DNR grasps at straws to guard CAFOs

DNR grasps at straws to guard CAFOs
By KEN MIDKIFF
Published Friday, October 3, 2008
(http://www.columbiatribune.com/2008/Oct/20081003Comm001.asp)

It seems that when a court of law rules against something a state or federal bureaucrat wants, the first cry is "judicial activism" or "legislating from the bench."

Such was the case when Judge Patricia Joyce, a senior judge on the Cole County Circuit Court, ruled Aug. 25 that the Missouri Department of Natural Resources had shirked its constitutional duty to protect state parks and historic sites from the ill effects of concentrated animal feeding operations.

The judge also ruled that DNR should permit no CAFO within 15 miles of a state park or historic site and that, in some situations, even a 15-mile "buffer" might not be sufficient. Therefore, she retained jurisdiction.

Although Doyle Childers, Gov. Matt Blunt’s appointee as DNR director, might not like the rulings - after all, DNR has never rejected a CAFO permit application and has never even taken action to shut one down, no matter how egregious the offense - he has no justification for his claim of "This is judicial activism at its worst."

Why not? Because DNR presented no refutation or response to the plaintiffs’ stipulations. In fact, two days after the expiration of the 30-day period allowed by the judge to respond, the attorney for DNR asked, without explanation, for an extension. This was not allowed, and because DNR did not respond in a timely manner, the judge was more or less required to rule in favor of the plaintiffs and adopt the plaintiffs’ stipulations.

Now, DNR is asking for a "do over" and has submitted motions asking that the judge throw out the previous order and allow DNR to respond to the plaintiffs’ assertions.

But what the judge did in issuing the ruling can hardly be labeled "judicial activism." Rather, the attorney for DNR failed to meet a deadline. I checked with a couple of attorneys - both somewhat conservative - and they told me that meeting a court-decreed deadline is one of the first things taught in law school. This, then, is a matter of incompetence and bungling, and the judge was simply following established legal procedure in her ruling for the plaintiffs.
There are several matters of interest about this issue:

Attorney General Jay Nixon, who normally defends state agencies, refused to take this case and recommended an attorney who once worked for him and has a lengthy history of representing CAFOs. Blunt and Childers rejected this seemingly competent attorney and instead appointed a lawyer recommended by the Missouri Department of Agriculture. It seems the lawyer appointed was a "best buddy" of Kurt Valentine, the legal counsel for the agriculture department. Interestingly, Valentine’s wife, Kara, is the legal counsel for DNR.
The Farm Bureau has filed a motion requesting that it be allowed to intervene in any subsequent hearing by the judge on DNR’s motion to redo. It is of interest that the Farm Bureau has been a consistent and avid advocate for CAFOs, but its motion refers mostly to the property rights of landowners within 15 miles of a state park or historic site.

Unfortunately for the Farm Bureau, there is no absolute right associated with property ownership - it is long established that you can’t do anything on your property that results in harm to neighbors.
At first, DNR claimed the judge’s ruling applied everywhere, but recently the agency has issued construction permits to at least four CAFOs that are within 15 miles of a state park or historic site. Judge Joyce has been informed of this; what action she will take remains undetermined.
DNR and the Farm Bureau are now claiming - publicly, not legally - that the ruling was an affront to, and an attack on, agriculture. This is disingenuous and simply not true. The ruling was narrowly focused on CAFOs. CAFOs are factories, not farms. DNR and the Farm Bureau seem to deliberately confuse agribusiness with agriculture.

On Monday, Judge Joyce will set the date to consider DNR’s and the Farm Bureau’s motions. It is likely both the state agency and the insurance company posing as a farm organization are grasping at straws, hoping to keep allowing their beloved CAFOs to flourish and float. Straws don’t make very good flotation devices.