HB 1091: Proposed legislation that is NOT about preventing frivolous lawsuits Presented by: Kim Ferraro Water and Agriculture Policy Director

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 § : 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

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 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 § 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 § 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 § 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 § (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?