By Wally Kennedy

wkennedy@joplinglobe.com

A decision Tuesday by the Missouri Court of Appeals in Kansas City that overturned a ruling that set up a CAFO-free buffer zone around the historic village of Arrow Rock is being appealed to the Missouri Supreme Court.

Richard Miller, a Kansas City attorney who represents the Missouri Parks Association, Friends of Arrow Rock and the village of Arrow Rock, said Wednesday: “We are going to ask for a rehearing before the appellate court and that it be transferred to the Missouri Supreme Court. We will file next week.”

Miller said the plaintiffs firmly believe “that the Missouri Department of Natural Resources still has a constitutional and statutory obligation to preserve and protect the state parks and historic sites in Missouri.”

“There is nothing in this opinion that says they don’t have that obligation,” he said. “We expect them (the DNR) to do what they are obligated to do.”

The plaintiffs filed suit against the DNR in 2007 for granting a permit to Dennis Gessling to construct a factory farm with 4,800 hogs near Arrow Rock, a national historic landmark on a Missouri River bluff west of Columbia that was founded in 1829 and played a key role in America’s westward expansion.

Initial ruling

In 2008, Cole County Circuit Judge Patricia Joyce ruled that there should be a 15-mile buffer around Arrow Rock to protect it from odors and pollution posed by factory farms or concentrated animal feeding operations, known as CAFOs. She later amended the buffer to two miles.

Missouri Attorney General Chris Koster, without support from the DNR or Gov. Jay Nixon, appealed Joyce’s ruling. He was supported in the appeal by Missouri farm associations on grounds that the state Legislature, not a judge, should decide whether CAFO-free buffers should exist around state parks and historic sites in Missouri.

While serving as Missouri’s attorney general, Nixon refused to represent the DNR when it was sued over the Arrow Rock hog CAFO. The DNR hired a special attorney to defend the decision to grant a permit for the hog CAFO.

Overturned

The appellate court overturned the circuit judge’s ruling, in part, because the construction permit for the proposed hog farm had expired when Joyce issued the two-mile-buffer ruling. The farm was not built.

The decision by the appellate court has been applauded by Koster and the Missouri Farm Bureau. Environmental activists and park supporters have expressed disappointment with the ruling.

Whitney Kerr, a Kansas City real estate developer and a member of Friends of Arrow Rock, said Wednesday: “We feel the logic of the appellate court was wanting. We’ll see what we can do about that.”

Kerr said the DNR did not want Koster to appeal the ruling.

“That needs to be emphasized,” Kerr said. “The DNR was comfortable with Joyce’s decision. They felt the two-mile limit was reasonable because they understand what a nuisance a CAFO can be and understand the threat to state parks.

“You must remember that this came up when the DNR was permitting CAFOs next to Arrow Rock, next to Roaring River State Park and the Battle of Athens State Park. There was total insensitivity to the consequences of these heavy industry operations being sited adjacent to state parks.

“We felt that there was constitutional and statutory duty of the DNR to protect state parks. The emphasis of the appellate court decision was on whether the permit had expired or not. Mr. Dennis Gessling was not a party to our suit. The suit was against the DNR. The appellate court misses that.”

In a statement released after the appellate court decision, Koster said he has long argued that the buffer zone set by the trial court was created inappropriately.

“I have said repeatedly that I am in favor of more protective buffer zones around state parks, recreational waterways, historic sites and other sites of cultural significance,” Koster said. “However, creation of such buffer zones is the province of the Legislature and not the courts. Our agricultural system would grind to a halt if every judge were allowed to set their own personal boundary lines around every Missouri farm.”

The appellate court stated in a unanimous decision: “DNR also argues that (the trial court’s judgment) misapprehends the law with respect to DNR’s purported duty to protect parks. We express very serious concern that the trial court has likely overreached with its determinations.”

Koster said: “Missouri’s farming communities are desperate for the General Assembly to address the disputes underlying the Arrow Rock case. These issues will not go away until policymakers settle the rightful claims of farmers and environmentalists alike.”

Judd Slivka, spokesman for the DNR, said Wednesday that the department is still reviewing the appellate court opinion.

Opposition

Susan Flader, with the Missouri Parks Association, said Wednesday: “I’m very disappointed. We don’t agree with the judges’ ruling. I’m sorry they allowed the other parties into the suit, the Missouri Farm Bureau and Missouri Cattlemen’s Association, who had nothing to do with it.

“The lower court had not admitted them to the case, and we question the appropriateness of the appellate court doing that.”

The briefs filed with the appellate court included intervening appeals by the Missouri Farm Bureau Federation, the Missouri Agribusiness Association, the Missouri Cattlemen’s Association, the Missouri Pork Association, the Missouri Dairy Association and the Missouri Egg Council.

Charles Kruse, president of the Missouri Farm Bureau, said in a prepared statement: “We are sincerely appreciative of Attorney General Koster’s leadership in following through on this case, because it would be a dangerous precedent to bypass a well-defined process of regulating production agriculture that is based on sound animal science and the use of best management practices.”

Kruse said the Farm Bureau could be doing a better job of explaining today’s agricultural practices than it has.

“The Arrow Rock case makes clear that we in agriculture need to do a better job of communicating to the public the commitment of farmers and ranchers to raise their livestock in a humane and environmentally sound manner,” he said.

About the appellate ruling, Ken Midkiff, with the Missouri Sierra Club, said: “The Legislature has failed to protect the citizens and the state parks. The DNR has failed to protect the citizens and state parks. The judiciary was trying to, and thanks to Attorney General Koster and his agribusiness buddies, nobody is now protecting the citizens and state parks.”





Roaring River



When Cole County Circuit Judge Patricia Joyce decided in 2008 that a buffer was needed at Arrow Rock, she specifically cited a DNR permit granted for a 65,600-chicken CAFO within a mile of Roaring River and its state park, near Cassville, as an example of what she called the DNR’s inability to uphold its statutory obligation to protect the state’s parks.

The permit for the CAFO at Roaring River was appealed to the Missouri Administrative Hearing Commission, which recently denied a petition to rescind the permit that was filed by the Roaring River Parks Alliance.