MARIETTA TOWNSHIP - The second meeting of the ‘Rural Land & Infrastructure Conservation Working Group,’ (RLICWG), formed after Marietta Township enacted a one-year CAFO moratorium, took place at the Marietta Town Hall on Monday, Sept. 16. The group’s mission is to engage in a fact-finding process to support the town board in decision-making about whether to allow Roth Feeder Pigs to pursue location of a 10,000 animal unit hog CAFO in the township.

The committee’s next meeting will take place on October 21, from 5 to 6:30 p.m., at the Marietta Town Hall.

AV Roth, wife Christine, and mother Karen are members of the “committee” as the RLICWG has come to be referred to, along with twelve other citizens that have stepped forward to serve. 

Those citizens include Bob Mitchell, who along with his sons, takes manure from Roth’s current CAFO facility, and Meredith Sime who chairs the committee. Other members include neighbors Sandy Collins, Ken Cornish, Susan Robinson, Carl Schlecht, Doug Spany, Kat Tigerman and Janet Widder.

At their meeting, the group divided itself into three ‘sub teams,’ to explore the three broad topics in their scope – health, safety and welfare. There are 12 committee members, and four per sub team. On the health sub team is Janet Widder, AV Roth, Bob Mitchell and Meredith Sime. On the safety sub team is Ken Cornish, Susan Robinson, Carl Schlecht and Kat Tigerman. On the welfare sub team is Sandy Collins, Christine Roth, Karen Roth and Doug Spany.

The topics the health sub team will address will include: nutrition, contaminants or pollutants and useage rate of water, air quality and herd disease. The topics the safety sub team will address will include: road traffic, drag line accidents, manure spills, CAFO stringent rules and sink holes. The topics the welfare sub team will address will include: employment, salaries and benefits, tax income, property values and quality of life.

Win-lose scenario

At the September 16 committee meeting, the committee’s scope and the current laws and rules governing CAFOs were another major topics.

The work of the committee could, perhaps should, but seems potentially not to be, a win-win process genuinely and sincerely motivated by local citizens desire to explore what is in the interests of their community’s greatest common good. The undercurrent of the meeting more resembled the discovery process in a civil legal dispute. 

Unlike a win-win process, legal processes are typically highly adversarial, win-lose scenarios, where litigants stake out positions, take defensive postures, and play their cards close to their chests. By contrast, a win-win process will focus on discussion of needs versus taking positions, and requires a high level of transparency and genuine commitment to a mission and common purpose.

Further, if there would be a lawsuit challenging the moratorium, it may be the Marietta Town Board that would be sued. It’s likely an open question, to be answered by lawyers, whether a party which could bring a lawsuit against the town should be part of a body that is conducting fact-finding for the town.

The committee had previously asked AV Roth for, and has not yet received, contact information for DATCP and DNR representatives who cover Crawford County. The group expressed that they would like individuals from those agencies to provide them with an overview of ATCP 51 and NR 243.

At the special meeting where the citizens of the Town of Marietta gathered to provide the town board input about whether a moratorium should be enacted by the board, on August 5, AV Roth spoke to the issue of the legality of a moratorium.

“It is very questionable if it is legal for a township to adopt such a moratorium,” Roth said. “Crawford County and the State of Wisconsin say it is not legal.”

At the same meeting, Crawford Stewardship Project’s Forest Jahnke stated that the Wisconsin Statutes on village powers are the source of the town’s authority to enact a moratorium. He referenced the ‘Model Ordinance for Licensing Livestock Facilities,’ viewable on the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) web site, which states: 

“This ordinance is adopted pursuant to the powers granted to the town board under the grant of village powers pursuant to Sec. 60.22 of Wis. Statutes for the protection of public health and safety.”

LCC discussion

At their meeting on August 13, the Crawford County Land Conservation Committee’s (LCC) Soil and Water Concerns Committee discussed the Marietta Moratorium. At that meeting, Crawford County Conservationist David Troester discussed with his committee how the moratorium affects the county’s permitting process. 

Troester said, according to the meeting minutes, that he’d been in contact with county corporate counsel Mark Peterson, and was informed that “there is a lot of grey area.” Troester said that Peterson would be in communication with the Counties Association to explore whether the moratorium has precedence over the county issuing a permit if an application is received [during the one year moratorium period].

At that same meeting Troester also reported that his office and the members of the LCC have received phone calls asking that the county enact a CAFO moratorium.

