Fifteen miles to the east, Chuck Tucker sits in his pickup near a corral that holds his family's dairy cows. There are no flowers lining the dirt lane to the Tucker Dairy--and no warm feelings here for Anheuser-Busch, a corporate giant that Tucker, his father and brother blame for the near destruction of their family business.
The problem, say the Tuckers, is hay, irrigated with effluent from the huge brewery and sold to ranchers and dairymen by an Anheuser-Busch subsidiary. That hay was tainted, the family claims in a lawsuit that went to trial Monday in Weld County District Court. As a result, they say, their dairy herd and their livelihood were nearly ruined.
The Tuckers aren't the first people in Weld County to raise questions about hay grown by Anheuser-Busch. The company settled a similar lawsuit with Colorado State University less than six months before the Tuckers took the beermaker to court in 1991. But Chuck Tucker says Anheuser-Busch has refused to accept responsibility for the harm done to his cows or to adequately compensate the family for its losses. (A spokesman for Anheuser-Busch denies the Tuckers' allegations but says the company won't comment specifically on the case prior to trial.)
Recalling his family's two-year struggle to discover the cause of its herd's declining health and diminishing milk production, Chuck Tucker says the low point arrived one October night in 1990. It was the end of another discouraging day. Cows that had been producing nearly 100 pounds of milk per day were down to thirty. Calves had been born with deformities and other problems; some had died. Chuck's father, Charlie Tucker, had built the business from a bone-dry scrap of ground 43 years earlier to a thriving concern that supported three households and received awards for the consistent quality of its milk. But by that October day the family members were broke, confused and at each other's throats. Charlie's life savings of $250,000 had been lost in the dairy's unexplained downward spiral. To stay afloat, the family needed a bank loan of $50,000.
"We're sitting there and Dad says to me, `Should we sell, should we quit?'" recalls Tucker, a sturdy-looking man of 45. "I said we can't quit. Dad said, `Where would I go?'" Chuck Tucker's voice breaks and he turns to watch the herd feeding at the corral fence.
At 69, Charlie Tucker has been a dairy farmer all his life. For 32 years, his family owned and ran the Yellow Top Dairy in Englewood. In 1951, Charlie struck out on his own, buying 35 cows and sixty acres near Wellington, north of Fort Collins. For a year he worked two jobs, struggling to get his dairy going between shifts at a cement plant in Laporte, where he toted 100-pound bags of mix. Because his land had no well or creek, he had to haul water to the herd in 55-gallon drums.
Over time things improved and the dairy grew, though it remained small enough for Charlie to keep his hands on the reins and the milk quality up. In 1966, he and his family suffered a blow when nearby I-25 was expanded and the highway department seized a crucial portion of their property.
Forced to move to save his business, Charlie bought 160 acres near Pierce, north of Greeley off Highway 85. Just as he had overcome the lack of water at his first location, Tucker worked past the debt incurred by the move, steadily building his herd, acquiring modern equipment and hiring four full-time workers to help him farm the acreage and run the dairy. Eventually he was joined in the business by his two sons, Iven and Chuck. "If you've got a goal, you just keep heading toward it," Charlie says.
Charlie "knows the history of every cow" in the family's 206-head milking herd, adds Chuck. "He can put a hand on the ribs of a cow--`bumping her,' he calls it--and tell you how far along she is" in pregnancy. "The cows is his life."
Trouble found Charlie Tucker and his cows in 1988.
It takes a lot of water to make beer, and not all of it goes into bottles and cans. When Anheuser-Busch opened its Fort Collins brewery in 1988, company officials projected the plant would eventually discharge up to 3.5 million gallons of waste- water per day, an amount of effluent beyond the capacity of Fort Collins's municipal water-treatment facility. To bring the plant on-line, Anheuser-Busch turned to a unique system of disposal: piping the effluent four miles away to Weld County, where it would be sprayed onto cropland by pivot irrigation rigs.
The choice of crops was important. The Colorado Department of Health's Water Quality Control Division wanted the effluent kept out of groundwater aquifers and surface water sources such as creeks and rivers. While the water presented potential problems because of salt and bacteria, the principal concern of the health department was nitrates, which have been proven hazardous to both humans and animals. The beer company's solution was to spray the effluent on vegetation that could naturally metabolize the nitrates, keeping them out of the water supply.
