through the bundle, taking a slice of

every strand.” Id. at 435. When “the government permanently occupies physical property, it effectively destroys” the property owner’s rights to possess, use,

and dispose of the property. Id.

9

Unlike the landlords in Loretto, petitioners have

not established a permanent invasion. At most, they

assert only that, because of respondents’ CAFO, “they

are actually forced to vacate their homes from time to

time.” Pet. 25 (second emphasis added).

Nor have petitioners demonstrated that Indiana’s

Right to Farm Act compels a physical invasion in the

first place. They have not cited a single case in which

the Court has deemed “noxious fumes and particles,”

Pet. 25, to constitute a physical occupation of property. Petitioners muster only a statement from

Loretto that physical invasions may occur “by superinduced additions of water, earth, sand, or other material.” Pet. 25 (quoting Loretto, 458 U.S. at 427).

Odor, however, is not “other material” that can physically occupy land. Courts have consistently rejected,

for example, the notion that the movement of odors or

other intangible substances constitutes trespass. See,

e.g., Johnson v. Paynesville Farmers Union Coop. Oil

Co., 817 N.W.2d 693, 701 (Minn. 2012) (holding that

movement of pesticide could not constitute trespass

because trespass traditionally requires “’direct and

tangible entry’” (quoting Dan B. Dobbs, The Law of

Torts § 50 at 95 (2000)); Born v. Exxon Corp., 388 So.

2d 933, 934 (Ala. 1980) (holding that unpleasant odor

and light emitted by industrial facility did not constitute “an intentional entry of any substance onto the

land . . . amounting to a trespass”).

After all, the Court applies a per se rule to permanent physical occupations because such occupations

oust the owner of all use or control during the occupation. Loretto, 458 U.S. at 435–36. But unlike invasion

by water or cable boxes, invisible particles floating in

10

the air do not erect a physical barrier absolutely precluding occupation and use of land.

Petitioners cannot establish a permanent physical

occupation of their lands, so Loretto’s “very narrow”

rule does not apply. Id. at 441. In sum, petitioners’

permanent-occupation theory is neither preserved

nor supported by the Court’s existing precedents.

There is no reason for the Court to consider it.

B. The court below did not misapply the

Penn Central factors

The sole takings theory petitioners presented below was that the Right to Farm Act constitutes a taking under Penn Central, and the only argument they

now make on this score is their assertion that the Indiana Court of Appeals misapplied the Penn Central

factors by “[i]gnoring the Himsel’s [sic] and Lannons’

evidence entirely.” Pet. 26. Petitioners thus ask the

Court to correct what they view to be error by the

lower court in applying well-established law. And

that, of course, is hardly a justification for this Court’s

review. See Sup. Ct. R. 10.

At any rate, the lower court did not misapply Penn

Central. That decision directs courts to consider (1)

the economic impact of the regulation on the property

owner, (2) the extent to which the regulation interferes with the owner’s distinct investment-backed expectations, and (3) the character of the government’s

action. Penn Central, 438 U.S. at 124. The Indiana

Court of Appeals considered each of these factors and

properly concluded that no taking occurred here.

11

1. With respect to economic impact, petitioners’

own designated evidence established that their “properties have retained significant economic value,” for

“their own expert valued the Lannons’ property at

$51,500 (at an estimated 60% loss in value) and the

Himsel [petitioners’] property at $181,200 (at an estimated 49.5% loss in value) with the CAFO nearby.”1

App. 22.

As the court below recognized, a diminution in

value standing alone is not sufficient to establish a

taking. Penn Central, 438 U.S. at 131; App. 22. And

the roughly 50% to 60% loss in value allegedly sustained by petitioners’ properties comes nowhere near

the proof necessary to establish a regulatory taking

under this Court’s cases. See, e.g., Concrete Pipe &

Prods. of Cal., Inc. v. Constr. Laborers Pension Trust

for S. Cal., 508 U.S. 602, 645 (1993) (holding that a

46% diminution in value is not a taking); Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 384 (1926)

(holding that a roughly 75% diminution in value is not

a taking); Hadacheck v. Sebastian, 239 U.S. 394, 405

(1915) (roughly 90% diminution not a taking); cf. Lucas, 505 U.S. at 1019–20 n.8 (explaining that a 95%

1 The parties dispute how much value petitioners have lost. As

the materials in the state court appendix established, petitioners’ property-tax assessments have actually increased since the

CAFO commenced operations. III App. 192–94; VI App. 43, 118.

