COOK et al v. COUNTRY VIEW FAMILY FARMS, LLC et al

Filing 232

ENTRY ON MOTION FOR SUMMARY JUDGMENT: For the reasons set forth above, the Defendants' motion for summary judgment is GRANTED in its entirety. Judgment will be entered in favor of the Defendants on all of the Plaintiffs' claims ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 9/13/2012. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RALPH DALZELL, SR., et al.,
Plaintiffs,
vs.
COUNTRY VIEW FAMILY FARMS, LLC,
et al.,
Defendants.

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) CAUSE NO. 1:09-cv-1567-WTL-MJD
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ENTRY ON MOTION FOR SUMMARY JUDGMENT
This cause is before the Court on the motion for summary judgment filed by all of
remaining Defendants,1 namely Country View Family Farms, LLC, Donbar Investments, LLC,
and Don Leis (hereinafter collectively referred to as “the Defendants”), as to all of the Plaintiffs’
claims. The motion is fully briefed and the Court, being duly advised, GRANTS the motion for
the reasons set forth below.
I. STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” In ruling on a motion for summary judgment, the
admissible evidence presented by the non-moving party must be believed and all reasonable
inferences must be drawn in the non-movant’s favor. Hemsworth v. Quotesmith.com, Inc., 476
F.3d 487, 490 (7th Cir. 2007); Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (“We view
the record in the light most favorable to the nonmoving party and draw all reasonable inferences

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Two of the Defendants in this case have been dismissed. One of them is the Clemens
Family Corporation, which joined in the instant motion before being dismissed.

in that party’s favor.”). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Id. Finally, the non-moving
party bears the burden of specifically identifying the relevant evidence of record, and “the court
is not required to scour the record in search of evidence to defeat a motion for summary
judgment.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001).
II. FACTUAL BACKGROUND
The following facts are not in dispute for purposes of this motion and are set forth herein
to familiarize the reader with the background out of which this case arises. The particular facts
that are at the center of the parties’ arguments are discussed in detail in the Discussion section
below.
Sky View Farms (“Sky View”) is a Concentrated Animal Feeding Operation—what the
layperson would refer to as a pig farm—in Randolph County, Indiana. Defendant Don Leis
purchased the land on which Sky View is located (“the Property”) in April 2005. The previous
owner had been using the Property to grow corn and bean crops, and Leis continued to do so
when he purchased it. In August 2006, Donbar Investments, LLC, (“Donbar”), of which Leis is
a member, became the owner of the Property. Defendant Country View Family Farms, LLC,
(“Country View”) leases Sky View’s barns from Donbar and operates them.2
In 2006, Sky View was approved by the Indiana Department of Environmental
Management to be operated as a “2800 head” sow unit, which means it is permitted to house

2

The Court recognizes that the Plaintiffs allege that Leis and/or Donbar have
responsibility for some facets of the operation of Sky View’s barns. The Court does not mean to
imply that Country View is solely responsible for all aspects of the operation of barns; the
distinction is not relevant to the Court’s resolution of the instant motion.
2

2800 sows/gilts, 400 sows and litters, and 400 finish hogs. Sows were first moved into Sky
View in April 2007.
Each of the Plaintiffs lived in the vicinity of the Property at the time the Sky View began
its operation as a pig farm and each moved in prior to 2005. Since Sky View began operation, the
Plaintiffs have been unable to enjoy their property due to strong noxious odors coming from the
pig farm.
III. DISCUSSION
The Plaintiffs allege that the odors emanating from Sky View onto their properties3
constitute a nuisance.4 Indiana law provides:
Whatever is:
(1) injurious to health;
(2) indecent;
(3) offensive to the senses; or
(4) 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.
Ind. Code 32-30-6-6. However, Indiana law limits the ability to bring a nuisance action against
an agricultural operation. The Indiana Right to Farm Act (“the Act”) provides:
(d) An agricultural or industrial operation or any of its appurtenances is not and
does not become a nuisance, private or public, by any changed conditions in the
vicinity of the locality after the agricultural or industrial operation, as the case

3

The Defendants raise various issues regarding when some of the Plaintiffs owned and/or
lived on the various properties that are allegedly affected by odors from Sky View. In light of
the Court’s ruling, these issues need not be resolved.
4
The Plaintiffs originally alleged that Sky View’s operations also attracted flies, insects,
and coyotes that constituted a nuisance on their properties, but in response to the instant motion
they have withdrawn that claim.
3

may be, 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.
***
(D) Adoption of new technology by the agricultural
operation.
(2) The operation would not have been a nuisance at the time the
agricultural or industrial operation began on that locality.
Ind. Code 32-30-6-9(d). The Defendants assert that the Act bars the Plaintiffs’ nuisance action
against them.
A.

