The expansion into Northwest Central Minnesota by a major player in the state's pork industry has prompted conflict in Todd County--and the introduction of bills to limit citizens' ability to file nuisance lawsuits against ag operations.
HF0582, introduced by Minnesota House Ag Policy Chair Paul Anderson (R-Starbuck), will be heard in his committee on Wednesday; the committee hearing starts at 10:15 a.m., but has posted notice that it will reconvene at 6:00 p.m. if more time is needed to hearing testimony and committee members' questions about the bill and the two other measures scheduled for consideration.
SF482, the senate companion bill authored by Jobs, Agriculture and Rural Development Committee chair Dan Sparks (DFL-Austin) was heard by his committee on February 18, but no action was taken on the bill by the committee.
Bluestem Prairie asked The Uptake to excerpt the testimony for and against the bill. It's likely that many of the same individuals will testify before the House committee on Wednesday:
Senator Sparks' brief presentation of the bill opened the hearing, led by committee vice-chair Matt Schmit (DFL-Red Wing). Sparks turned the discussion of the bill over to pork industry representatives or their legal counsel.
Jack Perry, a lawyer and lobbyist with the Briggs and Morgan law firm, opened the discussion a consideration of four points about the bill, including the fact that nuisance lawsuits are being filed against hog farmers by plaintiff groups joined by national organizations like the Human Society of the United States; according to court records, Perry has been involved representing the defendants in these lawsuits, as he alludes in his testimony. Perry said that the intent of the bill was to clarify the laws, not to change them.
Next, Protein Sources partner Paul FitzSimmons, discussed his extended family's hog farms, which employ 280 people. He said that the firm is committed to respecting communities and the environment, while delivering a product at a price that everyone can afford. FitzSimmons notes that the livestock industry needs certainty.
Sources at the state capitol tell us that lobbyists with Jerich Associates are talking up the legislation to lawmakers. According to association data on file with the Minnesota Campaign Finance and Public Disclosure Board, Michael, Ronald and Valerie Jerich are the registered lobbyists for Minnesotans for Environmental Equality. The filing lists "Paul Fitz Simmons, Partner, 503 Silver St E PO Box 308, Mapleton, MN 56065" as the contact information.
The organization, which does not have a website, is not registered with the Minnesota Secretary of State's office nor with the Attorney General's charity division; the address is that of Protein Sources.
FitzSimmons sees the changes--which he says really aren't a fix for the current law--but measures that will protect producers who have gone through the permitting process and are thus presumed to be in compliance with state standards. (FitzSimmons is a party to a lawsuit related to a hog farm in Todd County; we'll embed the nuisance complaint below).
Next, David Preisler, Executive Director of the Minnesota Pork Board, took "a moment to talk about what's really at risk." Minnesota agriculture generates $21 billion in income, 40 percent of which is from livestock. Nuisance risks make the state less attractive to livestock producers.
Testimony then turned to the opposition to the bill. Joel Carlson, lobbyist for the Minnesota Association for Justice, a group representing trial lawyers. He notes that the association has members involved in "these lawsuits."
Carlson's position is the bill represents not a clarification of the law, but a substantial departure from the law. He explains what a nuisance is and that current law is designed so that property owners can abate the nuisance so they can enjoy their property. He notes that the bill would change two aspects of the law: that related to public nuisances, wherein government agencies get involved and private nuisances.
MAJ members are mostly concerned with private nuisances, and Carlson pointed out that an activity need not be illegal to be a private nuisance that can interfere with the enjoyment of property or injury one's health. As Minnesota doesn't have an odor standard, he said, being in compliance is great, but it's not an odor standard.
Carlson's final observation was that at four points, the language of the bill affects cases that are currently in litigation-- indeed, "pending litigation" is mentioned in the bill.
"That is clearly a departure from where this legislature has been, to go in and apply the law to a case that is currently being litigated. We have serious concerns with that," Carlson said, "not just in this bill but as a precedential issue as well."
The final person to testify was Aimee Goodwin, a rural Todd County property owner who has had to move to Douglas County because of the smell of the sow barn that FitzSimmons developed along with Webster, Iowa based Gourley Farms. Her testimony around the 19 minute marker on the video above. It's also close to the injuries enumerated in the lawsuits embedded below.
What led to this situation, where a party involved in lawsuits seeks to have the laws "clarified"or "changed"?
Seeking isolation from disease
In Neighbors of hog facility file complaint, Agrinews staff writer Janet Kubat Willette reports:
Sow facilities have sought to locate in Todd County because there is a good separation between hog barns, Stieber said. The facilities are more isolated for the production of piglets. . . .
