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North Carolina
 http://www.newsobserver.com/saturday/news/nc/Story/1101891p-1101477c.html
 
Published: Saturday, March 2, 2002 4:05 a.m. EST
 
Activists win lawsuit against meat company
Two claimed excessive force by Smithfield

By EMERY P. DALESIO, The Associated Press
 
RALEIGH - Two union activists won a lawsuit Friday that claimed they were beaten and falsely arrested during organizing efforts at a Smithfield Packing Co. plant, union officials said.
 
A jury awarded $755,000 to Rayshawn Ward and John Rene Rodriguez, who said in their civil rights lawsuit that the company and its security chief tried to squelch efforts to unionize the 4,000-employee Bladen County slaughterhouse, one of the world's largest.
 
Ward was awarded $600,000 in compensatory and punitive damages, according to the United Food and Commercial Workers union. The jury awarded about $155,000 in damages to the estate of Rodriguez, who died in December of an undetermined cause.
 
The majority of damages are to be paid by Smithfield, but the company's security chief, Danny Priest, was ordered to pay the two men a total of $30,000.
 
"This confirms our position that the company conducted a campaign of intimidation against the employees to keep them from organizing," said Greg Denier, director of communications for UFCW.
 
Calls to an attorney for Smithfield were not immediately returned Friday evening.
 
In closing arguments Friday, an attorney for the plaintiffs said Smithfield executives were so determined to block organizing efforts that one threatened to abandon the plant if the union won the August 1997 election.
 
"Their dislike of the union was profound," attorney Martha Geer said. "They would rather destroy the plant than accept the UFCW."
 
Sheriff's deputies called to keep order at the plant acted at the bidding of Priest, himself an auxiliary deputy, said Geer and co-counsel Ann Groninger.
 
"They were doing what Danny Priest and Smithfield wanted them to do," Groninger said.
 
Smithfield and Priest denied the excessive- force allegations. Priest testified Thursday that the deputies were called in to prevent any violent outburst stemming from the emotional debate over union representation.
 
Ward and Rodriguez were arrested after a melee inside the plant that broke out as ballots were being counted. The two men said they were slapped, pushed and kicked as they were driven out of the plant cafeteria where votes were counted.
 
A sheriff's deputy testified in a deposition read in court this week that about 100 people crowded into the cafeteria and the hallway outside. A union organizer estimated the UFCW had about 15 observers in the room.
 
Priest said he arrested Ward and doused him with pepper spray because he saw Ward strike Deputy Lasaven Richardson while he was flailing his arms in the crowd.
 
"All he tried to do that evening was the right thing," Smithfield attorney John Harmon told the jury. "He took the appropriate and reasonable actions."
 
Ward testified he was arrested after someone else attacked him.
 
Ward and Rodriguez were charged with assaulting a government official; Ward also was accused of inciting a riot. The charges were eventually dismissed under a deferred prosecution agreement.
 
Smithfield Packing is a subsidiary of Virginia-based Smithfield Foods, the country's largest pork processor.
 
The 1997 organizing effort was the second in three years to fail at Carolina Food Processors, the name under which the slaughterhouse operates. About 50 organizers tried for two months to persuade production workers to back the union. The Rev. Jesse Jackson spoke at a pro-union rally.
 
The election led to hearings by the National Labor Relations Board and the lawsuit filed in 2000 was based on the resulting testimony and documents.
 
In 2000, the international advocacy group Human Rights Watch said Smithfield Foods' opposition to unionizing efforts at its plants in Tar Heel and Wilson demonstrate the United States' failure to enforce its own labor laws.

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IN THE CIRCUIT COURT OF
DEKALB COUNTY, ALABAMA
CIVIL ACTION NO. CV-2001-081

Louise Ivey and William E. Ivey,  *
PLANITFFS    *
      vs.     *
Gold Kist, Inc. Jeffery Wootten, and  *
Marty Wootten,
 DEFENDANTS
     CONSOLIDATED WITH
Sandra Allison; Mary Blevins; William *
Bowman; Larry Brewer; Brenda  *
Chapman; Cleo Davis; Brenda Ellis;  *
Rita Floyd; Robert Fussell; Harve  *
Giles; Brenda Ivey; Tony Ivey; Casey *
Ivey; Kaylor Mays; Robert Newsome; *
Wilton Shrader; June Weldon: Betty  *
Weldon; and Aaron Varnedore,  *

IN THE CIRCUIT COURT OF
DEKALB COUNTY, ALABAMA
CIVIL ACTION NO. CV-99-345-R

 PLAINTEFFS    *
      *
  vs.    *

Gold Kist, Inc.; Jeffery Wootten; and  *
Marty Wootten,
  DEFENDANTS

     ORDER
The Plaintiffs in this case are persons residing in Dekalb County, Alabama In the vicinity of a commercial hog production operation made the subject of this Case.  The Defendants are Jeffery Wootten, Marty Wootten, and Gold Kist, Inc.  The Woottens are producers/members of the Gold Kist Cooperative and operate a Concentrated Animal Feeding Operation, also known as a Cafo for Gold Kist Hogs.

 The Plaintiffs contend that the Defendants have a created a nuisance for which the Plaintiffs are entitled to recover monetary compensation and injunctive relief.

Although this Court entered no formal order bifurcating the damage claim from the equitable claim, the Plaintiff's damage claim came for trial beginning on October 2, 2000.  At the conclusion of the presentation of evidence, this Court charged the jury as follows:

The issue of injunctive relief is not a matter for the jury's consideration.  Whether injunctive relief is to be granted, and/or the extent or form which any such relief might take is not a matter for [the jury's] concern.  Whether or to what extent the Court grants injunctive relief in this case will be based in part on this Court's understanding of the evidence introduced in this trial as well as evidence which may be presented at subsequent proceedings, should [the jury] find in this case that the hog feeding operation in question constitutes a nuisance.

On October 12, 2000, the jury returned a verdict on the damage claim in favor of the Defendants.  A judgment was entered in accordance with said verdict on October 13, 2000.

 The Defendants contend that the jury's verdict in favor of the Defendants bars the Plaintiffs from seeking or obtaining any equitable or injunctive relief.  The Plaintiffs argue that the verdict of the jury, and the resulting judgment entered by this court in accordance therewith, does not bar the Plaintiffs from pursuing equitable remedies.  This Court acknowledges that the jury verdict in favor of the Defendants presents a significant legal issue regarding the Plaintiff's right to proceed with their injunctive claim.

 In City of Selma v. Jones, 202 Ala, 82, 79 So. 476 (1918) the Alabama Supreme Court explained that where a nuisance is abatable an award of damages is an inadequate remedy because an award of monetary damages cannot restore the complaining party to the condition which he enjoyed before the wrong was done.  In the instant case the odor from the Defendants' CAFOs is abatable, and an award of damage would not alone provide the Plaintiffs an adequate remedy.  Therefore, the Plaintiffs should be entitled to have the Court consider this claim for injunctive relief.

 This court's authorization to consider the Plaintiffs' claim for injunctive relief is also grounded on the principal that where a nuisance is abatable each occurrence or recurrence of the harm constitutes a separate cause of action.  Harris v. Town of Tarrant, 221 Ala. 558, 130 So. 83 (1930).  The evidence clearly establishes that the odor is abatable by, among other things, the discontinuation of the hog production operation.

Since the odor is abatable, the Plaintiffs are arguably entitled to file successive suits to redress their grievances under the Harris doctrine.  The Court's consideration of the Plaintiffs' separate claim for injunctive relief does not grant the Plaintiffs any greater opportunity to redress their grievances than they are already entitled to under Harris.  It would, therefore, be unjust to deny the Plaintiffs the opportunity to have the court consider their claim for injunctive relief.

On June 24, 2001, this Court entered an Order concluding that whether the Plaintiffs are entitled to injunctive relief in this case is a matter for determination by the Court independent of the determination by the jury, but that in order for the Plaintiffs to prevail on their claim for injunctive relief the Plaintiffs must first prove to the reasonable satisfaction of the Court that the Defendants have created and maintained a nuisance as alleged.  This Court explained its intention to consider the evidence that had been presented at the trial by jury as well as such additional evidence as the parties might thereafter present for the Court's consideration.

 Even though the jury trial resulted in a verdict for the Defendants, this court afforded the parties an opportunity to present additional evidence at the non-jury hearing on February 23, 2001.  Following this hearing the Court appointed a Special Master to monitor the air quality in the area of the Defendants' hog feeding operation.  The report of the Special Master was formally offered in open Court, and subject to examination by the parties on November 27, 2001.  In addition, this court visited the area in question accompanied by the attorneys on one occasion, and unaccompanied on nine other occasions.
 

FINDINGS OF FACT:
In 1998 and 1999 the Defendants, Marty Wooten and Jeffrey Wooten (hereinafter Woottens), constructed eight hog houses and two settling ponds in a densely populated rural area of DeKalb County, Alabama.  The area where the hog houses and settling ponds are located is encircled by a public road approximately four miles long.  The road is hereafter referred to as the "loop", and most of the Plaintiffs reside on the loop in close proximity to the Woottens' hog feeding operations.

Each of the two Woottens have four hog houses which hold approximately 1,000 hogs each for a total of approximately 8,000 hogs.  When hogs are received by the Woottens the hogs have an average weight of about 45 pounds.  The animals are subjected to continuous feeding and are grown to a weight of 200 pounds in 14 to 18 weeks, at which time the hogs are ready for slaughter.  The Woottens expect to raise approximately 2.8 lots during each twelve month period. 1

-----------------
1 At the hearing on November 27, 2001, the Defendants advised the Court that hogs are now grown for about 21 weeks to a weight of 200-250 pounds, and that they expect to produce about 2 lots of hogs per year.

 Hogs weighing 150 pounds produce approximately 9.8 pounds of manure and urine per day.  At this weight the Woottens' CAFO produces, therefore, an average of over 78,000 pounds of waste each day, and approximately 28,000,000 pounds of waste per year.

 During the growing of a lot of pigs, the animals stand on concrete slats which are located above a concrete waste pit.  The feces and urine falls into the waste pit.  Approximately once a week the waste is flushed from the houses into the settling ponds about 700 feet away.  The sludge in the settling ponds is pumped back into the hog houses as the flushing agent.  When the ponds reach a predetermined level, the sludge is pumped into tank trucks, and sprayed on hay fields and pastures in the community.

 The neighbors contend that the Defendants' CAFO constitute a nuisance because of the odor associated with the production of hogs and the spreading of sewage.  The Defendants deny that the odor is a nuisance.

 The evidence includes the testimony of Bruce Freeman, a representative of the Alabama Department of Environmental Management (ADEM).  He randomly visited the area in question and rated the odor according to the following Odor Index Rating (OIR):
RATING DESCRIPTION
 0  No detectable odor.
 1 Odor barely detectable.
 2 Odor distinct and definite, any unpleasant characteristics recognizable.
 3 Odor strong enough to cause attempts at avoidance.
 4 Odor overpowering, Intolerable for any appreciable time.

During 24% of the ADEM visits to the area, ADEM found the odor at level 2 rating: "odor distinct and definite, and unpleasant characteristics recognizable."

 Following the jury trials this Court appointed a Special Master to monitor the odor on the loop road and to rate the odor according to the ADEM scale.  During 42% of the Master's visits to the area, he found the odor at a Level 2 or higher rating.  This Court has visited the loop road nine times, and found the odor at a Level 2 or higher rating during 33.3% of those occasions.

 Taken all together, ADEM, the Special Master, and this Court have found offensive odor at a Level 2 or higher rating at one or more locations on the loop road 40% of the time.  In addition, Level 1 detectable odor was found at one or more locations on the loop 43% of the time.

 These findings are consistent with the great weight of the other evidence in this case.  The residents living in this area have generally described experiencing offensive odor 2-4 times per week, that is 29% to 57% of the time.  The witnesses have explained that the odor comes and goes at unpredictable intervals, and that it remains for various lengths of time.  The odor seems to arrive, move and dissipate according to the activities of the hog feeding operation and weather conditions.

 The activities which appear to most aggravate the situation are the flushing of sewage from the houses, and the spraying of sewage on nearby pastures and fields.  Temperature, humidity, and the prevailing wind also seem to affect where and when the odor occurs, and length of time it remains.

 Witnesses have described being unable to plan family gatherings, outdoor barbeques and cookouts, and other outside activities for fear of the unpredictable presence of offensive odor.  Others have described the effect the odor has had on their children's activities, gardening and yard care, and other routine activities.  Most of the Plaintiffs and others in the area have found it necessary to keep their doors and windows closed even in good weather in order to avoid the offensive odor which ebbs and flows throughout the community.

 Based on the testimony of a microbiologist this Court is satisfied that the air born particles released by the Defendants' hog production operation are a potential health hazard for those living in the area.  The micro organisms which produce the foul odor can compromise a human's immune system.  In addition, the odor alone can have a significant adverse psychological and physical impact on those subjected to such odor.  Some of the Plaintiffs have described becoming nauseated and vomiting from the odor.  The Plaintiffs have also described the adverse psychological affect which they have experienced.  They have fear for their health and safety and anger and resentment for the invasion of their lives.

 A nuisance is defined as anything which works hurt, inconvenience, or damage to another.  Even though the jury found in favor of the Defendants, the Defendants' conduct has worked a hurt, inconvenience or damage to the Plaintiffs and is clearly a nuisance.

 The law of this state provides that the fact that an act done may otherwise be lawful does not keep it from being a nuisance, Title 6-5-120 Code of Alabama (1975).  Compliance with licensing requirements, environmental regulations, and industry standards, does not grant immunity to any person or entity which creates or maintains a nuisance.

 In Morgan County Concrete Company v. Tanner, 374 So. 2d 1344 (1979) people living in a residential area sued to enjoin the construction and operation of a proposed ready-mix concrete plant on property adjacent to the residential area.  The Defendants argued that there was no abatable nuisance because the property had been rezoned for general industrial use, and the concrete plant was being operated in a proper manner in accordance with applicable environmental standards.

  The trial court in Tanner held that due to the noise created by the plant, accumulations of sediments attributable to drainage problems, and inevitable accumulations of dust, the concrete plant constituted a nuisance.  The trial court ordered the plant to cease operations even though it was operating lawfully and in compliance with applicable environmental standards.  The Alabama Supreme Court agreed with the trial court stating as follows:

"The essence of private nuisance is an interference with use and enjoyment of land. … So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance to the enjoyment of property may amount to a nuisance."  W. Prosser, Handbook of the Law of Torts s 89, at 591-93 (4th ed. 1971).  Accordingly, this court has often stated that any establishment erected on one's premises, though for the purposes of a lawful trade or business, which, from the situation, the inherent qualities of the business, or the manner in which it is conducted, directly causes substantial injury to the property of another or produces material annoyance or inconvenience to the occupants of adjacent dwellings rendering them physically uncomfortable, is a nuisance.  In applying this principle it has been repeatedly held that smoke, offensive odors, noise, or vibrations of such degree or extent as to materially interfere with the ordinary conform of human existence will constitute a nuisance.  Baldwin v. McClendon, 292 Ala. 43, 288 So.2d 761 (1974); Coleman v. Estes, 281 Ala. 234, 201 So.2d 391 (1967).
 

 In Alabama Power Company v. Stringfellow, 228 Ala. 442, 153 So. 629 (1934) a homeowner complained that a municipal power substation constituted a nuisance.  The power company argued that it had a lawful right to generate and distribute electricity, and that it had been granted the necessary licenses to do so by the proper governmental and regulatory authorities, and in accordance with approved engineering standards approved by the Alabama Public Service Commission.  The Alabama Supreme Court nevertheless found the power station to constitute a nuisance "by reason of noise, vibration, smoke, soot, gases, and the like, rendering adjacent property less comfortable and valuable."

 In the instant case the Defendants have argued that they should not be subjected to the imposition of an injunction because they are operating in compliance with applicable environmental regulations.  This argument fails for two reasons.  First, compliance with governmental regulations does not carry with it the right to create a nuisance, and second, the Defendants have not complied with any such governmental regulations because Alabama has no statutory or regulatory standards for air quality and odor control.

 Some states in the South, including Gold Kist's home state of Georgia, have imposed a moratorium on the construction of CAFOs, or have otherwise begun regulating same to protect rural communities from the offensive conditions suffered by the Plaintiffs in this case.  The Plaintiffs imply that Gold Kist has become active in the Alabama hog production market because of this state's failure to regulate the conduct of which the Plaintiffs complain.

