Jury: Hog odor not a nuisance

Deliberation takes six hours after nine-day trial

By FRITZ BUSCH

Journal Staff Writer

ST. PETER -- After nearly six hours of deliberation and nine days of testimony, a jury decided Monday in Nicollet District Court that a St. George hog farm did not create a nuisance.

A jury of five men and three women unanimously decided that Forst Farms Inc., (Jerome, Alma and James Forst) and Wakefield Pork, Inc. of Gaylord did not create a nuisance to Gerald and Julie Wendinger.

The Forsts, Steve Langhorst of Wakefield Pork and New Ulm attorneys Clark Tuttle III and Dustan Cross tightly hugged each other after Judge Norbert Smith said the jury decided the farm did not create a nuisance and dismissed the case.

"This is a relief. I'm just happy," Jerome Forst said with a broad smile on his face outside the courthouse after the verdict was read.

Tuttle had a similar expression.

"I'm elated for my clients," Tuttle said. "It's been a long road. I think this means the agriculture community continues."

Minneapolis attorney Thomas Dunnwald, who represented the Wendingers, had no comment.

New Ulm attorney Dustan Cross, who represented Wakefield Pork Inc., told the jury in his closing argument Monday morning that the irony of the case was that there was no smoking gun, but there was the "smell of money," externalization of costs and a Wendinger family feud.

"Odors don't equal a nuisance," Cross said.

Tuttle, who represented the Forsts, questioned the credibility of the Wendingers' claim in his final argument. He showed the jury a photograph of geese on the Forsts' manure lagoon.

"A picture is worth a thousand words, and this exhibit is worth 10 days of trial," Tuttle said.

Tuttle told the jury corporations like Wakefield Pork have saved many family farms by enabling them to remain profitable. He said he represented a lot of people that have been able to continue farming because they supplemented their income with corporate contracts.

In his closing argument, Dunnwald said the case was an impact situation about extreme irritation and property rights including the right to use land as property owners wish. The Wendingers claimed the manure odors forced them to remain inside their home when the wind was from the southeast and the temperature was above freezing.

"Nuisance affects land use," Dunnwald said. "These are damages you can't put a price on."

The Wendingers, who formerly lived on a farm in West Newton Township seven miles northwest of New Ulm, sought injunctive relief and damages for nuisance and negligence as a result of odors caused by the Forst hog operation. The farm expanded in 1994 when the Forsts agreed to build and operate a confined-animal feeding operation for housing and feeding pigs owned by Wakefield Pork, Inc. of Gaylord.

The farm was permitted for 2,400 hogs. It uses a 1.6-acre, unlined, open-air basin with an effluent treatment unit to store liquid manure.

The Wendingers filed odor complaints with various local and state authorities between 1995 and 2000. The Minnesota Pollution Control Agency extensively tested the air quality at the Forst and Wendinger farms in the late 1990s.

Nearly two years ago, Smith dismissed the Wendinger case when he interpreted Minnesota's Right to Farm Act as exempting the Forst farm from a nuisance suit. He ruled that case law requires wrongful conduct that results in some type of damage for a nuisance claim to have merit.

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 did not apply. It instructed the trial court to determine whether Wakefield Pork was responsible for damages caused by the hog operation.