Zawistowski Decision

On April 5, 2006, Circuit Court Judge John Anderson (Bayfield County) decided a case brought by the State of Wisconsin and twelve private landowners against William Zawistowski, claiming that his Sawyer County cranberry marshes were causing a nuisance by discharging phosphorus into nearby Musky Bay. After a two week trial, the Judge found that there was no nuisance, and ruled for Mr. Zawistowski.

Mr. Zawistowski operates two cranberry marshes that were started by his father in the late 1930's and have been run by the family ever since. Like all cranberry growers, he uses fertilizer with phosphorus. The marshes draw water from Musky Bay on Lac Courte Oreilles and discharge it back during typical operations such as the harvest flood.

There was no allegation that Mr. Zawistowski violated any statute or regulation and there was no enforcement effort brought by the Wisconsin Department of Natrual Resources. Nonetheless, the State Attorney General joined with private plaintiffs (a group of out-of-state seasonal lake property owners) and claimed that phosphorus from fertilizer was getting into the Bay and was promoting the growth of weeds and algae thereby creating a public and private nuisance. The Plaintiffs sought to force Mr. Zawistowski to dredge the Bay and to enjoin him from using water from the Bay for his farming operation.

This case involved Wis. Stat. s. 823.08, commonly referred to the "Right to Farm Act" and a host of factual and legal issues. Multiple experts were called by both sides. Judge Anderson found that there was no ecological damage to the Bay; that there was no threat to human health from the weed and algae growth; that any interference with recreational uses was not unreasonable; and, therefore, there was no nuisance, either public or private.

• Findings pages 1-12 493 KB
• Findings pages 13-24 519 KB
• Findings pages 25-37 519 KB

Agricultural/Agribusiness Law Section