 The Defendants argue that the Natural Resource and Conservation Service (NRCS) designed the waste management plan for the CAFOs in question, and that they should not be expected to do any more.  NRCS does not have any regulatory authority, nor does it establish standards for odor control.

 The NRCS does make certain recommendations with respect to waste management.  On the one hand, the Woottens argue that they should not be expected to exceed the NRCS recommendations, but on the other hand the Woottens have not implemented or complied with all of the NRCS recommendations.  For example, NRCS recommends that waste not be applied to spray fields within 150 feet of public roads or within 300 feet of dwellings or public use areas.  The Woottens have testified that they spray within 150 feet from the home of Brenda and Tony Ivey, and the evidence establishes that the spraying is within about 100 feet from the Ivey home.  The Woottens have also rejected the NRCS recommendation that they install a mechanical aeration system to reduce odor.

 The respective Plaintiffs have lived in the area for various periods of time; however, all of them were residing on or around the loop road before the Defendants constructed their CAFOs.  Most of them have lived there for many years.

 In determining whether the odor in question constitutes a nuisance, this Court is required to consider whether the Plaintiffs are reasonable in their complaints.  To constitute a nuisance, the inconvenience the Plaintiffs complain of must not be fanciful, or such as would only affect one of fastidious taste.  A person of fastidious taste is a person who is difficult to please, rejects what is common, and is very critical or is easily disgusted.  The plaintiffs do not individually or collectively meet this profile of a fastidious person.

 The plaintiffs are not hypersensitive city dwellers complaining of a minor annoyance.  They are a group of hardy, hard working, self sufficient, independent, reasonable, and fair minded men and women who expect to be treated just as they would treat others.

 Gold Kist claims to have a "good neighbor" policy, but Gold Kist did not undertake a population density study prior to the construction of the Woottens' CAFOs.  Gold Kist has not assigned its personnel to make environmental quality or odor assessments, nor has Gold Kist made any meaningful evaluation of the community complaints.

 Gold Kist does have a policy that a CAFO may not be built within one-half mile of a church, school, or recreation area because of CAFO odors.  Gold Kist has no concern, however, for the effect of odor on the individuals, and households in the vicinity of their CAFOs.

 In this case there is a church within one-half mile of the Woottens' hog production facility, but the minister at that church is the father-in-law of one of the Woottens, and, therefore, the church waived the one-half mile set back.  Neither Gold Kist nor the Woottens requested that any individuals sign such waivers.

 The settling pond used by the Woottens is the least effective means of dealing with waste disposal and odor control.  It is the only settling pond of its kind in the entire Gold Kist network.

 Gold Kist did not tell the Woottens of the CAFO controversies in other parts of the South, nor does it appear that Gold Kist advised the Defendants to upgrade their facilities to meet the standards of other Gold Kist producers.  These omissions have put the Woottens at risk in this case.

 Gold Kist expects its producers to operate in accordance with the highest industry standards regarding animal husbandry practices.  Gold Kist is concerned about the health and well being of its hogs, but has shown very little concern for the people living in this densely populated area of North Alabama.

 On the other hand, the Woottens have shown some concern about the odor.  They have testified that during their first year of operation the odor was "not acceptable".  In order to try to improve the problem, the Woottens have stopped flushing the hog houses on weekends, have added a felt cover on the settling pond, and have lowered the spray heads on the tank truck.

 Notwithstanding these efforts, the odor remains a nuisance for the neighbors in the vicinity of the hog houses and spray fields.

CONCLUSIONS OF LAW:
 On the basis of the findings of this Court, whether set out herein, or not, this court finds the Defendants hog production operation constitutes an abatable nuisance.

JUDGEMENT:
 In accordance with the Finding of Fact and Conclusions of Law it is
 ORDERED that as hogs are grown to maturity and removed from the hog houses for slaughter the Defendants may continue to restock the hog houses under present operating procedures through March 31, 2002.  The Defendants are hereby restrained and enjoined from restocking the subject hog houses on or after April 1, 2002, unless an odor management plan, to be submitted by the Defendants, has been approved by the Court.  It is further

ORDERED that within thirty days from the date of this Order the Defendants shall submit an odor management plan for review by the Plaintiffs and for consideration by the Court.  It is further

ORDERED that any odor management plan which may be hereafter approved by this court shall be approved on a temporary or experimental basis and subject to revision or modification as the Court may thereafter direct; provided, however, that if an odor management plan is not approved by the court on or before April 1, 2002, the Defendants may not restock the subject hog houses after that date unless and until such odor management plan has been approved.

 Done this 9th day of January, 2002.

    David A. Rains, Circuit Judge

COPY TO:
M. Clay Ragsdale, E. Ansel Strickland, Michael C. Quillen, Al Shumaker, Blake Lazenby, Will Lawrence, Stanley Hollingsworth Special Master

Attorney for-
Plaintiff(s) - Sandra Allison; Mary Blevins; William Bowman; Larry Brewer; Brenda Chapman; Cleo Davis; Brenda Ellis; Rita Floyd; Robert Fussell; Harve Giles; Brenda Ivey; Tony Ivey; Casey Ivey; Kaylor Mays; Robert Newsome; Wilton Shrader; June Weldon; Betty Weldon; and Aaron Varnedore

Defendant(s) - Gold Kist, Inc.
Mary Wooten
Jeffrey Wooten
Wooten Farms
......................................................................................................................................................................................

Iowa - DesMoinesRegister.com News

 http://www.dmregister.com/news/stories/c4788993/17149124.html

Jury sides against hog-lot firm
A total of $76,400 will go to residents near the facility.
By JERRY PERKINS
Register Farm Editor
01/26/2002

A Calhoun County jury has awarded $76,400 in damages to four property owners who claimed a nearby hog operation diminished their rural residential values.

The property owners sued after an Illinois corporation put in a 4,000-hog operation within a half-mile to a mile of their properties southeast of Rockwell City.

This is the second time this month that property owners have been awarded damages after claiming nearby hog-feeding operations depressed their property values.

On Jan. 8, a Sioux County court awarded $100,000 in damages to Joseph and Linda Gacke of Rock Valley.

Thomas Lipps, an Algona lawyer who represented the complaining property owners in both lawsuits, said the two cases don't necessarily set a precedent for future lawsuits against hog operations. "Each case has a personality of its own and is highly fact-dependent," he said.

Eldon McAfee, a Des Moines lawyer who represented the hog operation owners, said it was significant the jury refused to award damages to the property owners based on odor or other nuisances coming from the hogs. "There were no damages awarded for the loss of use and enjoyment of the properties," he said.

The hog operation is owned by John and Warren Sunderlin of Schaumburg, Ill.

Property owners who received damages were Jim and Barbara Kleemeier, $15,500; Jim and Judie Carver, $22,100; the Warren Carver Trust and the Genevieve Carver Trust, $16,800; and Gene and Ruth Dischler, $22,000.

.......................................................................................................................................................................................

Saturday, January 12, 2002
www.amarillonet.com

Amarillo Globe-News  Local        page 3E

Judge awards Iowa couple $100,000 in hog lot lawsuit

DES MOINES, IOWA (AP) - A judge has ruled that a Sioux County couple's homestead dropped $50,000 in value after a corporate hog farm was built in the area.

Sioux County District Judge Dewie J. Gaul ordered Pork Xtra LLC on Wednesday to pay $100,000 to Joseph and Linda Gacke of Garfield Township near Rock Valley.

The Gackes sued Pork Xtra on June 13, 2000, alleging the company's 4,000-head hog farm near their home was a nuisance that attracted bugs and harmed their emotional and physical health.

They had sought punitive and compensatory damages as well as an injunction that could halt the farm's operations.

Gaul wrote in the ruling that he would not grant the injunction, "since the award here made will adequately compensate the plaintiffs."

Iowa courts usually have thrown out lawsuits by neighbors who alleged corporate farms were a nuisance, but the Iowa Civil Liberties Union filed a brief last summer, alleging that the law that gave big farms immunity [sic] violated citizens' legal rights.

Judge John Ackerman ruled in August that the law was unconstitutional because larger farms could interfere with the use of a neighbor's property and right to seek compensation.

Ackerman's action gave the Gackes the opportunity to proceed with their lawsuit and have their case tried in court.

The Gackes' attorney, Thomas Lipps of Algona, had said there wasn't any reason any industry should be immune from accountability.

Lipps has been critical of the law that protected confined livestock farms, saying it was actually designed to protect corporate farms.

.......................................................................................................................................................................................
 

 http://www.aclu.org/news/1999/n063099c.html

ACLU to Defend Iowa Farm Families
In Lawsuits Against Hog Factories
FOR IMMEDIATE RELEASE
Wednesday, June 30, 1999
 

DES MOINES, IA -- The American Civil Liberties Union of Iowa today announced that it will provide legal assistance to people around the state who could be prevented from maintaining lawsuits against neighboring hog factories that pollute their environment.

Last year, the Iowa Legislature expanded legal protections for factory-style hog farms, giving them virtually complete immunity from any lawsuits. But the ACLU says that the law violates both the Iowa and Federal Constitutions by depriving Iowans of their centuries-old common law rights to sue in court to protect their own homes.

In the first case to be filed, the ACLU will help represent a number of longtime Clay County farm families who face an environmental threat from plans to build and operate a "hog factory" above a shallow, easily polluted aquifer. All of the families draw their drinking water from the aquifer, which currently provides some of the purest water in the state.

"For the last decade, our legislators have been busy crafting a two-tiered society consisting of those who have the right to exploit or inflict injuries upon others and those who aren't allowed to do anything about it," said Randall C. Wilson, an attorney for the Clay County families and ACLU of Iowa Legal Director.

"Where do you suppose most of us fit in?" he added. "This is a trend of the fundamental concern for a society built on the concepts of equality and the elimination of the aristocracy."

The ACLU noted that this sort of immunity has become a trend in medical malpractice, environmental litigation, product liability, and other fields; it is working to curb the granting of such immunities to wealthy or powerful interests that wish to be free from lawsuits.

According to the ACLU's complaint, Carroll Foods, Inc., which has had operational problems in its home state of North Carolina, applied for a permit to build the Clay County facility after North Carolina imposed a moratorium on construction of large-scale hog confinement operations.

In a virtually unprecedented move, the Iowa Department of Natural Resources, which routinely grants permits for facilities on request, denied Carroll Foods permission to build the Clay County facility, citing factors such as the fragility of the underlying aquifer. Carroll Foods responded by lowering the claimed capacity of its new facility to a point just below the licensing threshold, thereby eliminating the need for state approval.

Attempts to resolve problems through statutorily required mediation were unsuccessful.

.......................................................................................................................................................................................

 http://www.usatoday.com/usatonline/20011211/3688985s.htm
Page 12A
Date: 11 Dec 2001   Source: USA Today
Across The USA
Oklahoma: Tulsa -- The city of Tulsa filed suit against six poultry processors and an Arkansas town to force the chicken industry to clean up the Lake Eucha watershed. The lawsuit accuses Decatur, Ark., Tyson Foods, Cobb-Vantress, Peterson Farms, Simmons Foods, Cargill and George's of causing taste and odor problems with Tulsa's drinking water coming from lakes Spavinaw and Eucha.

.....................................................................................................................................................................................
 

 http://www.producer.com/articles/20011206/news/20011206news20.html
this document web posted: Thursday December 6, 2001
Canada -
RM sued over farm smells

By Michael Raine
Saskatoon newsroom

Dave Collins is raising a stink about the smell of his rural community.

Collins lives in Dalmeny, Sask., a small farming community near Saskatoon. He is suing his rural municipality over the smell from local farms.

Collins moved to Dalmeny in 1995 and said in the last two years a dairy farm and some poultry operations have ruined his way of life.

"I can't use my property in summertime. I can't sit in my back yard. It smells too bad. And because of a change in law in 1996, I can't even sue the people who are wrecking my way of life," he said.

"So I'm suing the municipality that is allowing these (livestock operations) to expand. I don't blame the farmer. He's just doing what the law says he can. I blame the regulator who tells him he can do it."

When Collins moved to Dalmeny, he said the nearby dairy farm had fewer cattle than it has today.

Ed Hobday is the reeve of the Rural Municipality of Corman Park, the council named in Collins's lawsuit filed Nov. 28.

"The dairy has had the right to be at 299 animal units since we brought in the bylaw in 1983," Hobday said. "The farms pre-date us even having a bylaw and thus they were grandfathered in. The dairy didn't expand. It simply returned to its previous size and within its operating limit."

Collins appeared before the Corman Park council last summer and asked it to pay for an air conditioner and air "purification" system for his home.

Hobday said the council chose not to pay.

"I understand he is suing the council for $5,000 so that he can install the air conditioning," said the reeve.

Bill Henley, a provincial agriculture livestock specialist for the region, said the local dairy farm once spread manure too close to the community last year, but has since moved to effluent injection and has "cleaned up and made an effort to do everything up to standards."

He said the province investigated Collins's complaints and found that local farms are acting within the provincial guidelines.

Collins has not taken the case to the Agricultural Operations Review Board because he feels it is made up of farmers who would side against him.

Collins and the municipality are scheduled to be in Saskatoon provincial court Dec. 20.

© The Western Producer.
....................................................................................................................................................................................

November 7, 2001
 http://www.news-star.com/stories/110701/new_4.shtml

Pork Council hits rule
OKLAHOMA CITY

A lawsuit filed by the pork industry seeks to block enforcement of an emergency rule governing odor complaints at large swine operations.

Max Boothe, president, said members of the Oklahoma Pork Council believe the Department of Agriculture has exceeded its authority by adopting the rule.

The suit, filed in Oklahoma County district court, said the rule unlawfully singles out the pork industry.

It said state law regulating pig farms does not authorize the agriculture agency to bring action against operators based upon third-party complaints.

Gov. Frank Keating signed the regulation last month, calling it another tool at the state's disposal to "ensure a clean and safe land."

Letters about the rules were sent to nine hog farms, including six owned by Kansas-based Seaboard Farms Inc., which produces more than half of the hogs raised in the state. The state has received at least three complaints about each farm.

.......................................................................................................................................................................................
Oklahoma, ADHESION CONTRACT, Attorney General Opinion
November 3, 2001
This is the text of the Atty Gen's opinion referenced in:
"Tulsa mayor anticipates court fight," By Kelly Kurt
Associated Press
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Match Number: 1 of 1
Score: 100
Entry_Date: 041001
Appellant: Representative Kenneth Corn
Jurisdiction: Attorney General of Oklahoma - Opinion
Hearing_Date: April 11, 2001
Text_of_Rule:
Dear Representative Corn:

This office has received your letter requesting an official Attorney General
Opinion in which you ask, in effect, the following questions:

1. Are contract growing arrangements "contracts by adhesion" under Oklahoma
law?

2. Which state's law governs the contract - the state where the integrator
has its legal place of business or corporate headquarters, or the state where
the contract is initiated or performed?

3. Under these contracts are the contract growers considered to be
independent contractors or employees of the integrator?

I. INTRODUCTION

One of the most significant changes in agriculture in recent years has been
the increase in the number of farmers who serve as "contract growers." A
contract grower is a farmer who raises on his own property an agricultural
commodity for another, "the integrator," with the integrator typically owning
the crop throughout the process. Thus, in the livestock context, contract
growers are paid to raise the integrator's livestock in the contractor's
barns with the integrator typically supplying not only the animals but also
the food and medicine necessary to their growth. See Holly Farms Corp. v.
NLRB, 517 U.S.392, 395 (1996). In the seed context, integrators provide
contract growers with seed that the contract growers plant. The contractors
tend the crop and then, at harvest, return to the integrator the progeny of
the crop which the integrator then sells to independent farmers who will
plant it to raise food or other cash crops. See Delta & Pine Land Co. v.
Sinkers Corp., 177 F.3d 1343, 1346 (Fed. Cir. 1999).

II. ADHESION CONTRACT

You first ask whether the arrangement between a contract grower and an
integrator is a contract of adhesion. The Oklahoma Supreme Court has defined
an "adhesion contract" as follows:

"The term adhesion contract refers to a standardized contract prepared
entirely by one party to the transaction for the acceptance of the other;
such a contract, due to the disparity in bargaining power between the
draftsman and the second party, must be accepted or rejected by the second
party on a "take it or leave it" basis, without opportunity for bargaining .
. . ."

Rodgers v. Tecumseh Bank, 756 P.2d 1223, 1226 (Okla. 1988) (footnote
omitted).

