Proposed legislation in the Indiana General Assembly appears crafted to give agricultural businesses special protections and could discourage citizens from exercising their right to access the courts.
House Bill 1091 was authored by Rep. William Friend, R-Macy, and co-sponsored by Rep. Donald Lehe, R-Brookston. It requires courts to award agricultural operations – such as confined animal feeding operations, or CAFOs – that are the subject of a nuisance lawsuit with payment of their legal fees. The proposed bill passed its second reading in the Committee on Agriculture and Rural Development on Friday.
One person who could benefit is Friend, a CAFO owner. He said he proposed the legislation because one of the recurring problems that comes up over and over is nuisance lawsuits. People try to delay or deter or cause extreme legal fees or just discourage someone who is trying to expand a facility, open a business or just exercise their private property rights.
The problem is, when it comes to discouraging nuisance lawsuits against any business, there are already laws on the books that apply to everyone, said Kim Ferraro, water and agricultural policy director for the Hoosier Environmental Council. Its unnecessary and simply serves to frighten people. It gives the CAFO industry special protection.
State law already allows awarding legal fees in the event of a frivolous lawsuit.
Ferraro said agricultural businesses, including CAFOs, are also protected specifically by the Indiana Right to Farms Act, which shields farmers from nuisance lawsuits.
Friend said his bill would change the law for CAFOs so that awarding legal fees is not left to the courts discretion. This one says the court shall award reasonable legal fees, he points out.
Friend said under this bill, if you persist in carrying out a lawsuit, you better be very certain you have good reason. The legal system is there for everyone. I dont want to discourage that.
Unfortunately, if the bill becomes law it likely would discourage people from exercising their legal rights.
This sends a strong message to trial judges that CAFOs are to be protected, Ferraro said. It adds a whole other level of threat to taking action against a CAFO. It would have a chilling effect.
Friends bill, as well as one proposed by Sen. Travis Holdman, R-Markle, indicates some state lawmakers want to give large agricultural operations preferential treatment. Holdmans bill would make it illegal to surreptitiously take video while visiting an agricultural operation.
They are videotaping when they see something bad going on – even if the farmer is working to rectify it, Holdman said.
Rather than hold an agricultural operation accountable if it is doing something wrong, Holdmans bill would punish the person filming the infraction.
Ferraro rightly observed that its a real dangerous precedent to set to protect one business above others.