2022 Attorney General’s Race
Wisconsin Farm Bureau Issue Survey
Wisconsin Farm Bureau Federation polled the candidates for the Attorney General’s election. Both candidates were sent the same survey of eight questions, with seven being specific to agriculture. Below are the responses from the candidates.
Eric Toney (R) Josh Kaul (D)
Generally speaking, how would you view your philosophical approach to the Office of Attorney General? Specifically, would you be more proactive or reactive in the enforcement of law?
Toney: I believe the current administration has gone out of its way to proactively target farmers in Wisconsin as fines under Kaul’s DOJ have more than doubled fines accrued under his predecessor. That’s not the role of the Attorney General. As an experienced prosecutor and seeking the role of Wisconsin’s “Top Cop,” I will prioritize public safety and ensure criminals are swiftly and justly prosecuted, making our streets safer and Wisconsin a better place to live. I will do whatever I can to prevent crime in the first place in my role, whether that is supporting criminal justice reforms, sending state resources where they are needed, or through my investigatory and prosecutorial powers.
At the same time, I will ensure that business owners, including farmers, are not treated unfairly by overzealous regulators. Almost without exception farmers are doing everything they can to follow the law and be good stewards of our environment. That becomes almost impossible in a world where state agencies go outside of their statutory authority to impose new requirements, conditions or penalties on farmers, and other business owners. Farmers, like all regulated entities in the state need predictability and certainty from the government. In my role as Attorney General, I will make it a priority to advise state agencies on their statutory authority and ensure that they stay within those bounds as I review any potential violations. In addition, when it comes to farmers and other business owners in the state, retribution and headlines will not be my priority. In cases where there has been some kind of violation by a farm, I will work with the farmer to achieve an outcome that is based on harm mitigation and education, not retribution.
Kaul: No response given.
What is your general understanding of Wisconsin agriculture? Do you believe there are any particular issues in the agricultural community that need to be addressed specifically by the Department of Justice?
Toney: Wisconsin agriculture is the backbone of Wisconsin’s economy, bringing in close to $105 billion for our state’s economy. That is not lost on me. Farmers are also subject to frequent interactions with state government, through permitting, inspections, and sometimes enforcement actions so I believe the Wisconsin Attorney General can play a key role in improving the business climate for farmers. Perhaps most directly, the attorney general is the lawyer for all of the state agencies. He can prosecute enforcement matters, and can issue legal opinions on matters of administrative law that directly impact farmers. A recent example is the favorable high-capacity well permitting opinion written by AG Schimel which was subsequently retracted by Josh Kaul. That opinion directly impacted the DNR’s authority over farmers. In addition, DOJ oversees referrals of enforcement actions against farmers and the AG has discretion to either prosecute or dismiss. Josh Kaul and current DOJ use enforcement actions against farmers as a way to get political headlines. Based on what I have heard from a number of farmers, these enforcement actions become punitive, even when the farmer is doing their best to comply and cooperate. That has to change. Farmers, almost without exception do everything they can to comply with the law and protect the environment. Honest mistakes by farmers, or accidents on the farm should not be fodder for political gains. I will change that culture at the DOJ from retribution-focused, to solution-focused for farmers.
It will be my priority that no farmer is unfairly targeted by an overzealous regulator. I believe Wisconsin should be doing everything it can to support Wisconsin agriculture, and its farmers. Farmers are the best stewards of Wisconsin’s environment and for the most part, the government should get out of the way to ensure that farmers can continue to innovate and feed the world.
Kaul: No response given.
The Legislature has introduced bills in past sessions that would allow for the legal sale of raw (or unpasteurized) milk directly to consumers on the farm. The bipartisan measure introduced this past session was Senate Bill 236, coauthored by Sen. Glenn Grothman and Rep. Dave Murphy. As you’re likely aware, the issue has gained national prominence with the Vernon Hershberger case, the Sauk County farmer who defied a DATCP holding order on the sale of milk and meat from his farm. Mr. Hershberger most recently lost his District IV Court of Appeals case. What is your position with regard to the direct sale of raw milk to consumers? Would you use the Justice Department to prosecute farmers who violate an order prohibiting the sale of raw milk to consumers?
Toney: Currently, the sale of raw milk is illegal in Wisconsin. It is my duty to uphold the law and if any referrals came to the DOJ regarding the illegal sale of raw milk, I would investigate and prosecute those claims.
Kaul: No response given.
Wisconsin’s Right to Farm law has been tested and implemented in one Wisconsin court case. In 2004, then-Wisconsin Attorney General Peg Lautenschlager and 14 out-of-state landowners sued Sawyer County cranberry grower William Zawistowski, alleging that water pumped from and later returned to Musky Bay used to flood cranberry beds had deteriorated in quality as a result of his farming operation. The plaintiffs argued that the cranberry farm’s actions had infringed upon the public’s ability to use the waters for recreational use. Zawistowski had not been previously cited by any state or federal agency for any violations. His family had farmed near Musky Bay since 1939.
In a 2006 bench trial, the court found that Zawistowski’s farming practices were not unreasonable and did not substantially impact the water in the bay. Appeals persisted by the state, and in 2008 Governor Jim Doyle elected to drop the case after an appellate court upheld the circuit court’s decision. This question, in large part, goes back to your approach as being either reactive or proactive. If you are elected attorney general, will you uphold both the spirit and intent of Wisconsin’s Right to Farm law, or could we see a repeat of the Zawistowski case?