The notion of locating hog farrowing and production barns in the region is frequently raised by reports about the facility. In 2012, Fox 9 News reporter Trish Van Pilsum reported in Investigators: Hog haven on the horizon?:
A longtime family hog operation from Webster City, Iowa, hopes to build that barn. It would be run by the Gourley brothers, who have a clean environmental record in Iowa and have grown from a single family farm to a multi-million dollar operation that produces 60,000 pigs a year.
They want to move sows and their newborns to the rural Minnesota bean field because the location is isolated. Currently, their sow barn in Iowa has so many hog neighbors in close proximity that their animals kept getting sick. The pigs get fevers and sometimes, litters are lost when the baby pigs fall ill; however, it is important to note that there is no risk to humans from the pig virus.
Judging by Concrete sow facility stands solid against risks, a February 4, 2015 article in National Hog Farmer, the flight from disease has been successful so far:
During the planning stages of the sow production facility, the brothers started working with Protein Sources LLP, a Mapleton, Minn.,-based firm that provides management and accounting services for farrowing and finishing hog operations in the Upper Midwest, mainly in Minnesota and Iowa. Protein Sources was started in 1999 by Bron Scherer, formerly of Amboy, Minn., and the FitzSimmons brothers: Pat, John, Paul, Richard and Bill of Good Thunder, Minn. Gene Gourley and Mark FitzSimmons, the youngest of the Good Thunder brothers, were familiar with each other from working together at Swine Graphics Enterprises LP in Webster City, Iowa. . . .
They also took another step in reducing risk of disease by where they built it.
The Webster City, Iowa, area has a large hog population, and the Gourleys have had a hard time keeping porcine reproductive and respiratory syndrome (PRRS) virus under control at their Iowa farms. So when they were looking to build this new facility, they wanted to find a location that would have lower swine disease pressure.
According to statistics from the U.S. Department of Agriculture’s National Agricultural Statistics Service in cooperation with the Iowa Department of Agriculture and Land Stewardship, the Gourleys’ home county of Hamilton had 520,000 total hogs at the end of 2008. By contrast, Todd County, Minn., had 24,000 hogs and pigs in 2012 according to the Minnesota Agricultural Statistics report.
“We looked at other states,” Gene Gourley says, “but then we had to look at who would be the manager of the site, because we weren’t going to be traveling to do that” for disease and distance reasons. “We looked at property that provided isolation from other pigs, and the fewest neighbors as possible.” FitzSimmonses had property in Todd County, and they also have a boar stud in that area. The existing relationship between Gene Gourley and Mark FitzSimmons and the property in the area made for a beneficial working relationship for both parties. “Another reason we went with the FitzSimmonses,” Gene Gourley says, “is that we feel they have the same values that our family has.”
The Gourley Premium Pork (GPP) now owns the land, the structure and the hogs, and Protein Sources manages the facility. So far, knock on wood (if you can find some) they have managed to keep disease out of the Todd County facility.
Gene Gourley says the barn has been set up to be filtered for disease concerns, but as of yet the barn has not been equipped to do so. He says filter installation would cost about $1.5 million, “and we could break with PRRS every 10 years and the cost of the install and the added energy costs would have eaten that up.”
Here's a Youtube about the building:
Although a bio-filter was recommended for the building by the zoning board, Fitzsimmons had raised objections to the installation of one. claimed that they attracted rats (p. 5 of the PDF).
For an explanation of biofilters for livestock barns, see the University of Minnesota's Extension discussion at Manure Management and Air Quality Biofilter design information. Under "Rodents" the page notes:
A good rodent control program is essential with a biofilter. Mice and rats burrow through the warm media during the cold winter months causing channeling and poor treatment. Rabbits, woodchucks, and badgers have been suspected of burrowing through and nesting in biofilters. Fortunately, most livestock and poultry operations currently have a good rodent control program and will require limited if any modifications. Costs of professional rodent control is approximately $400 per year for a typical animal production operation.
That's in 2004 dollars, and given the size of the farrowing operation, Bluestem suspects that the cost of rodent control at the facility might cost more than $400.
Neighbors Grow Concerned--Then Sue
While FitzSimmons' comment at the end of the video, "It's going to work well for the industry," certainly speaks accurately to the structural and design integrity of the Well Concrete structure, his hopes for the building being perceived in an entirely positive light by its neighbors have not come to pass.
