Wendinger neighbors testify in hog odor trial

By FRITZ BUSCH

Journal Staff Writer

ST. PETER -- Testimony continued Thursday on the eighth day of a jury trial to decide whether or not a hog operation near St. George is a nuisance.

Feelings of several attorneys and Judge Norbert Smith reached the boiling point after witness Amy Wieland of New Ulm said the smell of hog manure from the Jerome, Alma and Jim Forst farm bothered her enough to make her stop gardening and go inside the home, formerly owned by Gerald and Julie Wendinger of New Ulm.

Attorney Thomas Dunnwald of Minneapolis, who represents Wendingers, asked Wieland to describe what the smell was like when it was annoying.

"It was putrid, like crap," Wieland said. "Once or twice (during the summer she lived near the hog farm) but most of the time, I didn't smell it."

Under questioning by Dunnwald, she said she was under duress to lie under oath in her deposition when she said the smell didn't bother her.

At that point, Smith called for a 10-minute break while he had a discussion with Dunnwald and defense attorneys Clark Tuttle III and Dustan Cross, both of New Ulm.

Julie Wendinger, several neighboring farmers of the Forsts and Wendingers and Jerome Forst took the stand Thursday.

Julie Wendinger recalled writing in her diary in the summer of 2000 that she didn't go outside to do gardening when the odor became strong.

"I realize there are farm odors in the country, but I didn't consider these normal odors," Wendinger said.

Ron Forst, who lives near the Wendingers, said he could smell hog odors from the Forst farm six to 12 times a year, but that it wasn't annoying or intolerable. He admitted he might have closed house windows if the odor was strong.

Charles Smith, who lived on a farm near the Forsts, said the odor was no different after finishing barns were built in 1995 than it was prior to their construction.

When Jerome Forst took the stand, he said he built the finishing barns on his home place because raising pigs in the dairy barn was "too much work" and corn prices were high.

Forst said the recent introduction of an effluent treatment unit (ETU) in his lagoon improved it. He added that he is continuing to look at new options for further improvements.

Testimony continues today, and final arguments will take place on Monday.

The Wendingers, who formerly lived on a farm in West Newton Township, 7 miles northwest of New Ulm, seek injunctive relief and damages for personal injury and property damages for nuisance and negligence as a result of obnoxious odors caused by the Forst's 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.

The Wendingers said the foul odor forced them to leave their farm in 2002.

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

Smith dismissed the Wendinger case, interpreting Minnesota's "Right to Farm Act" as exempting the Forst farm from a nuisance suit.

He rules that case law requires wrongful conduct resulting in some type of damage for a nuisance claim to have merit. The conduct had to 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.

On Monday, Jim Forst testified how the ETU vastly improved the farm's manure lagoon from its previous state.

On Tuesday, Gerald Wendinger became particularly emphatic about his desire for the MPCA to do test for gases instead of only hydrogen sulfide. He did not make any medical claims in the suit.

Wendinger testified that he and Jerome Forst were close friends before Forst began raising hogs for Wakefield Pork in the late 1990s.