A decision could come at any time on an appeal of the state permit that allowed construction of a 65,600-chicken CAFO within a mile or so of Roaring River State Park.

At the same time, Missouri Attorney General Chris Koster is weighing whether to continue an appeal of a circuit judge’s decision that would prohibit construction of CAFOs, or confined animal feeding operations, within two miles of state parks and historic sites. That appeal is pending before the Western District of the Missouri Court of Appeals at Kansas City.

The two cases are connected. When Cole County Circuit Judge Patricia Joyce ruled last year that a 4,800-head hog CAFO could not be located within two miles of the historic village of Arrow Rock, she cited the permit problems associated with the chicken CAFO near Roaring River as evidence that the Missouri Department of Natural Resources lacked the ability to protect state parks and historic sites from the detrimental effects of CAFOs.

Koster has asked for more time to weigh the options over whether he will continue the appeal of the two-mile buffer that was started under Gov. Matt Blunt’s administration. He was given that time last week when the Court of Appeals granted a 30-day extension. The next hearing date on the appeal of the two-mile buffer is set for Oct. 28. In the meantime, Koster is getting hit from all sides.

Ag interests

State agricultural interests, including the Missouri Farm Bureau and the Missouri Agribusiness Association, are encouraging Koster to continue the appeal, arguing that Joyce had only half the facts when she issued her decision.

They want the appeals court to send the case back to her with an order that it be dismissed on grounds that the issue is moot, since the permit expired and the hog farm near Arrow Rock was never constructed. They also are arguing that the DNR and the Clean Water Commission have authority over CAFO permits, not a circuit judge. They say it was improper for the court to impose a buffer around Arrow Rock when no such vehicle to do so exists under state law.

The attorney general’s lawyers have met with officials in Gov. Jay Nixon’s administration and the DNR. Koster has said the administration prefers that he drop the appeal of Joyce’s decision.

Scott Holste, a spokesman for Nixon’s office, said the matter is still under discussion with the DNR and Koster’s office, but that Nixon is not supportive of the appeal. The governor has assured Koster that it is his decision to make and that he will not criticize him if he decides to take on the appeal.

Environmental groups

The Sierra Club, the Roaring River Parks Alliance, the Friends of Arrow Rock and the Missouri Parks Association would like to see Koster drop the appeal and let the two-mile buffer stand. Koster, as a state legislator, introduced legislation that would have created buffers around state parks and historic sites. Though it failed, they think he still supports the concept.

He still does, but there’s more on his plate to consider than before.

“I want to be emphatic about this point,” he said in a phone interview Friday. “I am in favor of deference being paid around state parks, recreational waterways, historic sites and other sites of cultural significance.

“I am not against the buffer zone at Arrow Rock, but how these buffers are created is of critical importance to the state. It’s about who defines how big these buffers are and who decides that is the critical issue to agriculture.’’

Koster points out that Joyce’s original decision called for a 15-mile buffer around Arrow Rock, west of Columbia. That decision, if it had been not been scaled back to a two-mile buffer, would essentially have brought an end to large-scale agribusiness in the state of Missouri because there are so many state parks and historic sites sprinkled across the state.

Both sides

Said Koster: “There are considerations on both sides of the argument. I am consulting with experts around the state to get a consensus on a decision that best balances the environmental and agricultural interests that are involved in this case.’’

Koster said he is approaching this as a lawyer at this point, but notes that his background as a state legislator has given him some insight into the issue and its complexity.

“I do have some knowledge around the issue,” he said. “Uniformity is one of several concerns. Do the buffers apply across the state or are there different buffers for different types of CAFOs? I know uniformity is of importance to the ag community.

“Who decides the size of the buffer in a given permit issue? Are the buffers to be created by statute? Will the Legislature decide the buffer or will it be a blend of the Legislature, local health boards and the DNR? Or, will every judge in the state have the power to draw buffers?

