Now There’s Teeth in Right to Farm Law

Thursday, September 4, 2008 7:35 AM CDT

The decision in the Zawistowski court battle, handed down on Aug. 28 by Bayfield County Circuit Court Judge John Anderson, means the Right to Farm Law now has real teeth.

This precedent-setting decision awards cranberry grower William Zawistowski 100 percent of his legal fees and costs. Rural Mutual Insurance Company defended the farmer throughout the lawsuit and will now be reimbursed for the costs it incurred in doing so.

“The awarding of these fees sends a loud and clear message that law-abiding Wisconsin farmers have protection from frivolous lawsuits under our state’s Right to Farm Law,” said Bill Bruins, president of the Wisconsin Farm Bureau Federation (WFBF).

Tom Lochner, executive director of the Wisconsin State Cranberry Growers Association, had this to say: “The Wisconsin Right to Farm Law is purposefully designed to protect Wisconsin farmers from false claims and frivolous lawsuits that could bankrupt their farming operation.”

Not only is the Right to Farm Law reinforced, Judge Anderson’s decision also reinforces “that Zawistowski’s operation was in complete compliance with the law, that its operation is not a nuisance and that such lawsuits are not to be entered into lightly,” Lochner continued.

Zawistowski’s operation is located in Sawyer County. But the Bayfield County judge was assigned the case when the Sawyer County judge recused himself.

In a news conference with ag reporters, Madison Attorney Ronald Ragatz, DeWitt Ross & Stevens, S.C., who represented Zawistowski, said the judge’s decision means “we’ve finally gotten to the last word on the merits of this litigation.”

All litigation costs, including expert witness fees, amounted to $549,000. “We asked the judge to award that amount to Zawistowski. Under the Right to Farm Law, if a farmer is sued in nuisance and a nuisance is not proven, the farmer is entitled to all litigation costs,” Ragatz explained.

The attorney for the out-of-state landowners who brought the nuisance suit asked at the Aug. 28 hearing that the award to Zawistowski be reduced by two-thirds. Judge Anderson rejected those arguments “and ruled from the bench that he was awarding 100 percent of what we’d asked for,” Ragatz said. “This was done under the fee reimbursement provisions of the Right to Farm Law.”

Rural Mutual Insurance Company had paid Zawistowski’s legal fees and costs during the years the litigation went on and the company will ultimately be reimbursed for its outlay of $549,000. Rural had also paid Zawistowski’s legal fees and costs for the initial suit which had been filed in federal court. That suit was thrown out because the plaintiffs could not challenge a state law (Right to Farm) in a federal court.

Ragatz emphasized, “Bill Zawistowski is very appreciative of what Rural has done over the course of the past four years in defending him n even when there was no guarantee he would win.”

“Zawistowski didn’t get reimbursed for his time, nor for the stress he and his family endured while they had to deal with this issue n he also had to testify,” Paul Zimmerman, WFBF’s executive director of public affairs, pointed out.

“The next step will be to put the judge’s decision into a written document called a judgment,” Ragatz explained. “It will be the legal obligation of the plaintiffs to pay it and to the extent it is not paid right away, there will be a charge for interest at the rate of 12 percent.”

There are 10 to 14 out-of-state landowners on the list of plaintiffs who would be responsible for paying the award.

Ragatz acknowledged “it is possible they could appeal this decision and in that case they would ask the judge for a stay. This would mean they wouldn’t have to pay right away n but the 12 percent interest charge would be running. Another problem of an appeal is that we would be claiming (additional) fees for the work we’d do on the appeal,” Ragatz said, adding “the same judge (Anderson) would have to consider whether to grant the stay. There are provisions under the statutes for such things; we’d ask for a bond so that if they lose on their appeal (the money would be available).

Why 12 percent interest? Ragatz explained “any money judgment decision in Wisconsin draws 12 percent interest n this is set statutorily.”

Ragatz said the award of 100 percent of the litigation costs is important. “Otherwise a farmer can be driven out of business, while others keep filing one lawsuit after another.”

