TREMPEALEAU COUNTY, Wis. -- For the second time a Trempealeau County farmer’s legal challenge to a bird-scare gun ordinance has failed.
Wendell and Carlton Klein jointly farm the 500-acre King Farms operation in the town of Trempealeau. They have deployed 31 propane-powered automatic bird canons to keep blackbirds from eating their crops before harvest.
The Kleins have used non-lethal noise makers since 1962 but residential development has since surrounded their farm -- and led the town in 2013 to require a permit to use a scare gun. The Kleins were cited in violation of the ordinance but found not guilty at trial. Their challenge to the ordinance was dismissed in 2014 by a circuit judge and a year later by a court of appeals.
The town passed a second ordinance in 2017 that prohibited scare guns without exception. The Kleins continued to fire away and accumulated citations that have a maximum penalty in excess of $20,000. Prosecution of the citations has been stayed pending the appeal of the 2017 ordinance challenge.
According to court documents:
The Kleins are the only farmers in the town to use scare guns, which sound like shotguns and periodically discharge during the latter half of the growing season.
They contend there is no other effective alternative. They observed that noise from a drone seems to deter birds from an area vineyard. The Kleins played the recorded sound of a drone and also found it to be effective. However the town cited them because the sound came from a speaker and not an actual drone.
Blackbirds roost in a nearby federal wildlife refuge. In unprotected fields they can damage as much as 95 percent of the corn before it’s mature enough to pick, according to the Kleins.
The Kleins also grew melons and other vegetables, sold at a roadside stand. The birds also damage the produce making it unsaleable, the farmers said. The loss of retail and wholesale income due to the bird damage threatens their livelihood and ability to remain in business, the Kleins contend.
Similar to their challenge of the 2013 ordinance, the Kleins alleged that the 2017 ordinance:
- is an unconstitutional taking of property
- is arbitrary and capricious
- violates the Right to Farm Law
- infringes on their vested right to use scare guns
Trempealeau County Circuit Judge Thomas Clark disagreed, and the Kleins appealed the decision with a similar result.
The Wausau-based District III Court of Appeals concluded the Kleins can’t attack the 2017 ordinance because those claims were properly dismissed in their 2015 appeal and can’t be re-litigated. The Kleins also contended the 2015 dismissal was not final because their claims were not thoroughly presented, so the judgment wasn’t on the merits of their case.
The District III Court instead found that the prior suit was dismissed on the merits. It also agreed with all of Judge Clark’s rulings on the 2017 ordinance including:
- It wasn’t a regulatory taking of their property because the Kleins could still use it for other purposes.
- It wasn’t arbitrary and capricious because the town can regulate scare guns as being harmful to the public’s health, safety and welfare.
- It was not a zoning ordinance, which would have granted the Kleins a vested right to use the guns.
- It did not conflict with the Right to Farm law.
The Klein attorneys were not available for comment. Attempts to reach town of Trempealeau officials and Wendell Klein were unsuccessful.