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Judge Revokes Wholestone Farms Butcher Shop Permits

Oh, wait: I guess we can apply laws before they go into effect.

SDPB reports that judge has revoked all of the permits the City of Sioux Falls issued to Wholestone Farms for the rush butcher shop it hoped to open this month to wedge the door open for its planned wiener factory before a possible vote to ban new slaughterhouses in November:

Judge Sandra Hoglund Hanson, a circuit judge for Minnehaha and Lincoln counties, revoked all of Wholestone Farms’ permits issued by the City of Sioux Falls and ordered the city not to take any more action before the November election, according to a press release from Smart Growth Sioux Falls, a group opposing the facility.

The order comes after Wholestone moved to potentially circumvent the proposed slaughterhouse ban by building a butcher shop in the location prior to the November election. The city issued an occupancy permit to the company on Oct. 7 [Jordan Rusche, “Judge Halts Permits for Sioux Falls Slaughterhouse Until After Election,” SDPB, 2022.10.11].

Could someone get me a copy of the judge’s ruling? I love democracy and ballot initiatives as much as anyone else, but I’m still not clear how an impending public vote on a possible change in city ordinance can stop the city from carrying out city ordinance as it exists right now. If a council member proposes banning bicycles on city streets, the city cops can’t stop me from riding my bicycle on city streets until the city has voted on and enacted that proposal. Citizens are proposing a moratorium on new slaughterhouses in Sioux Falls, but building a new butcher shop on properly zoned land in Sioux Falls is perfectly legal right now. Under what authority can the court stop a business from exercising its current rights and stop the city from carrying out its current obligations under the law as it is written?

If the people of Sioux Falls want to ban new slaughterhouses, they can express that will on November 8. But until they express that will, the law stands as written, and the law allows new butcher shops in Sioux Falls.

26 Comments

  1. Donald Pay 2022-10-12

    Damn right. This judge put the hammer down on those fascists at city hall trying to get around state law. Although 9-20-11 refers to referendum, there is another provision that says initiatives are handled in the same way as referendum.

    9-20-11. Date of election on referendum petition–No action taken pending election.

    The governing body shall, upon the presentation of a petition pursuant to § 9-20-6, submit the question to the electors at the next annual municipal election or the next general election, whichever is earlier. Pending the election, the governing body may take no action with respect to the subject matter of the petition that would alter or preempt the effect of the proposed petition. However, the governing body may expedite the date of the election by ordering, within ten days of receiving the petition, a special election to be held on a Tuesday not less than thirty days from the date of the order of the governing body.

  2. All Mammal 2022-10-12

    Judge Sandra HOGlund Hanson? What’s that called? Destiny? I know there’s a better word for it…?

  3. John 2022-10-12

    Thank you, Donald. Thank you, Corey.
    Perhaps the mayor is now glancing at the city attorney’s office and shouting the barber’s cry, NEXT!

  4. jim 2022-10-12

    Residents have already started voting on this in Sioux Falls. And the city thought it wise to hurry the “custom slaughterhouse” along with expedited permits and inspections – to undermine that vote?

    It reminds me of the days in the past when the good ol’ boys decided things in smoke-filled rooms. Only this time, someone should let them know that we can all see them. And they aren’t getting away with anything.

  5. Arlo Blundt 2022-10-12

    I hope the existence of this ballot measure will increase the turn out for Smith in Sioux Falls…with this controversy, women’s reproductive rights, Noem’s nepotism, and the Republican Party’s loyalty to the seditious Trump, there is plenty to attract contrarians to the polls.

  6. sx123 2022-10-12

    There is probably an element of ‘intent’ or ‘why’ that the judge is looking at.

    Allowing this proxy butcher shop at the proposed location would nullify the need for the public vote? I dunno.

    To exaggerate, image there were 30 proposed packing plants hurrying up to build 30 butcher shops before the election…

  7. Scott Ehrisman 2022-10-12

    Some city officials have told me if WF can’t move forward with the plant after the vote, they will sue the city and it could cost us around $60 million. The judge is being extremely reckless with this ruling, especially with even advising Johnson to file new paperwork. Judges are NOT supposed to lawyer from the bench.

