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Supreme Court: Case Against Cranberry Producer is Dismissed
Wisconsin Ag Connection - 05/15/2008

A case that has threatened the state's Right to Farm law, cost a former attorney general her job, and a law-abiding cranberry producer a lot of time and expense has finally been halted. On Tuesday, the Wisconsin Supreme Court said it has refused to review a nuisance lawsuit filed against the Sawyer County farmer. The announcement comes just three months after the District 3 Court of Appeals upheld a judge's dismissal of the case against William Zawistowski--who's neighbors claim released phosphorus from the application of fertilizer into Musky Bay, which flows into the Lac Courte Oreilles.

As Wisconsin Ag Connection has reported, former Attorney General Peg Lautenschlager filed charges in 2004 against Zawistowski on behalf of 15 out-of-state property owners over the issue. But two years ago, a judge shot down Lautenschlager's suit because 'the pollution hasn't reached the point of being a public nuisance.' A few months later, she filed an appeal and asked the court to rule on the right to farm law and the protection it gives to farmers who use farming practices.

In July 2006, the Wisconsin Farm Bureau petitioned the Wisconsin Court of Appeals to intervene in the case. They felt future lawsuits could be justified against other producers if Zawistowski was to be found guilty.

"Wisconsin farmers should not be subjected to years of drawn-out, meritless litigation, and forced to incur hundreds of thousands of dollars in legal fees, to protect their right to lawfully farm," said WFBF President Bill Bruins. "Therefore, we could not be happier to have this lawsuit finally resolved."

Bruins says this case has historic implications to the entire state's agriculture industry

Also commenting on the case was Tom Lochner, who heads the Wisconsin State Cranberry Growers Association. He said the conclusion of this issue will provide assurances to other Wisconsin farmers that if they abide by state regulations and rules and run a good operation, they cannot be easily targeted as a public nuisance by others.

"On behalf of state cranberry growers and the agricultural industry as a whole, we are pleased that the Wisconsin Supreme Court has decided to end this lengthy court battle that time after time has ruled in favor of Zawistowski and found that there was no public nuisance," Lochner stated. "This case has been considered by every level of the court over many years, and we are pleased it has reached this conclusion with the Wisconsin Supreme Court ending the litigation. This case should have never been brought against Mr. Zawistowski, and we are glad it is over."

Meanwhile, the case will now be sent back to Sawyer County Circuit Court so that the trial judge can award Zawistowski and his insurance company, Rural Mutual Insurance Company, their attorneys' fees and court costs incurred in defending against the plaintiffs' unsuccessful nuisance as a legal right afforded to Wisconsin farmers under the Right to Farm Law.

Zawistowski is a second-generation cranberry grower who operates two cranberry bogs that have utilized water from Musky Bay since the 1950s. The non-resident plaintiffs, who own recreational properties on Musky Bay, alleged that lawfully applied phosphorus to the Zawistowski cranberry bogs was the cause of algae and weed growth in Musky Bay, and that it created a nuisance.

Other agriculture groups that joined in the legal brief include the Wisconsin Federation of Cooperatives, Wisconsin Cattlemen's Association, Wisconsin Corn Growers Association, Wisconsin Pork Association, Wisconsin Potato & Vegetable Growers' Association, Wisconsin Cranberry Grower's Association and the Dairy Business Association.

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