Charges against a Dexter Township farmer in connection with an August 1998 manure spill have been dismissed in court.

Monday, October 30, 2000

Charges against a Dexter Township farmer in connection with an August 1998 manure spill have been dismissed in court.

Leon J. Holst was charged with one gross misdemeanor count of failure to report water pollution and a misdemeanor count for failure to notify the Minnesota Pollution Control Agency and to avoid water pollution.

Both counts were dismissed after motions by the defendant. Another misdemeanor count of failure to obtain a feedlot permit remains to be adjudicated and the court administrator was ordered to schedule trial.

That already has been done. A pretrial hearing has been scheduled for 9 a.m. Dec. 1 and a trial by jury to start 9 a.m. Dec. 11.

Mower County District Judge William A. Johnson issued the orders.

Johnson denied the defendant’s motion to dismiss the misdemeanor failure to obtain a feedlot permit charge. In that motion, Holst alleged discriminatory enforcement of the feedlot permit law.

"There is no doubt in my mind, that Leon Holst is a very environmentally concerned farmer," said Thomas C. Baudler, attorney for the defendant. "His efforts in the past and present confirm that."

The charges against Holst were filed one year after the manure spill was reported.

The criminal complaint alleged a fish kill was discovered Aug. 5, 1998, in Dexter Creek. Holst admitted spreading manure for several days on a field bordering Dexter Creek.

Investigators found manure running from a Holst-owned field into Dexter Creek at least two entry points and learned that Holst and a hired employed applied between 45,000 and 48,000 gallons of liquid manure on the field two days prior to the discovery of the fish kill. Holst told investigators, according to the complaint, he had intended to inject the manure into the soil, but wet conditions after summer rains prevented that.

Holst agreed to chisel plow the manure into the soil to prevent further runoff.

The city of Dexter discharged 1.2 million gallons of sewage into Dexter Creek between July 29 and Aug. 5. City officials said they notified the MPCA and received the agency’s approval to make the discharge.

The city was never accused of any complicity in the fish kill.

Mower County Attorney Patrick A. Oman accepted the court’s ruling that "no probable cause existed that Holst had intentionally allowed the manure runoff and subsequent fish kill.

In a memorandum accompanying his Sept. 28 order, the judge defended the charge of Mower County’s "slow and ineffective in enforcing the feedlot laws."

Johnson wrote: "There is nothing invidious about its decision to charge defendant where there was evidence that defendant’s feedlot led to substantial public loss, the fish kill."

Baudler argued that probable cause did not exist that his client willfully caused the water pollution, saying, in part, the "knowing" requirement did not exist. Minnesota statutes require a person charged with a crime to have "knowingly" – in this case – failed to report the water pollution.

The judge agreed that element did not exist.

Also, Baudler also argued his client did not knowingly fail to report and avoid water pollution and the judge agreed that did not occur.

But Baudler may have scored the most points for his client, when he raised doubts about when the discharge occurred.

"Just because the DNR (Minnesota Department of Natural Resources) happened to arrive at a scene first does not mean defendant Holst did not fulfill his duty under statue," the attorney informed the court.

"It simply happened that two boys reported a large number of fish killed while they were fishing the fifth of August and their report prompted a speedy investigation," he argued.

However, the two boys who discovered the fish kill on Aug. 5, 1998, told investigators on that date "there were twice as many dead fish as before."

Baudler hammered home the significance.

"The obvious import of this statement is that although there were a lot of fish found on the fifth, there was also half as many the day before, prior to the rainfall, which the state alleges caused the pollution," the attorney noted.

"This causes one to consider whether or not the runoff from Mr. Holst’s farm is really to blame for the fish that were killed," he said.

Looking ahead to a possible court appearance for Holst and Baudler on the charge that the Dexter Township farmer did not have a feedlot permit, Baudler is prepared.

According to the county’s feedlot enforcement officials, there were 216 non-permitted feedlots in Mower County in 1998 and 1999.

Lowell Franzen, Mower County feedlot enforcement officer, was unavailable for comment Saturday. Leon J. Holst said he would release a statement after conferring with his attorney today.