Agriculture Prevails as Supreme Court Protects Cranberry Grower’s Right to Farm

Thursday, May 15, 2008 3:55 PM CDT

The Wisconsin Farm Bureau Federation is extremely pleased to learn that the Wisconsin Supreme Court has refused to review a nuisance lawsuit filed against a Sawyer County cranberry grower by his out-of-state neighbors.

“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 Bill Bruins, president of the Wisconsin Farm Bureau Federation. “Therefore, we could not be happier to have this lawsuit finally resolved.”

“This case has historic implications to all of Wisconsin’s diverse $51 billion agriculture industry, and I am very proud that the Farm Bureau, other ag organizations and Rural Mutual Insurance Company have stood behind the Zawistowski cranberry operation throughout this case,” Bruins said. “We have never wavered from our commitment to protecting all Wisconsin farmers from nuisance lawsuits and preserving their right to farm.”

On Tuesday, the Supreme Court officially denied the plaintiffs’ petition for review of the nuisance lawsuit they first filed in 2004 with the support of former Attorney General Peg Lautenschlager. The plaintiffs had hoped the Supreme Court would hear the case after the Court of Appeals in February unanimously upheld an earlier circuit court’s ruling in favor of William Zawistowski.

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.

The court documents showed that despite the claims that the plaintiffs had lost the use and enjoyment of Musky Bay, their property values roughly tripled between 1992 and 2000. Musky Bay is part of a 5,000 acre lake known as Lac Courte Oreilles in Sawyer County.

After the February ruling in Zawistowski’s favor, the plaintiffs filed a petition for review to the state’s highest court. Attorneys for Zawistowski and Rural Mutual Insurance Company submitted briefs asking that the Supreme Court to deny further review. While the plaintiffs previously had the backing of former Attorney General Peg Lautenschlager, after the appeals court decision in February, Governor Jim Doyle indicated the State of Wisconsin would not participate in an appeal to the Supreme Court.

Due to the lawsuit’s potential ramifications to the state’s Right to Farm Law, as well as the threat of future nuisance lawsuits against lawful farming practices, the Farm Bureau and a coalition of agriculture groups also filed a brief urging the high court not to hear the case.

That request came from the Farm Bureau’s legal counsel, Dale Peterson, of Stroud, Willink & Howard, LLC in Madison. In the brief he said the litigation campaign against Zawistowski’s cranberry operation had “gone on long enough.”

“Petitioners have never once made an allegation that William Zawistowski has violated any statute, regulation, or ordinance of this State. Nevertheless, Mr. Zawistowski has endured five and one-half years of ongoing litigation, five federal court rulings, a seven-day bench trial, and an appeal to the Court of Appeals. In the process, countless hours have been spent and many hundreds of thousands of dollars of attorneys’ fees have been incurred on his behalf,” Peterson wrote.

The brief also pointed out that the petitioners had been unsuccessful in every state and federal proceeding since the litigation first began in 2002.

“As our legal brief stated, the plaintiffs failed to advance any bona fide reason that this case should be reviewed by our state’s highest court,” Bruins said.

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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