Toney: I will, without exception uphold the full spirit and intent of Wisconsin’s Right to Farm law. As AG it will be my goal to not only ensure life isn’t harder for farmers in Wisconsin, but that I do what I can to make it easier to farm. The Zawitowski case is a great example of overzealous regulators, and an Attorney General who prioritizes headlines over solutions. We have seen that time and again with this DOJ as well, for example, Josh Kaul switching sides on a critical case regarding large farms and high-capacity wells in the middle of litigation to appease his supporters, instead of following the law.
Further, I will not use the Public Trust Doctrine, anticipatory nuisance, or any other novel legal theories to harass farmers or prevent them from engaging in the activity for which they are entitled to do under zoning laws.
Kaul: No response given.
In place since 2000, Wisconsin’s use value assessment law taxes farmland at the value of its use, as opposed to its market value if sold. What is your position with regard to the use value assessment law? Would you use the Justice Department to fight any lawsuit brought against the law if someone were to argue it somehow violates the uniformity clause of the constitution, or some other legal argument?
Toney: I support the use value assessment law. It is important tool to ensure farmland can be kept in production instead of developed by ensuring farmers aren’t unfairly taxed. I would wholeheartedly defend the Wisconsin Constitution and 1995 Act 27.
Kaul: No response given.
Last year, the WI Supreme Court issued a determination on the Clean Wisconsin Inc. v. DNR case affirming the Lake Beulah Management District v. DNR decision that the Department of Natural Resources has the broad authority and responsibility to consider the broader environmental impact of a high capacity well to waters of the state. Historically, high capacity well permits were subject to the provisions explicitly listed in s. 281.34 Wi Stats. and did not take into account the collective environmental impact of other wells.
With the Clean Wisconsin Inc. v. DNR decision providing the DNR with the explicit authority to consider the broad environmental effects of a proposed high capacity well permit, applicants could face regulatory uncertainty regarding withdraw rates, timing and approval on an ever-changing basis. Do you believe that this decision provides more or less certainty in the permit process with regard to high-capacity wells? How does the DNR being granted “general duty” authority under the court’s ruling impact other decisions regarding DNRs authority as it relates to Act 21?
Toney: The most recent Clean Wisconsin v. DNR case upended all of the regulatory certainty originally provided for under Chapter 227. Perhaps one of the most important aspects of Chapter 227 was its direction that state agencies have “explicit” authority to impose conditions or requirements. Subsequent case law, including in Legislature v. Palm, made it clear that explicit means specific. And it has been long understood, and reaffirmed in Palm, that general grants of power do not provide that requisite “explicit” authority. Palm was not overturned and is still good law as it relates to the statutory authority of an agency.
Despite this decision it is clear that state agencies still must have explicit authority to regulate and, importantly, nothing about this decision allows them to go outside of the Chapter 227 rulemaking process, where the legislature has oversight and the public can participate. I will ensure that even in light of this decision, state agencies do not try to skirt the rulemaking process.
I will advise that state agencies must demonstrate their explicit authority to act and I will support any legislative efforts to correct this incorrect decision to ensure that state agencies are only acting upon explicit and specific authority granted to it by the legislative branch.
Kaul: No response given.
Nutrient management planning, otherwise known as manure storage and application, is constantly evolving. Those who study and/or utilize manure irrigation systems are searching for best practices that are efficient, effective and safe. Many farmers are utilizing large “spray” or “drip” manure application systems but some fear harmful pathogens could potentially be released utilizing this practice. Do you believe that “spray” or “drip” manure irrigation systems should be allowed if the science proves they aren’t harmful to air quality or any more harmful than other conventional manure irrigation practices? As an example of practices encompassed in the Right to Farm, would you support farmers that use this technique even if neighbors complained about its use as a nuisance via legal action?
Toney: While the AG’s role is limited in actually setting policy, I personally believe state regulators need to get out of the way of farmers as they innovate. Farmers are often far ahead of the regulations as far as best practices, especially as it relates to NMPs, and the state should encourage that. If those methods are not harmful or more harmful than other accepted practices they should not be punished. As AG, I will never unfairly target farmers engaging in lawful practices whether as a result of a referral from DNR or through a suit by members of the public.
Kaul: No response given.
What’s your general position or feeling about family farms and farm size? Do you envision a farm setting where animals freely roam the countryside on an intimate scale, or do you recognize the $104.8 billion industry for what it is – farms that are producing to meet the ever-growing national and world demand for food and must be done in a way that is efficient, profitable and follows best animal husbandry practices?
Toney: Nearly every farm in the state, regardless of size is a family farm and we need to shift away from this false dichotomy of family v. factory farm. It is completely misleading. Behind every “Inc,” or “LLC” is a family, trying to do their best to feed the world for generations. There are no such things as factory farms. There are farmers, who, as you state, had to adapt to meet the demand for food in a way that is profitable. I also know that efficiency means a higher bottom line for farmers and with efficiency comes improved environmental practices. Also, as it relates to dairy, happy cows produce more milk, meaning there is also an economic incentive for improved standards of care for animals.
In our current world, with rising prices and increasing state and federal regulations it is a reality for many farmers that they will need to grow to survive. Elected officials should not punish farmers who grow, in the same way they would not punish any other economic powerhouse in the State. It is possible to create a climate for farmers so that they can freely grow without retribution and be treated by the state as the economic asset, not an environmental liability. This same philosophy also allows smaller farms to exist.
Kaul: No response given.