Here's a cert petition that we've been waiting to drop in a case we've been following. This one asks whether a state legislature's virtual elimination of a cause of action is a taking.
The harsh reality is that farms and ranches can stink. But in Right to Farm Acts, many state legislatures, Indiana's included, have concluded that farming and ranching are so important that the consequences ("negative externalities") that naturally occur have to be accepted. One Indiana court summed up Right to Farm Acts as well as anyone when it noted, "so long as the human race consumes pork, someone must tolerate the smell." Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987). Let's call it a "stink easement."
Indiana's version stands somewhat apart from others, however. Like many other states, it bars lawsuits which assert that a long-standing agricultural operation is a nuisance, as long as the ag operation hasn't "significantly changed." Most RTF acts define "significant change" as, for example, a change in the type of operation, or a farm's operating hours. But the Indiana statute defines "significant change" in a way that excludes these type of changes, thus allowing them.
That's what happened in this case. In 2013, a property owner whose land was zoned for mixed agricultural and residental uses rezoned it to "AGI-Agriculture Intense" and opened up a CAFO (concentrated animal feeding operation). A really big hog raising operation. Two downwind owners whose lands had been in their families for generations, sued for trespass and nuisance, arguing that to bar these claims would be a taking. Trial court dismissed, and the Indiana Court of Appeals affirmed.
The court of appeals concluded this was not a physical invasion, and analyzed ita s Penn Central regulatory takings claim. Because the economic impact was severe (but not total), the plaintiffs lost. The Indiana Supreme Court denied review, leading to the cert petition.
Here's the Question Presented:
Does a state statute violate the Takings Clause of the United States Constitution when it provides complete immunity from nuisance and trespass liability for an industrial-scale hog facility newly sited next to long-standing family homes, even though the facility causes noxious waste substances to continuously invade those homes, making it impossible for the families to use and enjoy their properties where they have lived for decades?
Check it out. There's a lot of layers. Is this a physical invasion? The total wipeout of a fundamental "stick?" There's Roman law. And Blackstone, and a strong federalism thread. There's a prominent "judicial takings" vibe in this, too. But make no mistake: this one doesn't seem as much pro-property as it is anti-CAFO. With a claim that the Indiana Legislature ipse dixet-ed property and nuisance law, the petition surprisingly does not cite cases like Webb's Fabulous Pharmacy, Hughes v. Washington, Miller v. Schoene, Causby, or Hodel v. Irving).
When presented with these type of questions, the Supreme Court has tended to either avoid the issue (PruneYard, Stop the Beach), or issue narrow rulings (Hodel, Lucas, Webb's Fabulous Pharmacy, for example).
To us, the most interesting assertion in the petition is towards the end, where the petitioners make the argument that the Supremacy Clause requires some uniformity on property law:
These divergent outcomes based on states’ unique property laws are themselves reasons for this Court to review this matter. Under the Supremacy Clause, U.S. Const. art. VI, ¶ 2, whether a government action is a takings does not depend on the peculiarities of each state’s property laws. See, e.g., Lucas, 505 U.S. at 1033 (“If the Takings Clause is to protect against temporary deprivations, as well as permanent ones, its enforcement must not be frustrated by a shifting background of state law.”) (Kennedy, J., concurring). Thus, if barring nuisance or trespass suits against a CAFO violates the Constitution in one state, then it should do so in all states. Indeed, if it were otherwise, Iowa’s state legislature could simply rewrite its state’s property laws such that the same invasion causing the same harm would no longer represent a takings. Surely such end-runs around constitutional requirements should not be countenanced.
Pet. at 35-36.
More on the petition here: "Right to farm: Indiana families ask U.S. Supreme Court to weigh in on case over factory farm."
Stay tuned, or follow along with the case on the Court's electronic docket here.
Petition for a Writ of Certiorari, Himsel v. 4/9 Livestock, LLC, No. 20-72 (July 17, 2020)
