ST. PAUL, Minn. (CN) — The Minnesota Court of Appeals heard arguments Tuesday in a long-running dispute between members of a southern Minnesota Amish community and state and county regulators who say the community cannot refuse to install septic tanks to process sewage and greywater.
The case, which has been to the U.S. Supreme Court and back since it was first filed in 2017, centers on a dispute between several members of Fillmore County’s Swartzentruber Amish community and government officials with the county and the Minnesota Pollution Control Agency.
Ammon Swartzentruber, Menno Mast, Amos Mast and Sam Miller sued the government agencies after the county took enforcement actions against them for failing to install septic systems. They argued that given their religion’s prescriptions against the use of most post-industrial technology, the requirements violated their First Amendment right to religious freedom.
Septic systems are used to treat sewage and greywater – water left over from tasks like laundry, dishwashing and bathing – without connecting to larger sewage systems. The MPCA has argued that since the plaintiffs have indoor plumbing, their use of mulch basins to process wastewater is insufficient to protect local groundwater.
The Amish’s religious freedom argument made waves at SCOTUS, which remanded the case to the Minnesota Court of Appeals for consideration in light of the high court’s Fulton v. Philadelphia decision.
At Tuesday’s arguments, the plaintiffs' attorney Brian Lipford clarified that his clients were reasserting all of their initial claims in light of that decision. Lipford said that in light of the Fulton decision, the burden fell upon the government to prove that enforcement of its septic system requirements served a compelling state interest.
“It’s important to note that in the factual record of the case there’s an admission that there hasn’t been any harm as a result of the Amish,” Lipton said. “The government must show a direct causal link for the harm, which they haven’t.”
He noted that the Amish had lived in Fillmore County since 1974 without incident and that they were willing, should the court make them, to comply with any testing or sanitation requirements placed upon their mulch-bin systems for greywater processing.
Arguing for the MPCA, Assistant Attorney General Christina Brown said that while the government hadn’t proven any specific illness caused to others as a result of Amish greywater, the facts of the case demonstrated that it placed other Fillmore County residents at risk. “Due to the nature of biodegradable mulch,” she said, the bins were likely to see “a high rate of failure,” no matter how much work the Amish put into them.
“That water is going straight down, and there’s no magical pressurization power of mulch,” she said. The mulch, she said, was also unlikely to stop bacteria from flowing into the groundwater and becoming mixed in with water from other sources.
Judge Francis Connolly expressed skepticism of that argument.
“That’s your problem, not the Amish’s,” he said of the issues with determining which groundwater is whose. “It seems to me a tie goes to the runner.”
Also at issue were the government’s estimates of the quantity of greywater produced by Amish households without septic systems. In its briefing, the county estimated that the households produced at least 100 gallons per day, and likely much more. The Amish disputed that characterization, saying that the government’s estimate was based purely on speculation and that by their own estimates, they used approximately 30 gallons of water per day.
Brown noted that the county and MPCA had been unable to get more thorough data on the Amish’s water use in part because they had only been allowed to inspect the greywater systems once, with notice ahead of time.
Lipford, meanwhile, said that the Amish had only resisted the government’s requests for inspection when officials sought to search their homes.
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