Janet L. Himsel, Martin Richard Himsel, Robert J. Lannon, Susan M. Lannon v. Samuel Himsel, Cory M. Himsel, Clinton S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP and State of Indiana ( 2019 )


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  •                                                                           FILED
    Apr 22 2019, 5:29 am
    CLERK
    Indiana Supreme Court
    Court of Appeals
    and Tax Court
    ATTORNEYS FOR APPELLANTS                                    ATTORNEYS FOR APPELLEES
    Kim E. Ferraro                                              Christopher J. Braun
    Samuel J. Henderson                                         Jonathan P. Emenhiser
    Gary, Indiana                                               Justin A. Allen
    Indianapolis, Indiana
    ATTORNEYS FOR AMICUS CURIAE
    HENDRICKS COUNTY                                            ATTORNEYS FOR APPELLEES-
    INTERVENOR STATE OF INDIANA
    Gregory E. Steuerwald
    Graham T. Youngs                                            Curtis T. Hill, Jr.
    Danville, Indiana                                           Attorney General of Indiana
    ATTORNEY FOR AMICUS CURIAE                                  Aaron T. Craft
    THE INDIANA BANKERS ASSOCIATION                             Deputy Attorney General
    Martha R. Lehman                                            Indianapolis, Indiana
    Indianapolis, Indiana
    ATTORNEYS FOR AMICUS CURIAE
    INDIANA AGRICULTURAL LAW
    FOUNDATION, INC.
    Todd J. Janzen
    Brianna J. Schroeder
    Indianapolis, Indiana
    ATTORNEYS FOR AMICUS CURIAE
    INDIANA PORK PRODUCERS
    ASSOCIATION, INC.
    Daniel P. McInerny
    Andrew M. McNeil
    Indianapolis, Indiana
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                             Page 1 of 28
    IN THE
    COURT OF APPEALS OF INDIANA
    Janet L. Himsel, Martin Richard                             April 22, 2019
    Himsel, Robert J. Lannon, Susan                             Court of Appeals Case No.
    M. Lannon,                                                  18A-PL-645
    Appellants-Plaintiffs,                                      Appeal from the Hendricks
    Superior Court
    v.                                                  The Honorable Mark A. Smith,
    Judge
    Samuel Himsel, Cory M.                                      Trial Court Cause No.
    Himsel, Clinton S. Himsel, 4/9                              32D04-1510-PL-150
    Livestock, LLC and Co-Alliance,
    LLP,
    Appellees-Defendants,
    and
    State of Indiana,
    Appellee-Intervenor.
    Altice, Judge.
    Case Summary
    [1]   Martin Richard Himsel, Janet L. Himsel, Robert J. Lannon, and Susan M.
    Lannon (collectively, the Plaintiffs) filed a complaint, alleging nuisance,
    negligence, and trespass, against Samuel T. Himsel, Cory M. Himsel, Clinton
    S. Himsel, 4/9 Livestock, LLC, and Co-Alliance, LLP (collectively, the
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                       Page 2 of 28
    Defendants). Specifically, the Plaintiffs alleged in their complaint that the
    concentrated animal feeding operation (CAFO) placed on 4/9 Livestock’s
    property in 2013 created noxious odors that are so extreme as to greatly
    diminish the Plaintiffs’ quality of life, reduce their property values, and alter
    their daily activities. In their complaint, the Plaintiffs also challenged the
    constitutionality of Ind. Code § 32-30-6-9, which is commonly known as the
    Right to Farm Act (the RTFA), and Ind. Code § 15-11-2-6(a), 1 which requires
    the Indiana Code to be construed to “protect the rights of farmers to choose
    among all generally accepted farming and livestock production practices,
    including the use of ever changing technology.”
    [2]   The Defendants moved for summary judgment on all claims, and, thereafter,
    the Plaintiffs filed a motion for partial summary judgment regarding their
    constitutional challenges. Following a hearing, the trial court granted summary
    judgment in favor of Clinton, Cory, and Samuel Himsel (the Individual Himsel
    Defendants) but otherwise denied both motions for summary judgment. The
    Defendants filed a motion to correct error, once again seeking summary
    judgment on all claims against them. Amici curiae – the Indiana Agricultural
    Law Foundation (IALF) and Hendricks County – filed briefs in support of the
    Defendants’ motion to correct error. In addition to opposing the Defendants’
    1
    We will refer to this statute as the Agricultural Canon.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019          Page 3 of 28
    motion to correct error, the Plaintiffs asserted cross-error regarding the trial
    court’s grant of summary judgment to the Individual Himsel Defendants.
    [3]   The trial court granted the Defendants’ motion to correct error and then entered
    summary judgment in favor of the Defendants on all claims. On appeal, the
    Plaintiffs challenge the entry of summary judgment.
    [4]   We affirm.
    Facts & Procedural History
    [5]   Samuel Himsel has farmed in rural Hendricks County his entire life. His sons,
    Cory and Clinton, also make their living farming in the county. In 2012, the
    three decided to start a hog-raising operation, and, in January 2013, they
    formed 4/9 Livestock. The Individual Himsel Defendants are the sole
    members of 4/9 Livestock. The Individual Himsel Defendants decided to
    locate the 4/9 Livestock operation at 3042 North 425 West in Danville (the
    Farm), which property had been in their family for more than two decades.
