Phillips County jury sticks hog producer with $134,000 judgment in rare trespassing case

TOPEKA — A Phillips County jury awarded two landowners a total of $134,000 in actual damages after a prominent Kansas hog producer illegally installed pipe on their property to transfer a mixture of urine and manure from a confined-animal facility so it could be sprayed on fields from irrigation pivots.

The judge has not determined punitive damages against defendant Terry Nelson, who has operated a far-flung hog operation based in Phillips County and suffered a colossal barn fire four years ago that killed thousands of pigs.

The Nelson family also has been at the center of years of legal conflict involving the Kansas Department of Health and Environment, Kansas Livestock Association and the Sierra Club regarding construction and operation of confined animal feeding operations, or CAFOs, in northcentral Kansas along the border with Nebraska.

Plaintiffs Laura Field as well as Rodney and Tonda Ross, who raise corn and soybeans on their farm, were awarded $65,000 each from Nelson for trespassing. That portion of the July 22 judgment was based on unauthorized placement of miles of underground pipe on the plaintiffs’ land.

In addition, the jury awarded plaintiffs $2,000 after concluding Nelson created a nuisance by allowing liquified waste sprayed on fields to drift onto neighboring property.

In an interview Wednesday, Rodney Ross said Nelson installed the pipe in early 2019 without permission of landowners and Nelson warned people there was nothing anyone could do about it. Nelson misled KDHE to conceal spraying of waste when the wind blew fluid and odor at the Ross home located about 180 feet away, Rodney Ross said.

The spraying was so intrusive the smell was as strong inside the home as it was outside, he said. The waste lured an army of flies to exterior siding of the house, Rodney Ross said.

He said Nelson had ceased spraying waste on that ground and removed hogs from barns about 1 mile from the Ross homestead.

“The air is fresh. You can stand to be in your own yard,” said Rodney Ross, who welcomed the jury verdict. “I like the outcome. It’s exactly what we wanted.”

Wichita attorney David Traster, of the Foulston Siefkin firm, said in court filings Nelson operated his agricultural businesses lawfully under KDHE approval. Traster argued the 2019 lawsuit should have been dismissed due to the statute of limitations.

Nelson agreed his business produced hog waste, Traster said, but denied the operation involved a “civil conspiracy” to outwit KDHE and damage property values of neighboring farmers.

Traster filed a counterclaim seeking more than $75,000 because the plaintiffs undermined profitability of Nelson’s hog business. In other words, the defense lawyer said, the plaintiffs caused “economic injury, including but not limited to, additional costs and expenses, loss of profit, loss of time responding to frivolous and malicious complaints and damage to the counterclaim plaintiffs goodwill and reputation.” That counterclaim was voluntarily withdrawn.

Randy Rathbun, a Wichita attorney representing the Ross family and Field, said Nelson’s hog business caused loss of property value and peace of mind for his clients by unilaterally deciding to transport liquid waste and apply it to fields. He specifically addressed the Ross property.

“The peaceful and quiet enjoyment of their home has been ruined by hog waste drifting onto them and their property from south winds,” Rathbun said in court documents. “At times, the horrible stench of hog manure is as bad in their house as it is in their front yard.”

The cocktail originating at CAFOs operated by Nelson funneled through the pipe installed along county roads on property held by Field and the Ross family.

Rathbun said in court filings Nelson created a byzantine roster of legal entities and “corporate fictions” to mystify regulators at KDHE. The state agency turned a blind eye to Nelson’s conduct by asserting it didn’t have oversight of the movement of waste from one site to another, Rathbun said.

In 2017, fire killed about 9,000 pigs and destroyed hog barns owned by the Nelson family. Nelson sought to rebuild a Husky Hogs breeding facility near Prairie Dog Creek. KDHE granted expedited permits for that work, but the state agency later issued cease and desist orders to Nelson to stop construction of additional hog facilities that hadn’t been permitted by KDHE.

KDHE fined Nelson for ignoring orders to halt construction in Phillips and Norton counties. Consent agreements later signed by representatives of the Nelson family’s hog operations, based in Long Island, Kansas, reduced the penalty to $34,000.

In addition, the Nelson family collaborated with the Kansas Livestock Association to test a theory that ownership of CAFOs could be divided to elude restrictions on setbacks from surface water and habitable structures such as homes, churches and schools. Half of a Nelson facility would be owned by Terry Nelson and half by Julia Nelson, his daughter-in-law.

The Sierra Club filed a lawsuit in 2018 that argued KDHE was complicit with Terry Nelson and KLA in a “legal fiction” to potentially increase concentration of hogs in a single location. A Shawnee County District Court judge in 2019 ruled for Sierra Club, but the Nelsons filed an appeal with the Kansas Court of Appeals.