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‘No Nuisance’ Verdict is Upheld

Illinois Appellate Court affirms ruling that hog operation is not a nuisance.


The Illinois Appellate Court has affirmed a lower court’s jury verdict of “no nuisance” in a swine odor lawsuit against Bible Pork of Louisville, IL.

Bible Pork was the first production partner of The Maschhoffs, which maintains a network of hundreds of operations that grow out pigs for the large family-owned company based in Carlyle, IL.

Ken Maschhoff, president and CEO of The Maschhoffs, says: “We are very pleased to see that this type of suit was defeated once again in Illinois, which I think sends a very clear signal that farms have a right to exist in rural areas. It was sited correctly.”

Tim Maiers, director of Industry and Public Relations for the Illinois Pork Producers Association, adds: “This is another win for the pork industry. Hopefully, this gets some of the opposition groups to maybe think twice before they throw out a frivolous nuisance suit. This confirms the jury decision that there does have to be a strong case for a nuisance suit. I think the Bibles have shown that they are not just ‘talking the talk’ but that they are ‘walking the walk.’”

Nuisance Case Decision

In 2009, Bible Pork was hit with a public and private nuisance action filed in state court in Illinois. The trial court dismissed the public nuisance claim on summary judgment. A three-week trial on the private nuisance claims resulted in a jury returning a defense verdict in favor of Bible Pork.

The plantiffs appealed the summary judgment and the defense verdict to the Illinois Fifth District Court of Appeals, a court that has a reputation of being friendly to plantiffs. The appeal was argued in June 2010 and, after a 16-month wait, the appeals court affirmed both the dismissal of the plantiff’s public nuisance claims on summary judgment and the jury’s defense verdict on the private nuisance claims.

A team of attorneys from several law firms represented Bible Pork Inc. during the court proceedings.

Gary Baise of the law firm Olsson Frank Weeda Terman Matz, Washington, DC, says most complaints against hog farms were brought under the Clean Water or Clean Air Acts. But plantiffs found it hard to prove violations of these laws at trial. Bible Pork was one of the first cases using a new tactic: filing suit on common-law public and private nuisance charges.

This case has major implications for anti-agriculture interests using nuisance claims to bypass farm regulatory programs, such as the Livestock Management Facilities Act (LMFA) in Illinois and “right to farm.”

Twenty-one neighbors, many of whom operated their own livestock facilities, charged Bible Pork’s newest breed-to-wean facilities were a public and private nuisance. Their complaint alleged that dust, noise, gases (e.g. hydrogen sulfide, ammonia), and odors from the facility constituted a criminal public nuisance, a common-law public nuisance and a private nuisance at the plaintiff’s homes.

A jury of 12 Clay County residents
rejected those arguments and returned a verdict in favor of Bible Pork, which was immediately appealed but again defeated in the appellate court.

Importance of Decision

Baise lists three reasons for the significance of this case:

  • Bible Pork, Inc. has 64 employees and is one of the largest private employers in the area. Bible Pork represented a $10 million investment, pays $100,000 in property taxes, and created 20 new jobs in the community. Had the site been declared a nuisance, the facility may have been forced to close.
  • On a broader level, Bible Pork was properly sited using the Illinois’ LMFA, which “balances protections for the surrounding neighbors with the recognition of the significance of the livestock industry to Illinois’ economy,” Baise says. A ruling, in effect against LMFA, “would have had a chilling effect upon the state’s entire agricultural economy,” he notes.
  •  On a national level, plaintiffs were attempting to undermine the nature of today’s modern, integrated livestock industry using common-law claims to circumvent state and national laws protecting animal agriculture.

Baise declares: “Had the plaintiffs prevailed, critics of modern agriculture would have used the verdict to attack the LMFA and other similar regulatory schemes as well as other swine and livestock facilities throughout the country.”

Baise, also an Illinois corn and soybean producer, previously served as the only attorney on USDA’s Agricultural Air Quality Task Force.

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