    Samuel’s parents acquired this farmland in the early 1990s, and the land had
    been used for agricultural purposes since at least 1941. Between at least 1994
    and 2013, the Farm had been used consistently for crops.
    [6]   In February 2013, Samuel submitted a rezoning petition to the Hendricks
    County Area Plan Commission to rezone 58.42 acres of farmland on the Farm.
    The land was zoned agricultural residential (AGR), and Samuel petitioned for it
    to be rezoned agricultural intense (AGI), which allows for CAFOs. Following
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019          Page 4 of 28
    a public hearing on March 12, 2013, at which Richard Himsel spoke in
    opposition to the rezoning, the Plan Commission unanimously recommended
    approval of the requested rezoning. In doing so, the Plan Commission made
    the following written findings:
    (1) The comprehensive plan[:] The Commission finds that the
    proposal does substantially comply with the
    recommendations of the Hendricks County Comprehensive
    Plan…. The Comprehensive Plan expressly lists confined
    animal feeding operations as a recommended land use in the
    area under consideration.
    (2) Current conditions and the character of current structures
    and uses in each district[:] The Commission finds that the
    proposal is consistent and compatible with the character of
    current structures and uses in the zoning district…. The area
    is a well-established, longstanding agricultural community.
    Furthermore, the proposed use is an agricultural use expressly
    recognized in the current Comprehensive Plan.
    (3) The most desirable use for which the land in each district is
    adapted[:] The Commission finds that the proposal does
    represent the most desirable use for which the land is adapted.
    The 1983, 1998, and 2008 Comprehensive Plans have
    consistently recommended that the area be for agricultural
    use. This represents a longstanding community desire to see
    this area remain agricultural in character. The proposed use
    is expressly listed in the current Comprehensive Plan as a
    characteristic and desirable use in this area.
    (4) The conservation of property values throughout the
    jurisdiction[:] The Commission finds that the proposal does
    conserve property values….
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019         Page 5 of 28
    (5) Responsible development and growth[:] The Commission
    finds that the proposal does represent responsible
    development and growth. The area under consideration is an
    integral part of the historically rural agricultural west side of
    Hendricks County. The last three Comprehensive Plans have
    recognized this part of the County as being characteristically
    agricultural and have reserved the area for agricultural uses in
    the future. This reflects the County’s longstanding desire to,
    in general, plan for urbanization of its east side while
    maintaining the rural character of its agricultural west side.
    The proposal under consideration is consistent and
    compatible with the County’s long term land use planning
    goals.
    Appellants’ Appendix Vol. IV at 107-08.
    [7]   On March 26, 2013, the County Commissioners unanimously approved the
    rezoning and adopted the Plan Commission’s findings. After the property was
    rezoned, it was transferred from Samuel to 4/9 Livestock. The Plaintiffs did
    not appeal the rezoning decision. Thereafter, before improvement location
    permits were granted, the Plan Commission held two public hearings regarding
    the siting, design, and construction plans for the Farm’s CAFO, which included
    the construction of two 4000-hog production buildings. Additionally, in May
    2013, the Indiana Department of Environmental Management (IDEM)
    approved two permits to construct and operate the CAFO buildings on the
    Farm. The Plaintiffs did not appeal IDEM’s permit approvals.
    [8]   On July 1, 2013, 4/9 Livestock entered into a hog finishing contract with Co-
    Alliance. Under the contract, Co-Alliance would supply the hogs and 4/9
    Livestock would raise them. 4/9 Livestock was to operate as an independent
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019           Page 6 of 28
    contractor. Once fully grown, which was within about six months, the hogs
    would be shipped out of the CAFO by Co-Alliance and a new batch of young
    hogs would come into the CAFO. On July 19, 2013, 4/9 Livestock and PNC
    Bank entered into a convertible line of credit note for a seven-figure amount to
    finance the construction of the CAFO. Shortly after construction was
    completed, the CAFO buildings were populated with hogs on October 2, 2013.
    Since the CAFO began operating there have been no violations cited by either
    IDEM or Hendricks County relating to its operation.
    [9]    The Plaintiffs live in the immediate vicinity of the Farm. Richard and Janet
    Himsel (collectively, the Himsel Plaintiffs) moved into their home in 1994.
    Their home is on a farm where the Himsel Plaintiffs raised livestock and grew
    crops until 2000, when they retired and sold much of their farmland. Richard
    grew up on this farm, and the farmhouse has stood since 1926. Robert Lannon
    built his home in 1971 and married his wife Susan in 1974. They have never
    farmed on their property but are accustomed to the usual smells that come with
    living in farm country, having lived there for over forty years.
    [10]   The Farm and the Plaintiffs’ properties are located in western Hendricks
    County in an area that the county’s Board of Commissioners has expressly
    designated for agricultural purposes since the adoption of the county’s first
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019        Page 7 of 28
    comprehensive plan in 1983. 2 The nearest town is over five miles away, and
    the nearest residential subdivision is about two miles away.