The fact that a contract is one of adhesion does not necessarily render it
void. An adhesion contract will, however, be "interpreted most strongly
against the drafter of the instrument." Towe, Hester & Erwin, Inc. v. Kansas
City Fire & Marine Ins. Co., 947 P.2d 594, 597 (Okla. Ct. App.1997) (quoting
Cont'l Fed. Sav. & Loan v. Fetter, 564 P.2d 1013, 1019 (Okla. 1977)). Any
ambiguities or uncertainties in the contract will be construed in favor of
the party presented with the form contract. See Dismuke v. Cseh, 830 P.2d
188, 190 (Okla. 1992); Brannon v. Boatmen's Nat'l Bank, 976 P.2d 1077, 1083
(Okla. Ct. App. 1998). Indeed, even if the terms of the adhesion contract are
clear and unambiguous they will not always be enforceable. As the Supreme
Court noted in Rodgers, adhesion contracts reflect an imbalance of bargaining
power. See Rodgers, 756 P.2d at 1226. When this imbalance of bargaining power
rises to a sufficient level and is combined with contractual terms which are
unreasonably favorable to the other party, the courts will refuse to enforce
those terms on the grounds of unconscionability. See Barnes v. Helfenbein,
548 P.2d 1014,1020 (Okla. 1976). You have indicated that integrators
typically offer to their growers form contracts which the growers must either
accept or reject in their entirety. If this is the case, such contracts are
contracts of adhesion. Whether any particular contract between a grower and
an integrator is a contract of adhesion is a question of fact which cannot be
answered in an Attorney General's opinion. See 74 O.S. 18b(A)(5) (2000).

III. CHOICE OF LAW

Your second question asks which state's law governs the contract -the law of
the integrator's domicile or the law of the state where the contract is to be
performed. By statute "a contract is to be interpreted according to the law
and usage of the place where it is to be performed, or, if it does not
indicate a place of performance, according to the law and usage of the place
where it is made." 15 O.S. 162 (1991). Thus, as a general matter, contracts
setting up contract growing arrangements will be governed by the law of the
state in which the growing is to occur. The parties to a contract may,
nevertheless, provide in the contract that the law of another state will
govern the agreement. See Carmack v. Chem. Bank New York Trust Co., 536 P.2d
897, 899 (Okla. 1975); Williams v. Shearson Lehman Bros., Inc., 917 P.2d 998,
1002 (Okla. Ct. App. 1995). There are limits, however, to the power of the
contract to determine the law under which it will be governed. In Dean Witter
Reynolds, Inc. v. Shear, 796 P.2d 296 (Okla. 1990), the Oklahoma Supreme
Court held that the contractual choice of the parties will not control if:

"(a) the chosen state has no substantial relationship to the parties or the
transaction and there is no other reasonable basis for the parties' choice,
or

"(b) application of the law of the chosen state would be contrary to a
fundamental policy of a state which has a materially greater interest than
the chosen state in the determination of the particular issue and which, . .
. would be the state of the applicable law in the absence of an effective
choice of law by the parties."

Id. at 299 n.12 (Okla. 1990) (alteration in original) (quoting RESTATEMENT
(SECOND) OF CONFLICT OF LAWS 187 (1988)). A state will be found to have a
substantial relationship to the parties or the transaction if, for example,
the contract is to be performed in that state or one of the parties is
domiciled or has its principal place of business there. See RESTATEMENT
(SECOND) OF CONFLICT OF LAWS 187 cmt. f (1988). Examples of "fundamental
policies" as that term is used in the Restatement include policies embodied
in statutes that declare certain kinds of contracts illegal and in those
"designed to protect a person against the oppressive use of superior
bargaining power." Id. at cmt. g. Whether these criteria are satisfied in a
particular case depends on the terms of the contract and the identities of
the parties and so is beyond the scope of an Attorney General's Opinion. See
74 O.S. 18b(A)(5) (2000).

IV. RELATIONSHIP BETWEEN THE CONTRACT GROWER AND THE INTEGRATOR

As with any business relationship, the terms of the contracts between
contract growers and integrators will vary. You have, however, detailed what
you describe as the typical features of one form of contract growing
arrangement - that for raising chickens. Under the terms of the typical
poultry contract the grower agrees to raise to adulthood a flock of chicks
belonging to the integrator. The flock is housed in the grower's barns and
tended by the grower. The integrator owns the flock the entire time and
provides all food, medicine and other supplies. When the birds are fully
grown, the integrator returns for the birds and the grower is compensated
under a formula that takes into account the weight and health of the birds as
well as the cost of feed expended upon them. You have indicated that under
these contracts the grower may hire employees but may not assign the contract
or raise birds for another integrator during the contract. Typically the
contract will state expressly that the grower is to be considered an
independent contractor and not an employee. However, when determining whether
a contract creates an employment relationship, courts look not to how a
contract describes the relationship but to the actual roles played by the
parties. See Texaco, Inc. v. Layton, 395 P.2d 393, 398 (Okla. 1964) (citing
Ottinger v. Morris, 104 P.2d 254 (1939)).

The distinguishing characteristic of an employment relationship is control
over the manner in which the work is performed. See Tulsa County v. Braswell,
766 P.2d 341, 342 (Okla. 1988) (citing Clark v. First Baptist Church, 570
P.2d 327 (Okla. 1977). As the Supreme Court has said:

"An independent contractor is one who engages to perform a certain service
for another, according to his own method and manner, free from control and
direction of his employer in all matters connected with the performance of
the service, except as to the result thereof."

Miller Constr. Co. v. Wenthold, 458 P.2d 637, 639 (Okla. 1969). While the
person hiring an independent contractor is limited to specifying what he or
she wants accomplished, an employer may specify and control the manner in
which an employee performs the actual work itself. This is "the decisive test
for determining whether one is an employee or an independent contractor."
Bouziden v. Alfalfa Elec. Coop., Inc., 16 P.3d 450, 459 (Okla. 2000).'

Some aspects of the contract you describe weigh in favor of a determination
that the grower functions as an independent contractor under it. The grower
is paid based largely on performance, rather than receiving a wage or salary,
which is indicative of an employment relationship. See Mistletoe Express
Serv., Inc. v. Culp, 353 P.2d 9, 12 (Okla. 1959). In addition the grower
raises the chickens in his own barns and is free to hire his own employees.
Courts have held that provision of one's own equipment and the right to
engage employees are factors which militate in favor of finding that the
person in question is an independent contractor. See id.; Cook Constr. Co. v.
Longcrier, 405 P.2d 165, 169 (Okla. 1965) (Williams, J., dissenting).

On the other hand, a number of other elements of the contract you describe
militate in the direction of an employment relationship. The integrator may
terminate the contract at any time and for any reason. This has been held to
be characteristic of an employment relationship. See Mistletoe Express Serv.,
353 P.2d at 12. Some of the tools of the job such as feed, medicine, and
other supplies are furnished by the integrator which is consistent with an
employment relationship. See id.; Smith v. St. Francis Hosp., Inc., 676 P.2d
279, 281 (Okla. Ct. App.1983). Performance under the contract may not be
assigned to another, a fact which courts have held tends to indicate a
master-servant relationship. See Cook Constr. Co., 405 P.2d at 169,170.
Similarly, the contract you describe provides that the grower may not raise
birds for himself or any other integrator. This sort of exclusivity is a
badge of an employment relationship. See Commonwealth Life Ins. Co. v. Gay,
365 P.2d 149, 151 (Okla. 1961) (citations omitted).

Most importantly, however, the contract you describe grants the integrator a
remarkable degree of control over the manner in which the chickens are
raised. Although the grower provides the barns, the barns must be outfitted
to the integrator's specifications. These specifications frequently include
such details as the water storage capacity of the barns, the wattage of
backup generators, and even the spacing of the light fixtures. The methods
for raising the chicks are themselves minutely specified in the contract or
an addendum to it which lays out such requirements as the maximum number of
chicks per brooder, the air temperature inside the barns, and the angle of
the watering tubes. The contract also provides for inspection by the
integrator to ensure that these conditions are complied with. It is extremely
difficult to characterize this situation as one in which the grower fulfills
the contract "according to his own method and manner, free from control and
direction of ... the integrator in all matters connected with the performance
of the service, except as to the result thereof." Miller Constr. Co., 458
P.2d at 639.

Although we cannot in an Opinion determine that any particular contract
growing arrangement establishes an employer-employee relationship, where the
contract provides in detail the manner in which the livestock or crop is to
be raised, the contract grower ceases to be an independent contractor and
becomes an employee.

It is, therefore, the official Opinion of the Attorney General that:

1. Contracts establishing contract growing arrangements that are presented to
the grower with no opportunity to negotiate their essential terms are
contracts of adhesion.

2. Absent an effective choice of law by the parties, contract growing
arrangements providing for the raising of a crop in Oklahoma are governed by
the laws of Oklahoma. See 15 O.S. 162 (1991).

3. Where an integrator directs in detail the manner in which raising of the
crop is to be performed the contract grower is the employee of the
integrator.

( MILES TOLBERT )

(FOOTNOTES):

1 Bouziden is only the most recent in a long line of cases that have
described the control of the work done as "the decisive test" in determining
whether a employment relationship exists. See, e.g., Barfield v. Barfield,
742 P.2d 1107, 1110 (Okla. 1987); Murrell v. Goertz, 597 P.2d 1223, 1225
(Okla. Ct. App. 1979); Union Mut. Ins. Co v. Hill, 356 P. 2d 336, 337 (Okla.
1960); Yellow Cab Co. v. Wills, 185 P.2d 689, 690 (Okla. 1947). There is,
somewhat confusingly, a parallel line of cases that list several relevant
factors and announce that "no one factor is controlling." See, e.g., Duncan
v. Powers Imports, 884 P.2d 854, 856 (Okla. 1994) (quoting Coleman v. J. C.
Penney Co., 848 P.2d 1158, 1160 (Okla. 1993)); Swafford v. Williams, 863 P.2d
1215, 1217 (Okla. 1993). The apparent tension between these decisions can be
resolved by reference to the seminal case relied upon by all of the "no one
factor is controlling" decisions - Page v. Hardy, 334 P.2d 782 (Okla. 1958).
That case held that "control . . . in all matters connected with the
performance of the service" is the determinative issue, with the various
factors offered as means of determining if such control exists. Id. at 784.

** ( ED NOTE: HOG FARMING / POLLUTION / ENVIRONMENTAL )
Citation: 01-017 (2001) ag

........................................................................................................................................................................................

Mo., The Joplin Globe
THURSDAY, OCTOBER 25, 2001

Tyson named in lawsuit
Residents allege land devalued by pollution
http://www.joplinglobe.com/011025/regional/story4.html

By Wally Kennedy
Globe Staff Writer

NOEL, Mo. - A class-action lawsuit that alleges Grand Lake's water quality
has been damaged by the Tyson Foods chicken plant at Noel has been filed in
Mayes County District Court at Pryor, Okla.

Attorneys representing the property owners said the action could involve
thousands of plaintiffs who own lakefront property.

It will be a property-value case in which the plaintiffs will seek damages
for property the lawyers say has been devalued by the waste water emitted
from the plant.

The plaintiffs allege the company dumped waste water containing chicken
parts and blood into Elk River, which flows into Grand Lake.

In addition, the plaintiffs allege Grand Lake's water quality has been
damaged by discharges from hundreds of Tyson chicken-growing operations in
the Elk River watershed of Grand Lake.

Archie Schaffer, spokesman for Tyson, based in Springdale, Ark., said in a
written statement: "While the news media has informed us that a lawsuit has
been filed in Mayes County, Okla., concerning our operations in Southwest
Missouri, we have not been served, nor have we had any communication from
counsel for the plaintiff.

"Until we are served and our legal counsel has a chance to review the
complaint, we will not have any comment on the matter.''

Tyson says it is the largest poultry producer in the nation, with 59 plants
producing 2 billion chickens annually. Sales topped $7 billion in 2000.

Blake Champlin, an attorney representing the property owners, on Wednesday
said: "This is an industry which must be civilized by the Oklahoma courts.
The chicken integrators have been damaging our state's clean water and
lakefront property values with impunity.

"They also have been treating the Oklahoma farmers who grow their chickens
as medieval serfs. We want to make it clear that the suit is not against the
growers. They are merely closely controlled agents or employees of the
integrators.''

The suit was filed by the same Tulsa, Okla., law firm - Shipley, Jennings
and Champlin - that filed and settled a federal court suit against Simmons
Foods earlier this year.

Simmons operates a chicken processing plant at Southwest City. Waste water
from the plant flows into a tributary of Honey Creek, which flows into Grand
Lake at Grove, Okla.

The suit represented about 35 property owners who live downstream from the
Simmons plant. They alleged that Honey Creek was polluted by waste water
from the plant, and that ground water in the area of the plant was
contaminated by plant operations.

The settlement amount, reportedly $4 million, was not disclosed by Simmons
or the law firm.

Charles Shipley, an attorney in the firm, said: "One led to the other. While
we were winding down the suit against Simmons, the people along Elk River
began talking to us.

"It's been in the works for a while."

The new lawsuit alleges that Tyson is discharging millions of gallons of
waste water directly into Elk River. Grand Lake homeowners, who once enjoyed
clear shorelines, say they now contend with foul odors, pieces of poultry,
waste, oil slicks, and white foam and scum along the shoreline, according to
the lawsuit.

The property owners allege that local landowners contracted by Tyson to grow
chickens deposit poultry litter directly onto the land. The exposed waste,
the plaintiffs contend, is carried by rainwater runoff into Elk River, which
carries it to Grand Lake.

The attorneys said they will use water-quality records from the Oklahoma
Water Resources Board to show that Elk River contains elevated levels of
ammonia, phosphorous, nitrates and algae.

Within the next 10 days, the attorneys will travel to Springfield to search
for water-quality records about the plant that are maintained by the
Missouri Department of Natural Resources.

Tyson recently paid $40,000 in consent judgment penalties for 10
water-quality violations in the summer of 2000. The company, as part of the
court agreement, was required to make improvements to the plant's
waste-water treatment plant.

Shipley said the settled case against Simmons and the new one against Tyson
are different in that Simmons was not held accountable for its growers.

Said Shipley: "The Oklahoma attorney general last May issued an opinion that
the contract growers for the integrators are so closely controlled in the
method of their operation of these contract farms that they amount to mere
agents or employees of the integrators.

"We are not bothering the poor farmers. We are going after the principal.
The ownership of the chicks never transfers from Tyson to the contract
grower.

"So, if it is Tyson's chicken when delivered to a grower and it's Tyson's
chicken when it is retrieved by Tyson from the grower, whose chicken litter
is it that goes on the ground and into Grand Lake?''

Shipley said the company's independent-contractor defense that the chicken
growers are just "sloppy farmers'' will not stand up in court.

"We will establish the loading of Elk River and what the company is
responsible for,'' he said.

"Honey Creek and Elk River are the two most heavily contaminated coves on
the lake. They have one unique factor in common: They both have chicken
processing plants.''

Grand Lake covers more than 45,000 surface acres and has more than 1,000
miles of shoreline. It was built in 1940 and is the third largest lake in
Oklahoma.

The value of that lakefront property is estimated at billions of dollars.

All content (c)2001 The Joplin Globe and may not be reproduced without
permission.

........................................................................................................................................................................................

October 12, 2001
World's Largest Meatpacker to Resolve Environmental Problems
U.S. Newswire
12 Oct 18:14
World's Largest Meatpacker Reaches Agreement With U.S. to
Resolve Environmental Problems Throughout Midwest
To: National Desk
Contact: U.S. Department of Justice, 202-514-2007 or
TDD, 202-514-1888
Web site: www.usdoj.gov

WASHINGTON, Oct. 12 /U.S. Newswire/ --IBP Inc, the world's
largest meatpacker, has agreed to pay the United States $4.1
million in penalties for violating the nation's environmental
laws. Under the settlement, IBP has committed to construct
additional wastewater treatment systems at its Dakota City,
Nebraska plant to reduce its discharges of ammonia to the
Missouri River, and has agreed to continue and expand
operational improvements ordered last year that will
significantly reduce hydrogen sulfur air emissions.

Today's agreement filed by the Justice Department on behalf
of the Environmental Protection Agency (EPA) resolves charges
that IBP violated the Clean Air Act, the Clean Water Act, and
other environmental laws at its 200-acre complex of facilities
located near Dakota City, Nebraska, as well as additional
violations at IBP facilities in Nebraska, Iowa, Kansas and
Texas.