Application of the Indiana Right to Farm Act

The Defendants have the burden of demonstrating that the conditions of the Act are
satisfied. Molargik v. West Enterprises, Inc., 605 N.E.2d 1197, 1199 (Ind. App. 1993) (holding
the Act is an affirmative defense). The undisputed evidence of record demonstrates that the
property on which Sky View is located (hereinafter referred to as “the Property”) has been an
agricultural operation5 continuously6 since at least 2005 when Leis purchased the property and
began to grow crops on it. See Leis Supplemental Affidavit at ¶ 7. The Plaintiffs argue that the

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“Agricultural operation” is defined as “any facility used for the production of crops,
livestock, poultry, livestock products, poultry products, or horticultural products or for growing
timber.” Ind. Code 32-30-6-1.
6
Ind. Code 32-30-6-9 (c) provides: “For purposes of this section, the continuity of an
agricultural or industrial operation shall be considered to have been interrupted when the
operation has been discontinued for more than one (1) year.”
4

appropriate question is not when any agricultural operation began on the Property, but rather
when the specific agricultural operation at issue—in this case the pig farm—began. That
argument certainly has logical appeal, but it finds no support in the language of the Act.
Subsection (d) of the Act refers to “[a]n agricultural . . . operation . . . [that] has been in operation
continuously on the locality for more than (1) year.” It then expressly defines a “significant
change in the type of operation” as excluding a “conversion from one type of agricultural
operation to another type of agricultural operation.” This provision would be rendered
meaningless if the Plaintiffs’ argument were accepted, because each time the way in which a
locality was used was changed “the agricultural operation” would cease to exist and a new
agricultural operation would be created; there could never be an agricultural operation that
changed from one type of agricultural operation to another. Rather, the Act must be read to
mean that if “an agricultural operation”—in this case, a farm raising crops—exists in a
locality7—in this case the Property—that “agricultural operation” still exists even if it is changed
to another type of agricultural operation—in this case, a pig farm. Accordingly, the Court
concludes that the Defendants have satisfied their burden of demonstrating that the Property has
been “an agricultural operation” continuously since at least 2005.
None of the cases cited by the Plaintiffs compel a different conclusion. The court in
Lindsey v. DeGroot, 898 N.E.2d 1251 (Ind. App. 2009), did, as the Plaintiffs represent in their
brief, discuss only the length of time the defendants had operated their dairy farm, rather than the
total length of time the property had been used for agricultural purposes. However, the

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“Locality” is defined as “the specific area of land upon which an agricultural operation .
. . is conducted.” Ind. Code 32-30-6-3.
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distinction was not an issue in the case and was irrelevant to the court’s analysis.8 In Stickdorn v.
Zook, 957 N.E.2d 1014 (Ind. App. 2011), the court determined that the Act was inapplicable to
the case before it for reasons wholly unrelated to the length of time the property at issue had
been an agricultural operation. The court in Wendt v. Kerkhof, 594 N.E.2d 795 (Ind. App. 1992),
held that the Act is a codification of the “coming to the nuisance” doctrine that applies only in
cases in which “an agricultural operation has been in existence for more than one year and then
someone becomes an adjacent landowner and claims nuisance.” This reading of the Act is
entirely reasonable, especially in light of the stated reason behind it:
(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.
Ind. Code 32-30-6-9(b) (emphasis added). However, the Plaintiffs do not ask this Court to so
read the Act, and Indiana cases have not consistently done so. See, e.g., Lindsey, 898 N.E.2d at
1251.
Next, the Plaintiffs argue that the Defendants have failed to satisfy their burden with
regard to the other two conditions for application of the Act. First, there can have been “no
significant change in the type of operation” on the Property. The Plaintiffs argue that “the
Defendants have failed to present any evidence concerning this matter and, instead, only point to
a provision in the statute which implies that changing from crops to animals does not constitute a

