Appeals Court to decide Dodge County hog farm lawsuit pitting pollution vs. water

By Josephine Marcotty
Star Tribune (Minneapolis)
McClatchy-Tribune Information Services

A bitter three-year community fight over a hog feedlot in Dodge County has landed before three state Court of Appeals judges who are now being asked to decide a question that environmentalists see as critical to the future of clean water in Minnesota.

What obligation do county governments in rural areas have to protect their citizens from the impact of a growing livestock industry?

“There is absolutely no effort on the county’s part to address serious public health concerns or the serious environmental concerns relating to these factory farms,” said Sonja Trom Eayrs, who grew up in Dodge County and has been leading the fight against the feedlot.

Paul Reuvers, attorney for Dodge County, said the county has gone above and beyond what it is required to do according to local and state rules.

“We are an agricultural county, and if you live in an agricultural district you might have to deal with the odor, noise and dust associated with agricultural uses,” he said.

The case involves 2,400 of the 8.3 million hogs that are now raised in Minnesota, the third leading state in the country for pork production. But the number of hog farms has been steadily growing in many counties across the state as demand for pork rises globally, particularly in China and Mexico. Since 2006, the number of hogs in Minnesota has increased by 1.4 million.

Pork from the U.S. is especially prized overseas because of its well-earned reputation for quality and food safety, said David Preisler, executive director of the Minnesota Pork Producers Association. The number of facilities is growing in Minnesota and other states in the Upper Midwest because they have the infrastructure — such as roads and processing plants — in place and the agricultural land that can use the manure, he said.

In Minnesota, the factory farms are also moving north, according to a 2015 report by the Minnesota Department of Agriculture. In part, that’s to escape the risk of diseases that can sweep through tightly packed hog facilities in southern Minnesota and Iowa.

Preisler said that many livestock operations are approved and built without local resistance.

But not always. Often, they are greeted with fierce objections from citizens who worry about noxious smells, nitrogen contamination of their wells from manure, and polluted lakes and streams.

There are battles underway in many Minnesota communities over new or expanding feedlots and the larger Confined Animal Feeding Operations, or CAFOs.

“The industry is exporting meat and importing pollution,” Eayrs said.

A hog feedlot expansion in nearby Winona County has generated a wave of objections from local citizens, including Jeff Broberg, a geologist and an expert on the karst fractured bedrock that is common in the area and that makes groundwater especially vulnerable to pollutants.

Winona County already has more animals and more manure than the soil can handle, he said. The well on his property is contaminated with nitrates that come from the fertilizer and manure from farming on nearby land. Broberg is pushing the county and the feedlot owner to change the manure plan and to keep it off fields that have karst features and cracks that lead straight to the aquifer — information that he says is readily available on county maps that define sensitive areas.

“Who is keeping track of that?” he asked.

One permit too many

In Dodge County, an intensely agricultural county where many farmers and livestock operators also serve as elected officials, swines greatly outnumber the 20,000 humans. Eayrs said they produce enough manure to equal the sewage production of 830,000 people, all of which is used as fertilizer on local farm fields. The county is also at the top of the watershed for two polluted rivers: the Zumbro and the Cedar.

In 2014, the County Board approved a permit for the 11th feedlot in the area around the farmhouse that Eayrs’ father, Lowell Trom, had lived in near Mantorville for 85 years — this one a few hundred yards from his kitchen window.

It was too much. Trom and his wife filed suit, and won.

A Dodge County judge ruled that local officials violated their own rules when they approved the feedlot because the proposal failed to provide critical information to the public, including a plan for how and where the manure would be distributed.

“The application contained only a fraction of the information required,” the judge wrote. “The application process was faulty from the very beginning.”

But then the County Board voted to change its rules, creating a simpler two-page application for a feedlot permit that required far less information.

The Troms sued again, arguing that Dodge County rubber-stamps feedlot projects with a planning commission “comprised predominantly of individuals who have a direct financial stake in the feedlot industry.” But they had to make their case in front of a new judge because the county had the first one removed from the case.

Last May, they lost. The judge ruled that in regulatory decisions, courts are obliged to give deference to the government bodies that make the rules.

Now the issue lies with the state Court of Appeals. And it’s attracted the support of many environmental and animal welfare groups, who have filed legal petitions on the Troms’ behalf.

The Troms’ attorney, James Peters, argued before the court last week that the county failed to follow the requirements for issuing a permit and failed in its first responsibility: to protect the health of its citizens and the natural resources within its boundaries. Instead, Peters said, the county is ignoring significant public health risks from cumulative air emissions from the many feedlots, the spread of antibiotic-resistant bacteria generated by the confined animals, and the impact of tons of manure on groundwater, lakes and streams.

The county “sidestepped responsibility and evaluated [the] proposal in isolation of the big picture,” Peters said.

‘No legal basis’

Reuvers, however, said that the county is not obliged by either local or state rules to do so. Because the feedlot will hold only 2,400 pigs, it is by state law exempt from environmental review.

“There is nothing to suggest that this is anything different from any other feedlot in the county,” he told the appeals panel.

And in an interview last week, he said the county can’t deny a permit for a facility that meets the state’s legal standards for a feedlot — which that one did.

“We can’t deny that permit — there is no legal basis,” he said. It’s up to the Legislature to change the laws to require broader environmental reviews, he said.

But Minnesota relies heavily on counties to manage feedlots. Fifty-three of the state’s 87 counties have regulatory authority over a total of 18,000 livestock operations for beef, dairy cattle, hogs, chickens and turkeys. The state Pollution Control Agency oversees the largest ones.

“State agencies are relying on counties and hoping for county-level enforcement,” said Tim Culver, an attorney with the nonprofit environmental law firm Minnesota Center for Environmental Advocacy. “What [local] governments need to do is uphold their ordinances.”

It’s possible that the appeals court could throw out the case on a legal technicality — Reuvers has argued that the original complaint was not properly served on county officials. A decision is expected within 90 days.