"Public nuisance " lawsuit poses danger for growers
June 9, 2005
by Ron Ragatz, Esq.
DeWitt Ross & Stevens S.C.
The Wisconsin Attorney General has started a lawsuit which should
concern all cranberry growers. The Attorney General sued a cranberry
grower, Bill Zawistowski, who operates his cranberry marshes legally and
according to accepted growing practices. Nonetheless, State Attorney
General Peg Lautenschlager claims that his cranberry operation is
creating a "public nuisance" and is seeking an order that would
effectively put him out of business.
Bill Zawistowski owns two cranberry marshes on Musky Bay in Sawyer
County, Wisconsin. Musky Bay is part of Lac Courte Oreilles, a nearly
5,000-acre lake. While the main lake is relatively deep and
hard-bottomed, Musky Bay has always been shallow and mud/muck
Bill's father started the first cranberry marsh in about 1940. He
started a second marsh on Musky Bay in the 1950s. Bill took over the
marshes in about 1981.
When the cranberry operations began, the Musky Bay shoreline was
largely undeveloped. Over time, the area has been developed and there
are now about 37 residential properties with shoreline on Musky Bay.
Bill uses fertilizer containing phosphorus on his cranberry beds. He
uses it at the rate recommended by horticulturists and soil scientists.
He follows labeling instructions and applicable regulations.
He uses water from the Bay in the fall for harvesting and in the
winter to prevent the vines from freezing. Water is taken from the Bay
in ditches and discharged back through the same route. This is legal and
has been done for decades.
In 2002, owners of 14 residential properties with frontage on Musky
Bay brought a lawsuit in federal court against Mr. Zawistowski. The
State of Wisconsin was not a party to that lawsuit. The plaintiffs were
all non-resident, seasonal owners who claimed that the Zawistowski
cranberry marshes were polluting the Bay with phosphorus.
The plaintiffs bought their properties long after the cranberry
marshes were in operation. They knew that Musky Bay was a shallow,
mud/muck-bottomed bay with dense weeds, and they got their properties at
a lower price because of those conditions.
Nonetheless, they sued Mr. Zawistowski, asking the court to force him
to dredge the entire 250-acre Bay to make it deeper, remove the mud/muck
and get rid of the weeds. This would have cost millions of dollars, a
crushing burden on a family farming operation.
Dredging would have made the plaintiffs' residential properties more
valuable than when they bought them. It would have increased their
property values (which had already tripled in the last ten years) at the
expense of Mr. Zawistowski. On top of the multi‑million dollar
cost of dredging, the plaintiffs asked the court for even more money,
including punitive damages.
Federal Judge Barbara Crabb threw the case out of court. She ruled
that there was no basis for the court to order dredging. She found that
the plaintiffs had no credible grounds to claim even the jurisdictional
minimum damages to bring a lawsuit in federal court. She ruled that
there was no federal jurisdiction and dismissed the case.
However, Judge Crabb's dismissal was not the end of the matter. In
June 2004, the same plaintiffs started the lawsuit all over again in
state court. This time, the State has joined as a plaintiff. The
Wisconsin Department of Natural Resources did not ask the Attorney
General to sue Mr. Zawistowski. Neither did the Wisconsin Department of
Agriculture, Trade & Consumer Protection. There have been no
complaints by either the Department of Natural Resources or the
Department of Agriculture against Mr. Zawistowski. Instead, the decision
to join in the lawsuit was made by the Attorney General alone.
The Attorney General admits that Mr. Zawistowski has not violated any
laws or regulations. She admits that there have been no enforcement
efforts against his operation and that there was no referral from any
Instead of suing for violation of the law, the Attorney General
claims that Mr. Zawistowski has created a "public nuisance." A
lawsuit for "public nuisance" is based upon common law. Common law is a
set of rules made by judges, rather than the legislature, on a
case-by-case basis. Under common law, a public nuisance is a condition
or activity that "unduly interferes" with the use of a public place or
with the activities of the community.
The Attorney General claims that the Zawistowski cranberry marshes
discharge phosphorus to the Bay through the water used for flooding the
marshes. Although phosphorus is not toxic (indeed, it is essential to
life), the Attorney General claims that phosphorus promotes the growth
of weeds and algae. She claims that the weeds and algae, in turn, create
a public nuisance because they make the appearance of the Bay less
attractive and make activities such as boating, swimming or skiing less
The state court lawsuit again seeks to force Mr. Zawistowski to
dredge the entire 250-acre Bay. The dredging is supposed to remove
decades of phosphorus in the sediments at the bottom of the Bay. This
phosphorus came from many sources, including naturally occurring
atmospheric deposits, deposits from wildlife and decaying
What the Attorney General is seeking is unprecedented. The Attorney
General admits there is no other case in the history of the State of
Wisconsin where a farmer (or anyone else) has been ordered to dredge a
bay for the sole reason of getting rid of phosphorus in the sediment.
She admits there is no other case where she or any of her predecessors
has started a lawsuit claiming public nuisance because of discharges of
phosphorus to a water body. Further, there is no precedent of the DNR
allowing someone to dredge a bay simply to get rid of phosphorus. The
Attorney General is breaking new ground.
This action by the Attorney General poses serious dangers for all
cranberry growers and, indeed, for all Wisconsin farmers. Almost all
agricultural operations either use fertilizer or deal with animal wastes
containing phosphorus, or both. There is a potential for the phosphorus
to reach either groundwater or surface waters of the State of Wisconsin.
If so, a public nuisance claim is possible.
The problem with a public nuisance claim is that it is hard to
predict or avoid. The standard is broad and vague. Whether an activity
"unduly interferes" with public property or activities is often in the
eye of the beholder. For instance, the weeds on the bottom of Musky Bay
may be beneficial to fish life, but may be viewed as an interference by
shoreline owners concerned with a "pristine" view.
The problem with this vague standard is compounded by the fact that a
judge or jury with no expertise in agriculture or environmental science,
ultimately decides whether there is a nuisance. Indeed, the Attorney
General, who decides whether to start a lawsuit in the first place, has
no such expertise.
This is a poor way to govern farming operations or any other
business. In today's world, farmers must comply with many regulations
administered by the DNR or the Department of Agriculture. In those
cases, there is a specific written standard and an agency that can be
asked in advance about compliance. A farmer can take reasonable steps to
avoid liability. On the other hand, with public nuisance, one may not
know that there is a problem or how to solve it until it is too
The results can be catastrophic. If the Attorney General gets what
she wants, Mr. Zawistowski would be ordered to dredge the entire
Bay. The plaintiffs' expert estimates that the dredging would cost up to
$4 million and admits that even that cost is not a worse case
That would be a crushing burden for any farming operation. It would
be catastrophic and unfair for Mr. Zawistowski, a law-abiding farmer who
has run his business according to accepted practices.
The case is scheduled for trial in September 2005.
Attorney Ron Ragatz is a member of DeWitt Ross & Stevens S.C. in
Madison, Wisconsin. He is defending Mr. Zawistowski in the lawsuit.