8

Similarly, in this case it is irrelevant whether and for how long prior to 2005 the
Property was a continuous agricultural operation.
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significant change.” Plaintiffs’ Response at 34. However, the only allegation in this case is that
the Property was converted from a crop farm to a pig farm, and the Defendants are correct that
the Act specifically excludes that type of change from the definition of “significant change.” It is
unclear what additional evidence the Plaintiffs believe the Defendants should have presented on
this issue. An affidavit stating that “no significant change has occurred” would be objectionable
because it would be a legal conclusion, and it would be impossible for the Defendants to compile
a list of all of the possible significant changes that could have occurred on the Property and
present evidence that none of them did. Rather, the Defendants have described what occurred at
the Property—the conversion from crop farm to pig farm—and argued (correctly) that the Act
does not consider that to be a “significant change.” Without any suggestion that some other
“significant change in the type of operation” has occurred on the Property, the Defendants have
satisfied their burden with regard to this element.
Finally, the Act requires that “[t]he operation would not have been a nuisance at the time
the agricultural . . . operation began on that locality.” Ind. Code 32-30-6-9(d)(2). The Plaintiffs
argue that this provision requires the Defendants to prove that the pig farm was not a nuisance at
the time it began operation in April 2007. Again, the Court disagrees that the Act can be read in
this manner. As explained above, the phrase “the agricultural operation” when it is used earlier in
subsection (d) must be read as referring to one “agricultural operation” that exists until either a
significant change is made or until continuity of operations is broken. It is a “normal rule of
statutory construction that identical words used in different parts of the same act are intended to
have the same meaning.” Arnett v. C.I.R. 473 F.3d 790, 798 (7th Cir. 2007) (citations omitted).
When the legislature again uses the phrases “the agricultural operation” and “the operation” in
subsection (d)(2), they cannot then be read to refer to the agricultural operation as it existed after

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a conversion from one type of to another when it so clearly does not have that meaning earlier in
the same section.
Indeed, Laux v. Chopin Land Assocs., Inc., 550 N.E.2d 100 (Ind. App. 1990), the case
cited by the Plaintiffs in support of their argument on this issue, supports this analysis. The court
in Laux noted that the Act as it then existed removed the bar to a nuisance suit “where there has
been either a significant change in the hours of operation or a significant change in the type of
operation.”9 The court then explained:
Because the language of the statute makes it applicable to any given point in time,
the effect of a significant change in either hours of operation or type of operation
is to again invoke the statutory conditions and recommence the running of the
statutory clock. If then the operation was not an actionable nuisance when the
change occurred (i.e., went into effect), it will not become one by virtue of
changed conditions in the vicinity which occur more than a year after the
operation continuously exists in the changed form.
Id. at 102. In this case, however, there has been no “significant change”; therefore there has
been nothing to trigger a reset of the statutory clock.

9

The version of the Act in effect in 1990 when Laux was decided provided:

No agricultural or industrial operation or any of its appurtenances shall be or
become a nuisance, private or public, by any changed conditions in the vicinity of the
locality after the agricultural or industrial operation, as the case may be, has been in
operation continuously on the locality for more than one year, provided:
(1) There is no significant change in the hours of operation;
(2) There is no significant change in the type of operation; and
(3) The operation would not have been a nuisance at the time the agricultural
industrial operation, as the case may be, began on that locality.
The Act was amended in 2005 to its current form, which expressly excludes “[t]he conversion
from one type of agricultural operation to another type of agricultural operation” from the
definition of “significant change in the type of operation.” Thus while the change from a crop
farm to a pig farm was a “significant change” under the Act as it existed in Laux, it is not today.
8

