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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.

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HB 1091:Proposed legislation that is NOT about preventing frivolous lawsuits Presented by: Kim FerraroWater and Agriculture Policy Directorkferraro@hecweb.org

house bill 1091
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
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
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
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
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

indiana s cafos cfos
Indiana’s CAFOs & CFOs

1,966 CFOs regulated under state law

628 CAFOs subject to federal regulation

indiana s cafos cfos10
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
Is this waste regulated?

Unlined manure lagoon for animal waste

Sewage treatment plant for human waste

regulation
Regulation?
  • EPA?
  • IDEM?
  • Health Department?
  • Ordinances?
nuisance law provides opportunity for relief
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
But, there are a few obstacles…

Indiana’s Right to Farm Act

Costs & Attorney fees

Litigation can take years

house bill 109115
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
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
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
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 lawsuits19
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.