Rep. Douglas Gutwein, R-Francesville, must have hoped for a break when he headed for his House Ag and Rural Development Committee meeting on Tuesday morning.
Minutes before the ag meeting, Gutwein chaired the Employment, Labor and Pensions Committee where lawmakers voted to advance the right-to-work legislation riling labor opposition statewide. Democrats, who had voiced their opposition to the bill by boycotting House activities last week — including the hours of hearings Gutwein held — objected to fast-tracking the bill without more deliberation.
Accusations of dictatorship and other less-than-flattering name calling followed. The ag committee offered a break from the personal attacks, but it also opened the door to another contentious bill — an innocuously titled piece of legislation HB 1091: Agricultural Operations.
In short, it addresses meth and frivolous lawsuits against farmers. The committee voted 9-3 to advance the bill, but several witnesses noted various concerns.
The House is now clear to hold floor debate on both right-to-work legislation and the CAFO/meth bill. As reports of fomenting unrest among the Democrats continue Tuesday afternoon, though, it is unclear how soon any legislative efforts will advance.
Punitive or Protective
Farm interests including Indiana Farm Bureau and the Indiana Pork Producers Association argue HB 1091 is essential to protect producers from a cottage legal industry bent on kneecapping confined feeding operations.
Rural watchdogs claim the bill will have a chilling effect on plaintiffs' willingness to bring justified concerns to court.
"Given the significant hurdles already in place that limit the ability of CAFO communities to protect themselves," she wrote, "this is probably the most repulsive, underhanded and unjust piece of proposed legislation I've ever seen."
She did not go so far in her testimony to the committee, but emphasized several areas that opponents of the legislation consider weaknesses.
First, she said, the legal mechanism to protect farmers from frivolous lawsuits already exists in federal and state law as well as the ethics code governing attorneys.
"We already have right-to-farm (legislation protecting farmers' ability to pursue their occupation without baseless interference)," Ferraro said. "No other industry is afforded these protections (included in the proposed bill) ... It seems the purpose is to have a chilling effect."
Majority Floor Leader Bill Friend, R-Macy, who authored the bill, is a fifth-generation farmer. In 2000, his farm modernized its swine production segment into a confined feeding
operation. He has had no problem with lawsuits, complaints or violations, he said, but in meetings throughout his district he said he heard stories of difficulties with both frivolous lawsuits and rampant examples of squatting meth makers holing up in sleepy areas of rural property to engage in the nefarious activities associated with their addiction.
"I've always opposed the bad actor. ... I want them out of business," Friend said. "If people are paying fines just as a cost of doing business, I want rules stringent enough to get rid of them and allow someone of a different temperament to do the job."
In addition, Friend said he did not want to deny Hoosiers access to the legal system, but he also does not want to see courts clogged with baseless cases.
"Seventy-five to 80 percent of producers do a very good job," said Barbara Sha Cox, a rural resident and longtime CAFO watchdog. But when property owners are deprived of the enjoyment of that property, she added, "We do need to not have intimidation where we feel scared to go to court."
Other proponents of the legislation emphasize how delays in expansion projects, which often require hundreds of thousands or even millions of dollars to advance, can handicap or even bankrupt producers as legal delays unfold.
In addition to offering more robust protections for ag-based victims of frivolous lawsuits, HB 1091 would allow farmers to detain meth makers for "a reasonable amount of time" not to exceed two hours.
House Ag Committee members did not focus much on the concerns of CAFO watchdogs, concentrating more on fears for the safety of farmers who may try to intervene in meth-making operations and the potential for Wild West-style vigilante justice.
Rep. Kreg Battles, D-Vincennes, was successful in his attempt to amend the bill to remove a provision that would have allowed a judge to award punitive damages in addition to court costs for a wronged farmer.
Battles said the amendment should bring the bill into line with current state law preventing frivolous lawsuits.
HB 1091 would have been the first state law to allow punitive damages for filing a motion, said Warren Mathies of the Indiana Trial Lawyers Association. Mathies also testified against the bill, suggesting that the committee look to the state's Anti-SLAPP (Strategic Lawsuit Against Public Participation) for guidance on how to tailor the bill to move for speedy dismissal of baseless claims.
Friend said he would explore adding a motion-to-dismiss amendment as the bill proceeds through the legislative process. After the hearing, he said he does not believe existing law provides adequate provisions to make targets of baseless lawsuits financially whole because the law states that courts may not shall require plaintiffs to cover defendants' attorneys fees and court costs.
Justin Schneider, a Indiana Farm Bureau staff attorney, testified that he has personally witnessedseveral cases where judges decline to award court costs to defendants because of a fear that it will somehow look bad.
Michael Platt, executive director of the Indiana Pork Producers, represents about 3,000 pork producers statewide and about 75 percent of regulated CAFOS in state.
He testified that he is seeing more attorneys file suits against CAFOS with the "express purpose of delaying and disrupting industry expansion." While IPPA favors industry players adhering to the laws and rules governing CAFOS, as well as citizens' ability to go to court, Platt said "we don't support efforts to delay development. ... If cases are frivolous, we want to make sure the producer is made whole."
Sorting through the rhetoric
Outside of the Statehouse, in rural counties across the state, the subject of this bill translates to a real issue of justice for both farmers and the neighbors of CAFOs.
"Several nuisance lawsuits filed ... often (target farms) with good records with no history of complaints," said IFB's Schneider."Not all but the majority."
And, he noted, the cases are expensive to defend.
Cox, who tracks CAFO construction and complaints, disputed the proponents' claim that the majority of the suits filed against CAFOs are baseless. But neither side had handy a list of the active lawsuits currently pending with the operations' environmental compliance history.
Though NUVO could not compile such a list on deadline, efforts are now underway to complete such an analysis. Check NUVO.net for updates between weekly printings.All photos by Rebecca Townsend
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