  8. sx123 2022-10-12

    Sue the city? So now people are supposed to vote with a gun to their heads?

    The company isn’t worth having around if that’s how they behave.

  9. Donald Pay 2022-10-12

    Scott, If the city is sued, they have no one to blame but themselves. They thought they could try to invalidate the people’s right to vote with their illegal shenanigans. If Wholeston sues, let Ten Hanken fork over the money.

  10. Donald Pay 2022-10-12

    l’ll tell you this about suing the city. Wholestone could spend ten or more years in very expensive litigation trying to get a few pennies out the city. Your corrupt government there in Soo Foo should have studied the SDDS case. When you illegally hand out permits, you might end up paying for it.

  11. jim 2022-10-12

    Sue for what? Who guaranteed them that they could build a smelly slaughterhouse in town? If no one at Wholestone considered that residents may object, they are among the dumbest people in corporate America. Of course they knew this could happen.

    And I am getting real tired of their threats.

  12. Donald Pay 2022-10-12

    jim, you are sooooo correct. Wholestone and the city council in Sioux Falls conspired to negate the will of the people. If anyone should sue it should be every voter that Wholestone and the City were trying to disenfranchise. It was an anti-democratic move by swindlers and a corrupt government to violate state law. I hope Wholeston takes this to court, and they put all the swindlers and politicians into depositions. Then we can get to the bottom who did what and when.

  13. Cory Allen Heidelberger Post author | 2022-10-12

    By no means do I want to be on the side of corporate bullies who think they can thwart the will of the people and blackmail voters and governments. I would argue strenuously against any lawsuit Wholestone may try to file against the city.

    But I want to contemplate the statute to which Donald and the plaintiffs are pointing (and on which they appear to have prevailed before our ironically named judge). The key phrase:

    Pending the election, the governing body may take no action with respect to the subject matter of the petition that would alter or preempt the effect of the proposed petition.

    Practically speaking, yes, I see what Brendan Johnson is saying for SGSF. The initiative intends to stop Wholestone Farms from building a slaughterhouse in Sioux Falls. Issuing permits for the butcher shop made it possible for Wholestone to preempt the intended effect of the proposed petition.

    But let’s play word games… which includes looking at the word games SGSF had to play to put this measure on the ballot. We cannot enact “special” laws—i.e., laws that target specific individuals or companies. SGSF could not petition and voters could not enact an initiative that said, “Wholestone Farms and Luke Minion may not build a slaughterhouse in Sioux Falls city limits.” Thus, SGSF had to write a different, general ordinance, saying that no new slaughterhouse may be built in Sioux Falls. But the sponsors also included a lengthy exemption for any existing and operating slaughterhouses and the expansion thereof. The sponsors explicitly set the exemption deadline as the effective date of the ordinance.

    The sponsors themselves opened the door for Wholestone Farms and anyone else interested in starting a new slaughterhouse someday in Sioux Falls to get their foot in the door by opening a butcher shop at some suitable site within city limits before mid-November (the initiative goes into effect the moment an official canvass finds a majority have voted for the initiative—see SDCL 9-20-5. If the sponsors did not intend to block expansion of slaughterhouses established any time between July and November of 2022, why did they include that exemption? The sponsors might say, “Well, we intended only to exempt Smithfield,” but we can’t have a special law for Smithfield any more than we can have a special law against Wholestone. The sponsors might say, “Well, we intended to cap the number of slaughterhouses in Sioux Falls at one,” but they didn’t write that initiative! They wrote their initiative to except “any” existing slaughterhouse from the ban. “Any”—that’s a very important word.

    The initiative is written to allow existing slaughterhouses to expand on site but to prohibit any new slaughterhouses from being built after the voters have spoken and been counted. Whether Wholestone Farms opens a butcher shop this month or not, whether the city issues Wholestone Farms any permit allowing construction and operation of a butcher shop this month, the initiative, if approved, will have the same legal effect: allowing any existing (as of November 16) slaughterhouses to operate and expand while banning any new slaughterhouse from being built or operating.