    [11]   Agricultural uses have dominated in the area surrounding the Farm and the
    Plaintiffs’ properties. In addition to row crops, those uses have included raising
    livestock such as cattle, hogs, chicken, goats, and sheep. In fact, Richard
    Himsel and his father raised livestock, including 200 head of hogs and 200 head
    of cattle at a time, in the area directly adjacent to their home for years. For
    about two years, Richard had a confinement building on his property,
    approximately 700 feet from his home, that held up to 400 head of hogs. This
    building was destroyed by fire and not rebuilt. Another farmer, John Hardin,
    has a hog confined feeding operation located near the Plaintiffs’ properties.
    Hardin has been operating his hog farm for many years and periodically applies
    hog manure to fields as close as twenty feet from the Himsel Plaintiffs’ home.
    [12]   On October 6, 2015, the Plaintiffs filed the instant action raising claims of
    nuisance, negligence, and trespass against the Defendants and seeking a
    declaratory judgment that the Agricultural Canon is facially unconstitutional.
    The Defendants’ answer raised the RTFA as an affirmative defense. The State
    of Indiana intervened to defend the constitutionality of the challenged statute.
    2
    Similar plans were adopted in 1998 and 2008. Notably, the AGI zoning district was not created until the
    2008 comprehensive plan. The AGI district “serves to provide adequate and appropriate locations for intense
    agricultural uses such as CAFO’s [sic] or agricultural businesses that may emit intense odors, vibrations, air
    pollution, or other disruptions.” Appellants’ Appendix Vol. VIII at 22.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                Page 8 of 28
    Thereafter, the Plaintiffs amended their complaint to add as-applied
    constitutional challenges to application of the RTFA as a defense in this case.
    [13]   The Defendants moved for summary judgment with respect to all claims in
    November 2016, and the Plaintiffs then filed a motion for summary judgment
    on the constitutionality of the RTFA and the Agricultural Canon. The motions
    were extensively briefed and supported by a significant amount of designated
    evidence. On September 27, 2017, the trial court held a summary judgment
    hearing regarding both motions.
    [14]   On October 24, 2017, the trial court entered a summary judgment order with
    extensive findings and conclusions. The court granted summary judgment in
    favor of the Individual Himsel Defendants but otherwise denied the summary
    judgment motions. Thereafter, on November 22, 2017, the Defendants filed a
    motion to correct error. Briefs in support of the motion were filed by putative
    amici IALF and Hendricks County. The trial court granted the amici’s motions
    for leave to appear. Thereafter, on December 21, 2017, the Plaintiffs filed their
    response to the motion to correct error and asserted cross-error regarding the
    grant of summary judgment to the Individual Himsel Defendants.
    [15]   The trial court held a hearing on the motion to correct error on January 24,
    2018. Four days later, the trial court issued an order granting the motion to
    correct error, amending its prior conclusions, and granting summary judgment
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019       Page 9 of 28
    in favor of the Defendants on all claims. The Plaintiffs now appeal. 3
    Additional information will be provided below as needed.
    Standard of Review
    [16]   Summary judgment orders are reviewed de novo on appeal, and we apply the
    same standard of review as the trial court. Knighten v. E. Chicago Hous. Auth., 
    45 N.E.3d 788
    , 791 (Ind. 2015). The moving party must show there are no
    genuine issues of material fact and it is entitled to judgment as a matter of law.
    
    Id. In deciding
    whether summary judgment is proper, we consider only the
    designated evidence and construe all factual inferences in favor of the non-
    moving party. 
    Id. Discussion &
    Decision
    Application of the RTFA
    [17]   The Plaintiffs’ complaint alleges that their use and enjoyment of their homes, as
    well as their homes’ values, were ruined by noxious odors and airborne
    emissions coming from the CAFO. The RTFA, however, limits the
    circumstances under which agricultural operations 4 may be subject to nuisance
    claims. See I.C. § 32-30-6-9(d). The Defendants argue that the RTFA bars
    3
    Several amici curiae briefs have been filed in support of the Defendants and the State as intervenor. Amici
    include the IALF, Indiana Pork Producers Association, Inc., Hendricks County, and the Indiana Bankers
    Association.
    4
    I.C. § 32-30-6-1 defines “agricultural operation” to include “any facility used for the production of crops,
    livestock, poultry, livestock products, poultry products, or horticultural products or for growing timber.”
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                   Page 10 of 28
    Plaintiffs’ nuisance claim, as well as their other related claims. The material
    facts in this case are not in dispute. Rather, the disagreement centers on the
    legal effect of the facts and interpretation of subsection (d)(2) of the RTFA.
    [18]   The RTFA, I.C. § 32-30-6-9, provides in relevant part:
    (a) This section does not apply if a nuisance results from the
    negligent operation of an agricultural … operation….
    (b) The general assembly declares that it is the policy of the state
    to conserve, protect, and encourage the development and
    improvement of its agricultural land for the production of food
    and other agricultural products. 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.
    ***
    (d) An agricultural or industrial operation … is not and does not
    become a nuisance … by any changed conditions in the vicinity
    of the locality after the agricultural … operation … has been in
    operation continuously on the locality for more than one (1) year
    if the following conditions exist:
    (1) There is no significant change in the type of operation.
    A significant change in the type of agricultural operation
    does not include the following:
    (A) The conversion from one type of agricultural
    operation to another type of agricultural operation.
    (B) A change in the ownership or size of the
    agricultural operation.