Each day, some 5,000 head of cattle are slaughtered and
between 4,000 to 5,000 hides are tanned at the facility. In
addition, approximately 4 million gallons of contaminated
wastewater are treated at the plant and then discharged into the
Missouri River.

"This agreement secures IBP's future compliance with our
nation's environmental laws and penalizes its past violations,"
said John Cruden, Acting Assistant Attorney General for
Environment and Natural Resources. "This agreement further
demonstrates our commitment to vigorous enforcement. The right
of the people to clean air and water cannot be compromised."

"We are pleased to partner with Nebraska and other states to
enforce the laws that protect our environment and public
health," said EPA Administrator Christie Whitman. "This
partnership will further ensure the environment is not put at
risk from excessive air and water pollution."

The Complaint alleges that IBP's discharge of large
quantities of ammonia in its wastewater violated its
state-issued Clean Water Act permit. Excessive discharges of
ammonia are of particular concern because of their potential to
harm aquatic life in the Missouri River. There is substantial
evidence of an ongoing and persistent toxicity problem stemming
from the ammonia in IBP's discharges, dating to 1988.

The United States also asserts that IBP failed to install
required air pollution control equipment as the company expanded
its complex from 1989 to 1995, and as a result, illegally
emitted an excessive amount of hydrogen sulfide into the air.
The government further alleges that IBP regularly failed to
report its known releases of hydrogen sulfide in excess of 100
pounds per day, as required by law. In October 1999, IBP
reported that it continuously emits as much as 1,919 pounds per
day from its Dakota City facility.

The Complaint finally alleges that IBP improperly disposed of
spent stun gun cartridges containing lead.

Under today's agreement, IBP will pay $4.1 million in civil
penalties, and also will spend approximately $10 million in
improvements to resolve its violations at the Dakota City
facility and for additional projects to further reduce its
discharge of pollutants to the air and water. Specifically, IBP
has agreed to construct additional wastewater treatment systems
at the complex to dramatically reduce its discharges of ammonia
to the river. The systems to be installed by IBP exceed those
required to meet the requirements of IBP's current permit,
issued in 1995, and are designed to allow the company to meet
the anticipated stricter requirements of a new permit to be
issued by EPA under the Clean Water Act. IBP further agrees not
to contest EPA's authority to issue that permit.

IBP also will expand a water treatment project designed to
strip its incoming well water of sulfates, thereby further
reducing the plant's generation of hydrogen sulfide. The company
finally will perform clean-up and plant closure work at its
former facility in Palestine, Texas, to resolve Clean Water Act
and Resource Conservation and Recovery Act violations stemming
from its operation of certain wastewater lagoons and its
disposal of spent stun gun cartridges containing lead at that
facility.

Today's agreement lodged in U.S. District Court in Omaha,
Nebraska, finally resolves the entirety of IBP's violations at
the Dakota City facility and is joined by the State of Nebraska,
which will direct its $1.85 million share of the penalty to the
local school system. It further resolves Clean Water Act
violations at IBP facilities in Gibbon, Nebraska, and Palestine,
Texas, along with violations of the Comprehensive Environmental
Response, Compensation, and Liability Act, and the Emergency
Planning and Community Right to Know Act, for late reporting of
known releases of hydrogen sulfide and ammonia at IBP facilities
in Holcomb, Kansas; Storm Lake, Iowa; Columbus Junction, Iowa;
West Point, Nebraska; Denison, Iowa; Council Bluffs, Iowa;
Madison, Nebraska; Storm Lake, Iowa; Emporia, Kansas; Perry,
Iowa; Lexington, Nebraska; Waterloo, Iowa; and South Hutchinson,
Kansas. A similar reporting violation at IBP's facility in
Joslin, Illinois, is being resolved simultaneously under an
administrative settlement, for an additional $200,000 penalty.

On May 24, 2000, an interim agreement was reached that
required IBP to cover lagoons and control hydrogen sulfide
emissions at the Dakota City facility to resolve findings by the
Nebraska Department of Environmental Quality that the air around
the IBP complex contained levels of hydrogen sulfide that
frequently exceeded state health standards. The injunctive
relief in the settlement was valued at $13 million. The federal
Agency for Toxic Substances and Disease Registry is currently
completing a study of the potential health effects of hydrogen
sulfide exposure on the residents of Dakota City and South Sioux
City, Nebraska.

The improvements required under the interim agreement are now
complete. Air monitors installed under the agreement show
dramatic reductions in hydrogen sulfide in the surrounding
community since the improvements came on-line this past Spring.
IBP is currently applying for a permit from the State of
Nebraska to govern its hydrogen sulfide emissions and has agreed
in this settlement not to contest the necessity of having such
a permit in any future state proceedings.

IBP, founded in 1960 as Iowa Beef Packers, is the world's
largest producer of fresh beef, pork, and related products, and
operates 40 plants in North America. IBP was acquired by Tyson
Foods Inc on September 28, 2001 and is now a wholly owned
subsidiary of Tyson.

"IBP's Dakota City facility has been the source of persistent
environmental problems for many years," said Mike Heavican,
United States Attorney for the District of Nebraska. "We look
forward to the company becoming a better neighbor to Nebraska
citizens in the future."

Comments on this Consent Decree will be received for 30 days.
 

KEYWORDS:

ENVIRONMENT, GOVERNMENT, LAW, POLICY

-0-
/U.S. Newswire 202-347-2770/
10/12 18:14

Copyright 2001, U.S. Newswire
........................................................................................................................................................................................

Kentucky
Friday, October 12, 2001

 http://www.courierpress.com/cgi-bin/view.cgi?200110/12+chicken101201_news.html+20011012

Judge rules chicken suit may go forward

By JOHN LUCAS, Courier & Press Western Kentucky Bureau
(270) 333-4899 or jlucas@evansville.net
 

Crittenden Circuit Judge Tommy W. Chandler ruled that misdemeanor nuisance charges filed by 10 Marion residents against a chicken farmer may go to trial.
The charges were filed regarding odor coming from Mike “Bud” Wardlaw’s B&G Poultry Inc. Wardlaw is a contract grower for Tyson Chickens Inc., which also is named in the suit.

The charges were to be heard in May, but appeals delayed that trial, and no new date has been set.

Chandler’s ruling, on an appeal of an April decision by Crittenden District Judge Rene Williams, opens a door for modification of Kentucky laws governing large-scale animal feeding operations.

A spokesman for Tyson Foods, parent company of Tyson Chickens, said the company has concerns about some aspects of Chandler’s decision but has yet to decide whether it will ask for a review by the Kentucky Court of Appeals.

Chandler’s opinion upheld the District Court ruling that Marion residents could file criminal nuisance charges against owners of 16 broiler houses even though they are outside Marion’s city limits.

The complaints allege odor from the 400,000 chickens in Wardlaw’s houses trespassed onto nearby properties that are in the city limits.

Attorneys for B&G Poultry Inc. and Tyson had argued the city ordinance did not apply to chickens outside the city limits and that a person or animal had to physically be on property for trespass to occur.

“Should the courts recognize a legal cause of action for the criminal offense of trespass when the alleged trespass is not physical but sensory in nature?” Chandler asked.

Chandler suggested an appropriate analogy might be found in the changes of tort law for damages caused by blasting from mining.

“For many, many years, one could recover for such damage only if there was an actual physical trespass upon the injured property, i.e., the falling of rocks or other blasting-related debris,” he said.

But with the expansion of strip mining in the mid-1900s, Chandler noted, “It became clear that property owners were suffering greatly from blasting operations not only on adjoining property but some distance farther away and certainly without actual physical trespass of debris.”

Odor complaints against the chicken houses were of a similar nature, he said.

Ed Nicholson, a Tyson spokesman, said the company would need additional time to study Chandler’s ruling before deciding whether to appeal to the Kentucky Court of Appeals.

An appeal can be filed within 30 days.

Nicholson said the company was pleased Chandler agreed with Judge Williams’ earlier ruling that the penalty provision of the city’s ordinance was excessive.

It allowed for a penalty of up to $250 per animal for each day of violation. With 400,000 broilers at the site, Wardlaw’s company and Tyson could have faced maximum fines of up to $100 million for each day of violation.

Williams ruled that part of the ordinance was “special legislation” specifically targeting the chicken growers and said state law limited the maximum applicable fine to $500 a day.
 

........................................................................................................................................................................................
Nebraska
Omaha World-Herald
Published Oct 11 2001  6:34:00:000PM
Kennedy team offers to help with hog-confinement lawsuit
BY PAUL HAMMEL
WORLD-HERALD STAFF WRITER

OGALLALA, Neb. - An alliance of national environmental lawyers, led by
Robert F. Kennedy Jr., has agreed to help a group of Hayes County residents
sued by the state's largest hog-confinement operation.

The lawsuit, filed by Sand Livestock Systems Inc. of Columbus, claims that
two Hayes County residents, a citizens group and its attorney defamed the
company in documents filed with a state environmental agency.

The case involves a so-called SLAPP suit - a strategic lawsuit against
public participation - and could provide some national precedent as well as
the first test of a state law designed to discourage such actions by big
companies against citizens who speak out.

Kennedy, the president of the Waterkeeper Alliance, said the lawsuit
amounted to a "bullying tactic intended to silence constitutionally
protected speech and divert attention from Sand's extended history of
environmental lawbreaking."

"Our legal coalition stands ready to offer whatever help we can to the
people of Nebraska," Kennedy said in a press release. "Now Sand knows that
the marshal has come to Dodge."

While the move was cheered by those being sued, an official with Sand
Livestock had little to say, pending a review by company attorneys.

Tim Cumberland, executive vice president of Sand, said that the Waterkeeper
group already has sued large pork producers in North Carolina and Missouri.
It appeared that Sand was also "on their list," he said.

"As far as bullies go, there's a lot more bullying coming from the East
Coast than from the Midwest," Cumberland said, referring to the Waterkeeper
Alliance, based in White Plains, N.Y.

Sand filed its lawsuit in February in Columbus, where the firm has its
headquarters. In what was viewed as a defeat for Sand, the case was
transferred two months ago to Keith County District Court in Ogallala at the
defendant's request.

Ogallala is near Hayes County, where a subsidiary of Sand Livestock, Furnas
County Farms, was planning several large, hog-confinement facilities. No
date for a trial has been set.

Two Hayes County residents who led opposition against the plan, Char
Hamilton and Duane Fortkamp, were sued by Sand for defamation. Also sued
were the local citizens group, ACRES, and its attorney, Amy Svoboda of
Ogallala.

Sand claimed that written statements made by those named about violations of
environmental laws were false and fabricated. The defendants have said they
restated what was found in public records.

In 1994, the Nebraska Legislature passed a law designed to discourage SLAPP
suits. Then State Sen. Dan Lynch of Omaha, who proposed the law, said such
lawsuits punished citizens for speaking out on controversial issues.

.......................................................................................................................................................................................

North Carolina
 http://www.newsobserver.com/saturday/news/nc/Story/824782p-816530c.html
Published: Saturday, September 29, 2001 4:41 a.m. EDT

Judge keeps lawsuits against hog farms alive

By JAMES ELI SHIFFER, Staff Writer

A federal judge handed environmental groups a victory when he refused to dismiss two lawsuits that target the way pork giant Smithfield Foods disposes of hog waste.

The Sept. 20 ruling by U.S. District Judge Malcolm J. Howard means that the cases can move to the crucial discovery phase, said Nicolette Hahn, senior attorney for the Waterkeeper Alliance.

"We are very anxious to begin the discovery process," Hahn said Friday. "That will enable us to look at their records ... and depose their officers and managers."

The Waterkeeper Alliance of White Plains, N.Y., the Neuse River Foundation of New Bern and the foundation's river keeper, Tom Jones, filed the suits in February as part of a national legal campaign to eliminate the open pits and spray fields used by large hog operations to dispose of waste.

Two Eastern North Carolina farms owned by Brown's of Carolina, a Smithfield subsidiary, had routinely spilled waste in violation of the Clean Water Act, the suits allege.

At a hearing Sept. 6 in Greenville, lawyers for Virginia-based Smithfield made several arguments that the 1972 Clean Water Act did not apply to the two farms. But Howard rejected all of those claims. He called one of the arguments -- that the fields fertilized by hog waste weren't an integral part of the livestock operation -- "nonsensical."

In his ruling, Howard said also that all "concentrated animal feeding operations" such as hog farms required a federal wastewater permit, as opposed to the less stringent state permit currently mandated by the N.C. Department of Environment and Natural Resources. The agency is currently studying how to issue the federal, factory-style permits for livestock operations.

The judge's ruling also kept alive the possibility that the federal Resource Conservation and Recovery Act -- a law usually applied to hazardous waste -- could force tighter control of hog manure.

In March, Wake Superior Court Judge Donald W. Stephens dismissed two broader environmental lawsuits against Smithfield. The company hoped the two federal suits would meet the same fate.

"We filed those motions in an effort to have the cases dismissed ... at a very early stage," Will Allcott, a Smithfield spokesman in Richmond, Va., said Friday. "What this decision says is that the judge wants to hear some facts. We're willing to comply with that. We believe these farms comply with all the regulations."

Staff writer James Eli Shiffer can be reached at 836-5701 or jshiffer@newsobserver.com
 

.......................................................................................................................................................................................

Nebraska
Published Wednesday, April 11, 2001

Citizens Group Files Response to Lawsuit From Hog Farm

 http://www.omaha.com/index.php?u_div=3&u_hdg=0&u_sid=87861

North Platte, Neb. (AP) - A group of Hayes County residents has filed its answer to a lawsuit that claims it defamed the environmental record of Sand Livestock Systems as the citizens group fought a proposed hog farm.

The group, Any Citizens for Resources and Environmental Support, said its statements were part of a review of the proposal by state officials and were protected by the right to petition the government.

The group said Sand Livestock's lawsuit was filed to harass and intimidate the citizens group, which opposed a 44,000-hog operation that Sand Livestock, of Columbus, Neb., has begun building in Hayes County.

Sand Livestock and a division of the company, Furnas County Farms, filed the lawsuit against the citizens group March 6 in Platte County District Court.

The lawsuit claims that the citizens group made false statements to the State Department of Environmental Quality on Nov. 10 when it criticized Furnas County Farms' environmental record.

State officials in February 2000 approved the request to build the facility. Construction began in April but was stopped in September after the Hayes County Board passed restrictive zoning regulations.

Sand Livestock has filed a lawsuit in U.S. District Court in Omaha, claiming that the zoning regulations discriminate against hog producers.
.......................................................................................................................................................................................

Alabama, Nebraska
McCook Gazette
October 10, 2001
Kennedy alliance joins fight against Sand Livestock

HAYES CENTER - A group of Hayes County residents and landowners announced
today that they have received heavyweight legal help in defending themselves
against charges that they defamed Sand Livestock Systems Inc., Nebraska's
largest industrial hog factory enterprise.

Ten national law firms from across the country, led by Robert F. Kennedy
Jr., President of the Waterkeeper Alliance, have entered their appearance in
the case.

"We are very thankful to have such outstanding legal counsel to help defend
our right to free speech," said Char Hamilton, a Hayes County resident and
co-chair of ACRES - Any Citizens for Resources and Environmental Support.
"It's bad enough for Sand's neighbors to have to suffer with the pollution
and stench from these hog factories. We will not be bullied, harassed or
intimidated into silence."

"I am elated to know that this large coalition of attorneys has chosen to
represent ACRES," said ACRES co-chair Duane Fortkamp. "They realize that
what is at stake here is our freedom of speech and our right to protect our
way of life and our environment. We absolutely must not let these rights be
taken from us by greedy corporations with no concern whatsoever for citizens
and the environment."

Hamilton, Fortkamp, ACRES and the group's attorney, Amy Svoboda, were sued
by Sand and one of its many entities, Furnas County Farms, last March after
providing written comments to the Nebraska Department of Environmental
Quality opposing further expansion of Sand Livestock's sprawling Nebraska
swine empire, currently the nation's fifteenth largest corporate hog
production system.

Citizens had restated in written comments to NDEQ the litany of Sand's
environmental infractions that they had found during research of NDEQ's
files, including: the catastrophic collapse of three waste lagoons that
spilled millions of gallons of swine feces and urine into Nebraska's
environment; a ruptured waste pipeline that spilled tens of thousands of
gallons of hog wastes into the watershed of West Branch Turkey Creek, and;
the spreading of liquefied dead animal remains onto cropland.

