'Swine factories' win nuisance lawsuits

MUNCIE — Seven years of litigation over an influx of industrial swine farms in East Central Indiana has concluded with a victory for Maxwell Foods/Maxwell Farms, the nation's 11th largest pork producer.

Special Judge Marianne Vorhees ruled in Maxwell's favor without a trial in the last of five Randolph County lawsuits claiming the farms became a nuisance to neighbors and operated inhumanely and negligently. As she did in the four other lawsuits, Vorhees, judge of Delaware Circuit Court 1, entered a summary judgment in Maxwell's favor, citing Indiana's Right to Farm Act.

Neighbors complained of "foul" "noxious" and "invasive" odors coming from manure, urine and afterbirth remnants stored in pits beneath Maxwell's "swine factories." Application of millions of gallons of that waste to fertilize surrounding farm fields just spread the odor farther, the lawsuits alleged.

"There certainly is odor," Maxwell attorney Gary Baise, from Washington, D.C., told The Star Press. "But it's episodic … I call it hog BO … Yes, people do smell it on occasion, but to say it's ruining my life, that you can't have an outdoor wedding or picnic or family gathering because of it is probably stretching it a bit …Smell is a part of agricultural life in America. So as long as we want our ham and bacon and eggs, we're going to have to suffer in a minor way."

Non-farmers romanticize about the good old days when cows, sheep and pigs grazed and foraged in meadows, "not realizing that these animals excreted their manure and urine directly into the streams, rivers and land, when today, such practices are tightly controlled in CAFOs (concentrated animal feeding operations)," the defense reported in court documents.

Indianapolis attorney Rich Hailey, representing neighbors, calls CAFOs industrial facilities that emit particulate matter, nitrates and obnoxious odors and gases, including ammonia and hydrogen sulfide. "Even CAFO proponents refer to them as production facilities, not farms," he said in court filings. In addition, thousands of animals are confined in one CAFO smaller than a football field, spending their entire "tortuous" lives living over their toilets in cramped quarters.

According to defense lawyers, Indiana has one of the most protective Right to Farm Act (RTFA) statutes in the country.

"We are relieved the courts agreed that the allegations against Maxwell and our production partners are unsubstantiated," Joe Baldwin, Maxwell operations manager in East Central Indiana, told The Star Press. "We maintained and continue to maintain an excellent environmental record. We pride ourselves in implementing science-based production practices. It's important to note that a very small percentage of our neighbors filed a lawsuit against us, so we do have good relations with the majority of our neighbors."

Based in Goldsboro, N.C., Maxwell markets about 750,000 pigs a year out of East Central Indiana through its 45 "production partners," aka family farmers.

That represents nearly 10 percent of the total number of hogs marketed annually in Indiana, says Chris Hurt, an agricultural economist at Purdue University.

The hog operations named in the lawsuits filed in 2009-10 included farms where pregnant sows and their piglets are housed; nursery farms that the piglets leave when reaching 55 pounds; and finishing barns that the hogs leave for market after reaching 260 pounds in 20 weeks.

"It's up around 285 pounds now," Hurt said. "Weights have really gotten up there. The average weight last week was 284 pounds for (Indiana's) market-ready hogs. This is largely involved with genetics. Maybe the weight limit could be you and I — how big a pork chop you want on your plate. If the pork chops get too big, somebody will say they come from a mutant hog or something. Do you want a 50-pound Christmas ham? I don't want a ham that big."

The inventory of hogs and pigs in Randolph County more than tripled, from 55,443 to 177,605, between 2007 and 2012, according to the Census of Agriculture taken every five years. That elevated Randolph County's rank to third in the state in terms of swine inventory. The county's livestock sales during that time rose 43 percent to $98.5 million.

"There are certainly jobs and economic activity created there," Hurt said. "Society is also concerned about the environment. Are they protecting the environment and able to exist in communities without terrible complaints about them? There are always criticisms. Just ask the president of the United States. You can't get everybody on one side."

The RTFA's statute of repose, which imposes a stricter deadline than a statute of limitations, hurt the Maxwell plaintiffs. "The statute of repose says if you don't bring a suit within one year after a CAFO is fully operational, even if it is negligent later, too bad," defense lawyer Baise said.

Judge Vorhees found RTFA to be constitutional, as did the Indiana attorney general, who weighed in on the lawsuits. While the constitutionality of the act has not been established by the Indiana Supreme Court, "it certainly was by Judge Vorhees and the attorney general, and they (the Maxwell plaintiffs) did not choose to get an appellate court opinion because I think they felt they would lose."

In an unrelated lawsuit, Vorhees also has upheld the Blackford County Board of Zoning Appeals' approval  of a CAFO containing 8,800 finishing hogs at Ind. 3 and Blackford County Road 500-N. She is also special judge in a nuisance/negligence lawsuit that names the Union-Go Dairy CAFO in Randolph County as defendant.

Union-Go attorney Glenn Bowman of Indianapolis has filed motions for summary judgment in that case using arguments similar to those raised by Maxwell's attorneys. Union-Go's owners, natives of The Netherlands who are seeking U.S. citizenship, "want to be proud Americans," they run "a clean operation that brings economic value to the community;" and "they are happy to be part of the community," Bowman said.

Union-Go made national news during 2010 when potentially toxic and flammable gas bubbles emerged in its 20-million-gallon manure lagoon.

Contact Seth Slabaugh at (765) 213-5834.