Appeals court panel hears hog odor case

Wendingers

maintain that

hog odor caused health problems

By KURT NESBITT

Journal Staff Writer

ST. PAUL -- The case of a Nicollet County family who sued a pork producer over hog odors came before the Minnesota Court of Appeals Thursday morning.

The issue at the center of the debate before the court is whether or not the hog farm that Jerome Forst built in order to raise pork for Wakefield Pork smells and emits noxious fumes.

Attorneys appeared before three Court of Appeals judges and made their claims either in favor of upholding a Nicollet County District Court decision from November or getting the appellate court to overturn the ruling.

The case came before Judge Norbert Smith in St. Peter almost one year ago. The suit was filed by Gerald and Julie Wendinger of rural St. George, who claimed the smell from the neighboring Forst's farm was so noxious that it caused health problems. The Wendingers originally asked for about $50,000 in damages and a court order for control of the hog odor. They have vacated the farm house where they lived as neighbors to Forst's hog operation.

But Smith, in a ruling from November 2002, dismissed the Wendingers' case because he found that the evidence for the case did not show that the Wendingers were injured by the smell of the hog manure. Smith decided that "the only objective evidence shows the Forsts have always complied with state, federal and county laws and therefore, must be dismissed."

In his first brief to the Court of Appeals, the Wendingers' attorney, Thomas G. Dunnwald of Minneapolis, said Smith "erroneously took on a fact-finding role" and was "working on behalf of the (pork) industry."

Attorneys for Wakefield Pork and the Forst family countered, saying that Wakefield had no control over the Forsts because they were hired by the company as independent contractors and that the Wendingers failed to show the Forsts breached their duties of care under the law.

"Nuisance is the only remaining claim, and it succeeds only if the evidence shows it was a nuisance at the time (the Forst's farm) started in 1994," wrote attorney Clark Tuttle of New Ulm. "There is no evidence on record to prove that conclusion."

Attorney Dustan Cross of New Ulm argued Thursday morning that Wakefield Pork has never been found in violation of pollution control laws. He pointed to the fact that a Minnesota Pollution Control Agency testing device, designed to measure certain odors for noxious gases, was at the site for a month and "found nothing."

Tuttle backed Cross during his arguments to the court. He said the Wendingers' appeal makes no argument that Smith's judgment was in error and "has never produced evidence of pollution."

"One man saying it smells is not pollution when the PCA says it doesn't smell any more than the others," Tuttle concluded.

Dunnwald countered by saying the Forsts' farm saw complaints about its odor within a year of its establishment and the odors have left "substantial evidence of health impacts on (the Wendingers)."

He also argued that Minnesota has no legal standard for an acceptable hog odor. He later stated that one of the PCA's scientists took the highest gas readings of his career at the Forst's feedlot.

"But Mr. Forst couldn't smell it," Dunnwald concluded.

Now that the two sides have made their arguments, the Court of Appeals will consider all the evidence from the Nicollet County case as well as arguments made Thursday morning. State law requires the court to issue a ruling within 90 days that either upholds the district court's decision or overturns it in favor of the Wendingers.