During the two-hour hearing, “Judge Anderson was very conscientious about listening to all of the arguments. He wanted to hear everything before he would rule,” Ragatz added.

Since the nuisance lawsuit was filed, Zawistowski has kept his cranberry operation going. He had not been ordered by the court to make any changes in the operation, but he had decided to be proactive and look at “a couple of things.”

One of those “things” is an official Nutrient Management Plan drawn up by a trained planner for cranberry marshes. He’s also had some engineers looking at how he might be able to improve his ability to handle water on the two marshes (roughly about 100 acres in size). “In fact, an engineering firm has been doing some design work on the east marsh to improve water retention,” Ragatz noted.

Ragatz said the out-of-state landowners had “misrepresented” the availability of federal EQIP funds. “Not every farmer is guaranteed $45,000 of EQIP money n it’s not tagged with a farmer’s name on it n they have to compete for those grants and show the project for which they want to use the grant is feasible.”

Such misrepresentation, Zimmerman indicated, “shows that the out-of-state landowners did not want to improve Musky Bay, but instead wanted to get rid of Zawistowski’s operation entirely.”

Should the plaintiffs decide to go ahead with an appeal it might be even more difficult to prove nuisance, Ragatz believes. “It’s not the same thing in two ways,” he said. The decision was final and conclusive that no nuisance existed in 2005. They would have to show Musky Bay has gotten substantially worse since that time and link that back to the time when they had already portrayed the bay as ‘awful’,” he said.

Mediation had been an option back in August of 2005. “There was a point in time when we were ordered to do mediation,” Ragatz related.

Ragatz, Zawistowski, Rural Mutual attorneys and one of Rural’s high ranking officials came to mediation session. The out-of-state landowners were represented only by their attorney.

“When the only one to show up for other side was their attorney, we knew they were not serious because there was no one there with any authority to agree to anything,” Ragatz said.

Tom Thieding, now marketing services director for Rural Insurance but formerly with WFBF, said it was important “to point out the importance of liability coverage for farmers now and in the future. We were in this to uphold the Right to Farm law and to protect farmers in a way that really puts teeth into the law.”

Zimmerman says “we can now publicize if farmers are doing Best Management Practices n doing the right thing n we have protection under the Right to Farm Law and are entitled to reimbursement when no nuisance is found. This is precedent-setting.”

Ragatz agreed, saying “as far as I know this is the first decision of this kind where the law’s fee reimbursement provision was used by a farmer.”

Zimmerman added his thanks “to Judge Anderson for taking the time n he even went to Musky Bay himself, to see first-hand its condition and I commend the decision he made.”

When the lawsuit was initially filed in federal court Zawistowski wasn’t under a Rural policy n although previously he had been. Rural went ahead and paid the $225,000 cost of the federal case, Thieding said.

“When the nuisance accusation was brought Zawistowski did have coverage through Rural,” Zimmerman said. “Rural stood by its insurer and the ag industry n no other insurance company stepped forward to help defend this,” he noted.

Zimmerman urged “all farmers to look carefully at their insurance coverage n particularly the general liability portion to see if pollution liability is covered or if it can be added with an additional rider. Farmers should sit down with their insurance agent and be sure they have the right coverage.

“For the ag community as a whole, it is very important to realize the continuing potential for this kind of lawsuit and for farmers to be put in a position where they simply could not afford to defend against it,” Zimmerman added.

When the case got to the Appeals Court, the ag coalition was allowed to participate and they submitted helpful briefs.

Ragatz said “by the time this reached the Appellate Court this case wasn’t just one farmer and one lawsuit n it became important to the whole ag community and the entire state.”

Capitol Notes:

- A Supermarket of Veterans Benefits will be held at Fort McCoy on Sept. 5.

- Also on Sept. 5, Ralph Nader, an independent candidate for president, will be at Madison’s Orpheum Theatre for a 7:30 p.m. rally.

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