Sand responded to the negative public participation comments by filing
litigation known as a SLAPP suit - a 'strategic lawsuit against public
participation' - against the Hayes County residents. SLAPP suits are
routinely used by large corporations to attempt to quash the public's
participation in the permitting and regulatory decision-making processes,
rights which are guaranteed by the federal Clean Water Act, the Hayes County
group said.

"The First Amendment to the Constitution guarantees citizens the right to
petition government for a redress of grievances," said Robert F. Kennedy Jr.
"Sand's SLAPP suit is a bullying tactic intended to silence constitutionally
protected speech and divert attention from Sand's extended history of
environmental lawbreaking. These bullying tactics have a chilling effect on
the democratic process. We have teams of experts, file rooms of documents
and research materials. Our legal coalition stands ready to offer whatever
help we can to the people of Nebraska. Now Sand knows that the marshal has
come to Dodge."

The 10 national law firms that will join with Patricia Knapp of Lincoln,
Nebraska, in defending the Hayes County residents, include: Kennedy &
Madonna, LLP of New York; Eastland Law Offices of Greenwood, Mississippi;
Levin, Papantonio, Thomas, Mitchell, Echsner, and Proctor, P.A. of
Pensacola, Florida; Lieff, Cabraser, Heimann & Bernstein, LLP of Boston,
Massachusetts; Charles F. Speer of Overland Park, Kansas; Seeger Weiss, LLP
of New York; Suggs, Kelly & Middleton of Savannah, Georgia; Abrams & Abrams,
P.A. of Raleigh, North Carolina; Whatley Drake, LLC of Birmingham, Alabama;
and the Williams Bailey Law Firm, LLP of Houston, Texas.

Clean Water Network listserves are for CWN members only and messages are
intended solely for those environmental activists.
.........................................................................................................................................................................................

Illinios
November 21, 2000

Settlement reached in lawsuit alleging hog farm odor
By By ADRIANA COLINDRES
of Copley News Service
of the Journal Star
 

SPRINGFIELD - The Illinois Attorney General’s Office and a Colorado-based company have reached a proposed settlement in a civil lawsuit accusing a Knox County hog farm of being "a continuous source of offensive odors."

In the lawsuit, filed last December, Attorney General Jim Ryan said The Highlands LLC near Williamsfield was unreasonably interfering with neighbors’ use and enjoyment of their property. The lawsuit alleged that the $2.5 million, 3,650-sow operation was violating state law by causing air pollution.

The two-count suit was filed with the state Pollution Control Board against The Highlands, Murphy Farms Inc. and Bion Technologies Inc. The Highlands produces feeder pigs for Murphy Farms, and Murphy owns the animals. Bion Technologies designed the waste-treatment system at the farm.

Under the proposed settlement, Bion will pay a $9,000 fine. The money will be deposited in the Illinois Environmental Protection Agency’s environmental protection trust fund.

Attorneys submitted the proposed agreement last week to the Pollution Control Board, which has yet to sign off on it.

Bion does not admit liability or violating any law or regulation, according to the proposed settlement. The Colorado company also agrees to cooperate with the attorney general’s office in the future prosecution of the case.

Ryan’s office is proceeding with litigation against the other two parties in the case, The Highlands and Murphy Farms, said assistant attorney general Jane McBride.

Bion has "effectively withdrawn from its contractual obligations" at The Highlands, in part because Bion contends the waste-management system isn’t being operated properly, according to the proposed settlement.

 http://www.pjstar.com/news/local/cop71a.html

.......................................................................................................................................................................................
Nebraska, November 11, 2000
Hayes County hog farm sues over new zoning rules
The Associated Press

NORTH PLATTE - Hayes County will defend its zoning plan against a court challenge from a hog farm developer, County Attorney Joel Phillips said.
Furnas County Farms has filed a lawsuit over a proposed operation that could house up to 44,000 hogs about 15 miles west of Hayes Center.

After Hayes County adopted a zoning plan Sept. 7, Furnas County Farms filed a federal civil rights complaint in Lincoln, contending the regulations established separate standards for hog and cattle operations, deliberately discriminating against the farm and taking away its right to do business in the county.

Phillips said attorneys will be retained under a policy of the Nebraska Association of County Officials.

The farm has been a source of contention in the sparsely populated county since the idea was made public in late May. Residents organized in June and gathered more than 300 signatures on a petition opposing how the manure would be spread.

Furnas County Farms, which is managed by Columbus-based Sand Systems, Inc., maintains that concerns are overwrought because the development is regulated by the Nebraska Department of Environmental Quality.
 

 http://www.journalstar.com/nebraska?story_id=1510&date=20001111&past=

.......................................................................................................................................................................................

Madison, Wisconsin
Date: 8/23/2000 1:10 PM
Factory Farm Settlement Closes Leaking Manure Pit
Author: "Melissa K. Scanlan" <scanlan@chorus.net

PRESS RELEASE

August 23, 2000

For More Information Contact:
Melissa Scanlan, Midwest Environmental Advocates, 608-251-5047
Rebecca Leighton Katers, Clean Water Action Council, 920-437-7304

LEGAL ACTION RESULTS IN CLOSURE OF LEAKING MANURE PIT

Citizens Bring First Legal Challenge to Large Factory Farm Permit and Win

MADISON, WI  - Last spring a coalition that joined family farmers and sportsfishers challenged a permit the Wisconsin Department of Natural Resources (DNR) issued to a factory farm in Shawano County because it failed to meet basic state and federal water law requirements.

The petitioners included a neighboring fourth generation small dairy farmer, sportsfishers, and the directors of Clean Water Action Council and Wisconsin's Environmental Decade. They maintained that the DNR approved the permit for the factory dairy farm without adequately examining and controlling the pollution it was causing.

"The agency ignored the law as it relates to factory farms," according to Melissa Scanlan, Legal Director of Midwest Environmental Advocates and attorney for the petitioners.  "The law clearly prohibits these facilities from using our public waterways as sewers.  Yet DNR issued this permit without adequately preventing manure from seeping into drinking water and running into a wetland and the nearby Pensaukee River."

According to Scanlan, federal and state law prohibits discharges from facilities with 700 or more dairy cows, yet the DNR gave the facility a permit that did the opposite.

In a recently signed settlement between the parties, the facility agreed to close an earthen pit that had been documented to leak manure back in 1980.  The factory farm also agreed to immediately stop any pollution from running off the facility into surface water and to monitor its ability to prevent runoff on a regular basis.

Ivan Klosterman, a petitioner and fourth generation family dairy farmer who lives and farms near the factory is vindicated by the settlement.  He stated that, "I always said they built that old manure pit too close to the wetland.  A small farmer wouldn't be allowed to get away with that and a large farm shouldn't either.  Its just a shame that it took legal action to get this pit closed."

For the Moericke family, petitioners who live right across the road from the factory, the settlement highlights the inadequacies of our current laws.

Wayne Moericke stated that, "Even though the Clean Water Act restricts water pollution from these places, my family still cannot open our windows to enjoy the summer because the odor and dust is so strong.  We built in the country to have fresh air not to live next to a factory that operates 24 hours a day."
 

.........................................................................................................................................................................................
Nebraska
August 02, 2000
Nebraska case, Consolidated v. Seaboard

http://www.nebar.com/districtcourtopinions/CONSOLID.htm

..........................................................................................................................................................................................

Nebraska attorney general sues Seaboard
July 31, 2000

Feedstuffs Magazine
By STEVE MARBERY
Feedstuffs Correspondent
 

Nebraska Attorney General Don Stenberg filed a lawsuit July 20 in Antelope
County district court against Seaboard Corp. of Shawnee Mission, Kan., and
subsidiaries Seaboard Farms Inc. and SBD Llc.

Stenberg alleged violations of Nebraska's 1982 corporate farming law,
Initiative 300, which prohibits nonfamily corporate ownership of farming or
ranching operations.

The law prohibits corporations, limited partnerships and limited liability
companies from owning agricultural real estate and engaging in farming or
ranching. Family farms are exempt if family members reside on the farm or
conduct day-to-day labor and management. Just last month, Christensen Family
Farms of Sleepy Eye, Minn., decided to restructure in Nebraska as a general
partnership after acquiring National Farms' operations in Atkinson, Neb.
Stenberg had challenged Christensen's Nebraska family farming status.
General partnerships are not prohibited from farming.

Seaboard Farms of Guymon, Okla., is the pork production arm of Seaboard
Corp., a publicly traded, international agribusiness and ocean shipping
company and Delaware corporation that shares a Shawnee Mission, Kan.,
address with SBD, also a Delaware corporation. Stenberg alleged Seaboard
Farms maintains security agreements for the feeding of hogs fed by Nebraska
Premium Pork Llc., owned by Brian Mogensen. The company operates in four
Nebraska counties, but the lawsuit relates to activities at Antelope County
sites consisting of approximately 60,000 finishing capacity.

Stenberg alleged Seaboard Corp. owns, controls and bears the risk of loss
for hogs raised by Nebraska Premium Pork. The lawsuit hinges on allegations
that Seaboard controls production through financial support and strict rules
on the care and feeding of hogs. Formed in 1998 as a limited liability
company financed by a Delaware agricultural investment fund, Nebraska
Premium Pork was challenged last year by Stenberg for failing to comply with
the corporate farming law. The company restructured as a general partnership
under the control of the late Harry Mogensen, Cedar Rapids, Neb., and his
son Brian of Galt, Iowa. Harry Mogensen passed away this year. Premium Pork'
s Antelope County sites are supervised from a Neligh, Neb., office by Myron
Lawler, a consultant formerly associated with A.J. DeCoster, pork producer
and egg supplier of Clarion, Iowa, and Turner, Maine.

According to Stenberg's office, SBD "purportedly finances" Seaboard Farms'
Nebraska activities through arrangements with Premium Pork. Stenberg alleged
Seaboard Farms and SBD maintain joint property and farming interests in
Antelope County. Complaints describe security agreements, financing
statements and promissory notes linking SBD, Seaboard Farms and Nebraska
Premium Pork. SBD allegedly pays for pigs, feed and other items and receives
income from the sale of hogs slaughtered by Seaboard in Oklahoma. Income
received by SBD from Seaboard for slaughtering Premium Pork's hogs allegedly
offsets costs of pigs, feed, medication, interest and operating expenses of
Antelope County operations. The complaint also alleged SBD prohibits the
Nebraska operation from selling, leasing or transferring pigs supplied by
Seaboard.

"SBD's Seaboard Farms' joint transactions with Premium Farms are for the
sole benefit of Seaboard Farms," the complaint said. "SBD is dominated and
controlled by Seaboard Farms in all Nebraska swine transactions. Seaboard
Farms retains ownership and control of Premium Pork. Sale of swine to
Premium Pork is a facade to avoid Nebraska law." Seaboard Farms would be
unable to control pig sourcing, feed and other inputs and costs without SBD'
s purported financing of the Nebraska hog transactions, court documents
said.

Seaboard Farms provides pigs to the Nebraska facilities, pays for feed and
other expenses, slaughters the hogs and retains ownership. "SBD provides the
appearance of financing Premium Pork's purchase and feeding of pigs to
comply with Nebraska law," according to the complaint, which alleged the
Nebraska hog company is Seaboard's "alter ego." The end result is a creative
paper shuffle that circumvents Initiative-300, the court documents said.
Seaboard Corp. and Seaboard Farms officers overlap, according to the
complaint.

While there have been other Initiative 300 court challenges, most have dealt
with disputes over interpretations of day-to-day management and labor by
members of a family farming corporation, land ownership and related issues.
This case is unique in that it goes to production control by a packer, said
Nancy Thompson, attorney representing the Friends of the Constitution (FOC),
a Nebraska coalition of rural, agricultural, environmental and religious
organizations. FOC members brought the issue to the attention of the
attorney general nearly a year ago.

Pork industry consolidation and coordination has changed how corporations
deal with state corporate farming laws. Even if hog ownership is transferred
on paper, the case could set a precedent by demonstrating that corporations
are controlling production through contracts and financial security
agreements that essentially give them the same benefits (without
accountability) as outright management and ownership of production assets,
including livestock, feed, genetics, management and other inputs, she
explained. That would be in contrast to simple marketing agreements commonly
used by packers to procure supplies through short-term feeding arrangements
and ownership transfers that do not dictate breeding sources, feed and other
production inputs.

"We have never faced a challenge quite like this before," Thompson said. The
case is critical because of the rapid pace of integration, dwindling market
access and complex financing arrangements that have emerged in key
midwestern hog states, she said.

Copyright 2000, The Miller Publishing Company, a company of Rural Press Ltd.

...........................................................................................................................................................................................
July 8, 2000
Brady Township, Kalamazoo County, Michigan

FEDERAL COURT AFFIRMS TOWNSHIP'S LIVESTOCK ODOR ORDINANCE

Big agriculture industry interests have been after Brady Township
(Kalamazoo County, Michigan) ever since it enacted an ordinance some years
ago to protect local residents from the offensive odors of Confined Animal
Feeding Operations. Last year's battle over local control of agriculture in
Michigan (Senate Bill 205) came in part from the industry's efforts to shut
down township CAFO ordinances like Brady's.

The Michigan Farm Bureau and others succeeded last year in the Legislature
with S.B. 205, which took away local governments' power to manage
agriculture nuisances and environmental risks with zoning ordinances. But
this week a federal circuit court told them Brady Township's animal odor
ordinance is fair and reasonable.

The Sixth Circuit Court ruled that a Brady Township hog factory owner could
not claim that the township's ordinance was an unconstitutional taking of
his private property. In particular, the hog factory owner, Rob Richardson,
claimed that he was denied due process because Brady Township defined odor
thresholds for itself (per the number and type of animals at the operation)
not by using the federal government's weight-based definition of an "animal
unit."  Mr. Richardson wanted to expand his swine nursery CAFO, but the
township's ordinance limited the number of animals on site irrespective of
whether they were small pigs or large hogs.

The court essentially ruled that local governments can decide for
themselves what is offensive.

Below are some excerpts of the judges' comments.

Regards,

Patty Cantrell
Michigan Land Use Institute

 >----------------------
 >
 >
 >RICHARDSON v. TOWNSHIP OF BRADY; No. 99-1169;  2000 U.S. App. LEXIS 15520
(6th Cir. July 5, 2000)
 >
 >http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0215p.06
 >

The Sixth Circuit Court's majority opinion on substantive and due process
challenges to an animal odor control ordinance rejected the facial and as
applied substantive due process challlenges because:

"A local zoning ordinance survives a substantive due process challenge if
there exists a rational relationship between the terms of the ordinance and
a legitimate governmental purpose. . . . While swine may produce less waste
than cows and horses, it is not irrational to base
 >animal-unit equivalencies on offensiveness of waste rather than relative
quantity produced. . . . Although taking the weight of pigs into account in
determining their animal-unit equivalencies might result in an ordinance
more narrowly tailored to the Township's goal of reducing odor, the fact
that the Township chose not to do so does not mean that its ordinance is
irrational. "
 >
 >The majority rejected the procedural due process claim because:
 >"If Richardson's claim is that he was deprived of a text amendment or
"interpretation" without due process, he cannot show that he has a
protected property interest in such an amendment. Simply put, Richardson
can have no legitimate claim of entitlement to a discretionary decision. .
. . Richardson really seems to be arguing that he has a property interest
in the procedures
 >themselves, and that by failing swiftly to execute its procedures the
Township has deprived him of that property right without due process. . . .
  However, Richardson can have no protected property interest in the
procedure itself. "

 >The Sixth Circuit's rejection of substantive and due process challenges to
an animal odor control ordinance includes a concurring opinion on the
inability to challenge a pre-existing law and differing views on whether
protected property rights differ for purposes of substantive and procedural
due process.
 >
 >Judge Ryan's concurring opinion relies on an analysis that is in accord
with numerous state and federal court decisions that reject takings claims
involving laws that were in effect when the plaintiff acquired the property:
 >
 >"While I have no doubt that Richardson's fee simple ownership of his land
is a property interest sufficient to assert a due process claim, whether
procedural or substantive, his inability to demonstrate any governmental
action that deprived him of any protected property right is fatal to his
lawsuit. Richardson purchased his property long after the defendant enacted
the zoning ordinance
 >Richardson challenges. Therefore, there has been no action by the
defendant that deprived Richardson of anything; rather, this case is about
nothing more than Richardson's unfulfilled desire that the defendant act in
a manner favorable to Richardson's business interests. The Due Process
Clause is not offended when such aspirations are unrealized."
 >
 > >
******************
Patty Cantrell
Public Trust Alliance Project Manager
MICHIGAN LAND USE INSTITUTE
P.O. Box 228, 845 Michigan Ave.
Benzonia, MI 49616

tel: 231-882-4723 ext. 18
fax: 231-882-7350
e-mail: patty@mlui.org
internet: www.mlui.org

.........................................................................................................................................................................................
To: arkriver@feist.com
 Thursday, June 22, 2000 12:05 AM

 For Immediate Release
 June 21, 2000

 Contact:    Robert F. Kennedy, Jr., President, Water Keeper Alliance, 914-422-4343
     Kevin Madonna, Executive Director, Water Keeper Alliance, 914-422-4410
     Rick Dove, Neuse Riverkeeper, 252-447-8999
     Marion Smith, Neuse River Foundation, 252-637-7972

 Riverkeepers Sue North Carolina's Corporate Hog Factories for Destruction of State's Rivers

 NEW BERN, NORTH CAROLINA - Environmentalists filed a thirty-six count lawsuit
 yesterday against North Carolina's corporate hog factories for the pollution
 of the state's waters.  Irresponsible spraying practices, overproduction of
 hogs and faulty lagoon management have created an environmental catastrophe
 in eastern North Carolina's river and coastal communities.

