Counsel helps family farmers battle noxious "factory" hog farms

Law Reporter, Jun 2003

Blass v. Iowa Select Farms, L.P., Iowa, Sac County Dist. Ct., No. LACV018147, Oct. 9, 2002.

The four couples who consulted ATLA member Torn Lipps to find out what could be done about the foul odors from neighboring hog lots were not a bunch of city folks. They were farmers themselves, used to the smells that accompany farming. So when they told Lipps, who practices in Algona, Iowa, that they could not lead normal lives because of the stench, he took them seriously.

Lipps and his co-counsel, ATLA members Carla Schemmel and David S. Wiggins, brought a nuisance suit against Iowa Select - the state's largest pork producer - that resulted in a jury verdict for the families, including an award of punitive damages. Along the way, they persuaded a judge to declare a statute protecting commercial farming facilities against nuisance suits unconstitutional, and they contributed to the debate surrounding Iowa's gubernatorial election.

The spread of commercial hog lots in Iowa has been the state's single most controversial social and political issue in recent years, Lipps said. "It has changed the social fabric here in Iowa." The hog lots not only displace the family farmer, he maintains, but the air pollution they create compromises the health of their rural neighbors, who "subsidize [the lots] with their misery."

Iowa Select Farms had built three hog confinement facilities holding a total of 30,000 hogs within a square mile. A fourth facility nearby held another 2,000 hogs. Each hog produces as much waste as three to five people, said Ron Miner, an agricultural expert who testified at trial. The confinement facilities therefore produced the same amount of waste as a small city, but without a city's sewage treatment plant. The hog waste was held in storage pits under the floor and in man-made "lagoons."

The facilities included two lagoons, each the size of two and a half football fields. The lagoons were lined with synthetic material to prevent hog waste from sinking into the groundwater. Gas collected under die liners, causing them to balloon upwards and use volume in the lagoons.

In an effort to regain storage capacity, Iowa Select employees would stand around the perimeter of the manure lagoons with shotguns and shoot holes in the liners, Lipps said. Gas would then erupt from the holes, sending geysers of hog manure into the air.

The four couples-Doug and Karen Blass, James and Susan McKnight, John and Jan Hendrickson, and Gary and Melissa Langbein - owned homes within a mile of the hog lots. Each of the homes predated die facilities by many years. After enduring the effects of the hog lots for almost five years, the families sought an attorney who was willing to fight "big pork."

But Lipps and Schemmel faced a hurdle before they could proceed with a nuisance suit against Iowa Select. In 1995, the Iowa legislature amended the nuisance statute to include a rebuttable presumption that any facility that has secured all applicable permits is not a nuisance. This "right to farm" law appears in the Iowa Code at [sec] 657.11. While working on another nuisance case, Lipps obtained a ruling from an Iowa district judge that the provision was unconstitutional. Gacke v. Pork Xtra L.L.G, No. LACV019489 (Iowa, Sioux County Dist. Ct. Aug. 1, 2001). The court hearing the Iowa Select case made a similar ruling. Blass v. Iowa Select Farms, L.P., No. LACV018147 (Iowa, Sac County Dist. Ct. June 12,2002).

Testimony about a previous dispute involving Iowa Select became a campaign issue in Iowa's recent gubernatorial election. An attorney who had represented Iowa Select challenged the incumbent, a past president of the Iowa Trial Lawyers Association.

In 1995, attorneys for Iowa Select met with a group of families who had complaints about an Iowa Select facility in their county. The candidate-to-be allegedly said that if the families took action against Iowa Select, the company would retaliate.

The plaintiffs offered testimony from an attorney who attended the meeting. The attorney characterized the candidate's conduct as threatening and intimidating.

The judge would not allow the jury to hear that testimony, but it was included inan offer of proof, and the press obtained the transcript. Two widely read newspapers published stories on the candidate's alleged conduct during die meeting. He subsequently lost die gubernatorial race.

The four families, on the advice of local officials, kept diaries recording the disruptions of their day-to-day lives due to the hog lots. Diary entries, such as "woke up at night gagging from the stench," and "heard gunfire coming from the site," were important evidence. Under Schemmel's questioning, the plaintiffs described how they suffered headaches and breathing problems, and how they could not entertain outdoors or hang their laundry out to dry.

The jury awarded damages to compensate the four couples for past and future lost use and enjoyment of their land, and for die reduced market value of their properties. They received compensatory damages awards ranging from about $231,300 to $320,000.