Feedlot case returns to Nicollet County

Supreme Court

denies Wakefield

Pork, Inc. petition

By FRITZ BUSCH

Journal Staff Writer

ST. PAUL -- What goes around comes around.

The Gerald Wendinger vs. Forst Farms, Inc. and Wakefield Pork, Inc. feedlot nuisance case is back where it started, in Nicollet County District Court.

Chief Justice Kathleen A. Blatz of the Minnesota Supreme Court denied a petition on Aug. 5 to hear an appeal by Wakefield Pork and Forst Farms, upholding the State Appeals Court decision that there does not have to be a state law violation to be classified as a nuisance under the Minnesota State Nuisance Law.

About a year ago, Nicollet County District Court Judge Norbert Smith threw the case out. Now it appears headed back for a jury trial.

At issue is whether or not 2,400 hogs and an uncovered lagoon on a neighboring farm constitute an odor nuisance.

Back in 1995, Gerald and Julie Wendinger of rural St. George began complaining to the Minnesota Pollution Control Agency about odors coming from a confinement barn and 1.6-acre manure holding pit on the Jerome Forst farm that is being used to raise hogs for Wakefield Pork.

In a sworn affidavit, Julie Wendinger said she marked 475 days when the smell was bad. The couple made more than 100 nuisance complaints to the Forsts and to local and state authorities between 1995 and 2000. The Wendingers said nothing changed.

More than a year ago, the Wendingers filed suit in Nicollet County District Court, seeking $50,000 in damages and a court order to control the hog odor.

The Forsts and Wakefield Pork filed paperwork about an odor measurement study done on their property by Charles Gantzer that was created by the Environmental Protection Agency. The study said strong odors wafted beyond the Forst property only 2.2 percent of the time.

Judge Smith threw the case out of Nicollet County District Court, interpreting Minnesota's "Right to Farm Act" as exempting Forst Farms' operation from the suit.

After appealing the case to the Minnesota Appellate Court, the Wendingers got support from the Minnesota Attorney General's Office, the Land Stewardship Project and the Farmers' Legal Action Group, a non-profit, public interest law center dedicated to the preservation of family farms.

Leslie Sandberg, AGO press secretary, said the district court applied an inappropriate legal standard to the Wendingers' nuisance complaints.

The Wendingers said they got so fed up with the odor, they moved off the farm where Gerald was born and lived for the previous 52 years. They originally wanted $200,000 for the house, outbuildings and six acres. They sold it at a loss --15 months after they put it up for sale -- for much less than their original price.

Jerry Wendinger said the couple who bought the farm told him they must keep their windows closed and don't go outside if the wind is from the southeast.

"They're hoping we win this case so the problem is fixed," Wendinger said.

Julie Jansen, Rural Communities Program Organizer for the Clean Water Action Alliance in Olivia, said she found the turn of events in the case quite bothersome.

"I really want to stress that it is horrific that this case even had to go to the Supreme Court just to get permission to go to court," Jansen said. "All most citizens want is the use of their own property without hog stench and toxic chemicals.. This has been expensive, time consuming, emotional and physically exhausting for the Wendingers. It took all of this just to hopefully be granted a fair trial."

Jansen said she hopes Judge Smith removes himself from the case because he previously threw it out.

"Nobody at any level wants to deal with these issues," Smith said. "It's a scary scenario. The agriculture industry is being allowed overrun citizens' rights. Farmers are going broke so they sign on with big corporations and wind up ruining the rural quality of life."

New Ulm attorney Clark Tuttle III, who represented the Forsts, said earlier that the Forsts, like many farmers, were actually small family farmers trying to stay profitable by raising hogs on contract.