 According to papers filed in Superior Court, Wake County, North Carolina's
 hogs now outnumber its citizens and produce more fecal waste than all the
 people in California and New York combined.  Some industrial pork factories
 produce more sewage than America's largest cities.  But while human waste
 must be treated, hog waste is simply dumped into the environment.  Stadium
 sized warehouses shoehorn 100,000 sows into cages where they spend their
 lives straddling metal grate floors.  Aluminum culverts below collect and
 channel the hog excrement from these grates into ten acre open air lagoons.

Odors from the putrefying wastes choke local communities while tens of
millions of gallons of hog feces from these lagoons oozes into North
Carolina's rivers.  Plaintiffs are seeking an end to the lagoon/sprayfield
 system and a clean up of the affected rivers.

 "Pollution is theft and Smithfield has made itself wealthy by stealing the
 heritage, the health and the future of North Carolina," explains Robert F.
 Kennedy, Jr., president of the Water Keeper Alliance.

 "We've seen hog waste overflowing from lagoons and spewing directly into our
 rivers," said Rick Dove, the Neuse Riverkeeper.  "We have also seen hog farms
spraying the contents of these lagoons onto flooded fields which feed into
our rivers.  As stewards of our rivers, it is time to take action."

 Plaintiffs in the suit include the Water Keeper Alliance, the Neuse
 Riverkeeper, New Riverkeeper, Cape Fear Riverkeeper, Neuse River Foundation
 and New River Foundation.  The named defendants, who own or operate the
 majority of hog factories in North Carolina include: Smithfield Foods, Inc.,
 Carroll's Foods, Inc., Brown's of Carolina, Inc., Murphy Farms, Inc. and
 Wendell H. Murphy, Sr., Wendell H. Murphy, Jr. and Joseph W. Luter, III in
 their individual capacity.

 Headquartered in White Plains, New York, the Water Keeper Alliance is the
 umbrella organization for the fifty River, Sound and Bay Keepers located
 throughout North and Central America.  Founded by Robert F. Kennedy, Jr., the
 Water Keeper Alliance protects and restores waterways using a variety of
 methods, including litigation.  The Neuse Riverkeeper, New Riverkeeper and
 Cape Fear Riverkeeper are members of the Water Keeper Alliance.  The Neuse
 River and New River Foundations are the sponsoring organizations of the Neuse
 and New Riverkeepers respectively.

 Plaintiffs are represented by the law firm of Twiggs, Abrams, Strickland &
 Trehy, P.A. of Raleigh, North Carolina and the Pace Environmental Litigation
 Clinic in White Plains, New York and are being assisted by the Southern
 Environmental Law Center based in Chapel Hill, North Carolina.
........................................................................................................................................................................................
Nebraska, June 19, 2000

Feedstuffs Magazine
Hog Industry Insider -- June 19, 2000
By STEVE MARBERY
Feedstuffs Correspondent

Initiative 300 upheld

The Nebraska Supreme Court upheld the state's corporate farming law,
Initiative 300, last month in a seven-year-old lawsuit involving a 500-sow
Syracuse, Neb.-based feeder pig operation owned by David Zahn. In Norman
Hall versus Progress Pig Inc., the court concluded the hog operation was a
nonfamily farming corporation in violation of I-300, a constitutional
amendment. Zahn resides three miles from the hog farm. Though he closely
supervises farming activities, the court concluded his duties were not
consistent with the definition of day-to-day labor and management. He has
owned Progress Pig since 1984. The operation was incorporated in 1990.

According to the opinion, Zahn is responsible for the operation's business
strategy and administrative activities, budgeting, payroll, feed
formulation, breeding strategies and so on, however, he was involved in
"minimal labor." The high court also concluded I-300 is not void for
vagueness and does not violate the Equal Protection Clause of the U.S.
Constitution.

Copyright 2000, The Miller Publishing Company, a company of Rural Press Ltd.
 

...........................................................................................................................................................................................
Web posted Friday, June 9, 2000

Sierra Club files suit against Seaboard
http://amarillonet.com/stories/060900/new_sierra.shtml
 

By RICKY GEORGE
Globe-News Staff Writer

OKLAHOMA CITY - The Sierra Club filed suit against Seaboard Farms, claiming
its Dorman hog farm in Beaver County is violating the federal Clean Water Act.

The suit, filed June 2 in U.S. District Court, was brought because of several
spills of hog waste occurring at the facility near Turpin, Sierra Club
attorney Patrick Gallagher said Thursday.

No trial date has been set.

The suit also claims that the Dorman facility has illegally filled in
wetlands and does not have a federal Clean Water Act permit for its
operations.

"My understanding is that the facility is under investigation by the EPA for
some of the same problems and some different problems," Gallagher said. "We
see absolutely no conflict between the EPA's efforts and our efforts."

The Dorman plant is one of the plants that EPA agents inspected about two
weeks ago, EPA press officer Cynthia Fanning said Thursday.

"Further comment will have to wait until after any enforcement activity is
completed," Fanning said.

In a press release, a Seaboard official said the Sierra Club's claims are
false and misleading.

"Many times, there have been attacks on our industry based on hype and
unfounded accusations with the goal of alarming people," said Stephen
Summerlin, vice president of live operations. "This is indeed one of those
situations. Sierra Club claims a major threat that is not real. This type of
speculation is intended to create confusion and unjust concern among
citizens."

Summerlin said Seaboard operates under the Oklahoma Department of Agriculture
controls for day-to-day operations.

"We are in the production of pork for the long haul, so it is certainly in
our best interest to do things right, with focus on long-term stewardship for
protection of the environment and people," Summerlin said. "Although we find
lawsuits to be an unproductive use of time, we welcome the opportunity to
separate truth from propaganda."

Summerlin said the suit is coming from the Sierra Club's California
headquarters, and those people are not well-informed about the Oklahoma
Panhandle or modern hog farming.

"The waterways near our sites are normally dry," Summerlin said. "Regardless,
the standard we hold ourselves to assure that people are not endangered and
fish and wildlife are not harmed."

Gallagher, who is based in the Sierra Club's San Francisco office, said the
Sierra Club is willing to cooperate with the EPA, but its members in Oklahoma
wanted to take the initiative.

"The Seaboard press suggests that this lawsuit is being run out of a remote
California office when in fact it is the effort of Sierra Club members of the
Panhandle of Oklahoma that made this suit possible," Gallagher said.

The lawsuit will ask the hog farm to get a Clean Water Act permit, restore
any and all wetlands that have been affected, and take measures that ensure
absolute protection of the Beaver River watershed, Gallagher said.

"The facility is situated literally on top of the Beaver River Wildlife
Management Area," Gallagher said.

© 2000 Amarillo Globe-News

.........................................................................................................................................................................................
Virginia, April 28, 2000

The Gazette-Virginian, Halifax, VA, page 1.

gazette@gazettevirginian.com

City, Hog Farmer Settle Public Nuisance Suit

CHESAPEAKE, Va. (AP) –

A hog farmer can continue to raise and sell pigs but must meet conditions designed to dissolve complaints about the smell, according to terms of an agreement with the city. The two sides met Wednesday in Circuit Court for a hearing on a 5-year-old lawsuit by the city, which alleged that Earl Warren's farm violates city code and is a public nuisance. Warren said he has about 100 pigs. For years, neighbors have complained that the smell prevented them from sitting on their porches or even opening their windows. Under the settlement, Warren must maintain the existing vegetated buffer on the property border, store hog food in a covered container off the ground, keep the pigs in vegetated pastures and rotate them every 30 days and allow monthly city inspections.

...........................................................................................................................................................................................
March 18, 2000
Halifax Co. Virginia, The Gazette-Virginian, Page 1.

SCC Chief Sued For $27 Million

Jack Dunavant, head of the Southside Concerned Citizens group, responded yesterday to a $27million lawsuit alleging that he unlawfully forwarded documentation of prospective hog farmer Leo Hinson's criminal record to the Halifax County Board of Supervisors.
"It is nothing but an attempt to silence me and Southside Concerned Citizens," he said. "That won't happen."
Hinson, represented by Richmond lawyer Gerald Zerkin, alleges that Dunavant, through a law enforcement officer, forwarded the information to the board prior to its meeting on August 30, 1999.
At that meeting, the Board voted on setbacks to be applied to livestock facilities in Halifax County.
According to the suit, Dunavant's actions effectively prevented Hinson from operating a confined animal feeding operation in the county.
This caused Hinson "economic injury in the amount of $9 million," according to the lawsuit.
Hinson had originally entered into an agreement with Carroll's Foods to operate a confined animal feeding operation on his farm in Halifax County.
Pursuant to that agreement, Carroll's Foods would supply feed and approximately 11,500 hogs and Hinson would provide labor, management and 12 housing facilities for the hogs.
On or about July 23, 1999, Hinson submitted a Local Government Ordinance Form (LGOF) to Halifax County officials for an agricultural land use permit to build 12 animal feeding houses on his farm.
The Department of Environmental Quality (DEQ) and Department of Conservation and Recreation had already approved his plan.
The plan was not signed by the Halifax board because a moratorium was in place until the August 30 meeting.
The first count contained in the suit alleges that Dunavant "intentionally, willfully, and maliciously conspired with aforesaid law officer for the jointly held purpose of injuring the plaintiff in his trade, business, or profession."
Count two alleges that "by giving a copy of the plaintiff's criminal record to members of the board, the defendant disseminated the plaintiff's criminal history and record information in violation" of sections of the Code of Virginia.
"As a direct and proximate result of the defendant's actions, the plaintiff has suffered and will continue to suffer lost income and other economic injury, embarrassment and emotional distress," alleged the lawsuit.
Dunavant has 21 days to respond to the suit brought by Hinson.

 http://www.gazettevirginian.com/storyone.html
.........................................................................................................................................................................................
IOWA
IN THE IOWA DISTRICT COURT FOR ALLAMAKEE COUNTY
 

SIERRA CLUB, GREGORY,LEPPERT, LORI LEPPERT, JEFFREY LEPPERT, LISA LEPPERT, ROBERT WOLF, BONNIE KOLOC, KENNETH LEPPERT, KAREN LEPPERT, DELLA LEPPERT, and DONALD LEPPERT,

Plaintiffs,
vs.
MURPHY OF IOWA, INC. and WAYNE WEBER,
Defendants.

Come now the Plaintiffs and for cause of action state:

FACTS

1. Plaintiff, Sierra Club, is a non-profit corporation with approximately 4,000 members in the State of Iowa. These Iowa members are dedicated to the preservation of the environment and are active users of water resources for a range of family and individual activities. Some members of the Sierra Club use and enjoy trout fishing on French Creek, in Allamakee County, Iowa. These members will suffer immediate and direct injury if French Creek is polluted as described in the following paragraphs of this Petition.

2. Plaintiffs, Gregory Leppert, Lori Leppert, Jeffrey Leppert, Lisa Leppert, Robert Wolf, Bonnie Koloc, Kenneth Leppert, Karen Leppert and Donald Leppert, are residents of Allamakee County, Iowa, who live near the hog confinement facility that is the subject of this lawsuit. These Plaintiffs are affected by the odor, noise, and groundwater contamination caused by the hog confinement facility and the disposal of its manure. Plaintiff, Della Leppert, owns property near the hog confinement facility, and the value of her property is greatly reduced as a result of the construction and operation of the facility.

3. Defendant, Murphy of Iowa, Inc., is an Iowa Corporation, doing business in the State of Iowa. It is in the business of raising hogs in large concentrated animal feeding operations and selling the finished hogs to meat packers.

4. Defendant, Wayne Weber, is a resident of Allamakee County, Iowa, who has contracted with Murphy of Iowa, Inc. to construct a hog confinement facility on his property in Allamakee County and to manage the operation for Murphy.

5. In November, 1998, Defendants began operating the aforementioned hog confinement facility. The manure from the operation is being stored in a formed storage structure on Defendant Weber’s property, adjacent to the buildings where the hogs are confined.

6. The manure in the storage structure is periodically applied to farm fields near the confinement facility. These fields are in the watershed that drains into French Creek.

7. French Creek flows from its source to the Upper Iowa River. This creek is the best wild trout stream in Iowa, and it is managed by the Iowa Department of Natural Resources as a wild trout fishery. The quality of French Creek is so good that brown trout are able to reproduce naturally there. The Iowa Department of Natural Resources owns land along French Creek in order to protect these natural qualities.

8. The geology of the area around French Creek, including the Defendants’ hog confinement operation and the fields where the manure is being applied, consists of a thin layer of glacial till covering fractured dolomite rock, creating a direct conduit to the aquifer and the springs that constitute French Creek.

9. Other storage structures of the exact type as the Defendants’ at other locations have experienced mechanical failures resulting in spills or potential spills of manure into nearby waterways.

10. Manure spills from animal confinement operations at other locations in Iowa and in other states have caused the death of thousands, if not millions, of fish. Likewise, hog confinement operations cause unbearable odor, groundwater contamination, insects, vermin, dust and diminution of property value to nearby residents.

COMMON LAW NUISANCE

11. Plaintiffs reallege paragraphs 1 through 10 as if each were set forth in full.

12. Defendants' operation of the hog confinement facility and attendant manure application activities substantially and unreasonably interfere and/or will interfere with the Plaintiffs' private use and enjoyment of their property and their use of French Creek as a natural resource.

13. As a proximate and direct result of the nuisance created and maintained on property owned and operated by Defendants, Plaintiffs have suffered and/or will suffer.

14. Unless the Defendants are enjoined and restrained from operating their hog confinement facility and applying manure as currently undertaken, the Plaintiffs will suffer permanent damage in the use and enjoyment of their property and in their use and enjoyment of French Creek.

15. Plaintiffs' remedy at law is not adequate.

16. Defendants' conduct amounts to willful or reckless disregard of Plaintiffs' rights and justifies an award of punitive damages.

WHEREFORE, Plaintiffs pray for judgment against the Defendants, for abatement of the nuisance including an injunction enjoining and restraining Defendants from conducting a concentrated animal feeding operation on Defendant Weber's property, from applying manure on fields in the watershed of French Creek, and/or for cleanup; for damages in an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the nuisance, for impairment of the use and enjoyment of their property and of French Creek, for diminution in value, for physical and emotional pain and suffering, f or mental distress, for personal discomfort, inconvenience and annoyance; for punitive damages; for statutory interest; for costs; and for such other and further relief as the Court may deem proper.

NUISANCE UNDER IOWA CODE SECTION 657

17. Plaintiffs reallege paragraphs 1 through 16 as if each were set forth in full.

18. Defendants' operation of the hog facility and conditions resulting therefrom are an obstruction to the free use of property within the meaning of Iowa Code section 657.1 and a nuisance as defined by Iowa Code sections 657.2(2), (4).

19. As a proximate and direct result of the nuisance created and maintained upon the property owned and operated by Defendants, Plaintiffs have suffered and will suffer.

20. Defendants conduct amounts to willful or reckless disregard of Plaintiffs' rights and justifies an award of punitive damages.