The LCC once again discussed the moratorium at their meeting held the week of September 9. The county’s corporate counsel attended the meeting and, according to Troester, said he had contacted the Counties Association.

“Mark was told that there is precedent for the county to have the authority to enact a CAFO moratorium,” Troester said. “However, he told us that it remains a grey area whether a moratorium passed by a township would impact the county’s authority to issue a siting permit during the duration of the town’s moratorium.”

Committee’s scope

It seems everyone is arguing about ‘scope statements’ these days, from the legislature and DNR regarding sensitive area rule making around nitrates in groundwater, to whether the committee’s scope should include what the current laws governing CAFO operations say.

In both cases, it seems, these discussions serve to delay and sidetrack the processes in progress. The committee has set itself a goal of providing the town board with a final report within eight months of the moratorium’s enactment. That means two months have already passed, with six months remaining.

In the language of the moratorium, the purpose of the RLICWG during the course of the moratorium, is to “analyze and synthesize scientific literature and research regarding the impact of livestock facilities with 1,000 or more animal units on township roads, property values, groundwater, surface water, air quality and other identified potential impacts, specifically as those issues apply in the Town of Marietta.”

The study group’s agenda  for the September 16 meeting called for a review of the provisions of the Livestock Facility Siting Law (ATCP51) referenced in the language of the moratorium, and also NR 243, the state statute related to ‘Animal Feeding Operations.’ Bob Mitchell asked that, in addition, the committee discuss the ‘Right to Farm’ law.

“We need to discuss the Right to Farm law also,” Mitchell contended. “That law pretty much overrules everthing else.”

Wisconsin Statutes, ch. 823.08, ‘Actions against agricultural uses,’ (ch. 823 is entitled ‘Nuisances’) describes the subsection’s legislative purpose:

“The legislature finds that development in rural areas and changes in agricultural technology, practices and scale of operation have increasingly tended to create conflicts between agricultural and other uses of land. The legislature believes that, to the extent possible consistent with good public policy, the law should not hamper agricultural production or the use of modern agricultural technology. The legislature therefore deems it in the best interest of the state to establish limits on the remedies available in those conflicts which reach the judicial system. The legislature further asserts its belief that local units of government, through the exercise of their zoning power, can best prevent such conflicts from arising in the future, and the legislature urges local units of government to use their zoning power accordingly.”

“The charge of this committee is fact finding about the impacts of CAFOs on the health, safety and welfare of Town of Marietta residents,” Janet Widder said. “If our work strays outside of our scope as defined by the moratorium, then our actions could potentially be construed as illegal according to the law.”

Christine Roth disagreed with Widder’s assertion.

“We have to understand the law and the standards in order to have the discussion about whether they are right or wrong,” Christine Roth contended.

“The law is a fact,” AV Roth said. “The law is what the government has provided to the State of Wisconsin to protect our health, safety and welfare.”

Additonal considerations

Bob Mitchell, who also sits on the Wisconsin Livestock Identification Consortium Board of Directors, brought forward a list of four additional things he would like the Marietta Town Board to ensure in the township. Those thing are:

• The town board needs to define what will be the area that could be impacted by AV Roth’s facility; 

• All wells in the impacted area should be tested, and the samples need to be taken by a certified third-party and not be collected by the well owner;

• Everyone in the impacted area, as required by the county, should be required to show evidence that their septic system is in compliance with the code;

• All operator’s with livestock in the impacted area should have a premise identification on file with the State of Wisconsin to show that their operation is in compliance.

The Marietta Town Board met immediately following the meeting of the Study Committee, and committee facilitator Meredith Sime reported on the requests made by Bob Mitchell to the board. The board acted as follows on Mitchell’s requests:

• Regarding the request for the town board to define the ‘impacted area,’ Reggie Lomas said and the board agreed that “that is not our area of expertise and we are expecting that the work of the committee will make that clear for us, relying on experts and scientific findings.”

• The board agreed that they would “recommend, but not mandate, that wells in the impacted area, to be defined, would be tested, and that the township would not pay to have those wells tested. We also would recommend, but not require, that the samples be drawn by a certified third party, and would also recommend that if a third party is not used in the initial sampling, and the samples come back with problems, that a certified third party be used to draw the sample for any additional testing.”

• Regarding the request to verify that all septic systems in the impacted area, to be defined, are certified as being up to code, the board said that “that is the county’s responsibility and the town board defers to them.”