    ….
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019            Page 11 of 28
    (D) Adoption of new technology by the agricultural
    operation.
    (2) The operation would not have been a nuisance at the
    time the agricultural … operation began on that locality.
    The Plaintiffs concede that the agricultural operation here has been in operation
    continuously for more than one year. Indeed, the record establishes that the
    farmland in question has been actively farmed for decades. The Plaintiffs also
    acknowledge that no significant change has occurred in the type of the
    agricultural operation at the Farm, as strictly defined under subsection (d)(1) of
    the RTFA. 5 See Parker v. Obert’s Legacy Dairy, LLC, 
    988 N.E.2d 319
    , 324 (Ind.
    Ct. App. 2013) (holding that cropland-to-CAFO conversion is not a significant
    change under the RTFA).
    [19]   The Plaintiffs contend that the RTFA is not a bar to their nuisance action,
    however, because the CAFO would have been a nuisance when farming
    originally began on the Farm. In other words, the Plaintiffs rely upon
    subsection (d)(2) of the RTFA, which requires that “[t]he operation would not
    have been a nuisance at the time the agricultural … operation began on that
    locality.”
    5
    Prior to an amendment to its current form in 2005, the RTFA required no significant change in the hours
    and type of operation. In addition to removing the no-significant-change-in-hours condition, the amendment
    set out a list of changes that do not amount to a significant change in the type of operation, including a change
    in the type of agricultural operation (i.e., changing from crops to livestock), a change of ownership or size of
    the operation, and the adoption of new technology. In light of the amendment, it is difficult to imagine what
    would constitute a significant change in the type of operation.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                  Page 12 of 28
    [20]   Contrary to the Plaintiffs’ suggestion on appeal, we need not determine
    precisely when farming originally began on the Farm. The designated evidence
    establishes that the land had been used for row crops since at least 1941. 6
    Further, the record clearly establishes that the Plaintiffs’ non-farming use of
    their properties began well after 1941. The Lannons built their non-farming
    residence in 1971, and the Himsel Plaintiffs began using their home as a non-
    farming residence in 2000 after deciding to retire and sell most of their acreage.
    [21]   “The [RTFA], by its plain terms, was intended to prohibit nonarigultural land
    uses from being the basis of a nuisance suit against an established agricultural
    operation.” TDM Farms, Inc. of North Carolina v. Wilhoite Family Farm, LLC, 
    969 N.E.2d 97
    , 111 (Ind. Ct. App. 2012). It is essentially a codification of the
    doctrine of coming to the nuisance. 
    Id. at 110;
    see also Shatto v. McNulty, 
    509 N.E.2d 897
    , 900 (Ind. Ct. App. 1987) (“People may not move to an established
    agricultural area and then maintain an action for nuisance against farmers
    because their senses are offended by the ordinary smells and activities which
    accompany agricultural pursuits.”). 7
    6
    During his deposition, Richard Himsel testified that the Farm had been used for farming his entire life and
    that prior to the CAFO the land had been used for “rotating crops, corn, soybeans, wheat, oats, probably had
    a year or two of hay in it when old Bill Wilder had it.” Appellants’ Appendix Vol. III at 191.
    7
    Applying the original version of the RTFA from 1981 (Ind. Code § 34-1-52-4), this court observed: “[P]ork
    production generates odors which cannot be prevented, and so long as the human race consumes pork,
    someone must tolerate the smell. [The RTFA] addresses that fundamental fact and protects pork production
    when it is confined to its natural habitat, that is, rural farm communities such as Jennings County.” 
    Shatto, 509 N.E.2d at 900
    .
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                               Page 13 of 28
    [22]   This is not a case where the Plaintiffs moved to the nuisance as that expression
    is typically understood. Indeed, the Farm did not change from crop farming to
    pig farming until well after the Lannons built their home and the Himsel
    Plaintiffs moved into theirs. Prior to the 2005 amendment to the RTFA, this
    would have constituted a significant change in the agricultural operation
    making the RTFA inapplicable. See Wendt v. Kerkhof, 
    594 N.E.2d 795
    , 798
    (Ind. Ct. App. 1992) (farm changed from decades of grain farming to hog
    farming five years after plaintiffs became adjacent landowners), trans. denied. As
    noted above, however, the Plaintiffs acknowledge that in light of the 2005
    amendment, the change in the agricultural operation here from crops to hogs
    did not constitute a significant change in the type of operation. See 
    Parker, 988 N.E.2d at 324
    (“By specifying that a conversion from one agricultural operation
    to another is not a significant change, the Act removes claims against existing
    farm operations that later undergo a transition from one type of agriculture to
    another.”). Thus, the coming to the nuisance doctrine, as applied by the
    RTFA, now encompasses coming to the potential future nuisance.
    [23]   Agricultural uses have dominated the landscape surrounding the Plaintiffs’
    properties, with a number of farmers in the area owning or having owned
    livestock. Richard Himsel, prior to retiring from farming, even had livestock on
    his property. The county’s Plan Commission and County Commissioners
    recognized the well-established, longstanding agricultural community in which
    the Farm was situated and indicated the county’s ongoing desire to maintain
    the rural character of Hendricks County’s agricultural west side. Further, the
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019       Page 14 of 28
    Comprehensive Plan for the area in question expressly lists CAFOs as a
    recommended land use.
