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Supreme Court sides with Larson Acres

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staff, Gazette
July 12, 2012

— Wednesday's 5-2 ruling by the state Supreme Court siding with Larson Acres isn't just a victory for the fifth-generation family farm in the town of Magnolia but for farmers across Wisconsin, the farm's general manager said.

"This ruling assures that farms across the state are subject to uniform, consistent and fair regulatory standards and need not worry about the possibility of inconsistent and illegal local permit stipulations," General Manager Mike Larson said in statement.

The state's highest court affirmed a court of appeals decision in favor of the farm, saying the town overstepped its authority in placing conditions on a permit for the farm. The court dealt a blow to environmentalists concerned about water pollution from huge livestock farms when it said communities couldn't set stricter standards than the state.

The ruling was believed to be the first decision by a state Supreme Court in about a half-dozen cases pitting neighbors and small farmers throughout the Midwest against so-called factory farms, which can have thousands of animals. Similar cases have been filed in Illinois, Indiana, Minnesota, Nebraska, Ohio and Oklahoma, and the decision was closely watched.

Farm groups cheered the ruling, saying it will allow farms to grow and expand under predictable and consistent terms applied statewide.

Clean water activists said it will only encourage the growth of huge farms, with thousands of animals producing more manure than the land can handle and runoff that contaminates rivers and underground water sources.

The case

The legal case began in 2007 when Larson Acres applied for a conditional-use permit for a heifer facility at its County B farm. The farm already had 1,000 cows, and residents blamed it for polluting their water supply.

Town officials cited tests showing high nitrate levels, which could be evidence of pollution from manure, so the town granted the permit with conditions: The farm had to allow the town to conduct monthly water quality tests on its land, and it had to follow certain crop-rotation strategies to reduce nitrate buildup.

The farm sued, arguing that pollution-control measures are laid out by the state and can't be modified by individual towns. The state Supreme Court agreed, saying state law prevents the town from imposing additional conditions on top of standards the state already set for permits.

Justice Michael Gableman, writing for the majority, said the law was designed to provide uniform regulation of livestock facilities and balance the important interests of protecting natural resources and encouraging a robust agricultural economy.

The dairy industry is one of Wisconsin's biggest businesses, and the decision was the latest in a string of pro-business rulings by the state's Republican-dominated Supreme Court.

Reaction

The decision was disappointing for town board member Dave Olsen, perhaps the most outspoken in the town's fight. He called the court of appeals' decision "bogus" at a town meeting and donated $10,000 to the town so it could continue the case at the Supreme Court level.

"I feel that water is our most important resource," he said Wednesday, adding it was worth every bit of money to fight the decision.

Olsen said he believes the case is done.

"I think the laws are already there under the Clean Water Act. They just need to be enforced," he said.

Board Chairwoman Fern McCoy told WCLO radio she was surprised and disappointed.

"I'm disappointed that they aren't considering the water for the neighbors, protecting the water for the neighbors," she said. "But I think it's gone on long enough ... personally, I think it's a done deal."

The three-member town board doesn't meet until the second week of August, when board members could talk about what's next, she said.

"Personally, I think we've had this going on long enough that it should end," she said.

A group of neighbors, including Rosemary Wilke, 78, and her late husband, Verne, also were plaintiffs in the case. Wilke now lives in Brodhead, having sold the family farm a half-mile from the Larson Acres' County B farm.

"I think it was a bad decision," she said Wednesday. "Otherwise we wouldn't have fought so hard. We truly believe in what we were trying to prove."

The town of Magnolia spent about $150,000 in eight years through April 2010 over conditional-use permits for Larson Acres, according to a Gazette open records request. The board agreed to its attorney Glenn Reynolds' offers of a $2,000-flat fee to file a petition to the Supreme Court, and then up to $15,000 to defend the town when the court agreed to hear the case. Olsen and his wife donated $10,000.

In his statement, Larson said his family is pleased the court determined the town overstepped its authority.

"Larson Acres is a diligent environmental steward, and we will continue to use farming methods that protect our land, water and air," he wrote. The ruling affirms the state's siting law and "confirms a uniform permit process that assures environmental protection. We are pleased that our long legal battle supports Wisconsin's existing laws and helps clarify rights for farmers elsewhere."

How the town, its residents and the farm heal the wounds created over years of court hearings and meetings remains to be seen. When asked about it, Olsen said, "I haven't thought about it. I'd like to think we have a good working relationship with all of the town residents."

Regulating large farms

Larson Acres has denied allegations that it's responsible for the water pollution in Magnolia.

But Tarah Heinzen, an attorney with the Environmental Integrity Project in Washington, D.C., said the water pollution that already existed in Magnolia shows the state's enforcement process wasn't enough.

"What this case does is demonstrate a greater need for state oversight over its dairy industry," she said.

Rural communities throughout the Midwest and West have been struggling to deal with water, air quality and other problems created as the number of big farms grows with industry consolidation.

There are about 240 mega farms in Wisconsin, up from 219 two years ago and 138 in 2005, according to the state Department of Natural Resources. The state considers mega farms those with 714 or more dairy cows.

Wisconsin has laws allowing state regulators to monitor water quality and impose pollution standards, and the court said towns could introduce their own regulations separate from the permitting process. An attorney for Larson Acres previously suggested the town could monitor its water quality and sue the farm if nitrate levels got too high.

But Dela Ends, 59, an organic farmer who lives about two miles from a Larson Acres barn that houses more than 1,000 cows, said it makes more sense to prevent pollution in the first place rather than clean it up later.

"It's just very sad that there's no protections for public health in regard to these farms," she said. "This is about money and power and not about the welfare of the people."

CONTESTED CONDITIONS

The Magnolia Town Board on March 27, 2007, granted a conditional-use permit to Larson Acres with seven conditions, "imposed for the purpose of protecting the town's ground and surface water," according to the Supreme Court decision issued Wednesday.

Larson Acres appealed the town's decision to the state Livestock Siting Board, challenging five conditions. The challenged conditions, quoted in their entirety, were:

-- Larson shall provide the town, within 60 days of this decision, a plan to utilize land use, farming and nutrient management practices to substantially reduce and thereafter minimize nitrogen loading to surface and ground water using the following strategies:

a. No fall spreading of manure on tile drained or upland field on the Cook Farm (County B farm) until nitrate pollution is substantially reduced.

b. Crop rotation to include alfalfa on the entire Cook Farm in three- to four-year rotations beginning in 2008 and continuing over a four-year period until the entire Cook Farm has been rotated and is consistent with the current farm conservation plan. The rotation plan shall include no less than three years of alfalfa for every year of corn planted on each acre.

c. Increased frequency of soil testing from once every four years to once a year, focusing on phosphorous and nitrogen contents of the soil to account for residual nitrogen in calculating spreading plans for the upcoming growing season.

-- Larson will exchange information with the town concerning management practices of the facility, including notification to the town chair of all changes in circumstances.

-- Larson will allow access for testing well water at the facility and access for the town to test tile lines for water quality monitoring purposes monthly, upon proper notice to the owners of the facility unless such testing is required under the terms of a Wisconsin Pollution Discharge Elimination System Permit as issued by the Wisconsin Department of Natural Resources.

-- Larson will comply with all provisions of the town of Magnolia zoning ordinance and any other applicable federal, state and local regulations and law.

-- The town board shall review the CUP (conditional-use permit) annually to assure itself that Larson is in compliance with the permit.


 

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