"Public nuisance " lawsuit poses danger for growers

June 9, 2005

by Ron Ragatz, Esq.
DeWitt Ross & Stevens S.C.

Introduction

The Wisconsin Attorney General has started a lawsuit which should concern all cranberry growers. The Attorney General sued a cranberry grower, Bill Zawistowski, who operates his cranberry marshes legally and according to accepted growing practices. Nonetheless, State Attorney General Peg Lautenschlager claims that his cranberry operation is creating a "public nuisance" and is seeking an order that would effectively put him out of business.

Background

Bill Zawistowski owns two cranberry marshes on Musky Bay in Sawyer County, Wisconsin. Musky Bay is part of Lac Courte Oreilles, a nearly 5,000-acre lake. While the main lake is relatively deep and hard-bottomed, Musky Bay has always been shallow and mud/muck bottomed.

Bill's father started the first cranberry marsh in about 1940. He started a second marsh on Musky Bay in the 1950s. Bill took over the marshes in about 1981.

When the cranberry operations began, the Musky Bay shoreline was largely undeveloped. Over time, the area has been developed and there are now about 37 residential properties with shoreline on Musky Bay.

Bill uses fertilizer containing phosphorus on his cranberry beds. He uses it at the rate recommended by horticulturists and soil scientists. He follows labeling instructions and applicable regulations.

He uses water from the Bay in the fall for harvesting and in the winter to prevent the vines from freezing. Water is taken from the Bay in ditches and discharged back through the same route. This is legal and has been done for decades.

Previous Lawsuit

In 2002, owners of 14 residential properties with frontage on Musky Bay brought a lawsuit in federal court against Mr. Zawistowski. The State of Wisconsin was not a party to that lawsuit. The plaintiffs were all non-resident, seasonal owners who claimed that the Zawistowski cranberry marshes were polluting the Bay with phosphorus.

The plaintiffs bought their properties long after the cranberry marshes were in operation. They knew that Musky Bay was a shallow, mud/muck-bottomed bay with dense weeds, and they got their properties at a lower price because of those conditions.

Nonetheless, they sued Mr. Zawistowski, asking the court to force him to dredge the entire 250-acre Bay to make it deeper, remove the mud/muck and get rid of the weeds. This would have cost millions of dollars, a crushing burden on a family farming operation.

Dredging would have made the plaintiffs' residential properties more valuable than when they bought them. It would have increased their property values (which had already tripled in the last ten years) at the expense of Mr. Zawistowski. On top of the multi‑million dollar cost of dredging, the plaintiffs asked the court for even more money, including punitive damages.

Federal Judge Barbara Crabb threw the case out of court. She ruled that there was no basis for the court to order dredging. She found that the plaintiffs had no credible grounds to claim even the jurisdictional minimum damages to bring a lawsuit in federal court. She ruled that there was no federal jurisdiction and dismissed the case.

State Case

However, Judge Crabb's dismissal was not the end of the matter. In June 2004, the same plaintiffs started the lawsuit all over again in state court. This time, the State has joined as a plaintiff. The Wisconsin Department of Natural Resources did not ask the Attorney General to sue Mr. Zawistowski. Neither did the Wisconsin Department of Agriculture, Trade & Consumer Protection. There have been no complaints by either the Department of Natural Resources or the Department of Agriculture against Mr. Zawistowski. Instead, the decision to join in the lawsuit was made by the Attorney General alone.

The Attorney General admits that Mr. Zawistowski has not violated any laws or regulations. She admits that there have been no enforcement efforts against his operation and that there was no referral from any regulatory agency.

Public Nuisance

Instead of suing for violation of the law, the Attorney General claims that Mr. Zawistowski has created a "public nuisance." A lawsuit for "public nuisance" is based upon common law. Common law is a set of rules made by judges, rather than the legislature, on a case-by-case basis. Under common law, a public nuisance is a condition or activity that "unduly interferes" with the use of a public place or with the activities of the community.

The Attorney General claims that the Zawistowski cranberry marshes discharge phosphorus to the Bay through the water used for flooding the marshes. Although phosphorus is not toxic (indeed, it is essential to life), the Attorney General claims that phosphorus promotes the growth of weeds and algae. She claims that the weeds and algae, in turn, create a public nuisance because they make the appearance of the Bay less attractive and make activities such as boating, swimming or skiing less desirable.

The state court lawsuit again seeks to force Mr. Zawistowski to dredge the entire 250-acre Bay. The dredging is supposed to remove decades of phosphorus in the sediments at the bottom of the Bay. This phosphorus came from many sources, including naturally occurring atmospheric deposits, deposits from wildlife and decaying vegetation.

What the Attorney General is seeking is unprecedented. The Attorney General admits there is no other case in the history of the State of Wisconsin where a farmer (or anyone else) has been ordered to dredge a bay for the sole reason of getting rid of phosphorus in the sediment. She admits there is no other case where she or any of her predecessors has started a lawsuit claiming public nuisance because of discharges of phosphorus to a water body. Further, there is no precedent of the DNR allowing someone to dredge a bay simply to get rid of phosphorus. The Attorney General is breaking new ground.

Dangers

This action by the Attorney General poses serious dangers for all cranberry growers and, indeed, for all Wisconsin farmers. Almost all agricultural operations either use fertilizer or deal with animal wastes containing phosphorus, or both. There is a potential for the phosphorus to reach either groundwater or surface waters of the State of Wisconsin. If so, a public nuisance claim is possible.

The problem with a public nuisance claim is that it is hard to predict or avoid. The standard is broad and vague. Whether an activity "unduly interferes" with public property or activities is often in the eye of the beholder. For instance, the weeds on the bottom of Musky Bay may be beneficial to fish life, but may be viewed as an interference by shoreline owners concerned with a "pristine" view.

The problem with this vague standard is compounded by the fact that a judge or jury with no expertise in agriculture or environmental science, ultimately decides whether there is a nuisance. Indeed, the Attorney General, who decides whether to start a lawsuit in the first place, has no such expertise.

This is a poor way to govern farming operations or any other business. In today's world, farmers must comply with many regulations administered by the DNR or the Department of Agriculture. In those cases, there is a specific written standard and an agency that can be asked in advance about compliance. A farmer can take reasonable steps to avoid liability. On the other hand, with public nuisance, one may not know that there is a problem or how to solve it until it is too late.

The results can be catastrophic. If the Attorney General gets what she wants, Mr. Zawistowski would be ordered to dredge the entire Bay. The plaintiffs' expert estimates that the dredging would cost up to $4 million and admits that even that cost is not a worse case scenario.

That would be a crushing burden for any farming operation. It would be catastrophic and unfair for Mr. Zawistowski, a law-abiding farmer who has run his business according to accepted practices.

The case is scheduled for trial in September 2005.

Attorney Ron Ragatz is a member of DeWitt Ross & Stevens S.C. in Madison, Wisconsin. He is defending Mr. Zawistowski in the lawsuit.

Agricultural/Agribusiness Law Section