HB 1091:
Proposed legislation that is NOT about
preventing frivolous lawsuits
Presented by: Kim Ferraro
Water and Agriculture Policy Director
kferraro@hecweb.org
House Bill 1091
If a court finds that an agricultural operation that
is the subject of a nuisance action was not a
nuisance . . . and that the nuisance action was
frivolous, initiated maliciously, or groundless, the
court shall award the expenses of litigation,
including reasonable attorney's fees, to the
defendant in the action.
Ind. Code § 32-30-6-6: Definition of Nuisance
Whatever is injurious to health, indecent, offensive
to the senses, or 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.
The Common Law of Nuisance
“If the stopping of wholesome
air gives cause of action, a
fortiori an action lies in the case
at bar for infecting and
corrupting the air.”
William Aldred’s Case, Mich 8 Jacobi Regis.
(1610).
Hanes v. Continental
Grain, 58 SW 3d 1 (Mo.
App. 2001)
Family farmers and
small businesses sued
the second largest pork
producer in the U.S. for
creating the
unreasonable nuisance
of tens of thousands of
hogs at each of four
factory sites in Northern
Missouri.
What is a CAFO?
“a ghoulish glimpse
of what capitalism is
capable of in the
absence of critical
moral or regulatory
restraints.”
Michael Pollen, OMNIVORE’S
DILEMMA
The CAFO Dilemma
The CAFO Dilemma
Indiana’s CAFOs & CFOs
1,966 CFOs regulated under state law
628 CAFOs subject to federal regulation
Indiana’s CAFOs & CFOs
•
CAFOs responsible for 80% of
all livestock raised in Indiana
–
–
–
Cows/calves - 870,000
Hogs/pigs - 3.6 million
Poultry - 42 million
•
CAFOs produce 500 million
tons of manure annually
•
Human waste -150 million tons
annually
Is this waste regulated?
Unlined manure lagoon
for animal waste
Sewage treatment plant
for human waste
Regulation?
•
•
•
•
EPA?
IDEM?
Health Department?
Ordinances?
Nuisance Law Provides Opportunity for Relief
IC §32-30-6-7
An action to abate or enjoin a nuisance may be
brought by any person whose property is injuriously
affected; or personal enjoyment is lessened; by the
nuisance.
IC §32-30-6-8
If a proper case is made, the nuisance may be enjoined
or abated and damages recovered for the nuisance
But, there are a few obstacles…
Indiana’s Right to Farm
Act
Costs & Attorney fees
Litigation can take years
House Bill 1091
If a court finds that an agricultural operation that
is the subject of a nuisance action was not a
nuisance . . . and that the nuisance action was
frivolous, initiated maliciously, or groundless, the
court shall award the expenses of litigation,
including reasonable attorney's fees, to the
defendant in the action.
Frivolous lawsuits brought by people who move next to
CAFOs from urban areas?
Indiana Right to Farm Act - Ind. Code § 32-30-6-9
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.
Frivolous lawsuits by activists?
10 lawsuits filed in Indiana against
livestock operations in the last decade –
not one was dismissed for being frivolous.
Indiana law already provides protection against
frivolous lawsuits
Ind. Code §34-52-1-1(b):
In any civil action, the court may award attorney's fees as part
of the cost to the prevailing party, if the court finds that either
party:
(1) brought the action or defense on a claim or defense that is
frivolous, unreasonable, or groundless;
(2) continued to litigate the action or defense after the party's
claim or defense clearly became frivolous, unreasonable, or
groundless; or
(3) litigated the action in bad faith.
Indiana law already provides protection against
frivolous lawsuits
Ind. Rule of Professional Conduct 3.1:
A lawyer shall not bring or defend a proceeding, or
assert or controvert an issue therein, unless there is a
basis in law and fact for doing so that is not frivolous,
which includes a good faith argument for an extension,
modification or reversal of existing law.
So what’s the real reason?