    [24]   Robert Lannon knowingly built his residential home in the middle of farm
    country, and the Himsel Plaintiffs lived and farmed on their property for a
    number of years before selling off much of their land and changing the use of
    their home to purely residential. None of the Plaintiffs can now be heard to
    complain that their residential use of their property is being negatively impacted
    because the use of the Farm changed from crops to hogs, a use that would not
    have been a nuisance in or around 1941 when the agricultural operation began
    on the locality.
    [25]   The Plaintiffs contend that applying the RTFA in this manner will “have the
    extraordinary effect of removing any evidentiary burden by allowing CAFOs of
    any size to be built anywhere there is any history of agricultural activity.”
    Appellants’ Brief at 27 (emphases in original). We are not so sure. Moreover, we
    observe that requiring a defendant farmer to establish that his or her particular
    CAFO (rather than hog farming or CAFOs generally) would not have been a
    nuisance when the agricultural operation began on the locality would eviscerate
    the protections of the RTFA.
    [26]   The Plaintiffs’ argument also ignores the significant local and administrative
    hurdles a farmer must overcome before being allowed to build a CAFO. In this
    case, after a number of public hearings and notices to adjoining landowners, the
    Defendants obtained rezoning of the Farm and building permits from the
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019          Page 15 of 28
    county approving the specific siting, design, and construction plans for the
    CAFO’s two buildings. The Plaintiffs did not seek judicial review of these
    decisions by county officials. The Defendants also applied for permits from
    IDEM for the construction and operation of the CAFO. The Plaintiffs did not
    appeal issuance of these permits. The Plaintiffs were provided ample due
    process to challenge the size and/or placement of the CAFO buildings on the
    Farm, yet they decided instead to wait and file a nuisance action more than two
    years later. In light of the RTFA, they put their eggs in the wrong basket. Their
    general nuisance claim fails as a matter of law.
    [27]   The RTFA provides an exception where an alleged nuisance results from the
    negligent operation of the agricultural operation or its appurtenances. See I.C. §
    32-30-6-9(a). The designated evidence provides no indication that the CAFO
    has been negligently operated by 4/9 Livestock or has violated IDEM
    regulations. See Lindsey v. DeGroot, 
    898 N.E.2d 1251
    , 1260-62 (Ind. Ct. App.
    2009) (addressing alleged operational negligence based on violations of IDEM
    regulations and concluding, on summary judgment, that the violations were not
    the proximate cause of the alleged injury); see also Dalzell v. Country View Family
    Farms, LLC, 517 F. App’x 518, 520 (7th Cir. 2013) (“Unless the nuisance
    ‘results from’ the negligence, and not just from the agricultural operation, the
    Act applies and defeats plaintiffs’ claim.”). Further, we agree with the
    Defendants and amici that the Plaintiffs’ claim of negligent siting (i.e., the
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019         Page 16 of 28
    decision to build and operate a CAFO at a particular location) 8 cannot
    constitute negligent operation under the RTFA. If allowed, it would simply
    create an end run around the protections of the RTFA.
    [28]   The Plaintiffs also brought a trespass claim purportedly based on “the unlawful
    physical intrusion of the CAFO’s noxious emissions into their properties and
    homes.” Appellants’ Brief at 39. They allege that the emissions – “animal waste,
    air pollutants, harmful gases, and noxious odors” – are chemical compounds
    that result in a physical, space-filling invasion into their homes. Appellants’
    Appendix Vol. III at 10. Despite artful pleading, we observe that application of
    the RTFA does not turn on labels. The trial court properly concluded that the
    Plaintiffs’ trespass claim is barred by the RTFA. See Ehler v. LVDVD, L.C., 
    319 S.W.3d 817
    , 824 (Tex. Ct. App. 2010) (“Permitting the [plaintiffs] to avoid the
    application of [the Texas RTFA] by pleading a nuisance action as a trespass
    would eviscerate the statute and deny [the defendants] the protection intended
    by the Legislature when it passed the Right to Farm Act.”).
    Constitutional Claims
    [29]   The Plaintiffs contend that the RTFA is unconstitutional as applied to them
    because it violates the Open Courts Clause, the Takings Clause, and the Equal
    8
    The Plaintiffs assert that “the CAFO Operators negligently sited, designed and built their 8,000-hog CAFO
    in an inappropriate location” and have continued to operate the CAFO “despite the now unmistakable effect
    on their neighbors”. Appellants’ Brief at 34. They claim that the Defendants had a duty to take reasonable
    care to “keep emissions of their CAFO from injuring their neighbors.” 
    Id. at 35.
    We reject the Plaintiffs’
    attempt to repackage their nuisance claim to avoid the effects of the RTFA.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                             Page 17 of 28
    Privileges and Immunities Clause of the Indiana Constitution, as well as the
    federal Takings Clause. In sum, they assert that application of the RTFA has
    deprived them of their ability to enforce their long-vested property rights in their
    homes. The Plaintiffs also assert a facial challenge to the Agricultural Canon.
    [30]   We review the constitutionality of a statute de novo. See Tyson v. State, 
    51 N.E.3d 88
    , 90 (Ind. 2016). Statutes come before us “clothed with the
    presumption of constitutionality until clearly overcome by a contrary showing.”
