During Minnesota’s most recent legislative session, Jack Perry, a lobbyist and veteran business litigator at Briggs and Morgan, traveled to the Capitol a couple of times to testify in support for what he referred to as a much needed “clarification” of the state’s agricultural nuisance law.
On those occasions, Perry — who usually lobbies on behalf of big industrial interests like the Waste Management — was representing a newly registered organization, Minnesotans for Environmental Equality.
While that opaque name might evoke a crusade on behalf of poor people living in polluted neighborhoods, MEE had a different goal: making it easier for the operators of CAFOs, or “concentrated animal feeding operations,” to fight off lawsuits.
Under the critical provision of proposed reform, an odor-based nuisance suit would automatically fail if the plaintiffs didn’t prove the CAFO violated the state’s standard for hydrogen sulfide, that rotten egg smell associated with manure lagoons.
The hydrogen sulfide standard was one of several legislative compromises enacted during the Feedlot Wars of the 1990s, as the proliferation of CAFOs transformed Minnesota’s agricultural landscape and spurred demands for greater regulation.
As Perry tells it, the hydrogen sulfide standard and other regulations served the state well for most of the intervening years. And they would continue to do so, he contends, were in not for a new wave of nuisance claims brought against CAFOs — “a whole different animal” that’s funded by deep pocketed groups like the Humane Society of the United States whose agenda is to drive the CAFOs out of business, not resolve disputes between neighbors.
Without “objective, measurable standards” for nuisance suits, Perry argues, the HSUS and its allies will be able to tie up the feedlots with endless lawsuits.
Over the course of the 2015 legislative session, Big Ag flexed its muscle and notched a few victories, including a surprise, end-of-session deal that abolished of Minnesota Pollution Control Agency Citizens Board. The Citizens Board wound up in the crosshairs after it flouted the recommendations of MPCA staff and ordered an expensive environmental review for a proposed mega dairy in western Minnesota.
But as it turned out, the agricultural nuisance bill never made it out of committee.
In part, Perry conceded, that was because of lawmakers’ concerns that the bill would have applied to pending CAFO lawsuits, including a big one in Todd County where Perry is the lawyer for the feedlot.
As a result, Perry finds himself duking it out in court with the legal team that set the standard for big hog farm odor awards, the Speer Law Firm out of Kansas City, Missouri. Working in collaboration with Georgia trial lawyer Richard Middleton, Charles Speer sent shivers through the swine industry in 2010, after a jury awarded a group of Missouri residents an $11.5 million damages from the world’s largest pork producer, Smithfield Foods.
According to published reports, Speer has piled up more than $32 million in jury verdicts and more in out-of-court settlements since he began suing feedlots in the ’90s. Last summer, Speer and Middleton launched their biggest offensive to date, rolling out claims on behalf of some 4,000 clients suing over Smithfield Foods North Carolina operation.
In an interview, Perry said he was aware of those eye-popping damage awards, though, like a good litigator, he didn’t evince any signs of intimidation.
Also like a good litigator, Perry can also be pretty emphatic when he wants to drive a point home. In legal filings, he often underscores the text and, for good measure, then also applies a bold font — a practice that has elicited the occasional wry comment from the bench. In discussing what’s at stake in the current feedlot fight, he was particularly pointed.
“It’s quite clear that this is nationally funded and we know that Humane Society of the United States has a very large litigation fund. But if my client’s facility has issues, then every facility in the state has issues,” he said. “We’re going to have to litigate this as if they want to kill us.”
Outside money is funding the lawsuit
With a capacity to hold 4,000 animals, the Gourley Brothers sow production facility might not have elicited more than a shrug in southern Minnesota’s swine belt, where big CAFOs have become a ubiquitous feature of the landscape.
But in Todd County, which straddles the border between farmland and forest in central Minnesota, most livestock operations are small scale cattle farms, typically with fewer than 100 animals. In terms of size and scale, the Gourley hog operation was something different and new. The result was Travis Winter et al. v. Gourley Premium Pork.
Erected two years ago at a cost of $8 million, the 100,000-square-foot concrete structure is big enough to accommodate up to 2,603 sows (held in “individual maternity pens”), 850 finishing gilts (young sows that haven’t produced a litter) and a 1,500-head nursery for the piglets (the facility’s product). The manure pit — which is beneath the building’s slatted flooring — is 12 feet deep and has the capacity to store 18 months of manure.
