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RE: E-M:/ Another perspective ...



Title: Message

Regarding Rick Pluta's request for details on what was said in the Henning case, the ACLU brief really gives a good flavor for the comments made by Mr. Henning in his comments on the MDA's Right to Farm complaint line -- here is the link to that brief:

http://www.aclumich.org/modules.php?name=Sections&op=viewarticle&artid=83

Here is a portion of that brief which gives an overview of the situation:

"STATEMENT OF FACTS
 Gerald Henning is an 82-year-old farmer living in Hudson Township, Lenawee County, on land farmed by his family for generations, and still being farmed by his son and daughter-in-law.  Mr. Henning’s farm is surrounded on three sides by an enormous confined animal feed operation (CAFO).  It is Mr. Henning’s contention that the CAFO sprays liquid manure in a manner inconsistent with state law, because of a failure to work the manure into the soil.  The result is intensely foul-smelling air at Mr. Henning’s home, and possible serious health consequences.
 For more than two and a half years, Mr. Henning has complained to the Michigan Department of Agriculture (MDA) about these actions of the CAFO’s owner, because the MDA is the state authority governing agriculture operations.1  His complaints have gone entirely unheeded.  State investigators have observed the infractions of Michigan law, and have acknowledged as much to Mr. Henning, yet have not fulfilled their responsibility to ensure compliance on the part of the CAFO, and to protect Mr. Henning, his family, and his farm.
 In an effort to obtain the help of the MDA, Mr. Henning began calling a complaint hot line of the MDA and leaving numerous voicemail messages.  The MDA’s failure to respond resulted in increasing irritation on the part of Mr. Henning, with the concomitant result that Mr. Henning’s language became increasingly inflamed.  (See Exhibit A, Transcript of Telephone Calls.)  Over time, in some ten messages, Mr. Henning has declaimed the MDA as “Farm Bureau suck-a**es” and employed other strong language, in the context of demanding that the MDA take some action to address his complaints.  All of the telephone calls at issue were in the form of voicemail messages; there was no direct conversation between Mr. Henning and any employee of the MDA.  Indeed, there is no suggestion that he had any particular individual in mind as a recipient, and the messages were all retrieved by a clerical employee of the MDA before being forwarded on.  All of the messages were quite short – thirty seconds or fewer in duration.  While Mr. Henning does insult unspecified employees of the MDA with name-calling, at no point does he threaten or suggest that he will take any harmful action against anyone.
 Eventually, the MDA did respond to Mr. Henning’s allegations–by filing a criminal complaint against him, alleging that he had “been calling the Office of Environmental Services in Lansing and using abusive language.”  (See Exhibit B, Original Incident Report.)  On November 1, 2002, uniformed police officers came to Mr. Henning’s home, and Mr. Henning “explained that the reason he called Lansing was to complain about the manure smell coming from the fields surrounding his residence.”  (Id.) Mr. Henning further informed the police officers that he had “called several times to Environmental Services in reference to the smell of the manure, and nothing ha[d] been getting done.”  (Id.) He explained “that he [was] just frustrated, [and] that [was] why he used such language.”  (Id.)
 Mr. Henning was then charged with making an “obscene” phone call to Marvin Johansen,2 an employee of the Michigan Department of Agriculture:3"

Also in the brief, under arguments, it is pointed out that MDA officials appeared not particularly terrorized or threatened by these voice mail messages:

"Mr. Henning’s comments, however, were not personally abusive in any way; they were directed not at a particular individual, but at the MDA generally, and its employees globally.  Further, there is here no suggestion whatsoever that Mr. Henning's comments were likely to elicit, or actually did elicit, anything but mild amusement, or perhaps consternation, on the part of those to whom he was speaking; each forwarded voicemail message is prefaced with a phlegmatic comment from the clerical employee retrieving the message, along the lines of “Guess who this is again.”  Moreover, the fact that the comments were conveyed by telephone and left on an answering machine, retrieved only at a temporally remote point physically distant from the speaker, renders it necessarily impossible that they would have provoked an immediate fight between Mr. Henning and the recipients of the voice mail messages."

It may also be useful to note that the complaining MDA official, Mr. Johansen, lodged his complaints with the state police as he was about to retire from the agency, even though the messages were left on an answering machine (which is how they came to be recorded by the state).  As I understand it, the state trooper who took the complaint is actually listed as the complainant in the case.  I want to be clear, I DON'T think it is right for state employees to be insulted or verbally attacked, even if Mr. Henning's behavior is legal (which I firmly believe it is)  but in reading Mr. Wenk's comments is appears that he is in total denial about just how appalling MDA's conduct has been to the people who are victims of CAFOs.

