Jim Hageman, Winfred, S.D., won Round One, but he may have already lost the fight over a winter dry lot for his cows.
Third District Court Judge Tim Tucker dismissed a petition from one of Hageman's neighbors that he remove 220 cows, calves and bred heifers from a winter dry lot immediately because the manure on the lot would run off onto his land in the spring.
According to Steve Dick, director of Agriculture United For South Dakota – a livestock development advocacy group – the case has statewide implications. It is one of the first to pit a recreational landowner against an established livestock operation. It also involves a small seasonal feedlot for which neither a state nor county permit is required.
The plaintiff - Dr. Frank Alive - is a retired orthopedic surgeon who lives in Sioux Falls, S.D. He owns 800 acres of farmland near Winfred adjacent to where Hageman winters his Red Angus cow herd. Alive has some of his land custom farmed. The rest is in the Conservation Reserve Program, wildlife food plots and grass. Alive also built two dams and created two ponds on the land directly across and downstream from Hageman's winter lot.
Alive testified that he has been complaining to Hageman and to state and county officials since 2003 that runoff from the pens was polluting the ponds. He submitted test results from 2003 to 2006 showing E-coli levels in water during spring runoff at more than 1,000 times the level considering safe for swimming. Nitrate, phosphorus and fecal E-coli levels were also consider high by an expert who testified for Alive.
"I have eight grand children who like to swim in those lakes," Alive told the court. "That's why I am concerned."
Alive asked the court to issue a temporary injunction against Hagemen, forcing him to remove the cows immediately from the lot since Hageman has no plans prevent manure from flowing onto his land.
When Hageman took the stand, he told the court that he had not violated any laws. Neither the county nor the state requires a permit. But state officials had inspected the lot almost annually because of complaints from Alive. The state has never cited Hageman for a violation.
Hageman said he followed state manure management guidelines. He and Floyd Demaray, the owner of the property, planted a buffer strip between the lot and Dr. Alive's land. Hageman also scrapes the lot periodically in the winter and spreads the manure on cropland.
Judge Tucker said one reason he dismissed the request for an injunction was because Hageman is moving the cows Mar. 1 anyway.
Hageman's new lease with Demaray doesn't include use of the cattle lot. Instead, he will only be able to run the cattle on pasture and cornstalks on the farm, and farm the crop ground. Hageman said because of the complaints from Alive he is building a new winter lot for his cows on a different farm.
The court set Sept. 16-17 for a trial. Alive is seeking compensatory and punitive damages and other costs from Hageman and wants Hageman to clean up his water and land. He said he has already spent $33,833 on trying to clean up his property.
Mark Meierhenry, who represented Hageman and has handled many high profile feedlot cases, says conflicts between farmers and people who buy farmland for recreation will likely grow.
Some people who buy recreation land expect rural areas to be "pristine," he said. They also don't consider watershed-wide runoff, the impact large numbers of deer and geese can have on water quality, and how much wildlife depredation costs their farming neighbors.
"There is going to be friction," Meierhenry said.