Aimee Goodwin spoke to the senate committee about building her dream home in rural Todd County, and she does appear to be an active member of her community, serving as clerk of Leslie Township. When she learned of the farrowing facility going in, she grew concerned. In an August 2012 letter to the Osakis Review, Hog barn is potential threat to the water system and environment, she wrote:
I am writing to address the issue of the swine barn that is going in down the road from my home.
When I first heard about it, I was mostly heartbroken at what this meant for our wonderful country neighborhood. It’s a beautiful part of Todd County, where the people are friendly and the wildlife is plenty. One of my favorite things to do is sit out on my front porch in the spring and listen to the chorus of the frogs that reside in Silver Creek, just over the hill from my home. Heartache turned to a sick stomach at the thought of what the smell of 2,000 plus pigs would do to beautiful nights.
If I could stop it, I would, and I’d be a liar if I told you I haven’t tried. My interest is personal, of course. But this is not an issue that should just be the problem of those who live nearby. This is an issue for the entire surrounding area; anyone who loves nature; anyone who cares about our environment. This facility is going to be built at the top of the valley where we live and though there is no water running on the actual property, the Long Prairie River runs adjacent to it, just a short three miles away. Silver Creek is less than a mile away.
I have done a lot of research on these massive operations. I could fill this entire newspaper with the horror stories I have come across in my studies. But what I want to focus on today is what this may do or has the potential to do to our environment.
There is the song and dance of “ there are very strict state laws and restrictions for these operations to make sure that they are safe for everyone.” And that’s true; there are. But when it comes right down to it, no one can guarantee any of that. The real bottom line is, these massive hog barn operations are filthy and have even been referred to as one of the worst environmental pollutants that there is.
So here is the short version of this situation: Any polluted water will run right down our valley. It will easily travel across our neighbor’s property onto ours and only have a short trip from here into the creek. From there, with nothing to stop it, it will be dumped into the Long Prairie River and go anywhere it sees fit to travel along its way. That’s not all. Because one pig makes approximately three gallons of manure a day, the owners need to have contracted with the surrounding landowners an agreement to be able to spread the manure. Over time and being so close to the water, it is possible for the ground to become oversaturated and the water can be polluted that way. . . .
Sources at the capitol have told Bluestem that lawmakers are being told that Goodwin is the only one to ever have objected about the facility, but the public record presents a different picture.
As the Minutes of the Todd County Planning & Zoning Commission Meeting for September 6, 2012, (pages 4-7) demonstrate, Goodwin and her neighbors brought their concerns about the facility to the meeting, including a petition signed by 192 people:
Further information. Amy[sic] Goodwin asked that the Board acknowledge a petition that had been submitted to this meeting addressed to the Todd County Board of Commissioners . Jim read the petition signed by 192 persons –
“We the tax payers and land owners of Leslie Township and Todd County and others who are affected by this operation are signing our names to this petition and sharing it with you so that there is no doubt where we stand on the issue of the proposed Gourley Brothers swine facility in Leslie Township. Our concerns are many–environmental, water contamination, air quality, pollution, health and disease and property value just to name a few. We ask, if you have any influence or power to come to the aid of the people you represent in helping us to stop this, that you will.
The zoning board recommended the permit on a 3-2 vote and included a biofilter as a condition for it. The county board would approve the permit and remove the requirement for a biofilter.
The decision was not the end of the local objections; instead, the conflict escalated. On November 26, 2012, Goodwin , her spouse, other area residents and "Citizens Concerned for Todd County Health and Welfare" filed 77-CV-12-1241 a complaint against the county and those commissioners who voted for the CUP. The cased was closed administratively on December 2, 2012.
On December 27, 2012, the Staples World reported in Hog farm opponents refile Todd County lawsuit:
County Attorney Chuck Rasmussen said on Dec. 18 that the opponents of the Gourley Bros. hog farm under construction in Leslie Township have filed suit against the county again, this time in the Minnesota Court of Appeals.
Rasmussen said in a telephone interview that the law firm of Iverson Reuvers has been retained by the county’s insurance carrier, Minnesota Counties Intergovernmental Trust (MCIT), to defend the county in the civil lawsuit.
He said that the plaintiffs, Russell Anderson et al, had asked the Court of Appeals for a Writ of Certiorari – a request to accept the suit.
n the civil lawsuit against the county, filed on behalf of Russell Anderson, Corey and Aimee Goodwin, Joe and Iona Wolbeck and Citizens Concerned for Todd County Health and Welfare, by attorney Douglas C. Grawe of Grawe Law, PLLC, Eagan, Minnesota, the plaintiffs allege that commissioners violated the Minnesota Open Meeting Law in two ways: (1) by discussing the hog farm at the Oct. 2 public board meeting, and (2) by discussing the hog farm at the Oct. 30 and 31 strategic planning meetings, which the plaintiffs allege did not meet the requirements of the Minnesota open meeting law.
