Attorney says Merz Farm has complied with runoff rules

To the Editor:

In August 2012, Lake Independence Citizens Association and 21 individual property owners filed a lawsuit against Paul Merz, James Merz and Merz Farms Family LLLP related to the operation of a small dairy farm located near Lake Independence in Maple Plain. The lawsuit claimed that the Merz family’s dairy operation has improperly land applied manure, allowing phosphorus runoff to Lake Independence. The Merz family maintains that they have always complied with all county and state laws applicable to their farming operation and that there is no evidence that any phosphorous has runoff from their farming operation into Lake Independence or any other water.

Although the Merz family was prepared to vigorously defend against the claims asserted by LICA and the 21 individual property owners, recent personal events, wholly unrelated to the lawsuit, caused the Merz family to expedite long-planned changes to their farming operation. These long-planned changes included ending the dairy operation and transitioning to a smaller cattle operation that would involve less day-to-day management. A natural by-product of these changes would be a reduction in the amount of manure that would be applied to crop land from the new operation.

During court-ordered mediation, LICA and the 21 individual property owners agreed to dismiss all of their claims, based on the operational changes that the Merz family was already planning to implement and based on the right to conduct future soil tests at the expense of LICA, up to $1,000. The Merz family determined that the settlement agreement did not require the Merz family to substantially change their existing plans and agreed to the settlement in order to avoid the time and expense of litigation. As a result of the settlement agreement, the pending litigation will be dismissed in its entirety.

A January 2007 Lake Independence phosphorus total maximum daily load report (TMDL) describes the potential (i.e.: unmeasured) phosphorous load from livestock operations. But vegetative buffers, such as those that the Merz family has maintained around its operation and crop fields for several years, have been proven to be highly effective at preventing phosphorous from reaching a water source. Studies from the University of Minnesota Extension Service and other institutions show that manure used as fertilizer binds to soil particles, is not soluble in water, and has other environmental advantages over commercial fertilizer. The TMDL report documents that the Merz dairy operation is not the largest source of phosphorus to Lake Independence.

The Merz family have both farmed and lived near Lake Independence for more than 50 years and share LICA’s desire to see the quality of the lake improve. LICA and the 21 individual plaintiffs appreciated the implementation of the long-planned changes to the Merz operation. Nonetheless, all of the parties agree that any issues related to the phosphorous content of Lake Independence are not solely attributable to agricultural operations, and any solution will require improvements from municipalities, residential property owners and other sources of phosphorus to Lake Independence.

Matthew Berger,

Gislason & Hunter Attorneys at Law,

New Ulm

Editor’s note: The settlement agreement for the lawsuit Lake Independence Citizens Association, et al., Plaintiffs v. Paul J. Merz, James Merz, Paul J. Merz Trustee and Merz Farms Family LLLP is dated April 2, 2013. This newspaper ran a story on the settlement shortly after it occurred. One condition of the settlement is no admission of liability. In this letter, Berger, who is the Merz’s attorney, alludes to this condition.