With research help from scientists at CSU, the company chose alfalfa and bromegrass, two crops that could be sold as animal feed. An Anheuser-Busch subsidiary called Nutri-Turf would run the effluent irrigation project and market the hay it produced. A chunk of Weld County farmland was chosen to serve as the application site; it would expand to more than 1,400 acres as the plant's beer production boomed. The project would be the first venture into hay-growing for Nutri-Turf, which until then had limited its operations to raising sod for landscaping purposes.
In the summer of 1988, the Tuckers were approached by Duane Sellmer, manager of Nutri-Turf's hay operation. "He said they were just starting up and they had a limited amount of premium hay," says Chuck Tucker. "He said it was good hay, dairy-quality hay." The Tuckers bought 600 tons.
(In legal motions later filed in Weld County District Court, Anheuser-Busch attorneys John DeSisto and Mark Lillie of the law firm of Kirkland and Ellis denied that Nutri-Turf claimed the hay was appropriate feed for dairy cows. The Tuckers, they wrote, "assumed the risk" in buying the hay. Sellmer's characterization of the product as "good hay" was merely his opinion, not a warranty, the attorneys added.)
The Tuckers began feeding the Nutri-Turf hay to their cows the following winter. That, they say, is when their problems began. Milk production began a puzzling decline.
The problems grew worse in the summer of 1989, when the Tuckers purchased another 230 tons of Nutri-Turf hay. Cows seemed sick; calves were born with minor deformities and diminished intelligence. Some had great difficulty nursing from a bottle, a transition that most calves make in a day. "They were taking three or four days to take a bottle," says Iven's wife, Irene. "They were too dumb to drink." An inability to nurse, she says, caused one bull calf to starve.
During that time, the Nutri-Turf hay was ground and mixed with hay from Wyoming as well as with other feed, says Iven Tucker--a process the family believes masked its harmful effects and made it more difficult to pinpoint the source of the problem. The dairy's milk production continued its decline.
The Tuckers examined one possible cause after another, hiring a succession of nutrition consultants and dairy specialists. They investigated the possibility of stray voltage in the milking barn and vacuum problems with the milking equipment. They watched the cows, noting meticulously how they walked in and out of the milking pens, the way they mingled in the corrals, their social pecking orders. The family came up empty. Milk production continued to fall.
While the Tuckers were trying to determine what was making their cows sick, Colorado State University was experiencing problems of its own. In 1989, Gary Greathouse, an associate professor of animal sciences who had run the school's research ranch operation for ten years, bought a supply of Nutri-Turf hay. The feed was intended for CSU's 600-head cattle herd at Maxwell Ranch, located in the hills six miles north of Livermore.
In February 1990, cows began "going down" after feeding on the hay, Greathouse said in a September 1991 deposition taken by the Tuckers' Greeley attorney, Robert Ray. The stricken cattle lacked the coordination to get up again, according to Greathouse, who suspended the feeding and put the herd on a different diet. Though the animals recovered, Greathouse made inquiries about the hay to Anheuser-Busch and obtained a sample of the brewery effluent for testing. Lab analysis turned up nothing of concern.
By early March 1990, the ranch manager had resumed feeding Nutri-Turf hay to CSU's cows. Within a few days, he told Ray during the deposition, two animals went down. Then a bad snowstorm hit. Four feet of wet spring snow made roads impassable, preventing ranch hands from reaching a herd of 200 cows, which was left with only Nutri-Turf hay to feed on. When Greathouse got a Sno-Cat to the pasture three days later, he found several dead cows and several others down. Though he had the hay removed, he lost seventeen head over the next few days. Cattle in other pastures that had fed on native hay during the storm suffered no problems, Greathouse said.
The university then decided to have the Nutri-Turf hay tested at a laboratory run by Monfort, the Greeley meat-packing concern. According to Greathouse's deposition testimony, those tests revealed high levels of nitrates in the Nutri-Turf hay. Greathouse contacted the plant manager at the brewery and notified him that CSU expected to be reimbursed for its losses. On March 19, Duane Sellmer and an associate met Greathouse at the ranch and took samples of the hay to do their own testing, said Greathouse, who also had the Colorado Department of Agriculture sample and test the suspect feed.