And a similarly situated home located between the Himsels’ and

the Lannons’ properties sold in 2017, after less than a month on

the market, for $5,000 above the list price, which “was not depressed or in any way decreased” by its proximity to 4/9 Livestock’s CAFO. X App. 179–80; see also IX App. 186–95.

12

diminution in value may or may not constitute a regulatory taking depending on the circumstances).

Petitioners seemingly fault the lower court for not

weighing this factor heavily in their favor, but they do

not explain why the court was wrong or what principle of law it transgressed.2 See Pet. 27–28. Indeed, the

court below relied on Penn Central and Village of Euclid. App. 22–23. Petitioners do not claim that the

state court misunderstood those cases. Nor do they

cite any cases analyzing a regulation’s economic impact any differently. And while they urge the Court to

consider other factors, such as the loss of “the ordinary pleasures of life,” they have not cited any authority from any court for the proposition that economic

impact under Penn Central is based on anything other

than quantifiable diminution in property value. See

Pet. 28.

2. Petitioners’ claim that the court below misapplied the second Penn Central factor—“the extent to

which the regulation has interfered with distinct investment-backed expectations,” 438 U.S. at 124 (emphasis added)—fares no better. The state court did

not err—much less “patently” so—when it determined

that petitioners “have alleged no distinct, investment

backed expectations that have been frustrated by the

CAFO.” App. 23.

2 Petitioners briefly mention Arkansas Game & Fish Commis-

sion v. United States, 568 U.S. 23 (2012), yet they do not explain

how that case applies to the lower court’s assessment of economic

impact. Pet. 27–28. They also misstate the Court’s holding in

that case, which was, “simply and only, that government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.” 568 U.S. at 38.

13

The court below adhered to this Court’s cases in

determining that petitioners failed to allege any distinct investment-backed expectations. For one thing,

although petitioners argued below that they “have invested substantial time and money in their homes

reasonably expecting a return on their investment,”

Appellants’ Br. 57, they did not cite anything from the

record supporting that proposition. The most their

record cites established was that the Lannons no

longer garden and that the Himsels replaced a bathroom after the CAFO came into existence. See State

Intervenor’s Br. 37–38. The lower court cannot be

faulted for not scouring the lengthy record to find evidence to support petitioners’ claims.

Even in this Court, petitioners fail to identify any

distinct investment-backed expectations. Instead,

they rely almost exclusively on the idea that they purchased their homes with a general expectation that

nothing would change or that they would receive a return on their initial investment. Pet. 29. But the

Court has long held that property owners cannot establish a regulatory taking “simply by showing that

they have been denied the ability to exploit a property

interest that they heretofore had believed was available.” Penn Central, 438 U.S. at 130. And while petitioners assert that “[t]he record demonstrates that

[they] also invested substantial time and money in

making various home improvements,” id., they again

fail to support that assertion with any record evidence. And the cites they include earlier in the petition establish that the Himsel petitioners have not

maintained their home since the CAFO began operations, App. 53, that the only improvement they have

made since that time is placing different flooring in

14

the bathroom, App. 54, and that the Lannons and the

Himsel petitioners used to perform general yardwork,

like planting flowers and mowing the lawn, App. 65–

66, 94–95, 106, 119.

Petitioners have never cited any case supporting

the notion that such generalized expectations of a

property owner are the sorts of “distinct, investmentbacked expectations” about which this Court’s regulatory-takings cases are concerned. The only case they

cite is Mahon, Pet. 28–29, but the company in Mahon

specifically purchased the right to mine coal and

cause subsidence, only to have that right rendered a

nullity by a subsequent bar on subsidence mining.

Penn. Coal Co. v. Mahon, 260 U.S. 393, 412–14 (1922).

In contrast to the distinct investment-backed expectation at issue in Mahon, petitioners baldly assert

that, like all property owners, they bought their property with certain generalized expectations of how they

would be able to use it. Petitioners have fallen far

short of establishing that the lower court’s assessment of the second Penn Central factor contravenes

this Court’s precedents.

3. The court below also did not depart from this

Court’s cases in analyzing the third Penn Central factor, the character of the government’s action. State action that, as here, regulates private land use to adjust

“the benefits and burdens of economic life to promote

the common good” will rarely constitute a taking.

Penn Central, 438 U.S. at 124.