Others have already addressed the comments from Mr. Wenk from the perspective of being the supposed "customers" of the MDA who had actually given up entirely on the MDA to do its job.  As someone who has watched the debilitating, demoralizing and desperation inducing effect on all sorts of people of the MDAs approach, policies and their overt bias in favor of CAFOs in virtually any contest between CAFOs and the average farmer or neighbor next door, I am rather astonished at the comments made.  Certainly Mr. Wenk knows, and Mr. Johansen, who filed the complaint against Mr. Henning, knew full well that Mr. Henning and many others in his situation have been ping-pong balls between the MDA and the MDEQ with regard to the odor issues for an extremely long time. 

Until the last few weeks when a letter from Mr. Wenk clarifying that the MDA was of the opinion that any CAFO that was in violation of any environmental law was no longer covered by ANY of the nuisance exemptions under the Right to Farm Act, including the air quality exemption, the MDEQ has been of the opinion that all air quality/odor violations were exempted from their oversight by the Right to Farm Act.  Frustrated MDEQ officials have repeatedly told the victims of CAFOs that they must get the MDA to take action against these operations for air quality violations. 

It is all well and good for Mr. Wenk at this moment to claim that somehow it was clear to Mr. Henning that MDA didn't have authority in this area, but in fact that was demonstrably NOT the case whatsoever.  In October 2002, after the incident that lead to Mr. Henning being charged (which was Mr. Henning's call to the Right to Farm hotline after his daughter-in-law had been poisoned by H2S exposure from the unbelievably retched manure lagoon bottom wastes spread right next to the Henning's field which needed to be harvested despite the stench), I had conversations with MDA officials at the upper levels of the agency, in which they explained their position that this CAFO and others like it that were under the MDEQ for water quality violation enforcement were entirely out from under the coverage of the Right to Farm Act.  A letter was sent to Mr. Henning's daughter in law which MDA evidently thought clarified this matter. That letter transmitted to MDEQ officials and afflicted neighbors, but MDEQ continued to say it was not within their authority to act on air pollution problems from CAFOs. 

While MDA may have been right that they didn't have authority over odor from CAFOs that were under enforcement even for water quality violations, what I have never understood is why the MDA didn't work WITH the MDEQ to clear up this confusion quickly and in a way that might have saved Mr. Henning both the frustration, the cost of a bunch of long distance phone calls and the cost of court proceedings defending himself.  These two agencies were occupying the SAME BUILDING in Lansing, but it took at least 8 months after MDA officials lodged complaints with the State Police against Mr. Henning to finally, in the last few weeks, get BOTH the MDA and the MDEQ to agree on who is to take enforcement action against this CAFO and others that are sickening their neighbors with stench as well as polluting the water. 

That is why reading this paragraph from Mr. Wenk's comments is just staggering:

"MDA strongly supports inclusive government and has a true dedication to help Michigan citizens resolve problems. We work hard to specifically establish and maintain communication links that allow people to conveniently share their thoughts and concerns. We understand there will be frustration at times and are certainly not unaccustomed to occasional outbursts or "colorful" language from callers."
 
So, here is a suggestion, based on John Klein's cite Theodore Roosevelt's about doing instead of talking.  MDA could make a show of good faith to the public by making the following amendments to law and policy:
 
- Ask the Legislature to remove the "three strikes and you're out" language from the Right to Farm Act.  Right now, the law says that three unverified complaints by a person against an operation within a certain period of time could lead to the MDA assessing the costs of the investigation against the complainant and allows for the CAFO operator to bring a nuisance suit against the complainant.  While MDA said a couple of years ago that they didn't enforce this law, it has had a severe chilling effect on beleaguered citizens filing even legitimate complaints.
 
- Initiate talks with the MDEQ NOW to assure that air quality issues, groundwater contamination issues, and all other issues that may lead to confusion regarding CAFOs are addressed now.  Walk across the atrium and have a chat!!
 
- And, in a real show of concern for the public, call for a moratorium on any new or expanding CAFOs until ALL concerns about their devastating effect on the environment and public health have been cleared up.  If Mr. Wenk is serious that "The state agriculture department is deeply committed to identifying, promoting and ensuring farming practices that protect the environment"  then this is the best way to show it!
 
Anne Woiwode