By Wally Kennedy

wkennedy@joplinglobe.com

The Missouri Department of Natural Resources is asking Cole County Circuit Judge Patricia Joyce to reconsider her decision to prohibit construction of concentrated animal feeding operations within 15 miles of Missouri’s state parks and historic sites.

The department, using law firms in Jefferson City and Columbia, has filed several motions in seeking relief from the court.

The department has filed a motion for a stay of the judgment. If that motion is denied, the department filed alternative motions to vacate the judgment or dismiss the case, to vacate the judgment and reopen the case, to grant a new trial, or to correct, amend or modify the judgment.

The Missouri Farm Bureau Federation has filed a motion to intervene, according to the court docket.

Joyce, the presiding judge of Cole County Circuit Court in Jefferson City, is to set a hearing on the motions for 1:30 p.m. Monday, according to Linda Hartley, assistant to Joyce.

If the judge chooses not to reconsider and lets her decision stand, the department could file an appeal with an appellate court.

On Aug. 25, the judge ruled in favor of the Missouri Parks Association, the village of Arrow Rock and the Friends of Arrow Rock, which banded together last year to oppose construction of a 4,800-hog CAFO by Dennis Gessling within two miles of the state historic site in central Missouri. Arrow Rock has been referred to as the Williamsburg of the Midwest because of its historic buildings.

The judge, in siding with the plaintiffs, created a buffer zone with a 15-mile radius around the village, which has a population of 79, and other historic sites near Arrow Rock. But DNR’s officials said after the ruling that, from their perspective, all of the state’s historic sites and parks now effectively have 15-mile buffers around them.

‘Caught in a bind’

The defendants are the DNR and its director, Doyle Childers, who has described the decision as a sweeping example of judicial activism.

In a telephone interview Tuesday, Childers noted that Joyce’s mother died during the same week she issued her judgment.

“She might have done this quicker because she was under more pressure than normally would have occurred,” he said. “It’s really unclear on what her decision was. It’s a little bit murky.”

Childers said that in one part of the judgment, the judge said “within 15 miles of Arrow Rock, but in another part talks more about the area surrounding Arrow Rock.” He also noted that the judge said neither he nor the department could build CAFOs.

“The judgment suggests we build CAFOs. We don’t normally build CAFOs,” he said. “She needs to clarify the intent. We, as a department, are caught in a bind on it. The state law says we shall issue a permit if the conditions of the permit are met.”

Childers said the judge also restricted the spreading of hog waste within the 15-mile buffer. He asked: “Did she really intend to impact a huge number of crop farmers who depend on it as fertilizer?

“The judge’s order isn’t clear. If the judge’s intent is to rule statewide, 95 percent of the crop farmers will not be able to haul manure to their fields. That seems to be stretching it a bit.”

‘Statutory duty’

Richard Miller, the attorney who filed the lawsuit against the DNR and Childers, said, “I find it ironic that they have filed a motion to stay because they are not abiding by the judge’s decision anyway.”

Miller, in a telephone interview Tuesday, said the department has issued construction permits for two hog CAFOs within 15 miles of Mark Twain State Park in northeastern Missouri, and for two poultry CAFOs within 15 miles of Big Sugar Creek State Park in McDonald County.

“For them to be asking for a stay and not abiding by the parameters of the judgment is ridiculous,” he said. “The DNR is not performing its constitutional and statutory duties, and now they are not abiding by the parameters set down by Judge Joyce.”

In response to Miller’s statement that the DNR is not abiding by the judgment, Childers said, “We are doing what we can do within what state law says.”

Miller said the DNR does not have “any basis whatsoever for her to change her ruling. It was very thoughtfully done. She said the DNR has a constitutional and statutory duty to preserve and to protect our state parks and historic sites, and they clearly have not done it.”

Miller said the DNR notes that there already are several CAFOs within 15 miles of Arrow Rock. “The fact they failed to do their duty in the past should not excuse them from doing their duty in the future,” he said.

The attorneys representing the state, Susan Ford Robertson, of Columbia, and Scott Hamblin, of Jefferson City, did not respond to telephone calls seeking comment.

The Arrow Rock ruling came after a poultry CAFO received a permit to begin operating near Roaring River State Park south of Cassville in Barry County.

Local residents, supported by trout fishermen, environmentalists and tourism groups around the state, formed the Roaring River Park Alliance to oppose the Ozbun CAFO within a mile or so of the river and the state park.

The Ozbun CAFO houses up to 65,600 pullets for George’s Processing, a poultry plant near Cassville. It was granted an operating permit in 2007 by the DNR.

Farm Bureau

The Missouri Farm Bureau Federation, in a statement issued Sept. 23, stated that it seeks to “intervene in this (Arrow Rock) action post-judgment as the scope of the judgment affects the property rights and farm operations of its members who operate CAFOs within or near a 15-mile radius of the village of Arrow Rock.”

Charlie Kruse, president of the Farm Bureau, said in the statement, “We are concerned that this ruling could be interpreted broadly and result in very serious harm to Missouri agriculture.”

Julie Fisher, who owns property at Arrow Rock and is a member of Citizens to Protect State Parks, said: “Now that Missouri Farm Bureau wants to involve itself in the recent court decision that protects our state parks and historic sites from CAFOs, it is more apparent than ever who DNR answers to. Why the Farm Bureau believes it has any standing in such a case is a mystery.”

Ken Midkiff, with the Sierra Club and a critic of the DNR’s permitting of CAFOs, said: “It looks as if MDNR is grasping at every straw they can to keep themselves and their beloved CAFOs afloat. What MDNR is asking is that the judge repeal a ruling that she made almost one month ago. I would suspect that this is an insult to judicial integrity.”





The ruling



Judge Patricia Joyce, in her ruling, said the construction of concentrated animal feeding operations near state parks and historic sites poses an unacceptable health risk because of “odors and volatile and dangerous airborne pollutants” emitted by them. She cited reports by the United Nations, the World Health Organization and the U.S. Environmental Protection Agency to support her position.