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Appeals court blocks order in CAFO case

Appeals court blocks order in CAFO case

December 6th, 2017 by Bob Watson in Local News

Callaway County's Friends of Responsible Agriculture group will likely ask the state appeals court for a rehearing, its attorney said Tuesday, after the appeals court in Kansas City blocked an order the group originally had won from the Cole County Circuit Court last year.

The group opposes plans for a concentrated animal feeding operation on 20 acres south of Interstate 70, near Hatton and west of Kingdom City.

Their effort to stop the hog operation dates back to 2014, when Eichelberger Farms, of Wayland, Iowa, formed Callaway Farrowing LLC to operate the breeding farm, with plans to have 10,000 sows.

But an attorney for Callaway Farrowing said Tuesday the appeals court made the correct ruling.

"This case is over, and as of today, the permit issued by the Missouri Department of Natural Resources is final," Jefferson City lawyer Robert J. Brundage said.

The state's Department of Natural Resources issued a permit for the CAFO in November 2014, but Friends of Responsible Agriculture challenged the permit at the Administrative Hearing Commission.

The AHC recommended the Clean Water Commission approve the permit.

But the Friends group won another order from Circuit Judge Dan Green, blocking two commissioners from voting because they had taken an unauthorized visit to the Callaway Farrowing location.

The remaining five commissioners voted 3-2 in favor of the permit Oct. 5, 2016, and declared it had been issued.

But the Friends group won an order — called a writ of mandamus — from Green, requiring the commission to take another vote because state law requires the commission to have at least four votes to approve a permit.

That's the order the three-judge appeals court panel blocked Tuesday.

"The purpose of the extraordinary writ of mandamus is to compel the performance of a ministerial duty that one charged with the duty has refused to perform," Judge Alok Ahuja wrote for the appeals court panel, quoting a 2006 state Supreme Court case.

"In this case, the Friends organization chose to file a petition for writ of mandamus to challenge the Commission's issuance of Callaway Farrowing's Permit, rather than seeking judicial review of the Commission's decision under the applicable statutes."

Because the normal review process was available, Ahuja wrote, "We conclude that the Friends had no right to mandamus relief, and that the circuit court should have denied their petition."

Court rules generally say an appeal from a lower court must involve a final order — and the appeals court determined the commission's Oct. 5, 2016, vote was final for the purpose of invoking the regular appeals processes.

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"The name of the Commission's decision document announces its finality," Ahuja wrote. "During a statutory judicial review proceeding, the Friends would have been entitled to argue, among other things, that the Commission's decision was 'in excess of the statutory authority or jurisdiction of the agency,' or was 'unauthorized by law,' because only three Commissioners indicated their approval in writing."

And, because the Friends group had "an available statutory remedy to obtain judicial review of the Commission's decision, it was not entitled to seek judicial review by filing a petition for writ of mandamus."

Stephen Jeffery, the Chesterfield attorney representing the Friends of Responsible Agriculture, said, "While the (appeals court) opinion stresses the 'final' nature of the October 2016 3-2 vote, the opinion does not address the fact that the Clean Water Commission re-voted on the Callaway Farrowing permit appeal in January 2017 (3-3) and tried to do so again in April 2017.

"If the Clean Water Commission truly believed the October 2016 vote was final, then why did they continue to re-vote?"

Brundage said: "The series of lawsuits filed by Friends of Responsible Agriculture has only served to delay the implementation of the permit allowing Callaway Farrowing to construct and operate a concentrated animal feeding operation.

"The lawsuits have also overshadowed the fact that the permit was approved after a trial before the Administrative Hearing Commission and a full review by the Missouri Clean Water Commission, which voted to approve Callaway Farrowing's permit issued by Missouri Department of Natural Resources."

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