A trial court’s decision to permanently close an overcrowded East Texas poultry farm after a jury found the growers had intentionally caused a temporary nuisance to neighboring properties is under review by the Texas Supreme Court.
The court heard arguments Tuesday in a lively session that saw justices asking about judicial authority to provide equitable relief, the scope of the injunction and the role of state regulatory agencies in policing noxious odors.
The case is being closely watched by agricultural interests, who are concerned that nuisance law could be used across Texas to limit industrial animal operations.
In Huynh, et al. v. Blanchard, et al., Steve Huynh and other owners and operators are appealing the trial court’s issuance of an injunction after a jury finding that the operation of the densely situated farms was a temporary nuisance. Sanderson Farms owns the chickens on those farms, which cost over $4 million to construct, according to its petition for review.
They are represented by a host of lawyers, including Paul D. Clement, former solicitor general of the United States, and Wallace B. Jefferson, former chief justice of the Texas Supreme Court, who handled arguments.
Jefferson’s oral presentations are closely followed by Texas appellate attorneys. The involvement of Clement, known for advocating conservative causes and charging ever-increasing legal fees, further inflated interest in the case among appellate practitioners.
The lawsuit was brought by Frank Blanchard and other neighbors of the farms and tried before a Henderson County jury in October 2019. The jury found that the nuisance was temporary, but the judge found a recurring nuisance justified a permanent injunction against the operations. The trial court also rendered a take-nothing judgment on neighbors’ damages claims.
The Tyler-based Twelfth Court of Appeals affirmed in 2021, noting that Sanderson has enough capacity that losing the two farms would not decrease the number of chickens it can grow.
The farmers, in their petition for review, asked the court to “clarify that a permanent injunction is a fundamental misfit for a temporary nuisance, especially where the jury expressly finds that any nuisance is not likely to recur with any reasonable predictability.”
“If the decision below stands, any temporary nuisance could justify the permanent shuttering of agricultural, chemical, oil, manufacturing, mining or other facilities in Texas even if an adequate remedy at law exists,” said the petition filed in November 2021 by Jefferson, who practices at Alexander Dubose & Jefferson, and Clement, who was then practicing at Kirkland & Ellis and now is with Clement & Murphy.
Respondents, including Frank Blanchard and other Henderson County residents, said Huynh circumvented limitations on the number of chickens his business could raise by creating two LLCs for two farms on one property that “spewed putrid odors into” the nearby community. In their response to the petition for review, they said the jury’s finding did not bar the judge from granting a permanent injunction.
“The judge makes that determination based on the entire record — not just the evidence presented to the jury — after the jury is discharged,” said the response by M. Keith Dollahite of Tyler, who presented arguments for the property owners.
During arguments, both sides discussed the court’s 2004 holding in Schneider National Carriers, Inc. v. Bates “that a nuisance should be deemed temporary only if it is so irregular or intermittent over the period leading up to filing and trial that future injury cannot be estimated with reasonable certainty.”
Justice Debra Lehrmann asked the first question: “Isn’t it up to a judge as a matter of law how to implement a jury finding, whether they call it temporary or permanent?”
Jefferson said the answer “has to be no” because Schneider said that is a factual question, with the jury determining the nuisance was temporary. “If there is a temporary nuisance, there’s a legal remedy — monetary damages,” he added, noting that neighbors could file future legal actions against the farmers.
A few minutes later, Lehrman questioned why neighbors should have to come back to court time and time again to ask for another temporary injunction when “they don’t even want damages, they want it to stop.”
“If there’s an adequate legal remedy, that’s where it stops,” said Jefferson. “If the court goes down a different track going forward” it could impact businesses ranging from barbecue joints to noisy car washes to railroad tracks. “The court has an opportunity to present a clear rule that compensates plaintiffs for injuries but doesn’t go overboard.”
Dollahite was asked by Justice Jane Bland whether shutting down chicken farming completely for a five-mile radius is “a reasonable form of relief to remediate the nuisance?”
He responded that it was within the trial judge’s discretion and noted evidence that even Sanderson representatives smelled odors during a baseball game four miles away.
“It is a broad injunction,” Dollahite said, adding that the farm operators didn’t give the judge much opportunity to find that the operations were going to change.
Justices Brett Busby and Evan A. Young asked about efforts from the Texas Commission on Environmental Quality to monitor the air.
“TCEQ issued notices of violation and were not able to get compliance,” Dollahite said. “The trial judge found regulatory efforts had little to no effect on the operation.”
The appeal drew an amici letter brief on behalf of the Texas Cattle Feeders Association, the Texas Farm Bureau and other agriculture trade groups. Lawyers James D. Bradbury and Courtney Cox Smith framed their arguments in the context of shrinking rural working lands as agricultural operations are converted to more urban and residential areas even as food-supply demands increase.
“Far exceeding its original purpose and intent, nuisance law has become a tool of regulation, siting, and zoning by court as opposed to the administrative agencies who are better suited to carry out those functions,” the amici argued. “In these cases, the pseudo-regulatory standards that are applied to agricultural operations typically exceed what is required by federal and state environmental laws and regulations. This breeds inconsistency, unpredictability, and confusion.”
Addressing the case at hand, the farm groups said permanent closure of the facility was legally improper and unnecessary. Management practices to reduce odors and cover litter could have been required to avoid shuttering the farms, the brief said.
“This is not just about two poultry farms. Such a precedent will impact countless farms, which will undoubtedly have a profound, negative impact on agriculture and food security.”
The case is No. 21-0676.