The civil lawsuit also alleges that county Soil and Water Conservation and Development Division (SWCDD) staff (1) did not correctly carry out computer modeling of the potential hydrogen sulfide levels that could be present in the air of Leslie Township when the hog farrowing facility begins operation, and (2) did not require the facility to place its proposed water well 200 feet from the facility.
The lawsuit asks that the court void the CUP and not allow the land in question to be used for a hog farrowing facility.
The lawsuit was first filed in the Seventh Judicial District Court in Long Prairie on Nov. 28. The court file number is 77CV- 121241. It was later withdrawn. The suit was refiled with the Court of Appeals last week.
We haven't been able to trace the fate of that filing, but in December 2013, the fight shifted to a different focus. Minnesota Public Radio (MPR) reported in Water fight over Minn. pig farm goes to court:
Neighbors trying to stop a large hog feedlot from being built in central Minnesota are now challenging the state's decision to let the operation draw millions of gallons of groundwater.
The state Department of Natural Resources hasn't done enough to ensure the farm's groundwater demands won't damage nearby Lake Osakis and other area water supplies, said Amanda Prutzman, an attorney for the neighbors.
The Humane Society of the United States has joined neighbors in asking an appeals court to intervene. The animal welfare group says the state Department of Natural Resources erred in issuing the Gourley Brothers farm in Todd County a permit to draw up to 8 million gallons of groundwater per year to water livestock.
Groundwater use has drawn more scrutiny in certain areas of the state in recent years as hydrologists have shown a link between groundwater pumping and water levels in lakes and wetlands. The Todd County case, filed last week, does not cite evidence that groundwater withdrawals have damaged local water supplies.
The DNR, however, didn't meet its legal obligations when it issued the permit, said Humane Society attorney Peter Brandt. "It did not consider the impacts of allowing this facility to go in there and withdraw more than 10,000 gallons of water per day," he said. . . .
It's at this point that the bugaboo of Minnesota's livestock producers industry got involved with the dispute.
The division doesn't split along traditional partisan lines. On January 2, 2014, the Staples World reported in Citizens’ groups applaud and criticize Todd Board Chair:
At the Dec. 17 county board meeting, about 30 citizens crowded into the commissioners’ room – some to criticize Board Chair Commissioner Randy Neumann, and some to praise him.
The citizens were there either as members of the Livestock Advisory Council (LAC) or as members of the Todd County Concerned Citizens (TCCC)– two groups with different purposes and agendas. . . .
TCCC member Nancy Judd spoke on behalf of what she described as “many concerned citizens” to thank Neumann for listening to the citizens of Todd County, showing leadership, and proving “that an Administrator is not necessary to the running of the county.”
Judd presented Neumann with a plaque in recognition of what the TCCC sees as his leadership and recognition of citizens’ concerns during his term as chair of the county board.
Judd is a Republican and Tea Party activist in Todd County. Likewise, the nuisance bills are bi-partisan.
On August 18, 2014, the court sided with Todd County Concerned Citizens, the HSUS reported in Victory in Lawsuit Challenging Massive Minnesota Gestation Crate Pig Factory. Following that decision by the Court of Appeals, the nuisance lawsuit discussed in AgriNews's September 6 article, Neighbors of hog facility file complaint, hit the docket.
Here's the amended complaint:
A few thoughts
The court will decide the fate of the nuisance complaint, but Bluestem hopes this background on the history of the conflict that's led one side to seek legislative relief for active case is helpful for those who might wonder what's up.
But we're left with a couple of reflections. First, that the cost of maintaining a rat-free biofilter might have been less expensive for FitzSimmons than litigation and lobbying.
Second, Joel Carlson's warning about changing a law --and applying that law to active litigation--suggests that this reaction to the lawsuit isn't well thought out.
Finally, changing law because one doesn't like the perceived motives of one of the parties in a lawsuit strikes us as an alarming idea. Should labor unions be given special protection against lawsuits brought by the National Right to Work Committee? Should "date" sites be protected against those organizations that object to sex trafficking? What of the citizens' right to redress in the courts from private nuisances?
Photo: Healthy piglets and sows in the Todd County farrowing barn, via National Hog Farmers.
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Gutting local control in the name of big business: That's what democracy is all about!
Posted by: Phoenix Woman | Mar 06, 2015 at 12:10 AM