Defending animal agriculture: Legal battle begins before building

Defending animal agriculture: Legal battle begins before building

Can you be sued over a farm building that does not exist? Yes. (Part 2 of 4)

This is part two of a four-part series. Find links to other installments at the end of this story.

Yesterday we told you about Leah and Kyle Broshears, who hope to launch a farming career and raise their young family on a hog farm in a secluded area of Jackson County, Ind. Not long after they applied and were approved by the county for the building permit, they were sued. To hear the Broshears tell their story, watch the video here.

Kyle Broshears shows where the proposed hog barn would be built in a secluded area of Jackson County, Ind.

The lawsuit is not a typical negligence-nuisance suit because the building, meant for 4,800 head of hogs, has not even been built -- no emissions, no odor. The pending action challenges the county zoning process and procedure by which the permit was granted, points out Washington, D.C.-based Ag lawyer and Farm Futures blogger Gary Baise.

"This is an easier way to challenge the building of a CAFO (Concentrated Animal Feeding Operation)," he says. "The legal effort is a way to delay the process and discourage Kyle from proceeding. The county should stand behind its decision."

Instead of giving up, the Broshears are digging in for what may be a lengthy legal battle. Unfortunately the costs could add up to six figures, says Kyle.

Groups like the Indiana Farm Bureau are stepping in to publicize the Broshears' situation. But unless there is a precedent, it is difficult for nonprofit groups to provide legal funding to everyone who may need it, says Ind. FB general counsel Mark Thornburg. The Indiana Ag Law Foundation has stepped up with some funding.

The Broshears feel compelled to have their own legal defense because in some cases, counties don't vigorously defend their decisions, notes Thornburg. "So it's in their best interests to help defend their permit approval."

That's why the Broshears have tried something unheard of in production agriculture. They set up a gofundme account, cleverly titled "Save our bacon," to build a legal defense fund. They're asking for help from farmers and other interested parties, and have pledged to return any unused funds to the Indiana Ag Law Foundation to help other farmers in the future.


The family sees this crowd funding idea as a framework for other families to battle these suits. If every large animal livestock farmer agreed to donate $100 to any farm that found itself in litigation, the impact would be tremendous, says Kyle. There are currently two to three CAFO (Concentrated Animal Feeding Operations) lawsuits ongoing in Indiana at any one time, so the financial hardship would be minimal.

Meanwhile, the Broshears have learned some tough lessons for other farm families who may wish to expand or build new facilities. First, opposition to your project may not only come from neighbors. It may appear out of nowhere from groups headquartered miles away. In Indiana an activist group, Indiana CAFO Watch, seemingly goes on alert each time a CAFO permit appears at the Indiana Department of Environmental Management.

Second, activist groups believe in their cause and will go to every meeting and sign every petition. They will not hesitate to take you to court – even before you build. They believe they are saving the planet, even if that planet includes billions of people who need three square meals a day.

"There's a local Lake and Forest club where some of the members speak out against every applicant regardless of their proximity to us," says Kyle.  (The Broshears' building would be 6 to 8 miles from this club).  "They speak against everyone, including me. They attend every commission meeting, exerting their influence against agriculture."

These groups hope that by taking farmers to court it will discourage and defeat any attempts to expand or build new livestock facilities, despite county approval. Agriculture groups must be equally committed if they hope to win in court.

This is part one of a four-part series. See the other installments:
Defending animal agriculture: Saving the family farm
Defending animal agriculture: Legal battle begins before building (current entry)
Defending animal agriculture: Fighting back, legally
Defending animal agriculture: What can the ag community do to help?

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