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The amendment
This is the proposed “right to farm” amendment to the Indiana Constitution:
“The right of Indiana citizens to engage in traditional and modern farming and ranching practices shall be forever guaranteed in Indiana. No law shall be enacted that abridges the right of Indiana citizens to employ traditional or modern agricultural technology, animal production, or ranching practices.”
Proposed legislation on farms would elevate one profession over all others.

No favors for farms

Farming may fall somewhere near the ranks of apple pie and baseball in its importance to the American ethos, but ensuring all citizens have equal protection under the law should be far more important. Unfortunately, some state lawmakers want to enshrine special protections for farmers into the Indiana constitution.

House Joint Resolution 5 and Senate Joint Resolution 27, identical pieces of legislation making their way through the two chambers, seek to amend the Indiana Constitution to prevent any legislative body from adopting any rules regulating farming.

“It makes unconstitutional any law governing farming,” said Kim Ferraro, an attorney and director of water and agricultural policy for the Hoosier Environmental Council. “It seems to elevate one profession over all others for constitutional protections.”

The amendment, apparently, would prevent any rules regulating large industrial agricultural businesses such as confined animal feeding operations. It would also prevent any laws that protect public health and private property rights for Hoosiers who are not farmers. Even zoning laws could be challenged.

A resolution must be approved in two separately elected sessions and then win approval in a statewide referendum before the constitution is amended.

State legislators are also proposing a slew of bills that purport to promote the interests of agriculture and farming in Indiana, but as written would prohibit state and local governments from creating rules that protect communities from water pollution or other public health threats.

Senate Bill 571, authored by Sen. Jim Banks, R-Columbia City, requires the Indiana Board of Animal Health to develop standards for agricultural management practices. The problem is the proposed bill calls for the standards to be developed according to recommendations from livestock and farming organizations. The agricultural industry would be writing its own rules.

It’s also unclear whether the animal health board is the right state agency to develop standards for all agricultural sectors.

The bill prohibits other political subdivisions from enacting any ordinances regulating agricultural operations without receiving the approval of the state animal health board. It violates the principle of home rule by preventing locally elected officials from creating legislation to address local issues.

It creates one-size-fits-all standards and ignores the fact that some communities – those with a high number of CAFOs, for example – are going to have different concerns from others.

The bill also provides additional immunity from lawsuits. As long as the farming operation conforms to the animal health board’s standards, the agricultural operation could not be declared a public nuisance – even if the farm operations harm neighboring property owners or the community.

Opponents of CAFOs and other big farming operations could be dissuaded from filing legitimate legal challenges if bills to limit lawsuits are adopted.

Senate Bills 131 and 178 are nearly identical bills that seek to change state law so that the courts are required to award attorneys’ fees to the prevailing party when a lawsuit is deemed groundless or frivolous. Sen. Dennis Kruse, R-Auburn, authored SB 131, which is assigned to the Judiciary Committee. Sens. Banks and Carlin Yoder, R-Middlebury, authored SB 178, which is assigned to the civil law committee.

The bills are similar to a bill from last year that applied specifically to CAFO operations. It was authored by Rep. William Friend, a CAFO owner.

Senate Bill 88, authored by Sen. Mike Delph, R-Carmel, also would require courts to make the losing party pay all legal fees, but it goes further in that it includes all civil lawsuits, not just those ruled frivolous.

If it passes, Indiana would be the first state in America to adopt a “loser pays” system.

State law already provides ample protection against frivolous lawsuits and allows courts the discretion to award attorneys’ fees when appropriate.

All of the proposed legislation requires judges to punish anyone who attempts to seek redress through the legal system and loses. It would make it even more difficult for people of modest means with legitimate complaints to seek relief from the courts.