Judge says state failed to prove Zimba Dairy was responsible for large fish kill.
A Tuscola County dairy farm earned a legal victory against the state of Michigan Oct. 18, when a circuit court judge issued a directed verdict in favor of the farm, effectively dismissing charges filed by the Michigan Attorney General’s Office alleging it was responsible for killing thousands of fish.
Judge Amy Gierhart issued the verdict in favor of Zimba Dairy Inc. following a three-day trial in Tuscola County’s 54th Circuit Court.
A directed verdict is a ruling entered by a trial judge after determining that there is no legally sufficient evidentiary basis for a reasonable jury to reach a different conclusion, according to the Cornell Law School Legal Information Institute.
The complaint, filed on behalf of the people of the state of Michigan in April, the Michigan Department of Natural Resources and the Michigan Department of Environment, Great Lakes and Energy, alleged the concentrated animal feeding operation failed to obtain a mandated wastewater permit, unlawfully discharged wastewater to surface water and groundwater, killed thousands of fish in the North Branch White Creek in 2021 and unlawfully impacted wetlands and inland streams.
“We disagree with this decision, but we are looking forward to proving the remaining claims set for a bench trial starting Jan. 14,” said Danny Wimmer, press secretary for the attorney general’s office.
The remaining charges center whether proper permits were obtained, alleged unlawful wastewater discharge and contamination of surface and groundwater.
Zimba has three locations and over 3,500 head of cattle, including more than 1,600 dairy cows.
Attorney Aaron Phelps, a litigation partner with Varnum LLP of Grand Rapids, represented Zimba during the trial. Phelps said Friday’s verdict came at the end of a three-and-a-half-day jury trial during which two Department of Natural Resources and two Department of Environment, Great Lakes, and Energy employees testified.
At issue was a compost pile, which the DNR and EGLE officials told jurors was to blame for the fish kill. Phelps said the defense argued the state could not prove a discharge from the compost pile was intentional, contaminated the creek before the death of the fish and could not prove damages.
Gierhart agreed with the defense that “the state hadn’t done its job,” Phelps said, adding that his client, Edward Zimba, was “elated” by the verdict.
“His position all along was he did not pollute the creek,” Phelps said. “He was very happy to be vindicated.”
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