Wendinger takes stand

Farmer claims odor from neighbor's farm forced them to move

By FRITZ BUSCH

Journal Staff Writer

ST. PETER -- Gerald Wendinger took the stand Tuesday in the eight-day Nicollet County Court jury trial over hog farm nuisance odors.

Gerald and his wife Julie, who formerly lived on a farm in West Newton Township 7 miles northwest of New Ulm, are attempting to recover what they consider damages caused by the Forst factory farm hog operation built near their farm in 1995.

The Forst farm is permitted for 2,400 hogs. It uses a 1.6-acre, unlined, open-air basin with an effluent treatment unit (ETU) to store liquid manure. Wakefield Pork, Inc. of Gaylord, owns the hogs and pays the Forsts to raise them.

On Monday, Jim Forst explained how the ETU vastly improved the farm's manure pit from the way it was prior to installation of the device.

On Tuesday, Gerald Wendinger said manure odors from the Forst farm were bothersome when the wind blew from the southeast and the temperature was above freezing.

Wendinger told attorney Dustan Cross of New Ulm, who represents the Forsts, that he and Jerome Forst were close friends until Forst began expanding his hog farm in 1995.

Some of Wendinger's relatives "rubbed him the wrong way" when they called him and asked him how the air was on Easter Sunday in 1998 when the wind was from the southeast, Wendinger testified.

"It (smell) was unbearable," Wendinger said. "I hung up on them. The whole situation tore the family apart."

Cross asked Wendinger if he easily got angry over things.

Wendinger responded that he got frustrated over the hog manure odor issue.

Under questioning from Cross, Wendinger admitted that he made threatening calls to Minnesota Pollution Control Agency employees several years later during calls regarding hog manure odors.

Wendinger testified what doctors told him about his sensitivity to manure odors.

Cross asked Wendinger not to include health issues in his testimony because he made no medical claim in his complaint.

The trial bogged down in mid-afternoon when Wendinger talked about MPCA air testing.

"I get into big arguments over this," Wendinger said. "I said there are many more things in this (hog manure odor) than hydrogen sulfide and that's the only thing they test for."

At that point, attorneys for both parties began arguing and Judge Norbert Smith called for a 15-minute break and excused the jury. After the break, attorneys continued to disagree and Smith called for another 15-minute break.

After that break, attorneys bickered for more than 30 minutes over what evidence was relevant.

Wendinger's attorney Thomas Dunnwald described the situation.

"This turns into fist fights over what T-shirt we're wearing so we can score a point," Dunnwald said. "If serious relevance questions aren't asked, this becomes a free-for-all, a circus. I'm asking the court to reign in on relevance."

Smith said all relevant evidence is admissible and what everybody has done to deal with odors is relevant.

The trial continues through Thursday.

The Wendingers claim the foul odor forced them to leave their farm in 2002. They made hundreds of complaints about the odor to the Nicollet County, the MPCA and Minnesota Attorney General's Office.

The MPCA extensively tested the air quality at Forst and Wendinger farm in the late 1990s. The MPCA claimed that the hydrogen sulfide level did not exceed the 30 parts per billion level enough to constitute a violation.

Smith dismissed a previous case brought by the Wendingers, interpreting Minnesota's "Right to Farm Act" as exempting the Forst Farm from a nuisance suit.

He said case law requires wrongful conduct that results in some type of damage for a nuisance claim to have merit. The conduct must be intentional, hazardous, a statute violation or some other separately (tortious) activity.

The Minnesota Appeals Court reversed the ruling last year, stating the lower court's interpretation of the "Right to Farm" law was overly broad and that the law does not apply in cases of negligence. It instructed the trial court to determine whether Wakefield Pork is also responsible for damages caused by the hog operation.