Cranberry farm is not a nuisance

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The biggest, most controversial, most-closely watched, and long-running case ever to address Wisconsin’s Right to Farm Act came to what may be a very anti-climactic ending on Feb 5.

The circuit court had held a seven-day bench trial, and issued a written opinion consisting of 17 pages of fact-finding alone.

The case became an issue in last year’s attorney general race, with attorney J.B. Van Hollen arguing during his campaign that the State’s lawsuit was frivolous, and then-Attorney General Peg Lauten-schlager defending the suit.

The appeal generated massive briefs and appendices from the parties, as well as amicus curiae briefs. The Wisconsin Association of Lakes supported the State, and a coalition consisting of eight agricultural associations favored the defendant, cranberry farmer William Zawistowski.

In the end, however, the Wisconsin Court of Appeals had nothing to say whatsoever about the Right to Farm Act, sec. 823.08. The unanimous decision, authored by Judge Gregory A. Peterson, affirmed the circuit court’s holding that the cranberry farm at issue was not a nuisance; and dismissed the farmer’s cross-appeal concerning the Right to Farm Act.

The case began in 2002 when a group of riparian owners on Musky Bay, a shallow part of Lac Court Orielles in Sawyer County, brought suit against Zawistowski in federal court, alleging that his farm constituted a nuisance.

Since 1939, Zawistowski or his family had been using water from the bay to flood their cranberry beds. When the beds are drained, the water returns to the bay, increasing the phosphorous content of the bay because of fertilizers.

The landowners contended that the phosphorous from the fertilizer feeds the growth of dense aquatic plants and algae, rendering the bay unfit for recreational purposes during the summer months.

The federal court action was dismissed, and the landowners, this time joined by the State, brought suit in state court in 2004.

After the trial, Sawyer County Circuit Court Judge John P. Anderson held that the cranberry farming operation was not a nuisance. However, he concluded that, if it were, it would not be protected under the Right to Farm Act.

The act protects agricultural use from suit in nuisance if two conditions are met: the farming predates the plaintiff’s use; and “[t]he agricultural use or agricultural practice does not present a substantial threat to public health or safety.” The act also provides that a farmer who prevails in a nuisance suit is entitled to actual litigation expenses and reasonable attorney fees.

Zawistowski contended that, as a matter of law, the operation did not present a threat to public health or safety, but the circuit court disagreed.

However, the court ruled in favor of Zawistowski, concluding that the plaintiffs failed to prove the farming was a nuisance.

Although the court found that Zawistowski’s farming accounted for an estimated 40 to 50 percent increase in phosphorous entering the bay, and that the ecology of Musky Bay is changing as a result of increased nutrient loading, this did not amount to an “unreasonable interference.” The circuit court concluded that the changes to the bay were an acceleration of the bay’s natural aging process, without substantial harm to plant or animal life.

The State and the neighboring landowners appealed the nuisance holding; and Zawistowski filed a cross-appeal on the Right to Farm Act issue. The amicus curiae joined to address the Right to Farm Act.

Attorney General J.B. Van Hollen, who promised not to pursue the case if elected during his campaign in 2006, refused to continue the case, so Gov. Jim Doyle retained an outside law firm, Godfrey & Kahn, to handle the appeal.

In the end, the Court of Appeals affirmed the nuisance holding, in a brief, unpublished decision, leaving the Right to Farm Act issue unnecessary to address.

The court agreed that the circuit court’s finding — that the cranberry operation did not unreasonably interfere with the other’s use of the bay — was not clearly erroneous.

The court agreed with the State that a nuisance need not be constant to be actionable, and that a court can act to prevent a future nuisance.

However, the Court of Appeals concluded that the circuit court applied the correct legal standard, and did not require that the State prove the nuisance was constant. Instead, the circuit court’s decision was based on insufficient evidence from the State as to how many days per year the public’s use was interfered with, and what proportion of the bay was inaccessible due to plant growth.

The Court of Appeals concluded, “While the State produced abundant evidence that Musky Bay was changing — evidence the circuit court found convincing — it failed to prove the change resulted in significant interference with recreation or the bay’s ecology. We are confident that the court’s reluctance to find a nuisance was due to the inconclusive proof on the extent of the interference, not a misapprehension of the law.”

Accordingly, the court affirmed that the State failed to prove a nuisance, and dismissed Zawistowski’s cross-appeal.

The governor’s office quickly announced it would not be seeking certiorari in the Wisconsin Supreme Court.

“Since the case had been filed by the former attorney general, the governor thought it would be correct to allow it to continue,” Doyle spokesperson Jessica Erickson said. “Now that the State has a decision, we’ve consulted with outside counsel and decided not to appeal.”

The suit is not necessarily over; the individual property owners could seek certiorari on their own, despite the governor’s choice, within 30 days of the decision.

Should the case not go up to the Supreme Court, the case will return to the circuit court for a determination of attorney fees. According to H. Dale Peterson, who represented the agricultural coalition, the State and private landowners would likely be found joint and severally liable for Zawistowski’s attorney fees under the Right to Farm Act.