    Zoeller v. Sweeney, 
    19 N.E.3d 749
    , 751 (Ind. 2014). “The party challenging the
    constitutionality of a statute bears the burden of proof, and all doubts are
    resolved against that party and in favor of the legislature.” 
    Id. Open Courts
    Clause
    [31]   The Plaintiffs first contend that the RTFA violates the Open Courts Clause,
    Article 1, Section 12 of the Indiana Constitution, which provides in relevant
    part: “All courts shall be open; and every person, for injury done to him in his
    person, property, or reputation, shall have remedy by due course of law.” Our
    Supreme Court has made clear that this clause “does not prohibit all conditions
    on access to the courts, but it does prevent the legislature from arbitrarily or
    unreasonably denying access to the courts.” KS&E Sports v. Runnels, 
    72 N.E.3d 892
    , 905 (Ind. 2017).
    The right of access presupposes an underlying cause of action to
    which the right of access attaches and for which the law affords a
    remedy. The legislature has wide latitude in defining the
    existence and scope of a cause of action and in prescribing the
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019         Page 18 of 28
    available remedy. In McIntosh v. Melroe Co., 
    729 N.E.2d 972
    (Ind.
    2000), we reaffirmed the legislature’s longstanding prerogative
    “to modify or abrogate the common law.” 
    Id. at 977
    (citations
    omitted). An important corollary is that “[i]f the law provides no
    remedy, [Article 1,] Section 12 does not require that there be
    one.” 
    Id. at 979.
    Id. at 906.
    
    [32]   The Plaintiffs assert that they have a vested right to use and enjoy their property
    and that the RTFA has been unconstitutionally applied to deny their access to
    the courts to enforce that right. This argument misses the mark. The Open
    Courts Clause does not require the substantive law to provide a remedy, and
    individuals have no vested or property right in any rule of common law. 9
    
    McIntosh, 729 N.E.2d at 978
    . Accordingly, “the General Assembly can make
    substantial changes to the existing law without infringing on citizen rights.” 
    Id. [33] Here,
    the legislature has exercised its broad discretion and modified the
    substantive law of nuisance by eliminating a nuisance cause of action against
    agricultural operations except where the alleged nuisance is the result of
    negligent operation or where the conditions of I.C. § 32-30-6-9(d) are not met.
    9
    The Plaintiffs curiously direct us to Martin v. Richey, 
    711 N.E.2d 1273
    (Ind. 1999), to support their claim
    that they have a vested right to pursue a nuisance claim to protect their properties. Martin, however, is
    inapposite. In that case, the Supreme Court observed, “it cannot be questioned that, had plaintiff filed her
    medical malpractice claim within the two-year period, she could have pursued her otherwise valid tort
    claim.” 
    Id. at 1283.
    In this case, however, the Plaintiffs never had a valid tort claim because the facts
    underlying their nuisance claim occurred well after the RTFA went into effect and barred such a claim.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                 Page 19 of 28
    The RTFA is rational and falls comfortably within the legislature’s legitimate
    constitutional authority.
    Takings Clauses
    [34]   Article 1, Section 21 of the Indiana Constitution provides in part: “No person’s
    property shall be taken by law, without just compensation; nor, except in case
    of the State, without such compensation first assessed and tendered.” The Fifth
    Amendment to the United States Constitution, applicable to the states through
    the Fourteenth Amendment, includes the same proscription against the taking
    of property without just compensation. 
    Lindsey, 898 N.E.2d at 1257-58
    . We
    construe and analyze the “textually indistinguishable” takings clauses
    identically. See Redington v. State, 
    992 N.E.2d 823
    , 835 (Ind. Ct. App. 2013),
    trans. denied; see also State v. Kimco of Evansville, Inc., 
    902 N.E.2d 206
    , 211-12
    (Ind. 2009) (“our state constitutional takings analysis is the same as federal
    constitutional eminent domain law”), cert. denied.
    [35]   “To be a taking in the constitutional sense, the state action at issue must be
    more than a consequential limitation on the use or enjoyment of property; a
    taking involves an actual interference with a property right.” 
    Lindsey, 898 N.E.2d at 1258
    (rejecting plaintiffs’ argument that the RTFA amounts to an
    unconstitutional taking because the act essentially awarded the defendant a
    nuisance easement over their property). In this case, the Plaintiffs assert a
    regulatory takings claim, as they acknowledge that there has been no direct
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019           Page 20 of 28
    seizure of their property. 10 Regulation, however, effects a taking only where it
    “deprives an owner of all or substantially all economic or productive use of his
    or her property.” Biddle v. BAA Indianapolis, LLC, 
    860 N.E.2d 570
    , 577 (Ind.
    2007) (citing Lingle v. Chevron U.S.A., Inc., 
    544 U.S. 528
    , 538-40 (2005)); see also
    
    Lingle, 544 U.S. at 539
    (“our regulatory takings jurisprudence…aims to identify
    regulatory actions that are functionally equivalent to the classic taking in which
    government directly appropriates private property or outs the owner from his
    domain”). “Factors considered under the foregoing test include the economic
    impact of the regulation on the property owner, the extent to which the
    regulation has interfered with distinct investment-backed expectations, and the
    character of the government action.” 