  14. Cory Allen Heidelberger Post author | 2022-10-12

    But let’s try out a broad interpretation of SDCL 9-20-5’s key clause: “Pending the election, the governing body may take no action with respect to the subject matter of the petition that would alter or preempt the effect of the proposed petition.

    Suppose I organize some fellow environmental radicals and propose to cap greenhouse gas emissions from all housing in Sioux Falls at a figure equal to the GHG emissions of the city housing stock that we project will exist on August 1 before the election. The effect we seek is the end of new homebuilding in the city. We submit a petition with enough valid signatures on July 15, and the City Clerk places our measure on the November ballot.

    If the city issues a single building permit, it would preempt the effect of our initiative. Must the city now freeze all building permits?

  15. John 2022-10-12

    Wholestone’s bullying blackmail is on par with that of fascist, authoritarian Putin’s bullying blackmail of ‘if I don’t get Ukraine I’m might nuke somebody.’
    History teaches to NEVER yield to blackmail for the blackmail will never end.
    If folks previously had questions of whether Wholestone would be a good civic citizen — Wholestone removed all doubts.
    Put the slaughterhouse in Orange City or Sioux Center.

  16. Donald Pay 2022-10-12

    Cory, I think the initiative is written in the way legislation is typically written when you have to put limits on some development. We did that for Homestake Mining when we wrote some of our mining initiatives, although your favorite federal judge may have seen it a bit differently when he was lobbying. Existing operations have to be treated differently. There is a difference between existing businesses, where you do have to worry about takings, and businesses that are proposed, but not actually operating. I might have gone a different route, limiting water usage by targe-scale slaughterhouses, with existing operations being the priority (similar to to first in time, first in right water law). This is also similar to the acreage limitation on surface gold mining. But their approach is perfectly fine.

  17. Donald Pay 2022-10-12

    Cory, the city has the power to move the election forward, so at most there would be a minor delay in such permits. Your GHG initiative would be a dumb idea. If you want to limit GHG, you give people lots of better options, eg., interest-free loans for rooftop solar, winterizing old housing stock, etc, etc. You can also encourage that in new housing stock.

  18. Cory Allen Heidelberger Post author | 2022-10-13

    I agree that the city has to treat existing businesses differently from potential businesses that it seeks to limit or prohibit. The takings point you mention is important. But I’m still puzzled as to how the judge can justify effectively implementing the proposed ban right now before the ban is law.

    I agree that my GHG proposal isn’t the most effective policy, but I’m not trying to come up with a policy that is good on its own merits; I’m trying to come up with policy analogies that would help us understand whether we can bind the city’s hands and economic development with proposed initiatives before we get majority approval. Maybe there’s my problem: right now, 5% of the voters have suspended building permits for new meatpacking operations in Sioux Falls. 5% is an acceptable threshold for putting an initiative to a vote, but can we allow 5% to cause an actual change in the application/enforcement of city ordinances?

  19. John 2022-10-13

    The judge is not “implementing the proposed ban right now before the ban is law”.
    The people, as in ‘we the (Sioux Falls) people’ effected a legal stay on the subject matter, slaughterhouse / butcher shop permits via the referendum and initiative power in state law, 9-20-5.
    The judge is merely telling us what the law is and ordering Sioux Falls to enforce the law.

    Wholestone and Sioux Falls are guilty of over-thinking. Don’t fall into that trap.

    One has to like this little bit of direct democracy that remains in South Dakota. Watch ALEC, et al., try obliterating it in the next legislative session.

  20. Donald Pay 2022-10-13

    John is correct. Lots of smoke will be blown about this, but the law is there exactly to prevent governments from negating the people’s will. If the city had wanted to, the law gave them the power to move the vote up. If this is such an important issue to get resolved quickly, they could have done that. They didn’t. Instead they colluded and connived to try to negate the people’s rights. Look, I was pretty neutral about this plant. I thought it was poorly sited and too big, but otherwise not a bad idea. Make some changes, do it right, and it would probably be fine, but they tried to shove it up people’s rectums, illegally. Do you really want that ilk of people running this kind of business in South Dakota? Really? This kind of criminality would fit better in New Jersey.

