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401 Meeker St Delta CO 81416 970.874.4421

Jury declines to award damages to chicken farm neighbor

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Olen Lund, president of the Delta County Farm Bureau, said last week a district court jury affirmed what he's known all along -- Edwin Hostetler's egg-laying facility on Powell Mesa is a good, well-run operation.

Neighbor Susan Raymond disagreed and took Hostetler to court over alleged "trespass" of dust, feathers, flies, mold, toxins and other biological material. She said the chicken facility adversely impacted her own operation -- raising hay, breeding horses and her veterinary practice -- and her ability to enjoy her home and acreage. She cited fatigue and breathing problems as evidence of the negative effect of emissions from the facility.

The trial took nearly three weeks and included testimony from both Hostetler and Raymond, their neighbors, employees and expert witnesses. Raymond's attorney, Kevin Hannon, also submitted 722 videos of the egg-laying facility filmed on 144 different days. The videos were intended to show how emissions from the facility were carried up the draw to Raymond's property by prevailing winds. Hostetler's attorney, Brandon Jensen, pointed out that the videos were always shot with the setting sun in the background, to highlight the emissions. Furthermore, he said those emissions dispersed as they moved along the egg-laying facility and were virtually invisible by the time they reached the end of the barn. That does not change the fact that smaller particles reached Raymond's property, Hannon asserted. "Trespass is undisputed," he said.

The jury disagreed, however, and after deliberating for about an hour declined to award damages to Raymond. Her attorney had requested $365,000, the value of Raymond's home and outbuildings, because she could no longer enjoy her property; about $3,000 for medical expenses; and $200,000 for non-economic damages -- "annoyance, discomfort and the loss of her heritage, her home, her way of life."

Hannon said financial damages would stand as "testament to landowner rights in Delta County."

The Delta County Farm Bureau said the case represents the bigger right-to-farm issue that extends beyond Delta County.
"Obviously we're relieved with the victory for agriculture in Delta County," Lund said, "but we're very concerned that a neighbor can shut down a well-run, well-managed agricultural operation and basically tie them in a knot.

"The right to farm is supported by county and state statutes, but anybody can sue for anything. This verdict shows that right can't be circumvented so easily.

"Our job is far from over," Lund added. Hostetler's outstanding legal fees stand at half a million dollars, even though they've been paid down quite a bit. Because of the precedent this case sets for agriculture nationwide, Lund said the Delta County Farm Bureau is reaching out to the American Farm Bureau, Protect the Harvest and the National Association of Egg Farmers for help. "We've done a couple of fundraisers in Delta County, but this is beyond us," Lund said.

Hostetler has had to defend himself more than once against Raymond's claims. According to Lund, the legal battle began on July 20, 2012, when the Delta County Commissioners approved a land use change application for an organic, free range, chicken laying facility to be located just north of Hotchkiss. A group of neighbors immediately filed a lawsuit against the owners of the chicken house and the Delta County Commissioners. They alleged the facility was not agricultural, but really a "factory farm."

The 7th Judicial District ruled against the farmer and the Delta County Commissioners, but the Colorado Court of Appeals overruled the verdict. A subsequent lawsuit was filed alleging civil trespass, and that's the case that was resolved in court last week.

Susan Raymond declined to comment on the outcome of the case and her attorney did not return a message prior to deadline.

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