    Kimco, 902 N.E.2d at 211
    (citing Penn
    Cent. Transp. Co. v. New York City, 
    438 U.S. 104
    , 124 (1978)).
    [36]   The State, as intervenor, asserts that a constitutional taking occurs only where
    the government, as opposed to a private party, directly or proximately causes
    the interference with the claimant’s property. The State argues further that the
    Plaintiffs have no property interest in a particular cause of action or remedy.
    We find the State’s argument compelling, but we need not make a
    determination in this regard because, even considering the regulatory takings
    factors, the Plaintiffs lose.
    10
    The Plaintiffs’ reliance on Arkansas Game & Fish Comm’n v. U.S., 
    568 U.S. 23
    (2012), and other similar
    flooding cases, is misguided and improperly conflates physical takings with regulatory takings. See 
    id. (addressing recurrent
    government-induced flooding invasions and holding that such temporary physical
    occupations can constitute a compensable taking of property).
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                Page 21 of 28
    [37]   In Biddle, homeowners near the Indianapolis International Airport (owned by a
    municipal corporation) claimed that airplanes flying over their homes
    constituted a regulatory taking because the noise disturbed the use and
    enjoyment of their properties “by disrupting activities such as sleeping, talking,
    watching television or listening to the radio, hosting outdoor parties, reading,
    and opening 
    windows.” 860 N.E.2d at 573
    . Additionally, the homeowners
    claimed that their property values had decreased up to thirty-three percent. Our
    Supreme Court affirmed the grant of summary judgment in favor of the airport.
    In concluding as a matter of law that the aircraft noise had not effected a taking,
    the Court acknowledged that the noise was “no doubt considerable” but found
    that it did not “amount to a ‘practical destruction’ or ‘substantial impairment’
    of Homeowners’ use of their property.” 
    Id. at 580.
    The Court continued,
    “Homeowners still make many valuable uses of their properties in spite of the
    noise.” 
    Id. [38] Similarly,
    here, the Plaintiffs have not been deprived of all or substantially all
    economic or productive use of their properties. The designated evidence reveals
    that the Plaintiffs’ properties have retained significant economic value. Indeed,
    their own expert valued the Lannons’ property at $51,500 (at an estimated 60%
    loss in value) and the Himsel Plaintiffs’ property at $181,2000 (at an estimated
    49.5% loss in value) with the CAFO nearby. Cf. Penn. 
    Cent., 438 U.S. at 131
    (with respect to land-use regulations, reasonably related to the promotion of the
    general welfare, diminution in property value, standing alone, does not
    establish a taking); Euclid v. Ambler Realty Co., 
    272 U.S. 365
    (1926) (75%
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019         Page 22 of 28
    diminution in value caused by zoning law not found to be a taking). Moreover,
    they continue to reside in their residences, making valuable use of their
    properties, and have alleged no distinct, investment-backed expectations that
    have been frustrated by the CAFO. Finally, with respect to the character of the
    governmental action, we do not agree with the Plaintiffs that the RTFA has
    permitted a physical invasion of their property. While their property rights are
    clearly affected by application of the RTFA, the Plaintiffs cannot dispute that
    the regulation is reasonably related to the promotion of the common good. In
    sum, we conclude that the odorous emissions from 4/9 Livestock’s CAFO do
    not effect a taking.
    Privileges and Immunities Clause
    [39]   Article 1, Section 23 of the Indiana Constitution provides: “The General
    Assembly shall not grant to any citizen, or class of citizens, privileges or
    immunities, which, upon the same terms, shall not equally belong to all
    citizens.” Our Supreme Court has set out a two-part standard for determining a
    statute’s validity where the statute grants unequal privileges or immunities to
    differing classes of persons.
    First, the disparate treatment accorded by the legislation must be
    reasonably related to inherent characteristics which distinguish
    the unequally treated classes. Second, the preferential treatment
    must be uniformly applicable and equally available to all persons
    similarly situated. Finally, in determining whether a statute
    complies with or violates Section 23, courts must exercise
    substantial deference to legislative discretion.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019         Page 23 of 28
    Collins v. Day, 
    644 N.E.2d 72
    , 80 (Ind. 1994); see also Whistle Stop Inn, Inc. v. City
    of Indianapolis, 
    51 N.E.3d 195
    , 198 (Ind. 2016). Presuming the statute to be
    constitutional, we place the burden on the challenger to “negative every
    conceivable basis which might have supported the classification.” 
    Collins, 644 N.E.2d at 80
    . Classification under Section 23 is primarily a legislative question,
    and it becomes a judicial question only where the lines drawn by the legislature
    appear arbitrary or manifestly unreasonable. 
    Id. [40] The
    Plaintiffs assert that the RTFA splits county dwellers into two camps: (1)
    those currently engaged in agricultural operations on land that has been
    consistently farmed for at least the last year and (2) all others who live in the
    county. Those in the first group may sue those in either group for nuisance,
    while those in the second group may only sue those in their own non-farming
    group for nuisance.
