Suit over smells

Nicollet County couple, fed up with odors from nearby hog operation, pursues the matter in court

By Dan Nienaber
Free Press Staff Writer

 

ST. PAUL - A long battle between a Nicollet County couple and their hog-raising neighbor is headed for the Minnesota Court of Appeals.

Gerald and Julie Wendinger made more than 100 nuisance complaints to authorities before filing a lawsuit against their neighbor, Jerome Forst, and the company that owns the 2,400 hogs he raises, Wakefield Pork, in 2001. The complaints, which started seven years ago, never resulted in citations, and Judge Norbert Smith threw the Wendingers' case out of district court this summer.

Now that the Wendingers have appealed Smith's decision, they have found some support for their cause at the Minnesota Attorney General's Office.

The office decided to get involved after a meeting with representatives from the Land Stewardship Project. Leslie Sandberg, the Attorney General's Office press secretary, said the appeals court will allow the office to file a brief addressing the case.

"We're concerned the district court applied an inappropriate legal standard to the nuisance complaints filed by the Wendingers," Sandberg said.

The brief has not been written, so it's too early to comment on what it will contain, she said.

This isn't the first time Attorney General Mike Hatch has gotten involved in disagreements between a large hog feedlot and its neighbors. He ordered his own investigation of ValAdCo, a feedlot in Renville County near Olivia. That feedlot is much larger than Forst's facility and had violated state air-quality limits many times.

Disagreements between the Wendingers and Forst started in 1995, soon after Forst built a confinement barn to raise hogs for Wakefield Pork. A 1.6-acre pit for holding manure was part of the development.

The Wendingers moved off the farm where Gerald Wendinger was born more than a year ago. They claim it was the "extremely noxious and offensive odors" coming from the Forst farm that drove them away.

The farm is for sale, but the Wendingers have not been able to find a buyer. Gerald Wendinger said a similar property in the area, with an older house and other buildings, was appraised at $162,000 and sold for $225,000. He wanted $200,000 for his house, outbuildings and six acres. Now he's asking for any reasonable offer.

"It's a situation that never should have happened," Gerald Wendinger said. "We begged him. We begged him to just fix the problem. Instead of giving the money to lawyers, we just wanted him to fix the property."

The Wendingers' lawsuit asks for more than $50,000 in damages and a court order to control the odors.

In an affidavit, Julie Wendinger said she started marking her calendars with frown faces for days when the smell from the hog facility was bad. In five years she drew 475 faces, she said.

Forst and Wakefield also filed documents defending the operation, including a study done by Charles Gantzer of Gantzer Environmental Software and Service. The study, which used an odor-measurement method developed by the U.S. Environmental Protection Agency, said there was a potential for "annoying and moderate-strength odors." But he also said weather conditions and intense odors would only be strong beyond Forst's property about 2.2 percent of the time.

Wakefield asked Smith for a summary judgment granting a motion to dismiss the case. It was granted in July.

In his order, Smith said the Wendingers had filed little objective evidence supporting their case, so there was no way a jury could rule in their favor. Also, Forst had obtained all of the required county permits and Minnesota Pollution Control Agency approvals for the operation, Smith said. There was never a violation, he added.

"In fact, the only objective evidence leads to just one conclusion, namely that the defendants have always fulfilled their duty to comply with generally accepted agricultural procedures," Smith said.

He also pointed out that the Wendingers' complaints to the MPCA, Nicollet County Environmental Services and Nicollet County Sheriff's Department skyrocketed after 1998. From 1995 through1998, a total of 24 complaints were made. There were 55 complaints in 1999 and 64 in 2000.

The Land Stewardship Project and a group called Citizens Organized Acting Together will also be allowed to file briefs supporting the Wendingers' position, said Bobby King, Land Stewardship Project spokesman.

King said he believes there is enough evidence for a jury to find that Forst's farm is a nuisance. He also said both Forst and Wakefield Pork should be accountable for the odors created by the facility.

"We think the district court's ruling was terrible and, if it stands on appeal, it will set a terrible precedent that says someone can run a farming operation that forces someone else out of their home," King said.

Smith was the fourth district court judge assigned to the Wendinger case. Minnesota court rules allow parties to remove one judge from a case automatically, without having to give a reason.

The Wendingers removed Judge Warren Litynski of Nicollet County, Wakefield Pork removed Judge Bruce Gross of Cottonwood County, and Forst Farms removed Judge James Mason of Blue Earth County.

10/11/02 Mankato Free Press