The court below properly determined that the

Right to Farm Act merely adjusts the benefits and

burdens of economic life to promote the common good.

App. 23. The law’s purpose is to “conserve, protect,

15

and encourage the development of . . . agricultural

land for the production of food and other agricultural

products” by reducing the depletion of “agricultural

resources.” Ind. Code § 32-30-6-9(b). Like zoning

schemes the Court has previously upheld, the Right

to Farm Act furthers this public purpose by merely

defining what activity the law considers an actionable

nuisance. See Penn Central, 438 U.S. at 125 (collecting cases). Such run-of-the-mill land-use regulation

does not violate the Takings Clause.

II. The Lower Court’s Decision Does Not Create

a Genuine Split with Any Other State Court

Petitioners attempt to fashion an interstate split

in authority by pointing to four cases from other

States. See Pet. 33–35 (discussing City of Fayetteville

v. Stanberry, 807 S.W.2d 26 (Ark. 1991), Duffield v.

DeKalb County, 249 S.E.2d 235 (Ga. 1978), Bormann

v. Board of Supervisors for Kossuth County, 584

N.W.2d 309 (Iowa 1998), and Overgaard v. Rock Cty.

Bd. of Comm’rs, No. 02-601, 2003 WL 21744235 (D.

Minn. July 25, 2003)). None of these cases, however,

embraces their expansive (and waived) Loretto theory

or found similar circumstances to constitute a taking

under Penn Central.

1. The decision below does not create a conflict

with Fayetteville and Duffield for at least two reasons.

First, those cases did not involve a state statute

modifying the common law governing private disputes among neighboring property owners. Rather,

both cases involved continuing nuisances where the

government itself was the alleged offender. In City of

Fayetteville v. Stanberry, the City had obtained an

16

easement over the Stanberry property to construct a

sewer line, which periodically overflowed, discharging

raw sewage onto the property. 807 S.W.2d 26, 26–27

(Ark. 1991). And in Duffield v. DeKalb County, the

County operated a water treatment plant, the noise

and odor from which rendered the Duffield property

“unmarketable.” 249 S.E.2d 235, 236 (Ga. 1978). Neither case involved the situation presented here: A legislature’s decision to promote the public good by modifying the common law rules that regulate private

parties’ land-use disputes. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 387–88 (1926) (explaining that “the law of nuisances” does not “control[]” the

legislature’s power to regulate the use of land).

Second, Fayetteville and Duffield stand only for

the proposition that a continuing nuisance can in

some cases constitute a taking. Fayetteville did not

hold that a nuisance categorically constitutes a taking. Instead, it explained that “a continuing trespass

or nuisance [can] ripen into inverse condemnation,

suggesting flexibility in the definition of taking.” 807

S.W.2d at 28 (internal quotation marks and citation

omitted). And it rejected the City’s argument that

temporary nuisances can never constitute takings,

concluding 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.” Id. at 28–29 (citing First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S.

304 (1987)). Likewise, in Duffield, the Georgia Supreme Court held only that the owners had “stated a

claim of inverse condemnation in alleging that the

odors and noise from the county’s sewage plant have

interfered with their right to use, enjoy, and dispose

17

of their property.” 249 S.E.2d at 237. Moreover, Duffield rested exclusively on the Georgia Constitution

and Georgia case law, and the Court did not remotely

suggest that it was applying federal takings law. See

id. at 236–38; see also Rabun County v. Mountain

Creek Estates, LLC, 632 S.E.2d 140, 143 (Ga. 2006)

(reiterating that Duffield concerned only Georgia constitutional law); cf. Florida v. Powell, 559 U.S. 50, 56

(2010) (“It is fundamental . . . that state courts be left

free and unfettered by us in interpreting their state

constitutions.” (quoting Minnesota v. National Tea

Co., 309 U.S. 551, 557 (1940))).

Neither Fayetteville nor Duffield presents a conflict with this case on an important issue of federal

law. The court below did not hold that a governmentauthorized nuisance can never constitute a taking,

but instead expressly reserved this question. App. 21.

Rather, it held only that petitioners had failed to establish a taking under the well-established Penn Central factors. App. 22–23.

2. Nor does the decision below conflict with the

Iowa Supreme Court’s decision in Bormann v. Board

of Supervisors for Kossuth County, 584 N.W.2d 309

(Iowa 1998), cert. denied sub nom. Girres v. Bormann,

525 U.S. 1172 (1999).

Bormann held that a statute conferring immunity

from nuisance suits on farms located in an “agricultural area” constituted a taking of neighboring landowners’ properties. Bormann, 584 N.W.2d at 313–21.