“In Blue Earth County, where I live, everyone lives within 2 miles of a CAFO. If you draw a 4-mile radius around my home in Good Thunder, there are 400,000 animals within that radius,” said Paul FitzSimmons, a partner at Protein Sources, LLP, the company that manages the Gourley facility and is also a named defendant in the suit. “But in Todd County, you’d have to draw a 50-mile radius,” he said.
The relative dearth of swine operations in Todd County was one reason the site was so attractive for Gourleys — the four brothers from Webster, Iowa, who purchased the land and own the facility. In areas with dense pig populations, like northern Iowa and southern Minnesota, outbreaks of porcine reproductive and respiratory syndrome (PRRS) have made it harder to raise piglets, sending producers in search of new territory.
As he ticked off various “state-of-the-art” design features that make the Gourley facility superior to most CAFOs (including the family owned operation that’s adjacent to his home outside Good Thunder), FitzSimmons said he was shocked when he first read the allegations brought in Travis Winter by the neighboring homeowners.
And he quickly came to one conclusion: If the plaintiffs had to foot the legal bills, they would never have bothered to sue.
“This lawsuit is unique because this is the first time an outside group has funded one of these complaints in Minnesota,” he said.
FitzSimmons said he knows about the big verdicts garnered by the Speer firm but doesn’t think the circumstances are comparable. In the early 1990s, he pointed out, Minnesota prohibited the construction of outdoor manure lagoons for big hog operations. While he opposed the measure at the time, FitzSimmons said he changed his mind because the new requirement eliminated one major driver of complaints: the stench created when wind-driven waves stir up liquid manure.
According to FitzSimmons, all the big hog odor verdicts have involved CAFOs with open lagoons. (Speer did not return a call for this story and the HSUS deferred questions to another attorney at the firm, who likewise did not call back prior to deadline).
Still, with legal bills mounting by the day, FitzSimmons is not shrugging off the suit against the Gourley facility. While the Minnesota Pork Producers Association has kicked in some funds, he said, the named defendants are still stuck with the lion’s share of the costs. “The greatest threat to me is running out of money,” he said.
Complaints of coughing
The complaint and affidavits from the eight plaintiffs present a horrific picture of daily life next to the Gourley facility, one that is impossible to reconcile with FitzSimmons’ depiction. Although the suit asserts a variety of nuisances (including excessive exterior lighting and a plague of flies), it focuses principally on stench.
The “horrible” odor of the operation is described, variously, as “like rotting hog excrement and decomposing hog,” “not a normal barn/farm smell but an extremely foul, unnatural odor,” and “draining, oppressive and soul crushing.”
When the Legislature was mulling the ag nuisance bill, Aimee Goodwin — one of the plaintiffs in the Gourley case — showed up to testify. When Goodwin first learned that a CAFO was coming to their neighborhood, she told lawmakers, she and her husband weren’t opposed. But that changed as they learned more details about the size of the operation.
After the facility opened, the stench became unbearable, she said, triggering hacking coughs in three of her four children. After an asthma attack sent one of the kids to hospital, Goodwin tearfully related how she and her husband decided they had no choice but to move from their “dream home.” At the same hearing, another property owner — Travis Winter — provided a similarly bleak account of life next to the Gourley facility.
Joel Carlson, a lobbyist for the Minnesota Association for Justice, urged lawmakers to punt on the proposed legislation, which he labeled “a substantial departure from the law of nuisance” and a threat to litigation already in progress.
Nightmarish discovery predicted
Around that time, Perry took time off from his lobbying chores and traveled to Little Falls, where 7th Judicial District Court Judge Douglas Anderson was hearing motions in the Gourley case. Perry wanted the judge to do what the Legislature wouldn’t do: make a formal determination that an odor-based nuisance claim could not prevail without evidence the feedlot had exceeded the state’s hydrogen sulfide limit.
Absent such a clear standard, Perry warned, all the lawyers involved in the case would have to gird themselves for spending months in central Minnesota for a lengthy and nightmarish discovery process, a process that would involve deposing 35 people who live in the vicinity and poring over their medical records.
If the judge didn’t want to rule on the thresholds for odor-related nuisance (as well as lesser issues of noise, light, and other air emissions), Perry urged him to certify the threshold question for the Minnesota Court of Appeals.
“There is zero question that this ruling, if we’re going to be honest, that whatever happens at trial, is going to be appealed,” he explained, later adding that the Appeals Court would have the advantage of analyzing the issues through amicus briefs provided by outside parties ranging from the National Pork Producers to the HSUS.
