According to my friends at Dakota Rural Action, local landowners won an important victory against industrial livestockers in court this week. Judge Carmen Means upheld the Grant County Board of Adjustment’s May 2017 denial of a conditional-use permit requested by Berg Farms for a concentrated animal feeding operation (CAFO) that would have housed up to 3,000 swine over 55 pounds and 5,184 swine under 55 pounds.
Grant County resident and CAFO opponent Kristi Mogen explains some of the flaws she found in the Berg Farms conditional-use permit application:
“The application was a mess, and the board of administration decided to continue until April. Berg Farms, realizing that we could appeal, withdrew the application and submitted a new one with some language changes suggesting economic benefits. The new application still had five different addresses, incorrect math on the amount of manure the pit would hold, two different numbers of sows, and that means the piglet count would be off also. A board of administration member said they would never hire someone who filled out an application with so many errors. We also wrote letters and had a hearing in December with the Department of Environment and Natural Resources, for the commercial water permit for the free un-metered water from wells for the CAFO. The permit was denied” [Kristi Mogen, “Debunking Myths About CAFOs,” Homegrown Stories, retrieved 2018.05.04].
Mogen, who moved her family out of Wyoming to escape the toxic externalities of the oil and gas fields, also didn’t want the swine factory’s poop in her backyard or her nostrils:
The facilities have pits underneath the hogs called lagoons. There’s a lot of difference between my cows out there on pasture pooping on the ground, giving it nutrients, getting it stomped into the soil, not having antibiotics, versus the slurry that comes out of a lagoon…. We’re dealing with H2S [hydrogen sulfide], we’re dealing with methane, we’re dealing with water contamination. We’re dealing with everything we did with the oil and gas industry in Wyoming…and then there are pathogens on top of it. We’re losing our water, we’re losing our air quality, we’re losing the quality of our soil And quality of life. We feel like refugees with nowhere safe to live in the USA [Mogen].
Many of Mogen’s Grant County neighbors share these concerns and spoke up against the Berg Farms permit. At the May 2017 hearing, one proponent of the CAFO, Glen Muller of the South Dakota Pork Producers, spoke in favor of the CAFO during open public comment; twenty of Mogen’s neighbors spoke against it. The Board of Adjustment voted 4–3 in favor of issuing the conditional-use permit, but they needed a two-thirds vote; thus, the permit was denied.
Berg Farms made the audacious argument in court that the board had no authority to deny the permit or to listen to local opponents:
On April 30th in the Codington County Courthouse, Attorney Chris Healey argued for Berg Farms that because their swine CAFO permit application met the basic requirements outlined in the county’s ordinance, the Board had no authority to deny the permit. Further, he argued that three members of the board acted improperly by receiving outside information (ex parte) from opponents of the project and should have recused themselves from the decision-making process.
Therefore, he claimed, the court should remand the matter back to the county board, remove three of the four members who had ex parte communication (the three who had voted against the permit), and instruct the board to approve the swine CAFO application [Joelie Hicks and Kristi Mogen, “Circuit Court: Boards Have Right to Say No to CAFO Permits,” Dakota Rural Action, 2018.05.03].
Judge Means was having none of that. According to DRA, Judge Means said boards of adjustment can “deny permits when they deem the project not to be in the public interest.”
And… really, Berg Farms? Conditional use means a use to which the county would normally say, “No way!” Conditional means your CAFO is a privilege, not a right. You might check all the boxes on some checklist that you derive from statute and ordinance, but the county retains the right (or should we say obligation?) to determine whether the proposed project will “adversely affect the public interest” (see Section 504 of Grant County’s zoning ordinances). A lot of the public showed up and said they weren’t interested, and enough members of the board of adjustment agreed to stop the project.
Berg Farms sought to gut the right of the people to resist the encroachment of large industrial polluters and establish for itself a right to pollute. Judge Means preserved a little more local control of zoning decisions.