By Bennett Goldstein, Wisconsin Watch

This article was first published by Wisconsin Watch, a nonprofit, nonpartisan newsroom.

After notifying a northwest Wisconsin town in October 2023 of their intent to challenge a local ordinance that regulates livestock farming, two residents last week made good on their promise.

Ben and Jenny Binversie, represented by the legal arm of the state’s largest business and manufacturing lobby, Wisconsin Manufacturers & Commerce, are asking a circuit court judge to strike down the rules in the Polk County town of Eureka.

A ruling in their favor could set a precedent for all Wisconsin municipalities seeking to regulate agriculture, a $105 billion state industry.

“This ordinance is quite simply another case of government overreach,” the Binversies’ attorney Scott Rosenow, executive director of WMC Litigation Center, said in a press release.

He did not respond to a request for an interview. Jenny Binversie directed inquiries to Ben Binversie, who declined to comment.

Eureka’s ordinance, revised in March 2022, regulates large livestock farms, known as concentrated animal feeding operations, or CAFOs. It doesn’t regulate where large livestock farms can go, but how they operate.

The regulations apply to new CAFOs, or smaller facilities with common ownership, that house at least 700 “animal units” — the equivalent of 1,750 swine or 500 dairy cows.

The rules require applicants to apply for an operations permit and submit plans for preventing infectious diseases, air pollution and odor; managing waste and handling dead animals. They also mandate traffic and property value impact studies, a pot of money set aside for cleanups and decommissioning, and an annual permit fee — atop costs to review the application and enforce the permit terms.

The Binversies’ attorneys find fault with 18 of the ordinance’s requirements, particularly fees. They also claim that Wisconsin preempts local authorities from passing regulations that are more stringent than the state’s unless authorities can prove they are necessary to protect public health or safety.

Even under that exception, which the attorneys say Eureka doesn’t demonstrate, they contend that more restrictive ordinances cannot add new requirements for which no state standards exist. They also argue Eureka’s ordinance imposes new performance standards that the state must approve, which they say the town hasn’t done.

The lawsuit acknowledges the ordinance’s requirements don’t apply to the Binversies, but the attorneys claim they harm the couple and other Eureka taxpayers because the town will use public funds to compensate local authorities and consultants to review permit applications and enforce the ordinance.

In addition to Eureka, four other northwest Wisconsin towns passed operations ordinances after a developer proposed in 2019 constructing a farrowing operation, known as Cumberland LLC, that would have housed up to 26,350 pigs — the largest swine CAFO in Wisconsin.

A sign opposing a proposed concentrated animal feeding operation that would house thousands of pigs is shown in the town of Trade Lake in Burnett County, on April 28, 2023. The proposal spurred five northwest Wisconsin towns to regulate big farms — triggering heated debate. One of the towns, Eureka, now faces a lawsuit over its farm regulations. (Credit: Drake White-Bergey / Wisconsin Watch)

An advisory group drafted the regulations to plug gaps in state livestock laws, which they believe insufficiently protect health, property and quality of life. For instance, the Wisconsin Department of Natural Resources cannot regulate issues unrelated to water quality, including air, noise and vehicle traffic.

Meanwhile, Wisconsin’s “right-to-farm” law protects farmers from nuisance claims, and livestock facility regulations restrict the use of zoning to control where CAFOs are sited.

No CAFOs currently operate in Eureka, a Polk County community of 1,700, but unlike other towns’ operations ordinances, Eureka’s requires CAFOs that intend to spread manure on fields within town boundaries to obtain a permit.

Another community with a CAFO ordinance, Laketown, also faced a lawsuit.

The two Laketown farm families who challenged its regulations included Michael and the late Joyce Byl and Sara Byl, who are the parents and sister, respectively, of Jenny Binversie. They were likewise represented by WMC Litigation Center. The town of Eureka sought to intervene, noting the two towns’ ordinances are “nearly identical.”

Laketown rescinded its regulations following a change in elected leadership, rendering the case moot.

Trial lawyer Andy Marshall, who represented the community and will do the same for Eureka, questioned whether a Polk County judge would agree that the Binversies have legal standing.

“It’s odd to me that they make the argument that somehow the plaintiffs have been damaged because their taxes will go to the optional hiring of experts,” he added. “It simply hasn’t happened yet.”

The Polk County Justice Center is shown in Balsam Lake, on April 28, 2023. Two residents are asking a circuit court judge to strike down the rules governing the operation of large livestock farms in the Polk County town of Eureka. (Credit: Drake White-Bergey / Wisconsin Watch)

A judgment against Eureka might invalidate any Wisconsin municipality’s operations ordinance depending on the scope of a court ruling.

Town chair Don Anderson said he is concerned by the lawsuit, but believes the operations ordinance is important. The town of Trade Lake, where the swine farm was proposed and an operations ordinance also enacted, is not so distant from Eureka.

“We’re just wanting to protect ourselves in case it should happen,” he said.

Outside of the court challenges, state lawmakers recently attempted to preempt local farming regulations.

A bill that would have restricted local control passed both chambers earlier in 2024 before Wisconsin Gov. Tony Evers vetoed it.

The proposal concerned only animal welfare, the administration of medications and vaccinations, and the ways animals are used, but skeptics believed it would have established a legal precedent that could limit any safeguards against potential harms caused by large livestock farms.

A public hearing, where lawmakers discussed the northwest Wisconsin towns, gave them cause to worry.

Tim Fiocchi, Wisconsin Farm Bureau Federation’s government relations director, expressed alarm that local ordinances, such as Laketown’s, “destabilize agricultural production” by creating a “patchwork of regulatory hurdles.”

Lisa Doerr, a Laketown forage farmer who chaired the town advisory group, said the Binversie case represents the latest effort at “harassing” those who “have the nerve to stand up” to the agricultural industry by enacting ordinances.

“They’ve been telling us for five years that this was illegal, but what did they do over the winter?” she said. “They went to the Legislature and tried to make it illegal because it’s not illegal.”

This story is part of a partnership with the Mississippi River Basin Ag & Water Desk, an editorially independent reporting network based at the University of Missouri School of Journalism in partnership with Report For America and funded by the Walton Family Foundation. Wisconsin Watch is a member of the network.