Randolph County family farmers Judy and Allen Hutchison are finally getting their day in court. The couple's home is surrounded by more than 75,000 hogs and cows housed on what are called Concentrated Animal Feeding Operations (CAFOs), a.k.a. "factory farms."
They can see the largest CAFO manure lagoon in the county from their driveway, a manmade, uncovered, 7.2-acre pond that holds roughly 20 million gallons of liquid animal waste. Their clothes frequently smell like manure when they come out of the dryer.
The Hutchisons are among more than a dozen East-Central Indiana citizens who have sued several in- and out-of-state CAFO operators for more than just the daily indignities of life near factory farms, like the odors and the irrepressible flies.
The lawsuits also allege the families have suffered from a number of physical maladies as a result, including skin irritations, nausea, headaches, breathing difficulties, tightness of the chest, sinus infection, stress and burning eyes, noses and throats.
And, according to their lawyers, the citizens' actions are not the average nuisance suits that are often filed against neighbors whose activities prevent others from experiencing a fundamental quality of life. One purpose, as Muncie Star-Press
staff writer Seth Slabaugh wrote on Dec. 23, is to make the Hoosier state "ground zero" in a national struggle against CAFOs.
"It's one of the battlegrounds now," according to Richard H. Middleton, one of three attorneys representing the citizens. Emphasizing that he did not have the benefit of records in hand, he said similar suits have been filed in several other states, "six to eight, I would say."
The Savannah, Ga., attorney is one of three high-profile trial lawyers who are opening the Indiana theater of litigation. The other two are Rich Hailey from Indianapolis and Charles Speers from Kansas City. Middleton and Hailey are both former presidents of the Association of Trial Lawyers of America, now known as the American Association for Justice.
Daniels' pork production platform
Confined feeding operations are facilities where hundreds and thousands of animals live and feed in confined quarters. According to the Indiana Department of Environmental Management, a Confined Feeding Operation (CFO) "is a farm on which producers raise animals in confined spaces such as lots, pens, ponds or sheds with less than 50 percent vegetation for more than 45 days out of the year."
Indiana regulates CFOs that house at least 300 cattle, 600 swine or sheep, or 30,000 fowl, as well as CAFOs, which are larger and defined by federal law. Among the 13 "CAFO Animal Threshold Numbers," according to IDEM, are 700 mature dairy cows, 1,000 veal calves, 2,500 swine above 55 pounds and 10,000 swine less than 55 pounds, and 55,000 turkeys.
While Gov. Mitch Daniels and IDEM are not named in the lawsuits, Middleton said the failure to meet their legal obligations to protect citizens from environmental threats is at the root of the cases. His clients have pursued all of the remedies available to them under the law, without satisfaction.
"These defendants decided they are not going to comply with the environmental rules of their particular states," Middleton said of the targeted factory farms. "... And when the state won't step in and enforce their own rules and regulations, there's absolutely no relief for the neighbors. So, resorting to the civil litigation system is one way that they can try to restore some sense of normalcy to their lives."
Nationally, states have been moving to limit the size of factory farms "so that their footprint is not so big, it doesn't affect so many people, if any at all," Middleton said.
But gubernatorial candidate Mitch Daniels ran on a platform of doubling Indiana's pork production. And the approach Gov. Daniels' Department of Agriculture has pursued has been the vertically integrated, factory farm model, where mega-corporations like Maxwell control the entire market, from the animals' births to their place on the meat counter.
"One of the reasons Indiana is a ground zero is because the state has been so industrial-farm friendly to these big integrators," Middleton said. "That's certainly going against the trend."
The "Indiana Model"
Indiana figures prominently in author and former New York Times
reporter David Kirby's upcoming book Animal Factory: The Looming Threat from Industrial Pig, Dairy, and Poultry to Humans and the Environment. During a Dec. 16 interview in his Brooklyn home, he called the Daniels plan to establish "agriculture parks" concentrations of CAFOs, corn fields and ethanol plants in close proximity to each other the "Indiana Model."
Under that plan, grain that is left over after ethanol production, called distillers grain, is fed to the CAFO animals. Kirby said this approach is fraught with problems. "It is not particularly good for the animals," he said. "Some people say it causes more CO2 emissions and greenhouse gases, that it causes more GI disease in the animals, and it still needs to be mixed with traditional feed."
Randolph County farmer and CAFO activist Barbara Sha Cox said in an e-mail that the Indiana Model is in place in Randolph County, which has all three types of facilities, including an ethanol plant near Union City. She cites a Jan. 27, 2008, article in the Des Moines Register
that identifies the dangers from distillers' grain Kirby spoke of.
"A nationwide surge in beef recalls has pointed the finger at an unlikely culprit the nation's fuel ethanol industry," the story began. "Studies at two universities suggest that feeding cattle a byproduct of ethanol production known as distillers grains may increase levels of a deadly form of E. coli bacteria."
Jurors set the numbers
As far as the litigation goes, Indiana's particular model is not a focus, Middleton said. The main issue is the "complete disdain" that the corporate farmers have shown for "the citizens who were there first," especially for their right "to enjoy their own property."
The lawsuits seek actual and punitive damages intended to compensate the families for their losses and to discourage these and other companies from engaging in similar practices. Middleton offered no clue as to how much his clients are seeking.
"You don't set a number," he said. "You let the jurors do that. But it will be substantial, and we will ask them to award punitive damages of a high enough number so that it will deter these activities from these types of operations in the future."
Middleton acknowledged that Indiana case law has not looked favorably upon nuisance suits in the past, calling some of the rulings "unfortunate." He does not see them as problematic, however. "We've looked at those rulings," he said. "We don't think that they will withstand scrutiny of the appellate courts when we bring our cases."
In his article, the Star-Press
's Slabaugh said attorney Speers "has won nuisance judgments against large livestock farms in other states." He also said as many as a dozen suits are possible in Indiana.
article said three companies are among the defendants: Ohio-based Vreba Hoff Dairy, North Carolina-based Maxwell Foods/Maxwell Farms and Pennsylvania-based Country View Family Farms.
Hoff Dairy spokeswoman Cecelia Conway said she is unaware of the litigation. "No lawsuit has been filed against our firm that I can make comment on," she said in a Jan. 8 e-mail. "I am open for comment should such a suit occur."
Indiana Pork's Sarah Ford replied: "We cannot comment on pending litigation."
Gov. Mitch Daniels' Press Secretary Jane Jankowski said the governor had no comment.
Middleton said "four or five" lawsuits have been filed already, and more will be "wherever harm has been done." Based on the trendline to date, Judy and Allen Hutchison will have plenty of company when they finally get their chance to testify under oath about life in the midst of factory farms.
"We are picking up cases almost on a daily basis in Indiana," Middleton said.
Steven Higgs is a freelance writer based in Bloomington, where he publishes The Bloomington Alternative and writes the "Autism and the Indiana Environment Blog." He can be reached at editor@BloomingtonAlternative.com.