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Lawyer: Noem CAFO Zoning Bill Denies Due Process

You’ve seen my brief stab at explaining the ills of Senate Bill 157, Governor Kristi Noem’s factory feedlot “streamlining” bill. Now let’s hear from a lawyer. Dakota Rural Action provides this informational video from attorney Mitch Peterson to explain the substantial and problematic changes that Kristi seeks in her haste to make our state one solid wall of CAFO stink:

Peterson says SB 157 seeks many unpleasantries:

  1. Changes local control over how many members need to vote to approve a conditional use permit; most notably, makes it possible for a minority of county commission members to approve a CAFO permit.
  2. Allows unelected county official to make it possible for a CAFO to be automatically approved without public notice or hearing.
  3. Removes notification requirements to neighbors who may wish to appeal approvals.
  4. Remove county control over size of vote needed to decide appeals.
    1. Possible inconsistency between Section 9 majority rule and Section 10 two-thirds vote rule.
  5. Removes county say in determining expiration date for conditional use permits
  6. Inserts unclear language requiring injury unique from public at large, potentially removing ability of citizens to challenge permits for projects that threaten countywide harm.
  7. Requires courts to rule within 30 days, reducing the ability of the court to investigate and decide on many relevant issues.
  8. Puts ordinary citizens at risk of paying court fees for exercising their right to appeal government decisions while offering those same citizens no opportunity to reclaim their legal fees from the county if they prevail.

Peterson approves of SB 157’s requirement that county’s respond to appeals in court within 30 days. But that’s one plus against eight minuses.


  1. Debbo 2020-02-14 21:30

    There’s a lot of stink in that bill. It looks like another effort by the SDGOP to shut ordinary South Dakotans out of government on every level. I guess they don’t mind being dictated to.

    This is what is often referred to as being “shoved down their throats.” In this case, the SDGOP wants to force citizens to swallow entire, manure swaddled CAFOs. Gulp. 😳

  2. Cathy 2020-02-14 23:21

    They keep forgetting that regular South Dakotans would rather spit than swallow.

  3. Debbo 2020-02-16 01:17

    Here is some possible good news for farmers, courtesy of the Army Corps of Engineers via the Strib:

    “The U.S. Army Corps of Engineers announced last week it will devote $85.4 million to deepening the mouth of the [Mississippi] river to 50 feet, enabling oceangoing ships to load more grain at terminals upriver.

    “That should drive down the cost of shipping and lift prices that elevators in the Midwest offer to farmers for goods.

    “Assuming grain exporters take full advantage of the deeper channel, ships loading for export at terminals will be able to haul 2.9 million tons of soybeans instead of 2.4 million tons, a 21% increase, said Mike Steenhoek, director of the Soy Transportation Coalition.

    “The cost of shipping a bushel of soybeans from a Gulf export terminal would drop by 13 cents in that scenario, the Soy Transportation Coalition estimates, in part by driving more competition.”

    CHS and Cargill have terminals that will be affected by the dredging.

  4. Jeff Barth 2020-02-16 11:56

    I think Mitch does a very good job discussing the Bill, SB157. Most people probably know that I am a proponent of modern and properly designed animal feeding operations. Yet, I too have concerns about the Bill.
    Many counties lack enough professional planning staff. Some are unable to resist emotional citizens packing their meetings. Usually I try to remember that there are 185,000 folks that are not in the room. What do they want? So I can see why there is an effort to make more clinical, objective decisions. But having a staffer in Pierre make the decision bothers me.
    The hardest part of the job is looking someone in the eye and tell them something they don’t want to hear.
    That is my job.
    I would vote against this Bill it and send it to a summer study.

  5. Cory Allen Heidelberger Post author | 2020-02-16 16:30

    Governor Noem proposes a bill that takes away citizens’ ability to resist projects that pose environmental risk, and then she has the nerve to lie straight to our faces and say she is protecting local control:

    My proposal protects local control. This is incredibly important to me, as I believe the best decisions are made at the local level. Folks who live in a community should have a say in what is developed, so my bill establishes a majority vote process that ensures the local community gets to make decisions, not a fringe few. Nothing is changed in my legislation regarding public input or public notice.

    Because local control is so important, my bill does not take away existing zoning standards adopted by a county, nor does it take away local ability to appeal a conditional use permit. Rather, the bill provides added clarity on how a county may adopt special permitted use criteria. Counties that require zoning may either follow the conditional use permit or allow certain projects that meet county established criteria to be approved by a special permitted use. The special permitted use is an existing county option [Governor Kristi Noem, press release, 2020.02.14].

    Read again the multiple I terms that lawyer Peterson explains counties control now but which Noem’s SB 157 takes away.

  6. mike from iowa 2020-02-16 16:39

    You can take this bill and millions like it to soak up hog manure spills when, not if, they occur.

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