  21. Dapper Dan 2022-10-13

    So both sides are battling it out to get what they want. It appears both sides are in the process of once again attempting to play games to get what they want. I see this as examples of manipulating laws and elections to get their way. The more money involved, the more manipulation. This leads to the rampant sale of souls for that 30 pieces of silver. You know, the money politicians receive for selling-out their constituents. We live in a world that implements “The Golden Rule”. That is, “The one with the gold gets to rule”. It is obvious to me the people of Sioux Falls would be happy to see Smithfield pack up their hogs and their stench and their COVID and move somewhere else. Maybe to China. I find it hard to believe the people of Sioux Falls and the surrounding areas are in favor of adding additional hogs and stench and COVID to our community. As I see it, the solution is to allow the people most effected by this make the decisions as to what they want. Vote to add or prevent a new pork plant and if wanted vote to keep or remove the existing pork plant. Simple! No games and no bribes and no more manipulation of laws put into effect to protect the corporations. This solution might even work regarding piping oil (oil that can not be cleaned up) under our rivers and lakes.

  22. chris 2022-10-13

    Did anyone figure out why Steve Kirby was against the plant before he was for it?

  23. Richard Schriever 2022-10-13

    Donald, FWIW – the government of the city of SF is NOT organized under the state statutes governing how municipalities shall conduct their business. SF – along with 4 or 5 other municipalities in SD – operates under an independent charter. Just sayin’. May be a sticky point there.

  24. Donald Pay 2022-10-13

    Richard, A brief review of the charter indicates that the city follows state law on the initiative and referendum. Here is the section of that charter.

    Section 6.03 Initiative and referendum.
    The powers of initiative and referendum are hereby reserved to the electors of the city. The provisions of the election law of the State of South Dakota, as they currently exist or may hereafter be amended or superseded, shall govern the exercise of the powers of initiative and referendum under this charter.

  25. leslie 2022-10-16

    talk about “in the weeds”!!

    Cory is way ahead of the pack. In SCOTUS this week, “pork producers argued that even though Congress has not yet taken a position on pig torture, California’s law violates the dormant commerce clause by de facto regulating the pig farming industry by mandating how pigs must be farmed [ humanely] if they are to be sold in California.”

    Wholestone, National Pork Producers…their lawyers all likely read from the same hymnal, er…trade association newsletter! https://www.thenation.com/article/society/supreme-court-pork-case-california/

    “For the nine justices, this case is actually about abortion and LGBTQ rights and labor unions and environmental protection. It’s about whether a state can pass a law for what it perceives as purely moral reasons and then ban products made in other states that do not follow suit. Even when the justices vote “against” their assumed political interests, it’s only because they are positioning themselves for bigger ideological fights down the road. Sometimes it’s impossible to understand what the justices are even arguing about without knowing the laws the justices want to make up or destroy in the future.“

    Outlawing animal cruelty on moral grounds makes a lot of sense, until you remember that Republicans exist and that they think treating LGBTQ people and women with dignity and respect is morally questionable.

    Like Cory, the Biden administration weighed in on behalf of the pork industry and urged the court to allow the lawsuit against California to go forward.

    Weakening the dormant commerce clause, even a little, could well result in MAGA states’ passing facially ridiculous laws in a race to see who can be first to ban products produced by organized labor.

    (why do i write at 3a.m.—too much baseball!)

  26. leslie 2022-10-16

    There’s no objective constitutional reason for Chief Justice John Roberts to hate the idea of Black people voting. There’s nothing forcing Sonia Sotomayor to support the rights of women, just like there’s nothing that requires Neil Gorsuch to seek the destruction of the administrative state.

    (the Nation article added this bit of explanation for National Pork Producers Council)

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