Iowa Supreme Court rules hog odor a nuisance Nov. 2, 1996

Ruling has ramifications for family farmers

By Dale Johnson

The Iowa Supreme Court ruled in late October that odor from a Buena Vista County hog operation was a nuisance. The ruling cast greater uncertainty over future livestock production by family farmers.

The court ordered Norman and Pam Wolff of Newell to pay Dennis and Ruth Weinhold $45,000 in damages, plus about $20,000 in interest, for annoyance, discomfort and loss of enjoyment of their property.

The award is for the odor nuisance caused by the Wolff's 800-head capacity hog facility 2,200 feet south of the Weinhold's residence. The Weinholds do not farm.

"We're concerned about this ruling weakening the ability of family farmers to raise livestock in this state," responded Ed Wiederstein, Iowa Farm Bureau president, to the decision.

Wiederstein said the ruling has serious implications for all family farmers raising livestock. A 1995 poll by Iowa State University indicates that 52 percent of Iowa's livestock operations are located within one-half mile or less from a neighbor.

Odor from the hog operation had caused permanent damage, the court said, marking the first time in Iowa law that livestock odor has been deemed to cause permanent damage. However, the court said Iowa's agricultural area law did not apply to the Wolffs.

The court did not order the swine facility to shut down. The court cited the intent of the Legislature to preserve family farms by allowing formation of agriculture areas in which farmers have limited protection from nuisance suits as long as they comply with all environmental laws.

The case was sent back to district court to determine damages to the Weinhold's property.

The court's ruling may drive the Wolff's out of farming.

Norman Wolff has farmed for 27 years. They owns 80 acres, upon which the hog facility is located, and rent another 520 acres. He says the monetary award, plus legal fees and possible additional damages may be insurmountable.

"It could very well run us out of business. We may not be here next year. In the Legislature last winter the cry was save the family farmer. If I'm not a family farmer, then no one is," stated the frustrated farmer.

"If they (the court) think this is fair, they don't know what a huge toll this is taking," he added.

He says he tried three different technologies to control odor from the facility, which was built under Iowa Department of Natural Resources guidelines. He even planted poplar trees on the north side of his building to minimize odor. However, none of the actions satisfied the Weinholds.

The court said a technological solution for odor was "wishful thinking." This was a key factor in the court ruling odor a permanent nuisance.

The Wolff's decided in 1990 to build their finishing unit to diversify their hog operation and to allow a son to enter the operation after college.

The building is 2,200 feet south of the Weinhold's acreage. The Weinholds operate a taxidermy business and raise emu, live deer, elk and other animals. He also has a welding shop.

They claimed odor from the hog facility made them ill and they filed suit seeking monetary damages and the closure of the facility.

The Wolffs said they were operating the facility responsibly and had protection from the nuisance suit because they were in an agriculture area formed in the fall of 1991.

The Iowa Supreme Court agreed partially with the Weinholds and awarded one-time damages for past, present and future special damages. Iowa's ag area law did not apply in this case, the court said.

"The problem in this case is that the Wolffs started their operation about a year before their land was approved as an agricultural areas," the court said.

But the court did not order the hog operation shut down citing the intent of the Legislature to protect family farmers and to give them some nuisance protection.

"I'm really dumbfounded," Wolff exclaimed. He believes the ag area law should have applied in this case giving him nuisance protection.

As for his future, Wolff said his farrowing facilities are worn out and he's no longer farrowing sows.

Ironically, within four miles, new hog facilities housing a combined 12,500 head have been built by producers, many family farmers, that are optimistic about the future of pork production and agriculture.

Norman and Pam Wolff, however, said they may not be part of that future in Buena Vista County.