In this case, the Plaintiffs’ interrogatory answers establish that the odor problem did not
begin until the property became a pig farm; indeed, their complaint is that once the pig farm
began operation they were “unable to enjoy the country air that [they] had enjoyed for the past
25 years.” Accordingly, the evidence of record establishes that the Property housed an
agricultural operation for many years—and continuously from at least 2005—and that it was not
a nuisance until it became a pig farm. Therefore the Defendants have satisfied their burden as to
this final element and have demonstrated that they are entitled to the protection offered by the
Act.
B. The Negligence Exception to the Right to Farm Act
The Act, which is an exception to Indiana’s nuisance law, itself contains an exception: it
“does not apply if a nuisance results from the negligent operation of an agricultural or industrial
operation or its appurtenances.” Ind. Code 32-30-6-9(a). The Plaintiffs have the burden of
demonstrating that this exception applies. Laux, 550 N.E.2d at 102. The Defendants argue that
there is no evidence of record which would allow a reasonable jury to conclude that the Plaintiffs
have satisfied this burden. The Court agrees.
There is ample evidence of record which, viewed in the light most favorable to the
Plaintiffs, establishes that Sky View is operated in a negligent manner in several respects.
Specifically, the Plaintiffs’ expert, Dr. Ronald Sheffield, points to the following practices at Sky
View that in his view are negligent:
•

the management of the mortality composter

•

the lack of odor control technology on the ventilation fans of the production barns and the
sub-terrain manure storage pit

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•

poor husbandry and odor control practices that permit the accumulation of feces in pen
corners, alley ways, and empty stalls in the breeding/gestation barn

•

poor husbandry and odor control practices related to the accumulation and crusting of
manure on slatted floors in the gilt barn

•

poor husbandry and odor control practice related to the accumulation of manure outside
the gilt barn and loading shoot

•

spillage and incomplete clean-up of feed in front of the gilt barn and on the underside of
the evaporative cooling pad on the northeast corner of the breeding/gestation barn

•

spillage of feed by hogs and its incomplete clean-up by workers

•

the manner in which Sky View conducted land application of manure prior to 2011;
specifically, the failure to use injection or direct incorporation

•

land application being conducted right up to neighboring property lines in violation of
recognized setbacks

•

disrepair of equipment used in 2011 to land apply manure

Sheffield Report, Exh. 19 to Defendants’ Brief. However, it is not enough for the Plaintiffs to
prove that some aspects of Sky View’s operation are performed negligently; rather, the Plaintiffs
must demonstrate that Sky View is a nuisance because of that negligence. In other words, the
identified negligence must be the proximate cause of the nuisance.10 See Lindsey, 898 N.E.2d at
1260 (“The violation of statutory duty is not actionable negligence unless it is also the proximate
cause of the injury. The violation of a statute raises no liability for injury to another unless the
injury was in some manner the result of such violation. In order to find that an injury was the
proximate result of a statutory violation, the injury must have been a foreseeable consequence of
10

The Court assumes for purposes of this discussion that Sky View is a nuisance vis-à-vis
the Plaintiffs.
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the violation and would not have occurred if the requirements of the statute had been
observed.”).11
“‘At a minimum, proximate cause requires that the injury would not have occurred but
for the defendant's conduct.’” Pope v. Hancock County Rural Elec. Membership Corp., 937
N.E.2d 1242, 1247 (Ind. App. 2010) (quoting Paragon Family Rest. v. Bartolini, 799 N.E.2d
1048, 1054 (Ind. 2003)). Here, the “defendant’s conduct” that is relevant are the negligent
practices identified by Dr. Sheffield. In his report, Dr. Sheffield states that those negligent
practices “encouraged the production of odors at the facility that move off-site to nearby
properties,” created leachate stains that are “known to be highly odorous,” “resulted in excessive
odors that move off-site to [the Plaintiffs’] properties,” “created favorable conditions for odor
and fly generation,” [led] to excessive ponding . .. and the production of odor and flies that move
offsite to nearby property,” and “creates odors that will move off-site to [the Plaintiffs’]
property.” Throughout his deposition, however, Dr. Sheffield made it clear that he was not able
to opine whether Sky View would be a nuisance even if none of the negligent practices he
identified existed. For example, when asked whether he could say “with a reasonable degree of
scientific certainty that any of [the] odors associated with leachate at Sky View Farm” moved to
the Plaintiffs’ properties, he responded “I can say that it leads to conditions that would have
created odorous conditions that under the right atmospheric conditions would move off site” and
that it would be “impossible to or incredibly improbable to be able to answer the question” of
whether it actually did so. Sheffield Dep. at 182-83. Similarly, with regard to the compost