When Sellmer got back Nutri-Turf's lab analysis, he sent personnel to truck away what was left of the university's hay. However, while managers at the brewery were sympathetic, said Greathouse during the deposition, they declined to accept responsibility or compensate CSU. The university called in its lawyers.
By the late spring of 1990 the Tuckers had begun to hear rumors about CSU's problems with Nutri-Turf. Shortly afterward, the family received a visit from Duane Sellmer, who told them that Nutri-Turf was beginning a nutritional analysis program for its hay. The service would be provided free of charge for the Tucker Dairy, a valued customer. Chuck Tucker says that when he asked Sellmer about the CSU rumors, the Nutri-Turf manager attributed the university's problems to poor ranch management. However, says Tucker, to reassure the family that there were no problems with the hay, Sellmer explained that the tests would measure the nitrate content. Results released to the Tuckers showed the hay to have generally low nitrate levels.
The Tuckers were given similar assurances by the contractor Nutri-Turf had hired to cut and deliver the hay to the dairy. Marvin Tolle was an old friend of Charlie Tucker's, who for years had lent Tolle and his son equipment for harvesting and hauling, including a semi-truck that the Tolles used for a summer.
But by September, says Iven Tucker, the situation at the dairy had worsened dramatically. The Wyoming hay had run out and Nutri-Turf hay alone was given to the herd. "That's when it really got bad," he says.
No matter how hard the Tuckers worked, they couldn't stem the dairy's falling production. Once a cow quits milking, says Iven Tucker, a year can go by before she has another calf and starts milking again. "And your overhead stays the same. You can't stop feeding a cow when she stops giving milk."
When the men finished work each day, says Erna Tucker, Charlie's wife, "I almost hated to see them come in the house. You could see it on their faces. They didn't know what else they could do." The family was "flat going broke," adds Chuck. After considering selling the business, the Tuckers instead decided to hang on--and to wade in deeper.
The family went to Tom Gleason at First Interstate Bank in Fort Collins and asked for $50,000 to buy more cows. "My relationship with Charlie Tucker goes back forty years, I guess," says Gleason, the bank president. "We've always had just a very, very fine relationship. The Tuckers are very good dairy people. They're a fine family and we think very highly of them." He gave them the loan on Charlie's signature.
It was the first good news the Tuckers had had in months. They soon got more.
That summer the Tuckers had hired Greeley animal nutritionist Richard Hergert to figure out what was wrong with their herd. Hergert compared the diet of the Tucker cows to that of other client dairies in the area. Other herds were producing well on virtually the same diet. The only difference he detected after a two-and-a-half-month controlled study was the Tuckers' use of Nutri-Turf hay.
In late September Hergert, concerned about the rumors of CSU's troubles at the Maxwell Ranch, phoned Gary Greathouse, who suggested that the Tucker hay be tested for nitrates. Chuck Tucker sampled various bales--and this time, instead of relying on Nutri-Turf to do the testing, he delivered them to a lab in Brighton. "That afternoon the technician called us and told us to immediately stop using that hay," Chuck says. "The nitrate levels were real high." In fact, he adds, displaying a sheaf of lab findings, many were three to four times higher than the levels showns in Nutri-Turf's tests.
After subsequent phone conversations between Greathouse and Chuck Tucker, the CSU ranch manager asked Tucker and his father to come to the Fort Collins office of attorney David Wood. The lawyer was representing CSU, which wanted the Tuckers to give a statement on their conclusions about Nutri-Turf hay. The Tuckers were glad to help bolster the university's case.
Not long afterward, Anheuser-Busch settled out of court with CSU for an undisclosed sum. As part of the agreement, Greathouse and other university employees were required to refrain from discussing the incident or the settlement with anyone. Contacted at his university office, Greathouse says he doesn't believe he can comment under terms of the settlement. His superior, Kathleen Byington, president of the Colorado State University Research Foundation, did not return phone calls from Westword.
"What really gets me," says Chuck Tucker, "is they're an agriculture college and they're not helping us. They made a deal with Anheuser-Busch. The farmer doesn't matter to them."
