An Udder Failure...

Dwight Merriam's picture

A couple of weeks ago, the South Dakota Supreme Court in Anderson v. Town of Badger held that a town had the power to grant a waiver of a distance requirement set by Kingsbury County for a CAFO. Click here for the decision.

Wait a minute. Why wouldn't you want to live near a CAFO? What's a CAFO? It's not Community Association Facility Operations. It's not Centralized Area of Fun Outside no, it's Concentrated Animal Feeding Operations, something akin to dinner time at my fraternity house in the mid-1960s

NOTE: This post was originally published on International Municipal Lawyers Association Local Government Blog, available at http://imlablog.wordpress.com.

Click here to read about a dairy CAFO proposed with 10,000 cows. Of course, there's an anti-CAFO group out there – F.A.R.M. – "Families Against Rural Messes" – http://www.farmweb.org.

In this case, it is a dairy operation on 320 acres, as I learned from the March 11-12, 2009 minutes of the Water Management Board where Richard Vendrig sought a permit for four wells 336 feet deep producing 200 gallons per minute for his proposed CAFO. He testified that it would be a "zero contained facility, which means nothing wasted." Still, it has lagoons for the animal waste, although the manure will be treated and used in an organic farm operation.

Kingsbury County's zoning ordinance allows local incorporated municipalities to waive the distance requirements. The county is rural – 5,815 people on 864 square miles. Badger is one of thirteen townships. It is tiny in area and population – 1.1 square miles and 144 people.

Here is downtown Badger, courtesy of Google Maps. 

badger

The county ordinance says that CAFOs can't be closer than four miles from buildings in an incorporated area plus 440 feet for each additional 1,000 animal units over 1,000.

If the term "animal units" is a mystery to you, read this example of an ordinance. Basically, it takes a bunch (flock, gaggle, covey, colony, troop, herd, swarm, drove, flange, shrewdness, kaleidoscope – I'm not making this up – click here) of small animals to be the equivalent of a big one, as in 50 chickens equals five pigs equals one cow.

Vendrig asked to build a CAFO two miles southwest of town, not in the town but in the county. Can you say "new jobs"? The Badger board of trustees granted the waiver and the neighbors sued.

I searched all over for information on Richard Vendrig and came up with nothing except this: he has a dairy farm already, in Canada, which is for sale. Here's a photograph of part of the 408-acre operation with a capacity for 300 cows courtesy of dairyrealty.com. 

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The listing reports that the Vendrigs have bought a farm in South Dakota and have told Great West to sell their farm at auction. Another site, however, says the auction has been withdrawn.

Here's an interesting fact from the Canadian listing (you don't find this in most real estate listings), relevant to the CAFO part of the case.

"Manure Storage:
1 1/2 million gallon storage under slatted floors in barns
1 1/2 million gallon storage on Parcel #2 (circular pit)
Total of 3 million gallon or 1 1/2 years"

That sounds like a lot, but I did the math and 1.5 million gallons is two and one-half Olympic swimming pools, so call it five big swimming pools of manure storage

The South Dakota Supreme Court found all the authority it needed, to uphold the trial court's decision to dismiss the challenge, in the municipality's right to contract. The county gave the town the option to waive the distance requirement and the town chose to exercise its right to do so. Simple enough.

As I was completing my final research for this, I discovered that Dean Patricia Salkin beat me earlier with a case note on the same decision. http://lawoftheland.wordpress.com. Geez, it pains me to have Dean Salkin beat me to the punch.

I can add a little to the story, however.

I talked with one of the lawyers for the town of Badger, Gary W. Schumacher, a senior partner with Wilkensen & Wilkensen in DeSmet, South Dakota (population 1,200), where Laura Ingalls Wilder lived – you can visit her homestead.

I also talked with Timothy G. Bottum of Morgan Theeler LLP in Mitchell, South Dakota, who represents Richard Vendrig. It turns out, like many of these stories, that what happened in the end is much different than you would have guessed.

The county denied the conditional use permit required for the over 999 cows proposed - the build out, or maybe it's hoof out, could have been 2,000-4,000 cows (MOOO!!) - so Vendrig appealed and the trial court upheld the county's decision, using a standard of review that greatly favored the government. This was the same judge who held for Badger (and in Vendrig's favor) in the separation waiver case. Here is the trial court's decision. The standard is that the government will be upheld unless it "acted fraudulently or in an arbitrary or willful disregard of undisputed or indisputable proof." This considerable deference in South Dakota is to be expected - the state motto is "Under God, the People Rule." I'm moving to the land of the ring-necked pheasant to do government defense work. Maybe I'll take up residence in Clark, known worldwide as the Potato Capital of South Dakota. It seems like my kind of town. Clark is home to the famous Mashed Potato Wrestling contest. And here they are going at it on August 1st.

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Attorney Bottum had researched the South Dakota Supreme Court decisions from such trial court judgments in favor of the government and couldn't find a single reversal. No appeal was taken, the time to appeal has run, and there is no permit for the CAFO.

So, for now there is no CAFO on the border of Badger.

Dwight Merriam is a lawyer representing developers, local governments, landowners, and advocacy groups in land development and conservation issues.

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