As a service to our loyal reader, we periodically filter out the best of Wimp.com — i.e., removing all the idiot baby and cat vids — to bring you only the cream. That presumes you agree that alligator-packed rivers and corner-jive ranks as cream.
1. Emotionally devastating Australian anti-speeding ad. Forensic psychologists ought to show this ad to suspected psychopaths. Those that don’t tear up would be confirmed psychopaths. Link
Only 4 bills mentioning “sludge” have been filed so far in the Va. General Assembly — HB 1331, HB 1332, SB 423, SB 446 — and two of these are identical. After a tiny legislative BS revolution last year, the policy-makers are sitting back to see if the 2007 changes are going to fix the problem. Most of the legislative changes this year just correct various bills that used to refer to the Dept. of Health in the BS regulation statutes.
So far I see only two noteworthy changes in the laws. The first is excluding sludging your fields from the definition of “agriculture” and “silviculture” in the Right to Farm Act. This is significant because Synagro has raised a defense based on the Right to Farm Act in Wyatt v. Synagro, which was reported in the blog on Jan09.08. No doubt Synagro will throw their money at this bill to try and get it defeated. But the BSers’ seem to be coming up short in the legislature lately so maybe the brown tide has turned against them.
The other BS-related change requires compost fertilizer derived from sludge to be labeled with the source. I guess the bags will have to be marked “Human Rectum.”
Jan09.07
Wyatt v Synagro is the negligence/nuisance suit currently before the Surry County Circuit Court. For a number of reasons this appears to me to be the most significant BS case that has been prosecuted in Va. — ever. For one thing, it’s the only case in which the victims — the sludgees — have been on the offense.
Barbara Rubin has a page on her website where you can download the court documents in .pdf format. Link. These documents are a goldmine of legal arguments for anyone contemplating taking Synagro on in other counties in Va. Thanks, Barbara, for making them available.
Here is a quick and dirty summary of the case so far.
Sandra Wyatt and 5 other plaintiffs sued Synagro and Sussex-Surry LLC for negligence, private nuisance, trespass, and “punitive damages.” Sussex-Surry owns the land that Synagro is spraying the BS on. It’s timberland next to the plaintiffs’ homes and the BS is being sprayed into the trees.
James Slaughter is the main lawyer for the BSer’s. He’s the same lawyer who sued Appomattox County in 2005. He seems to be the main sludge-suit in Va. I have seen at least one self-laudatory article sort of promoting himself as “The Va BS King” or something. I would venture a guess that he has made as much money pushing BS onto the rural counties as anyone else in the state. More on Slaughter and his firm in a later post.
The plaintiffs are represented by H. Bishop Dansby and Chris Nidel, who, at the moment, are kicking Slaughter’s butt. Read on.
The lawsuit was filed in the state circuit court for Surry County, Va. but Synagro removed it to the federal court in Richmond. Slaughter did this probably to get the case out of Surry, which is where the jury will come from. Synagro knowis that any “Surry jury” is going to have a few members who have smelled this BS. (It will be an interesting question: must the judge exclude from the jury people who think Synagro’s BS stinks? Generally, a person with first hand information about a case is disqualified if the information would influence them in any way.)
The federal judge, Henry Hudson, was having none of Slaughter’s federal case theory. The Wyatts ask Judge Hudson to move the case back to state court and the judge was more than willing to comply. But he went farther, his opinion was very supportive of the Wyatt’s case. So Slaughter shot himself in the foot trying to remove the case to federal court. Not only did it not work, but already he has one judge saying there is a case here. Judge Hudson’s opinion was then used against Synagro in the state case.
Back at the ranch, in the state court, Synagro tried to get the judge to toss the case out. Judge ?? (I can’t read his signature) wrote a very clear opinion (excepting his signature) basically telling Synagro to get ready for trial. The judge did punt one of the plaintiffs, the Wyatt’s daughter, on the grounds that because she did not live on the property, she had no rights in the suit, even though she is exposed to the BS twice a day when she feeds her horses on her folks’ property. I’m not sure this was the right decision because the daughter could still have a cause under the negligence claim regardless of where she lives. But I can’t imagine not having the daughter in the case would have much impact on the plaintiffs’ case unless her injuries are more evident or easier to prove than the other plaintiffs’.
The judge also bounced the Wyatt’s trespass count. This is probably of no significance either since the Wyatts would have had to prove almost the same facts to prevail at trespass as they will have to prove for private nuisance. A jury would lump them together anyway when awarding damages.
Finally, the judge threw out the count for punitive damages on the basis that punitive damages is not properly pled as a count. Punitive damages belongs in the “prayer for relief” which is where you tote up the $$ you want to recover from the defendants. The plaintiffs did have punitive damages in their prayer, so removing it as a count has absolutely no effect on the case. The judge was just trying to tidy up the pleadings a bit. He knows that whomever wins the case, there will be an appeal.
In short, the Wyatts & Co. are off to a very good start. After discovery is complete, Synagro will try again to get the case bounced out on summary judgment. They will argue that there’s not enough evidence for the Wyatts to prove their case to a jury. The fight will be over there is enough evidence to link the plaintiffs’ injuries to the BS hanging in the trees next to their house. My guess is that Synagro’s chances of succeeding in summary judgment are even less than their chances were of removing the case into federal court.
Synagro may not let the case go long enough to get to summary judgment. I look for Synagro to settle this pretty quickly. Slaughter has already got 2 strong judicial opinions upholding the right to sue BSers for nuisance in state court. The last thing Synagro wants is for a jury to hear this case. Historically, when BSers are defendants, they are quick to buy out plaintiffs rather than risk a jury decision. But a larger problem for Synagro is that the Wyatts’ lawyers have done such a great job presenting the legal arguments in their motions and briefs that other potential plaintiffs across the state will have a lot of the hard work already done for them.
A lot more on this case to come. I’m still reading all the documents filed so far.
– GG
Maybe; maybe not.
As far as I know, there is now only one BS case active in Va. That’s the Wyatt suit against Synagro for negligence and nuisance over in Surry County. You can get a .pdf of the complaint from the Loudounnats site — here.
This could be a very significant case, and it will likely get rolling in the next few weeks. I believe Barbara is organizing all the filings for publishing on the Loudounnats.org. I’ll let you know when they are available, and I’ll try and follow that case on this blog. (BTW the Loudounnats site has a helpful (slightly out of date) summary of BS litigation across the country. Link.)
Negligence/nuisance have never, so far as I know, been raised as causes of action against the BS-ers in Va. So this case could have a very significant impact.
Hopefully some county in Va. will acquire the temerity to stand up to the state and the BS-ers a assert their right to ban land application of sludge under the Federal Clean Water Act, 33 USC section 1345(e). As noted in Spew #12 over at the Mother Site, Steve Martin and I tried to get Amherst County to step up to the plate and protect their citizens from BS, but we were met with stone, cold silence, aka cowardice, from the Board of Supervisors. The legal costs would amount to about $2 per resident, and a favorable outcome would virtually solve the BS problem for all rural counties.
But unless citizens are willing to front up and force their elected officials to take some action, the chance of them doing so on their own is nil. In the mean time, let’s hope the Wyatt’s action opens some doors into the courtrooms for the poor people who have to live next to a BS-farm.
- GG