An attorney with one of those outside groups — Amanda Hungerford of the HSUS animal litigation team — cast Perry’s request for certification and “frequent” motions as little more than a delaying tactic. Pointing to the then still continuing efforts at the legislature, Hungerford told the judge she was hoping to “get this suit wrapped up before the law changes.”
In the end, Judge Anderson didn’t bite on either of Perry’s motions, ruling that it was too early to pull the trigger. “The court is mindful of Defendants’ concerns, expressed at oral argument on their motion, that ‘the worst that can happen is to have to try this case twice’,’’ he wrote in his order. “If discovery yields no objective evidence of a violation, and if summary judgment against Plaintiffs is denied, then the court will duly consider certification to the court of appeals.”
The legal wrangling is also continuing on another front.
Before the nuisance suit was brought against the Gourley facility, the HSUS had already sued the Minnesota Department of Natural Resources for issuing a permit to pump up to 8 million gallons of water annually. For the HSUS, that challenge represented the organization’s first foray into a CAFO fight in Minnesota, according to HSUS deputy communications director Anna West.
Last August, the Court of Appeals ruled that the DNR had rubber-stamped the application and ordered the agency to conduct a more thorough review. Crowing over that victory in a blog post, HSUS president Wayne Pacelle cast the water permit fight as part of his organization’s campaign “to take on factory farming from every angle.”
The no holds barred approach — and the legal firepower assembled for the fight — became evident to Perry during oral arguments. By his tally, the plaintiffs had nine attorneys present — all but one of whom had traveled from New York City or Washington, D.C.
If the Gourley claim represents a return to the Feedlot Wars, don’t tell that to James Peters. An attorney in private practice in rural Glenwood in west central Minnesota, Peters has been fighting feedlots for decades, representing both property owners and township governments, and he said it’s never let up.
Peters has even tangled with Perry on a few occasions. “You ever see the movie “Chicago” with Richard Gere?” he said by way of observation. “Jack’s like that. A little razzle dazzle. A little hocus pocus. He’s a smooth attorney but I’ve had some issues with him.”
Still, Peters acknowledges that nuisance claims have proven a tough slog for the plaintiff’s bar in Minnesota. In part, he said, that’s because many CAFOs are sited on tracts as large as a square mile and in part because some of Minnesota’s regulations — such as the prohibition on the open manure lagoons for hog facilities — have tamped down the conflict.
But as agricultural land grows more valuable, Peters said, that’s beginning to change. “They’re beginning to site these facilities much more aggressively. They don’t want to compensate the neighbors, so that’s why the want to get rid of the nuisance laws,” he observed.
That has been the pattern in other states. Following that $11.5 million verdict against Smithfield, the Missouri Legislature enacted a cap on damages in farm nuisance suits. But Peters remains optimistic that the Legislature won’t neuter Minnesota’s nuisance law, which, he said, remains one of the best avenues for property owners to challenge feedlot operators. While he hasn’t prevailed at trial, Peters said he’s leveraged nuisance claims to reach settlements on behalf of several clients.
“If you look at Minnesota jurisprudence, since 1875 nuisance has been measured by the standards of ordinary people in the community,” he added. “If the Legislature takes that away — and I don’t think they will — people will have to endure a nuisance under the guise of some state standard that gives it a blessing. And after that, I think you’d see a lot of lobbying and number rigging.”
For his part, Perry said it’s just a common-sense proposition that legal compliance with state standards ought to free feedlots operators from the burdens of litigation. “We’re not trying to stop nuisance cases,” he said. “We are trying to limit nuisance cases to where the plaintiffs can show a violation of the objective standards.”
As evidence of how well the system works, Perry points to the case of a past client — the now defunct Excel Dairy near Thief River Falls — which was shuttered after being sued by both neighboring property owners and the state over violations of hydrogen sulfide standards.
But the example of Excel Dairy probably doesn’t have the plaintiff’s bar lining up to take on Big Ag. After the Excel declared bankruptcy, the plaintiffs pursued damages from the dairy’s insurers, Nationwide Agribusiness Insurance Company and Farmland Mutual Insurance Company.
In Brouse v. Nationwide Agribusiness Insurance Co. et al., issued late last month, the Minnesota Court of Appeals delivered the news: the absolute pollution exclusion in Excel’s insurance policy barred the claim. (The exclusion, typical in liability policies, precludes coverage for environmental pollution claims.) As a public policy matter, the court acknowledged that outcome might be regrettable. But the remedy for that, it said, lies in the marketplace or the legislature, not the courts.