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The Plaintiffs attempt to distinguish Lindsey on the ground that it involved the violation
of a statutory duty and this case does not. That distinction is irrelevant. In Lindsey the existence
of negligence was established by the fact that a statutory duty was violated; in this case the
existence of negligence is established by the failure to act consistently with the applicable
standard of care. Either way, the proximate cause requirement is the same.
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building, Dr. Sheffield testified that he could not say with a reasonable degree of scientific
certainty that it “caused an objectionable level of odor at any of the plaintiffs’ properties”; rather,
his answer was “I can say with the visual indications that I observed that the conditions were
present enough which may, under the right environmental conditions, led [sic.] to odors that
could have been perceived off site.” Id. at 206. Dr. Sheffield gave essentially the same
testimony with regard to the accumulation of feces due to poor husbandry practices, id. at 27071, the accumulation of crusted manure on slatted floors, id. at 275, land application methods, id.
at 356, failure to maintain a setback, id. at 370, and, with one exception, with regard to all of the
remaining issues identified in his report, id. at 452. The exception is the equipment that he found
to be in disrepair; with regard to that issue, Dr. Sheffield conceded that he had no evidence that
the equipment was in disrepair at the time it was actually used. Id. at 373. In conclusion, Dr.
Sheffield was asked whether he could “say with a reasonable degree of scientific certainty that
plaintiffs would not experience an excessive level of odors at his or her property” if all of the
problems he identified were eliminated to his satisfaction. Id. at 452. While Dr. Sheffield’s
answer is not terribly straightforward, drawing all inferences from it in the light most favorable
to the Plaintiffs, his answer was that if all of the problems he identified were eliminated and
biofilters were installed to treat 60% of the barn exhaust, the odors from Sky View would be
reduced such that they would no longer constitute a nuisance vis-à-vis the Plaintiffs. That is of
no help to the Plaintiffs, however, because Dr. Sheffield also testified that the failure to install
60% biofilters did not violate acceptable practice at any point in time; in other words, that failure
did not constitute negligence. Id. at 240-41.
Dr. Sheffield’s deposition, both when read as a whole and when dissected and examined
question-by-question, fails to provide any evidence from which a reasonable jury could

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determine that the negligence of the Defendants caused Sky View to be a nuisance vis-à-vis the
Plaintiffs. The Plaintiffs point to various other testimony about the odors coming from Sky
View, see Plaintiffs’ Response at 37-41, but none of that testimony demonstrates that the reason
the Plaintiffs experience the odors about which they complain is that Sky View is negligently
operated.12 As the Indiana Court of Appeals has observed, “pork production generates odors
which cannot be prevented.” Shatto v. McNulty, 509 N.E.2d 897, 900 (Ind. App. 1987).
Because they have not pointed to any evidence that the objectionable odors in this case are not
simply those that are inherent in the operation of a pig farm, but rather are caused by negligence,
the Plaintiffs in this case cannot avoid the operation of the Act and cannot prevail on their
nuisance claim. For the same reason, the Plaintiffs also cannot prevail on their claim for
negligence. The Defendants are therefore entitled to summary judgment on all of the Plaintiffs’
claims.13
IV. CONCLUSION
For the reasons set forth above, the Defendants’ motion for summary judgment is
GRANTED in its entirety. Judgment will be entered in favor of the Defendants on all of the
Plaintiffs’ claims.

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The Plaintiffs argue that “in cases of nuisance, causation is a matter that is presumed to
be within the understanding of an ordinary layperson,” Plaintiffs’ Response at 41, and cite to
cases in which a finding of nuisance has been based upon the plaintiffs’ testimony. The
Plaintiffs are certainly correct that their testimony could support a finding that the odors they are
experiencing satisfy the definition of a nuisance and come from Sky View (assuming, of course,
that there is not another pig farm in the vicinity that could be the source of the odors). The
problem is that neither the Plaintiffs nor their expert are able to say that Sky View would not be a
nuisance but for the (alleged) fact that it is negligently operated, and the Plaintiffs have pointed
to no other evidence from which a reasonable jury could so conclude.
13
In light of this ruling, the Court need not address the remainder of the Defendants’
arguments.
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SO ORDERED: 09/13/2012
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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