    [41]   Indeed, the RTFA affords preferential treatment to farmers, under certain
    statutory conditions, by conferring immunity from nuisance suits that are not
    based on operational negligence. 11 The RTFA, itself, explains the policy behind
    this disparate treatment:
    The general assembly declares that it is the policy of the state to
    conserve, protect, and encourage the development and
    improvement of its agricultural land for the production of food
    11
    While the Act also applies to protect industrial operations from nuisance suits, it provides broader
    immunity to agricultural operations. See I.C. § 32-30-6-9(d)(1) (providing a list of changes that, for
    agricultural operations, do not constitute a significant change in the type of operation).
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                Page 24 of 28
    and other agricultural products. 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.
    I.C. § 32-30-6-9(b). This rationale provides a reasonable basis for treating
    farmers differently than their non-farming neighbors. 12 Cf. KS&E 
    Sports, 72 N.E.3d at 906-07
    (“One explanation may be that the legislature … perceived
    that recent lawsuits against the firearms industry threatened its stability and
    jeopardized the continued availability of firearms even to law-abiding citizens
    wishing to exercise their Second Amendment. This rationale would provide a
    reasonable basis for treating sellers of firearms, which face such litigation
    threats, differently than sellers of knives, which do not.”). With respect to the
    second prong of the Collins test, we conclude that the RTFA’s preferential
    treatment is uniformly and equally available to all agricultural operations and
    although agricultural operations are treated differently under the RTFA than
    12
    The Plaintiffs note prior cases in which we have held that the RTFA does not apply between two farmers.
    See TDM 
    Farms, 969 N.E.2d at 110
    (“the Act does not apply in this action between two established farming
    operations”); Stickdorn v. Zook, 
    957 N.E.2d 1014
    , 1016 n.5 (Ind. Ct. App. 2011) (the RTFA “has no
    applicability to the manner in which two farmers…conduct their operations). The Plaintiffs claim that the
    Himsel Plaintiffs could have brought this action if only they had not retired from farming in 2000 and that
    this fact makes the disparate treatment arbitrary. This is incorrect. The RTFA still applies where one farmer
    asserts nonagricultural land uses as the basis of his or her nuisance suit against another farmer. See 
    Parker, 988 N.E.2d at 323
    .
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019                                Page 25 of 28
    industrial operations, the two are not similarly situated and the express intent of
    the RTFA is to protect agricultural land. The RTFA does not violate Article 1,
    Section 23.
    Constitutional Challenge to the Agricultural Canon
    [42]   The Agricultural Canon, enacted in 2014, provides:
    The general assembly declares that it is the policy of the state to
    conserve, protect, and encourage the development and
    improvement of agriculture, agricultural businesses, and
    agricultural land for the production of food, fuel, fiber, and other
    agricultural products. The Indiana Code shall be construed to
    protect the rights of farmers to choose among all generally
    accepted farming and livestock production practices, including
    the use of ever changing technology.
    I.C. § 15-11-2-6(a). The Plaintiffs contend that the Agricultural Canon is
    unconstitutional for various reasons.
    [43]   The Agricultural Canon is a rule of statutory construction signaling the
    legislature’s intent to courts called upon to construe ambiguous statutes
    affecting farmers. In other words, where a statute is clear and unambiguous,
    the Agricultural Canon will not be applied. Cf. Crowel v. Marshall Cty. Drainage
    Bd., 
    971 N.E.2d 638
    , 646 (Ind. 2012) (“where the statute is clear and
    unambiguous, we apply it as drafted without resort to the nuanced principles of
    statutory interpretation”). Further, our primary goal in applying a statute is
    always to ascertain and give effect to the legislature’s intent. See 
    id. at 645.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019          Page 26 of 28
    [44]   Through the RTFA, the legislature spoke clearly and unambiguously regarding
    its intent to protect the rights of farmers by limiting the circumstances under
    which farmers are subject to nuisance actions. This includes protecting
    agricultural operations that change from one type of agricultural operation to
    another or that adopt new technology. Given the clear language of the RTFA,
    this is not a case in which the Agricultural Canon needs to be applied. See
    KS&E 
    Sports, 72 N.E.2d at 898
    (“before interpreting a statute, we consider
    ‘whether the Legislature has spoken clearly and unambiguously on the point in
    question’”) (quoting Basileh v. Alghusain, 
    912 N.E.2d 814
    , 821 (Ind. 2009)).
    Accordingly, we do not address the various constitutional challenges raised by
    the Plaintiffs regarding the Agricultural Canon. See Barlow v. Sipes, 
    744 N.E.2d 1
    , 6 n.1 (Ind. Ct. App. 2001) (“Indiana has long adhered to the doctrine of
    judicial restraint” where “a constitutional question will not be anticipated in
    advance of the necessity of deciding the constitutional issue”), trans. denied.
    Conclusion
    [45]   We hold that the Plaintiffs’ nuisance and repackaged negligence and trespass
    claims are barred by the RTFA. Further, the Plaintiffs’ various claims that the
    RTFA is unconstitutional are unavailing, and we do not reach the question of
    the constitutionality of the Agricultural Canon due to judicial restraint. The
    trial court properly granted summary judgment in favor of the Defendants on
    all claims.
    [46]   Judgment affirmed.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019         Page 27 of 28
    Brown, J. and Tavitas, J., concur.
    Court of Appeals of Indiana | Opinion 18A-PL-645 | April 22, 2019   Page 28 of 28