Tucker feels the same way about the state's agriculture department. When he asked for an agent to sample and test a stack of Tucker Dairy's Nutri-Turf hay, he says, James Thurman of the department's inspection division told him there was no need, as Nutri-Turf hay from Maxwell Ranch already had been tested. Thurman says he vaguely remembers speaking to Tucker but can't remember the details. Julie Zimmerman, who runs the agriculture department's feed program, says after the department tested the Maxwell Ranch hay, it found that experts disagreed on the level at which nitrates become harmful to animals--and therefore decided to take no action.
Tucker says that after he called the agriculture department, Duane Sellmer arrived at the dairy with a check to buy back the hay. "He had a loader and three semis and he said, `We want to buy this stuff back so you can get some good hay,'" Tucker says. Tucker says that when he began taking additional samples of the hay for further testing, Sellmer tried to discourage him, asserting it would reduce the weight of the hay and the amount of the reimbursement check.
Sellmer's superiors at Nutri-Turf instructed him not to speak to Westword. But in a June 6, 1991, deposition taken by Robert Ray, Sellmer conceded that he and his boss decided to buy back the Tuckers' hay. He also said that Nutri-Turf didn't notify any of its other customers about possible nitrate problems following the March 1990 cattle die-off at CSU's Maxwell Ranch.
The Tuckers brought suit against Anheuser-Busch in February of 1991, alleging that Sellmer's representation of the Nutri-Turf hay as dairy quality constituted fraud, and demanding compensation for lost milk production and other damages related to their use of Nutri-Turf hay. In addition to $470,000 in actual losses, the family is seeking exemplary damages against the beer company.
Anheuser-Busch officials refuse comment beyond a statement issued by Gary Bovard, director of operations for Nutri-Turf. "This lawsuit does not have merit because the facts do not support Tucker Dairy's claim," says Bovard's statement. "Because the trial is about to start, there's nothing further I can say at this time."
But through the course of the lawsuit, Anheuser-Busch's attorneys have offered a wide variety of arguments to support their case. Among other things, DeSisto and Lillie have claimed that Nutri-Turf was not responsible for the condition of the hay sold to Tucker Dairy. Arguing for dismissal of the case, the attorneys initially asserted that the Tolles' company, Big T Hay, was responsible because Big T "took title" to the hay before selling it to the Tuckers. Robert Ray responded that Duane Sellmer had initiated the sales and had admitted in his deposition that the Tolles were agents hired only to cut and deliver the hay. The judge ruled in favor of the Tuckers.
Last February the Tuckers tried settling their dispute with Anheuser-Busch through arbitration. A retired judge presided. "He kept comparing our dairy to a shoe store," Chuck Tucker says. The judge thought $35,000 should settle the affair. The Tuckers walked out.
Chuck Tucker says he would rather deal with cows than people. "Maybe they kick once in a while," he notes, "but they don't argue with you." When the Tuckers and their attorney met with Charlie's old friend Marvin Tolle to discuss the dispute, they hoped he would testify on their behalf. The men's relationship as Charlie saw it was more neighborly than businesslike. But when Robert Ray asked Tolle about the hay Big T delivered to the dairy, Marvin Tolle backed Nutri-Turf. "He said, sitting there facing Dad, `There's nothing wrong with that hay,'" says Chuck Tucker. "That hurt Dad real bad, hearing that from him." When contacted by Westword, Marvin Tolle refused to comment.
Chuck Tucker allows that working a dairy can be wearing. "You're basically on 24-hour call," he says. Once, he adds, "my wife asked me if I was going to do this the rest of my life. I know doing this you're not going to set the world on fire," he says. Tucker pauses, searching for the right words. "But it's your life."
Meanwhile, Duane Sellmer has found himself in the middle of yet another dispute over Nutri-Turf hay. Last March Anheuser-Busch brought suit against his brother Allen Sellmer, owner of Sellmer Feedlots in the town of Ault. In the suit, attorneys for the beer company claim that Allen owes Anheuser-Busch more than $40,000 plus interest for Nutri-Turf hay he bought in l993. Allen Sellmer declines to comment. But according to Keith Burman, his former partner in the feedlot, Allen Sellmer believes the hay poisoned a number of animals that had been boarded at his lot, sickening some and killing others.
And even Anheuser-Busch itself may have less than complete confidence in the hay grown with plant effluent. During Duane Sellmer's deposition with Robert Ray, the Tuckers' attorney asked if the prized show horses residing at the brewery's Clydesdale Hamlet were fed Nutri-Turf hay. The answer was no.
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