Appeals

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hog odor

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Wendingers say odors from Forst farm are nuisance

By FRITZ BUSCH

Journal Staff Writer

ST. PAUL -- Do 2,400 hogs and an uncovered manure lagoon on a neighboring farm create a smelly nuisance or not?

That is the question going to the Minnesota Court of Appeals.

The odors upset Gerald and Julie Wendinger of rural St. George so much, they made more than 100 nuisance complaints to area and state authorities since 1995.

The Wendingers complained to the Minnesota Pollution Control Agency, Nicollet County Environmental Services and Nicollet County Sheriff's Department. They began complaining after their neighbor, Jerome Forst, built a confinement barn and 1.6-acre, manure-holding pit so he could raise hogs for Wakefield Pork.

In a sworn affidavit, Julie Wendinger said she marked 475 days over a five-year period when the smell was bad. The Wendingers said they asked Forst to fix the smelly problem, but it continued. No citations resulted from the complaints, according to the Wendingers.

Filing suit in Nicollet County District Court, the Wendingers wanted more than $50,000 in damages and a court order to control the hog odor.

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

More than a year ago, the Wendingers got fed up with the odors and moved off the farm where Gerald was born and lived for the past 52 years. The farm is still for sale.

At first, the Wendingers wanted $200,000 for the house, outbuildings and 6 acres. Now they'll take any reasonable offer.

Judge Norbert Smith threw Wendingers' case out of Nicollet County District Court three months ago.

"I think you'll read more and more about these types of cases in the future, said Tom Dunnwald, a Minneapolis attorney who represents the Wendingers.

"Big farms aren't the God-given way to go. Everyone likes their castle and wants to protect it. Majority rule isn't how property law works."

Dunnwald said Gerald and Julie Wendinger both had "substantial" health problems due to the hog odor while living on the farm. Odor testing done on the Wendinger property by Chuck McGinley of Afton showed high odor levels until the testing was curtailed because the Pollution Control Agency ran out of money, Dunnwald added.

He sounded surprised at the judge's decision.

"The judge said there was no evidence the jury could believe that the hog odor constituted a nuisance, which I found incredible," Dunnwald said. "The tests done at the Wendingers would have been violations in other states by a wide margin."

Dunnwald said he expects the case to be argued in court early next year following briefs from both sides.

Since appealing the case to the Minnesota Court of Appeals, the Wendingers have received support from the Minnesota Attorney General's Office, the Land Stewardship Project (LSP) and Farmers' Legal Action Group (FLAG), a non-profit, public interest law center dedicated to the preservation of family farms.

The Wendingers declined to comment on the case, referring The Journal to their attorney.

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

Earlier this month, the Minnesota Court of Appeals granted the AGO, LSP and Citizens Organized Acting Together (COACT) the right to submit friend of the court or amicus briefs in the case. The briefs are sought to support points of law the applicants believe are critically important to the public and are potentially precedent-setting.

The LSP said Nicollet County District Court dismissed the Wendingers' case by broadly interpreting Minnesota's so called "Right to Farm Act" as exempting Forst Farms from a nuisance suit.

The "Right to Farm Law" does not protect operations that are negligent, according to the LSP.

"The District Court order wrongfully eliminates property rights of rural residents and family farmers in Minnesota," said attorney Jim Peters, representing COACT. "Large, factory-style farms should be held accountable to neighboring rural residents and family farmers when their operations stink neighbors out of their home of 50 years, ruins their health or destroys their property values."

Iowa Farmer Today ran an Oct. 10, 2002 story about an Iowa jury that awarded $33 million in punitive damages to four Sac County couples who complained that a hog lot owned by Iowa's largest hog producer has created foul odors, noxious gases and too many flies.

Iowa Select Farms placed a 30,000-hog facility on 640 acres of land. Attorney Thomas Lipps said the hog farm produced the same amount of waste as a city of 90,000 to 150,000 people. Last year, two Iowa judges ruled that state laws intended to discourage nuisance lawsuits were unconstitutional.

Wakefield Pork is the nation's 21st largest pork producer, according to Successful Farming Magazine. Large corporate hog producers use contract operations to avoid liability, the LSP said.

Wakefield Pork is being represented in the case by New Ulm attorney Gary Koch of Gislason & Hunter, LLP.

"We believe the suit brought is without merit," Koch said. "We think the trial court's reasoning is correct. The Forst farm is being managed not only well but in a superior manner. We're confident the appellant court will uphold the decision of the trial court."

New Ulm attorney Clark Tuttle, representing the Forsts, said many groups have "jumped on the bandwagon" without knowing all the facts of the case.

"The Forsts -- like a host of other farmers -- are actually small family farmers trying to stay profitable by raising hogs on contract," Tuttle said. "This is poppycock," he added referring to the Wendingers' case.

"No nuisance has been proven, and the judge in Nicollet County agreed. If anything, these groups should be backing the Forsts."

Tuttle said the Forsts attempted to diversify their farm of 400 acres -- about the size of the average farm in the area between Gibbon and St. George -- so they can remain profitable.

The Wendingers aren't even farmers because they have leased out their property for more than 20 years, Tuttle said.

In more than 25 depositions taken from neighbors of the Forsts and Wendingers in West Newton Township and MPCA personnel that conducted odor tests, people said hog and uncovered manure lagoon odors from the Forsts were detected only eight to ten times a year, according to Tuttle.

"I smell livestock all over the countryside around New Ulm, and sometimes, even in town," Tuttle said.