WHEREFORE, Plaintiffs pray for judgment against the Defendants, for abatement of the nuisance including an injunction enjoining and restraining Defendants from conducting a concentrated animal feeding operation on Defendant Weber's property, from applying manure on fields in the watershed of French Creek, and/or for cleanup; for damages in an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the nuisance, for impairment of the use and enjoyment of their property and of French Creek, for diminution in value, for physical and emotional pain and suffering, for mental distress, for personal discomfort, inconvenience and annoyance; for punitive damages; for statutory interest; for costs; and for such other and further relief as the Court may deem proper.

PUBLIC TRUST DOCTRINE

21. Plaintiffs reallege paragraphs >1 through 10 as if each were set forth in full.

22. French Creek and the state-owned land along its banks isa public resource held by the State of Iowa in public trust. The above described activities of the Defendants are damaging, or will damage, this public resource.

23. plaintiffs have a right to protect French Creek as members of the public and users of this public resource.

WHEREFORE, Plaintiff s pray for judgment against the Defendants, for an injunction enjoining and restraining Defendants from conducting a concentrated animal feeding operation on Defendant Weber's property, from applying manure on fields in the watershed of French Creek, and/or for cleanup; for costs; and for such other and further relief as the Court may deem proper.

TRESPASS

24. Plaintiffs reallege paragraphs 1 through 10 as if each were set forth in full.

25. Defendants intentionally caused or will cause odor, manure, and/or runoff to unlawfully enter and to remain on the land of some of the Plaintiffs without the consent of the plaintiffs.

26. As a proximate and direct result of the trespass caused by Defendants, Plaintiffs have suffered and/or will suffer significant damages.

27. Defendants conduct in causing the trespass amounts to willful or reckless disregard of Plaintiffs' rights and justifies an award of punitive damages.

WHEREFORE, Plaintiff s pray for judgment against the Defendants, for an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the trespass, for impairment of the use and enjoyment of their property, for diminution in value, for physical and emotional pain and suffering, for mental distress, for personal discomfort,inconvenience and annoyance or punitive damages, for statutory interest, for costs, and for such other and further relief as the Court may deem proper.

NEGLIGENCE

28. plaintiffs reallege paragraphs 1 through lo, inclusive, as if each were set forth in full herein.

29. Defendants owed a duty of care to the plaintiffs to act with reasonable care and failed to fulfill that duty.

30. Defendants were negligent in the operation of the facility, and in failing to take reasonable precautions to protect against the harm which could result from such activities.

31. Defendants' failure to exercise reasonable care caused and will cause direct, proximate and foreseeable harm to the Plaintiffs.

WHEREFORE, Plaintiffs pray for judgment against the Defendants, jointly and severally, for an amount to be determined which will fully and adequately compensate the Plaintiffs for the damages caused by the Defendants' negligence, for impairment of the use and enjoyment of their property and of French Creek, for diminution in value, for physical and emotional pain and suffering, for mental distress, for personal discomfort, inconvenience and annoyance, for statutory interest, for costs, and for such other and further relief as the Court may deem proper.

455B.113. CITIZEN ACTION

32. Plaintiffs reallege paragraphs 1 through 10 as if each were set forth in full.

33. Defendants have violated and continue to violate provisions of Iowa Code S455B and rules adopted pursuant to that chapter including without limitation the following:

A. The federal Clean Water Act requires that a point source of pollution discharging into waters of the United States obtain a National pollutant Discharge Elimination System (NPDES) permit. 33 U.S.C. S 1311.

B. A "concentrated animal feeding operation," such as the Defendants' operation described herein, is a point source of pollution. 33 U.S.C. S 1362(14).

C. The Defendants have not obtained a NPDES permit for their hog operation and are in violation of the Clean Water Act.

D. Iowa law requires any new point source for the discharge of any pollutant into any water of the state to obtain a permit. Iowa CodeS 455B.183(2). The Iowa Department of Natural Resources (DNR) administers the NPDES program under the Clean Water Act pursuant to the delegation and oversight of the Environmental Protection Agency (EPA). Therefore, a violation of the Clean Water Act is a violation of Iowa law.

34. Plaintiffs have been adversely affected by Defendants' violations of 455B and the rules adopted thereunder.

35. The plaintiffs have given the DNR and the Defendants 60 days notice of their intent to pursue a citizen action pursuant to 455B.111, a copy of which is attached hereto as Exhibit "A" and by this reference incorporated herein.

36. Neither the state nor the Department of Natural Resources has commenced a civil action or is actively negotiating an out-of-court settlement to require abatement of the violation.

WHEREFORE, Plaintiffs pray for judgment against the Defendants, for abatement of the violation and remediation of the damages, for statutory interest, for costs, for the expenses of litigation including attorneys fees, and for such other and further relief as the Court may deem proper.

Brenda Myers #13438
1601 22nd St. Ste 302 West Des Moines, IA 50266
(515) 223-7230
FAX (515)223-7234

Wallace Taylor LI0005501
118 3rd Ave. S.E. Suite 326
Cedar Rapids, IA 52401
(319) 366-2428
(319)366-3886 (fax)

Original Filed.
Copy to:
Bob Malloy
Lynn Collins
503 N. Main, P.O. Box 128
Galdfield, IA 50542
ATTORNEYS FOR MURPHY

Eldon McAffee
Beving, Swanson, & Forrest
321 E. Walnut St., Ste. 200
Des Moines, IA 50309

 http://www.commonlink.com/hffa/News_Flash/FC-lawsuit1.html
..........................................................................................................................................................................................
February 16, 2000.
Denver Post.com

State sues over hog waste
By Mark Eddy
Denver Post Environment Writer

Feb. 16 - One of Colorado's largest corporate hog farms illegally sprayed swine waste onto fields surrounding its operation at least 42 times this winter and hasn't complied with key provisions of state environmental laws, according to a lawsuit by the state Health Department.

The lawsuit, filed this week in Weld County District Court, asks for $4.4 million in fines and a permanent injunction to prevent National Hog Farms from spraying hog effluent, used as a fertilizer, onto fields in the winter when plants aren't growing.

"National Hog had the opportunity to come into compliance with the regulations and to avoid this kind of conflict. It's too bad they didn't take the opportunity when they had it . . . to see that we didn't get to this point," said Doug Benevento, director of environmental programs for the Colorado Department of Public Health and Environment.

Although the regulations, mandated by voters in 1998, were controversial and hog farm operators fought them, all the operations except National have worked hard to comply with the law, Benevento said.

"It's important to us to let the rest of the regulated community out there know they didn't spend their time and money in vain in coming into compliance with the regulation that the voters passed," he said. "We believe it would send a bad message if we were to allow National Hog to have violated the law and if we were to let it pass. We're not going to let it pass."

The state tried to work with National, but to no avail, said Benevento and Alan Gilbert, assistant deputy attorney general for the natural resources and environment section of the state attorney general's office.

"What National is doing is continuing to apply its effluent to land during the wintertime period, when that is banned, and on weekends and holidays, when that's banned," Gilbert said. "Our view is that a permanent injunction is the only way to stop the company from doing those things."

Spraying is banned on weekends and holidays because of odor complaints.

The state could have imposed a fine without filing a lawsuit, but the only way to get an injunction is to go to court, Gilbert said. Managers at National, in Weld County southeast of Kersey, didn't return phone calls Tuesday.

According to the lawsuit, National: illegally sprayed waste 42 times between Dec. 15 and Feb. 4; illegally sprayed waste on six weekends or holidays; failed to provide adequate storage for hog waste; didn't properly remove solids from effluent before spraying; and didn't submit proper odor-management plans and other paperwork.

"We are going to seek maximum civil penalties against them," Benevento said. The maximum fine is $15,000 per day for each day of violation, and the total could reach $4.4 million.

The environmental laws National allegedly violated were overwhelmingly approved by voters. Those laws imposed regulations to protect air and water quality from emissions at large factory hog farms.

Factory farms have been blamed for water pollution in other states, and people in Colorado and across the country who live near the operations have long complained about odor. A recent study found that people who live close to factory hog farms report more headaches, diarrhea and minor respiratory ailments than those who live farther away.

At factory farms, thousands of hogs are housed in barns. Their waste falls through slots in the floor and is usually washed into lagoons, where solids settle. The liquid is then sprayed on fields as fertilizer, a common practice.

If more effluent is sprayed than plants can absorb, it can migrate into groundwater and pollute it with nitrogen. That can cause health problems in children, the elderly and those with respiratory ailments and can render water unusuable for humans or animals.

National doesn't have lagoons and relies on field application to dispose of all of its liquid waste. Colorado voters approved Amendment 14, the ballot measure that required the Health Department to draft tougher environmental rules for large hog farms, after the Legislature failed to enact regulations two years in a row.

Other states have suffered environmental disasters when lagoons containing thousands of gallons of hog waste leaked or dikes have broken. Many of the hog farms in Colorado sit above the Ogallala Aquifer, which supplies water to parts of six states, and water-quality experts worried that inadequate regulations could allow hog farms to apply too much effluent to fields and pollute groundwater with nitrogen. If the state is granted the injunction and National is prohibited from spraying effluent from Nov. 1 through the end of each February, the company likely will have to change the way it handles waste because it doesn't have storage space, Benevento said.

"They would have to build a lagoon," he said. "They had plenty of time to do it, and instead we believe they spent their time arguing with us and not spending the time coming into compliance with the law." The lawsuit will likely make it to court sometime this summer, Gilbert said

http://www.denverpost.com/news/news0216.htm

.............................................................................................................................................................................................

Mississippi
Mississippi environmentalists push hog farm suit
Friday, February 4, 2000

A group of Mississippi environmentalists and farmers vowed Thursday to push ahead with a $75 million lawsuit against hog producers for allegedly releasing pollutants that have made dozens of people sick.

The class action suit, filed last month against North Carolina-based Prestage Farms and several subcontractors, would compensate 160 families who live near hog farms, processing plants and meat packers in Chicksaw and Clay counties.

The families, backed by the Sierra Club, a California-based environmental group, claim pollution from the sites has led to unusually high incidents of asthma, migraines and other illnesses.

"Sometimes when I walk outside, I end up vomiting," said Jim Norman, a 57-year-old cotton farmer whose family has lived in Chicksaw for five generations.

"This stench can give you diarrhea and sinus headaches. It's like living inside a gutter," he said.

For the past three years, Norman and other residents who live near the farms have fought to have more regulations placed on hog growers. In most cases, the farms are either owned by Prestage or the owners contract with the company.

Large hog farms in Mississippi are sometimes home to as many as 7,000 hogs. Last year, state health authorities released a study that cited possible respiratory problems for people living near the facilities.

Prestage Farms said it had a good environmental track record and would defend itself against the lawsuit.

"We have absolutely no intentions whatsoever of settling with this lawsuit. They (the claims) are totally unfounded and frivolous," said Ron Prestage, the president of the company's South Carolina division, which oversees operations in Mississippi.

In 1998, the Sierra Club helped implement a two-year moratorium on hog farm expansion in Mississippi.

 http://www.enn.com/enn-subsciber-news-archive/2000/02/02042000/hogfarm_9741.asp

.............................................................................................................................................................................................
Superior Farm Management, LLC v. Montgomery, 513 S.E.2d 215 (Ga. 1999).
March 8, 1999
Georgia

COURT ORDERED Injunction On Hog Facility

The Supreme Court of Georgia upheld a temporary injunction to stop the construction of a commercial hog-breeding facility, according to the Farmers Legal Action Group.  Neighbors of the facility argued that it would hurt air and water quality.  The court found that the neighbors presented sufficient evidence for the trial court to conclude with reasonable certainty that the operation would cause them irreparable harm.  The citation for this case is Superior Farm Management, LLC v. Montgomery, 513 S.E.2d 215 (Ga. 1999).
 

279k23(1) k. In general.
Ga.,1999.
Finding that construction and operation of proposed hog breeding facility would, with reasonable certainty, constitute a nuisance causing nearby residential property owners irreparable harm, thus warranting injunction halting its construction, was supported by testimony of general manager of proposed facility that on a daily basis, people within a half mile of the facility would smell the odors from facility and that several times a year the stench would extend to two to three miles away, and by expert testimony that waste from facility would infiltrate and contaminate groundwater at and around site. O.C.G.A. § 41-2-4.

Read the full text Superior Farm Management Injunction

..............................................................................................................................................................................................

-----Original Message-----
From: Stephen W Veysey <sveysey@iastate.edu>
To: cwn-feedlots@igc.topica.com <cwn-feedlots@igc.topica.com>
Date: Wednesday, February 09, 2000 1:16 PM
Subject: French Creek (Iowa) Lawsuit Against Murphy
 

Hello,

As a newer member of the Feedlot Workgroup, I would like to introduce myself and my organization, and solicit advice and support. The Hawkeye Fly Fishing Association is both a sportsman and conservation organization, involved in various stream improvement and watershed improvement projects.

We are involved in a lawsuit against Murphy Family Farms regarding a 4000 head CAFO constructed on the ridge that drains into the best trout stream in Iowa. Naturally reproducing wild Brown trout, and native Iowa Brook trout are threatened.  Iowa native Brook trout only remain in two streams in the entire state.  This CAFO is sited 780 feet from the nearest neighbors.  Actually, it was built only 290 feet from the nearest neighbor, a paraplegic living in a trailer on "lifetime leased" land.  Since he didn't own the land his home was on, separation distance rules apparently didn't apply.  Shortly after his protest was denied, he committed suicide.  All 1.7 million gallons of the manure is being spread in the French Creek watershed every year, some of it as close as 150 yards from the stream - all downhill.

The Iowa Chapter of the Sierra Club (of which I am also a member) and a group of the local residents are the plaintiffs.  The Hawkeye Fly Fishing Association is doing research and raising money. Last November I sent Iowa Department of Natural Resources a 25 page report detailing the degradation of the trout waters.  So far, nothing has been done.  The lawsuit petitions for injunctive relief and damages and alleges actual and anticipatory nuisance for the users of the trout stream and for the neighbors who are suffering from the public health threat.  Here is a link to the lawsuit, the pollution report, and other French Creek documents:
http://www.commonlink.com/hffa/News_Flash/French-Creek-page.html

One part of the lawsuit alleges that this CAFO is in violation of the Clean Water Act because it is not in possession of, and never applied for, a NPDES permit.  I would like to know which states are currently enforcing the NPDES requirement for CAFO's.  Also, I would like references to any court decisions in any state or federal court regarding NPDES permits for CAFO's, and any court decisions or current challenges regarding the anticipatory degradation of waters based upon CAFO size, location and hydrology of the manure disposal fields, et cetera.  Also, I have heard a reference to "25 year flood event exemptions" for CAFO's.  From a practical standpoint, what does that mean?  I am not a lawyer, but I will forward case references to our lawyers.

The unique aspect of this situation seems to be that, while we may be able to present evidence that this CAFO is currently damaging the stream, the basis of the lawsuit is the anticipatory nuisance or inevitability that the CAFO will damage the stream.... it's a tiny stream with a flow less than .5 cubic meters per second.  It just can't take the excess nutrients and siltation associated with spreading manure from this CAFO, even if there never is a manure spill from the confinement.

The discovery deadline has been set.  We need to know exactly what questions to ask.  We also need to find expert witnesses who will testify about various environmental and public health aspects of the lawsuit.  We also need to raise about $40,000.  This lawsuit is winnable, but at the moment the things that need to get done in order to win are not getting done for lack of money. Any of you win the lottery lately?

Steve Veysey
Hawkeye Fly Fishing Association - Board of Directors
Iowa Sierra Club - member
Iowa Environmental Council - member

To view this lawsuit, click:   Iowa French Creek Lawsuit

.............................................................................................................................................................................................

Illinois, State sues area hog-raising farm

December 21, 1999. Page A1. SPRINGFIELD -- Illinois Attorney General Jim Ryan this morning filed a lawsuit against The Highlands hog-raising farm near Williamsfield for a series of alleged odor violations since the Knox County-based operation opened in 1997...He is asking for an injuction that would stop further violations of the law. Ryan also is asking for civil fines of up to $50,000 for each violation and an additional fine of $10,000 for each day the violations continue......Ryan's complaint says that since January 1998, the Illinois Environmental Protection Agency has received about 230 complaints of offensive odor coming from the facility...

Illinois, State sues hog farm because of odors
December 22, 1999. A Knox County hog farm is "a continuous source of offensive odors," unreasonably interfering with neighbors' use and enjoyment of their property, the Illinois attorney general alleged in a lawsuit filed Tuesday. ... The waste-treatment system "does not perform in a manner consistent with the claims of (Bion) [the manufacturer], and this deficiency is contributing to the odor violations being experienced by area residents," the lawsuit said. ... Meanwhile, a separate lawsuit against The Highlands is pending in Knox County circuit court. Rural Williamsfield residents Roy and Dianne Kell filed a four-count lawsuit two months ago against the farm, located a quarter-mile west of the couple's home. The suit alleges that odors have harmed their property and lifestyle...