Critically, however, the Iowa court based its decision

on the ground that, under long-standing Iowa law,

“the right to maintain a nuisance is an easement.” Id.

at 315 (citing Churchill v. Burlington Water Co., 62

18

N.W. 646, 647 (Iowa 1895)). And because easements

are property interests in land, the court determined

that the statute constituted a taking by transferring

that interest from neighboring landowners to farmers. Id. at 316–21. The Bormann decision thus turned

on a peculiarity of Iowa property law.

Indeed, petitioners have failed to identify any

other State that treats the right to maintain a nuisance as an easement. On the contrary, Indiana

courts, for example, have expressly rejected Bormann’s analysis because of the differences in state

property law. In an earlier case, the Indiana Court of

Appeals rejected Bormann’s analysis because it could

not find a similar rule in Indiana property law. See

Lindsey v. DeGroot, 898 N.E.2d 1251, 1258–59 (Ind.

Ct. App. 2009) (“[W]e have found nothing to suggest

that Indiana has adopted the seemingly unique Iowa

holding that the right to maintain a nuisance is an

easement.”). The Idaho Supreme Court similarly rejected Bormann’s analysis when it held that a statute

conferring nuisance and trespass immunity on grass

farmers for crop-residue burning did not effect a taking because “Idaho has not recognized the right to

maintain a nuisance as an easement.” Moon v. North

Idaho Farmers Ass’n, 96 P.3d 637, 645 (Idaho 2004),

cert. denied, 543 U.S. 1146 (2005). And even the Iowa

Supreme Court itself has acknowledged that on this

point it stands alone. See Honomichl v. Valley View

Swine, LLC, 914 N.W.2d 223, 232–33 (Iowa 2018)

(noting that while all 50 States have right-to-farm

laws granting various immunities from nuisance

claims, Iowa is the only one to have deemed such an

immunity “unconstitutional in any manner”).

19

Petitioners suggest that “Iowa is not alone,” but

they cite only a district court decision from Minnesota

that, they say, deemed Bormann “persuasive.” Pet.

35; see Overgaard v. Rock Cty. Bd. of Comm’rs, No. 02601, 2003 WL 21744235 (D. Minn. July 25, 2003). The

district judge in Overgaard, however, said only that

“[w]hile 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

WL 21744235, at *7. Far from embracing Bormann,

the district judge in Overgaard concluded that the

Minnesota law did not categorically bar nuisance

claims in any event, and it therefore reserved judgment on the significance of Bormann. Id. Overgaard

is thus of no help to petitioners.

Petitioners themselves acknowledge that the “divergent outcomes” in these cases are “based on

[S]tates’ unique property laws,” Pet. 35, yet insist on

national uniformity anyway, Pet. 35–36. But it is

well-established that state law “define[s] the range of

interests that qualify for protection as ‘property’ under the Fifth and Fourteenth Amendments.” Lucas v.

S.C. Coastal Council, 505 U.S. 1003, 1030 (1992) (citation omitted); see also Phillips v. Washington Legal

Foundation, 524 U.S. 156, 164 (1998) (“Because the

Constitution protects rather than creates property interests, the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as

state law.’” (quoting Board of Regents of State Colleges

v. Roth, 408 U.S. 567, 577 (1972))). The decision below

does not conflict with Bormann because the decisions

stem from significant differences in state property

law.

20

Nor would this be an appropriate case for resolving a conflict even if one did exist. The court below did

not say anything about Bormann, App. 20–23, because petitioners never cited the case, Appellants’ Br.

52–58. They also did not ask the court to reconsider

its prior decision rejecting Bormann’s analysis. Id. In

short, like their Loretto theory, petitioners’ Bormann

argument makes its untimely debut in this Court.

There is no reason for the Court to address it.

CONCLUSION

The Petition should be denied.

Respectfully submitted,

Office of the Attorney

General

IGC South, Fifth Floor

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

Dated: August 26, 2020

CURTIS T. HILL, JR.

Attorney General

THOMAS M. FISHER

Solicitor General*

AARON T. CRAFT

Section Chief,

Civil Appeals

KIAN J. HUDSON

Deputy Solicitor

General

JULIA C. PAYNE

Deputy Attorney

General