“My belief is that the courts must ultimately answer these questions to create better policy and uniformity of buffers. These are not situations that judges or the DNR should draw up on an ad hoc basis.’’

Judge’s ruling

Joyce’s ruling came in response to a suit filed by the Friends of Arrow Rock and the Missouri Parks Association against the DNR, which issued a permit for the hog farm operation near Arrow Rock.

Nixon, who was attorney general when the DNR was sued over the hog CAFO at Arrow Rock, refused to represent the DNR because he believed the historic village was not being protected from CAFOs by the state. An outside lawyer was appointed to defend the DNR’s issuance of the permit. When that lawyer failed to meet a deadline for submitting a state brief in connection with the suit, Joyce issued her ruling based on the evidence presented by the plaintiffs.

Reason for concern

Leslie Holloway, governmental spokeswoman for the Missouri Farm Bureau, said, “We are concerned that all of the facts were not considered in this case. The DNR missed a deadline for responding to the allegations made by the plaintiffs. That resulted in the judgment by Judge Joyce. It was based on what the plaintiffs had provided. It was not based at all on the information the DNR provided. That’s not a good basis for a decision like this.

“What we want is someone to look at all the facts fairly. Facts that should have been considered were not. It’s hard to understand how a decision that affects so many farmers could be based on only one set of allegations.’’

The Missouri Farm Bureau has asked for intervener status in the lawsuit because it is not a party to the lawsuit. If that status is granted by the court, Holloway said the Missouri Farm Bureau would seek to vacate the decision.

“There is too much uncertainty in this decision,” she said. “That is reason for concern.’’

Local voices

Mark Stephenson, a Joplin resident who owns property near the chicken CAFO at Roaring River State Park, said, “As for the two-mile buffer protecting our state parks, Missouri Attorney General Chris Koster should absolutely drop the appeal initiated by the Missouri Department of Natural Resources under the Blunt administration.

“Missourians are tired of our parks and waters not being protected. Our nation’s oil supply is controlled by foreigners and now the Ozarks’ water supply and quality is controlled by “Big Ag’’ with the blessing of the Missouri Department of Natural Resources. Missourians should be outraged.’’

Stephenson said the Roaring River Parks Alliance is hoping the pending decision by the Administrative Hearing Commission will revoke the construction and operating permits for the chicken CAFO near Roaring River State Park.

“Of course, the decision is merely a recommendation to the Missouri Clean Water Commission,’’ he said. “They have the final say about the recommendation. They can amend it or ignore it all together.

“With the problems facing Southwest Missouri’s water-supply shortage and the obvious connection to CAFOs and the water use of poultry-processing plants in this area, you would think the Missouri Clean Water Commission would be in favor of any ruling that would protect our water quality and quantity.’’

Jim Riedel, of Eagle Rock, also a member of the alliance, said, “We must not forget that Judge Joyce referenced Roaring River in her decision. The reason she made the decision she did, in part, had to do with what was going on at Roaring River at that time. The judge did not think the DNR was capable of protecting our parks.’’

Riedel said all of the briefs in the appeal of the permits at Roaring River were entered as of July 22. A spokeswoman for the Administrative Hearing Commission said last week a decision is being written.

Richard Miller, with the Miller Law Firm in Kansas City, who successfully represented the Friends of Arrow Rock and the Missouri Parks Association in the lawsuit against the DNR’s permit for the hog CAFO at Arrow Rock, said, “Judge Joyce’s decision was the correct one because the DNR was not following its statutory and constitutional obligations to preserve and protect state parks.’’

Miller said he does not expect the appeal of the two-mile buffer to be set for hearing until sometime after the first of the year.



Area CAFO

Michelle Ozbun, the owner of the CAFO at Roaring River, could not be reached for comment. During a hearing on the permit appeal in January, she said she constructed the CAFO in accordance with the rules set forth by the DNR and that she is operating it in a way that is protective of the environment.

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