A Knox County hog farm is "a continuous source of offensive odors," unreasonably interfering with neighbors' use and enjoyment of their property, the Illinois attorney general alleged in a lawsuit filed Tuesday.

The Highlands LLC, a $2.5 million, 3,650-sow operation just south of Williamsfield, is violating state law by causing air pollution, according to the civil suit filed by Attorney General Jim Ryan.

Ryan's office filed a two-count suit with the state Pollution Control Board against The Highlands, Murphy Farms Inc. and Bion Technologies Inc.

The Highlands, which opened about two years ago, is owned by former Knox County Board Chairman James Baird; his wife, Patricia; their son, Douglas; and his wife, Nancy. The Highlands produces feeder pigs for Murphy Farms, and Murphy owns the animals. Bion Technologies designed the waste-treatment system at the farm.

Since January 1998, the Illinois Environmental Protection Agency has received roughly 230 complaints about odors from the factory-scale facility, and complaints still are being made. A series of EPA inspections in 1998 and 1999 confirmed the farm was producing a strong swine odor.

According to the lawsuit, the offensive odor comes from The Highlands' animal-confinement buildings and its waste-treatment system.

The waste-treatment system "does not perform in a manner consistent with the claims of (Bion), and this deficiency is contributing to the odor violations being experienced by area residents," the lawsuit said.

The suit also said that even though the facility met minimum setback requirements, it was built with "inadequate separation" from a home located a quarter-mile to the east.

A May 1997 letter from the Illinois EPA to James Baird said the agency recommends locating large livestock operations at setback distances that are greater than the minimum.

Assistant Attorney General Jane McBride said most of the odor complaints against The Highlands have been made by the seven or so households located within a quarter-mile to 11/2 miles of the operation.

"With a rural community, you're not talking about a whole lot of people, but they're impacted, and they're impacted severely," McBride said.

Anyone looking to build a large-scale livestock operation should consider odor-control before and during construction, instead of "after the fact," she said.

"The technology is available to get odor under control," McBride said. "The technologies do exist, and they should be going in on these farms - sooner (rather) than later."

Frank Hackmann, attorney for The Highlands, said the Bairds have "a long tradition in Illinois agriculture" and are "dedicated to being good neighbors."

Recently, The Highlands has worked with Bion Technologies to take steps aimed at improving operation of the wastewater-treatment system, Hackmann said. He said his clients are "hopeful and confident" the new measures will result in noticeable improvements.

Attorneys for Murphy Farms and for Bion Technologies couldn't be reached for comment Tuesday.

Ryan's lawsuit asks for an injunction barring further violations of the law, civil fines of up to $50,000 for each violation and an extra $10,000-a-day fine for each day the violations continue.

Meanwhile, a separate lawsuit against The Highlands is pending in Knox County circuit court.

Rural Williamsfield residents Roy and Dianne Kell filed a four-count lawsuit two months ago against the farm, located a quarter-mile west of the couple's home. The suit alleges that odors have harmed their property and lifestyle.

The Kells' lawsuit seeks damages of at least $150,000 and asks that The Highlands be ordered to stop generating offensive odors. According to the suit, odors from the hog operation have aggravated Dianne Kell's asthma.

Adriana Colindres can be reached at 782-6292 or colindres@sj-r.com.

 http://www.sj-r.com/news/99/12/22/g.htm

..............................................................................................
EPA joins massive lawsuit against nations third largest hog producer.

EPA files massive pollution lawsuit against PSF
Suit cites longstanding and ongoing violations of federal Clean Water Act
July 23, 1999. Today, the US Environmental Protection Agency (EPA) and the US Department of Justice filed a Motion to Intervene in a suit filed by a group of farmers and rural residents in northern Missouri against Premium Standard Farms (PSF). The government suit joins these local citizens in working to stop the massive air and water pollution from this facility and accuses the company of longstanding and ongoing violations of the federal Clean Water Act. Fines and penalties could mount into millions of dollars...
http://www.farmweb.org/b/19990723_mo_psf.htm

http://www.netins.net/showcase/megahoglaws/b/19990723_mo_psf.htm

............................................................................................................................................................................................
Virginia, Surry Co.  The proposed rezoning of a tract in Surry County
for a 40,000 hog operation came up before the Board of Supervisors
and was denied.  Law suit from Carroll's Foods arguing that the setback requirements
were in excess of minimum state requirements was lost.  "...all the prayers of the
plaintiff are denied."  on the grounds that "...such as Surry's power to control air
pollution and water quality, as it has already found that it has the power to protect
the health and general welfare of its citizens." DECISION LETTER IN TOTAL

www.eieio.org
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Virginia, Brunswick Co.  Suits have been filed challenging the County's newly-implemented zoning ordinances.

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Halifax Co. Virginia, September 1999.  The Gazzette-Virginian

Neighbors File Motion To Intervene In Hog Suit
Two hog operations are being opposed by over 50 of their neighbors who filed in circuit court this week.
The neighbors are asking that they be included in any negotiations between the county and the two operators.
The petition to intervene was filed in circuit court in Halifax on Wednesday.
Neighbors of Link Farms, Inc., which is seeking to triple its operation to over 8,000 hogs in the Alton community, and of Leo Hinson, who seeks approval for a new 11,500-swine operation in Birch Creek District, filed the action.
Although only the Link Farms' suit was mentioned in the Wednesday motion, suits have been filed against the county by Link Farms and Hinson to force county officials to execute a local government ordinance required by the Virginia Code to complete their CAFO application process.
The Link and Hinson suits were filed prior to supervisors' vote last month to strengthen setbacks for confined swine feeding operations and to set a cap of 5,000 for hog operations.
The neighbors filing the motion to intervene cited both monetary and property interests in the outcome of the Link suit.
Since their rights will be effected by the disposition of the suit, the neighbors asked that they be included to ensure that issues relevant to the suit are fully developed.

www.gazettevirginian.com
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Virginia, Charlotte Co., Farmer Challenges Hog Farm Rules September 24, 1998

A Virginia farmer has filed a lawsuit challenging the new zoning restrictions on large
hog-farms. Norman Layne claims he was within weeks of accepting delivery of
five-thousand hogs from Carroll Foods when Charlotte County adopted new
regulations requiring larger buffer zones around livestock operations.
Charlotte County has two large hog-farms now... and a third is being built.

From Yahoo's Daily News Search Sept. 24, 1998
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August 11, 1999

CONFIDENTUL ATTORNEY WORK PRODUCT

Memo Re: Moratorium/Zoning/Hog Farming
 

I write this letter in regards to the proposed question of whether a city council can enact a moratorium or zoning restriction to prevent commercial hog farming in XXXXXXX County without violating the Constitutional rights of farmers.

As you may know, this is a very complex and difficult issue based on current Virginia case law. In my view, a zoning restriction may be a more appropriate remedy to prevent commercial hog farming. However, a zoning restriction or a moratorium must be rationally related to some legitimate governmental objective. It is my understanding that this governmental objective is to protect the environment and the health of the citizens of XXXXXX County. When enacting a zoning ordinance or a moratorium, there must be some potential harm shown. Actual harm or substantial endangerment to the environment is not required. See Federal Resource Conservation and Recovery Act; Dauie v. City of Burlington, 732 F. Supp. 458, 468-69 (D. Vt. 1989).

Moreover, unless a property owner has acquired a vested right in a particular use, the enactment of a zoning change or moratorium on permits for the use desired or planned does not violate the owner's constitutional rights - even if the zoning action was in response to the planned use, particularly in the case where the action is rationally related to the zoning entity legitimate objective of undergoing study to facilitate appropriate land use planning. See e.g. Summerchase Ltd. Partnerships Iv. City of Gonzales, 970 F. Supp.522,534.536 (M.D.La.1997).

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Exact date unknown.
Iowa Right to Farm Act

 Iowa, 1998
"Right to Farm"
USAToday

 Iowa farm-law decision stands
WASHINGTON - The Supreme Court on Monday let stand a ruling it was told casts doubt on all 50 states' efforts to protect farmers from being sued by their neighbors under public-nuisance laws.

The justices, without comment, refused to review a decision by Iowa's highest court that struck down the state's ''right to farm'' law, similar to laws enacted in every other state.

A large, interstate coalition of farmer groups told the court that the Iowa Supreme Court decision, if allowed to stand, will deprive more than 100,000 Iowa farms of the legal assurance that they won't be sued ''because they look and sound and smell like farms.''

The coalition also told the justices that the Iowa court's reasoning, if adopted elsewhere, would wipe out any state's ''right to farm'' law.

In the late 1970s and early 1980s, states passed those laws in response to pressures from suburban sprawl. The laws are aimed at protecting farms by offering them a qualified defense to nuisance lawsuits by neighbors who object to the normal incidents of farming operations.

The Iowa law, enacted in 1982, is typical in that it protects farmers against nuisance lawsuits as long as the basis of neighbors' complaints are not tied violations of federal or state laws, negligent operation of the farm, water pollution or excessive soil erosion.

People who own about 1,000 acres of land in Kossuth County, Iowa, had their land designated as an agricultural area under the state's ''right to farm'' law in 1995, but the designation was quickly challenged by owners of neighboring land.

The neighbors sued the Kossuth County Board of Supervisors, contending that its action amounted to an unconstitutional ''taking'' of property without just compensation because the farmland had been given ''nuisance immunity.''

The lawsuit attacked the state ''right to farm'' law even though no allegations of a nuisance were raised.

A state trial judge threw out the lawsuit, but the Iowa Supreme Court last September reinstated it and struck down the ''right to farm'' law.''

''The challenged statutory scheme amounts to a commandeering of valuable property rights without compensating the owners, and sacrificing those rights for the economic advantage of a few,'' the state court ruled. ''In short, it appropriates valuable private property interests and awards them to strangers.''

In the appeal acted on Monday, lawyers for the farmland owners argued that the Iowa court's ruling conflicts with the nation's highest court's previous rulings on governmental actions that have an impact on private property.

Those decisions generally have said an unlawful, ''taking'' of private property without compensation occurs only if land is physically invaded or its owner is deprived of all economic use of the land.

The appeal said the Iowa court's ruling threatens ''the unanimous judgment of the states that farming is worth preserving and protecting.''

The case is Girres vs. Bormann, 98-1003.

 http://www.usatoday.com/news/court/nscot968.htm

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Illinois  February 20, 1997

Gott v. M’Orr Pork, Inc.  (PCB 96-68 (1997 Ill. ENV. LEXIS 84) (February 20, 1997)
The ILPCB (“the Board”) found that the odors emitting from the M’Orr’s hog confinement facility and outdoor waste lagoon violated Section 9a of the Environmental Protection Act, and that M’Orr’s failure to control odors violated ILPCB Regulation 501.402(c)(3).

The Orr family raised hogs in the Kinderhook, IL area for 24 years. In 1994, M’Orr Pork, Inc. decided to install a hog confinement building and outdoor lagoon. Donna Gott, and other complaintants, lived approximately three-tenths to one-half mile south of the new facility and lagoon. The complaintants alleged that the facility injured their health and interfered with their enjoyment of life and property.

The Board did not find injury to the complaintants’ health, although the complaintants testified that the odor from the facility and lagoon caused health problems and nausea. The complaintants failed to present medical or scientific evidence that the facility caused the alleged health problems.

The Board, however, found that the facility unreasonably interfered with the plaintiffs’ enjoyment of life and property. In arriving at its decision, the ILPCB weighed each of the five factors (the Section 33(c) factors) listed previously.

Factor 1
Air pollution does not have to be “unbearable” for a violation. Pollution preventing normal outdoor activities and forcing plaintiffs to close windows is “unreasonable interference.”
The pollution must only affect “some” residents, not “all” residents.

Factor 2
In determining the social and economic benefit, the Board considers factors such as the number of people the facility employs, the importance of its supply to the market, and generation of increased tax revenue.
Although the Board found some general social and economic value in such an operation, M’Orr did not submit evidence of its facility’s particular benefits. The Board, therefore, leaned only slightly in favor of M’Orr on this factor.

Factor 3
The Board examined the zoned uses versus the compatibility with existing nearby uses to determine the suitability of the operation. Despite the fact that the county zoned the area for the facility’s operation, the Board found the odorous facility was not compatible with nearby residential uses.
The source of the offensive odors (the large new facility) is the measurement for priority of location, not the date when the defendants started raising hogs 24 years ago. Because the complaintants lived in the area before the M’Orr’s built the facility, the residents had priority of location. The Board did not weight this factor in favor of either party.

Factor 4
Any technically practicable and economically reasonable means of reducing or eliminating odor emissions that are readily available should be used at the time of construction. Although M’Orr took such measures after the complaint, the ILPCB found in favor of the complaintants because M’Orr should have taken the measures in the beginning.

Factor 5
The Board measured compliance at the date of the initial hearing. Because the M’Orr’s took measures to comply with the law and regulations only after the complaintants filed a formal complaint, the Board weighed the compliance factor in favor of the complaintants.

The Board issued an interim order commanding M’Orr to have an evaluation and report, by a qualified, independent individual or firm, to find a permanent and quick solution to the odor problem. The M’Orr’s hired a specialist in agricultural engineering from Iowa State University. The specialist’s recommendations, adopted by the ILBPB in its detailed final opinion, were:

more frequent emptying of manure pits under confinement buildings (every 10-12 days)

washing the confinement building between groups of pigs to reduce dust and odor exhausted from the building

additives in hog feed, such as oil (to reduce dust) and “Micro-Aid” (an ammonia reducer)

extension of the drainage tube from the confinement to the lagoon, so as to deposit waste under the lagoon’s surface, not on top of it

planting of fast growing trees (Austrees) and corn around the lagoon to filter odors and dust particles

installation of an “Ecolo Odor Control System,” which emits an extract to neutralize odors
-the system is designed to spray more frequently during times when people are outside (morning and evening)

dilution of the lagoon with water to a level which encourages anaerobic digestion
-low water levels raise electrical conductivity, which impedes microbial activity

installation of filters on exhaust fans, and keeping filters moist to increase efficiency

The Board also fined M’Orr Pork $2,500.

[See Gott v. M’Orr Pork Inc. (1998 WL 197827 (Ill. Pol. Control Bd.) (April 16, 1998))]

 http://www.outreach.uiuc.edu/livestock/SOWM/regs/topics/odor.htm

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"3. Which came first, the facility or the homeowner(s)? "

Woods et al. v. Khan (95 Ill. App. 3d 1087 (1981))
Plaintiffs lived in the area before construction of an egg production facility housing 50,000 chickens. The area was zoned agricultural and many of the plaintiffs raised crops and livestock. After the facility was placed in operation, plaintiffs claimed the facility forced them to seal their houses during hot, humid summer days, curtail outdoor activities, and it prevented them from inviting guests to visit their home. They also claimed that their physical ailments, including breathing difficulties, sore throats, and nausea, were a result of the facility’s emissions of pollutants.

The Illinois Court of Appeals ruled that the odors and swarming flies from the defendant’s operation were a nuisance. The court first outlined the criteria required to maintain a nuisance suit. The facility must constitute:

a substantial and
intentional invasion of adjoining landowner’s enjoyment of his land which is
severe enough to constitute a material annoyance to the adjoining landowner and
is foreseeable as to its consequences by the offending landowner.
In addition, the gravity of the harm done to the plaintiff must outweigh:

the utility of the defendant’s business, and
the suitability of the location of that business.
This balancing process considers the following questions:

Are the defendants engaged in a useful enterprise?
Is the area well-suited for the business (e.g., rural, industrial or residential)?
Which came first, the facility or the homeowner(s)?
Can the nuisance be reduced?
Is modification of the facility practical?
The court concluded that although the egg business is a vital industry and well-suited to the rural area in which it was located, agricultural smells can reach a point where a court must enjoin their production when they overwhelmingly interfere with the rights of others to enjoy their property.

Furthermore, though plaintiffs also raised livestock and contributed odors, the court did not consider the plaintiffs’ actions relevant to the question of whether the egg production facility constituted a nuisance.

 http://www.outreach.uiuc.edu/livestock/SOWM/regs/topics/nuisance.htm

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Til stinch do us part!
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