<img src="http://www.joplinglobeonline.com/images/zope/extra.gif" border=0>DNR says judicial ruling stops CAFO construction in Missouri<font color="#ff0000"> w/ Cole County Circuit Court ruling </font>

By Wally Kennedy

wkennedy@joplinglobe.com

If the ruling stands, Missouri’s state parks and historic sites, such as Roaring River State Park near Cassville, will trump construction of corporate animal farms.

A judicial ruling, issued Monday in Cole County Circuit Court at Jefferson City, has effectively stopped construction of concentrated animal feeding operations in the state, said Doyle Childers, director of the Missouri Department of Natural Resources.

In a telephone interview Tuesday, Childers said: “It basically knocks out CAFOs in the state of Missouri. The judge’s decision was for one county, but the department treats all of the counties the same.

“We can’t issue a permit in one county if we can’t issue them in all counties.”

The state has 30 days to appeal the decision, and the department is likely to do so, Childers said.

Circuit Judge Patricia Joyce on Monday ruled in favor of the Missouri Parks Association, the village of Arrow Rock and the Friends of Arrow Rock, organizations that banded together last year to oppose construction of a 4,800-hog CAFO by Dennis Gessling within two miles of the national and state historic site in central Missouri. Arrow Rock often is referred to as the Williamsburg of the Midwest.

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. From the DNR’s perspective, all of the state’s historic sites and parks now have 15-mile buffers around them.

Joyce wrote: “If the Gessling CAFO is constructed and placed in operation as planned, this will decimate and destroy an irreplaceable part of the historical heritage of this nation and this state.”

The decision was hailed by opponents of a 65,600-chicken CAFO near Roaring River State Park. The Roaring River Parks Alliance has filed appeals of the permits the DNR has issued for constructing and operating the CAFO.

Joyce, in her ruling, cited the Roaring River fight as a reason to block the Gessling CAFO. The state Administrative Hearing Commission, she said, entered a stay order commanding that construction not proceed on the chicken CAFO at Roaring River. The DNR, she said, “failed and refused” to honor or enforce the stay order.

She said an appeal has been filed with the commission in an effort to stop construction of the Gessling CAFO. She wrote: “Even if the appeal is sustained by the commission, the plaintiffs are without an adequate remedy since the DNR has not within the past five years enforced, complied with or honored any stay order rendered by the commission.”

The commission, part of the executive branch of state government, is a neutral administrative tribunal that resolves conflicts involving permits and other contested issues in Missouri.

Childers said the stay order involving the Roaring River site was not enforced because the chicken CAFO already had been built. But opponents said construction was still under way when the stay order was issued.

Mark Stephenson, a member of the Roaring River group, said: “Finally, what most of us already knew has been proven in a court of law. The DNR has not been fulfilling its statutory obligation to protect and preserve our state parks, historic sites and natural resources.

“The court decision will serve to be a precedence setter and should have a positive impact on Roaring River Parks Alliance’s hearing on the appeal of the construction and operating permits on the CAFO at Roaring River. It is my understanding that several other states have established buffer zones around such sites. The enormous negative impact these facilities have on communities has come to light, and people will not tolerate it any longer. Big agriculture and the Farm Bureau just received a major defeat in Missouri.”

The alliance, he said, filed the appeals to stop the chicken CAFO at Roaring River in an effort to prevent other CAFOs from being constructed there. The judge’s ruling, he said, eliminates the threat of new CAFOs being constructed near the park, one of Missouri’s top tourist destinations.

The judge said the construction of CAFOs 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.

Among the contaminants listed were ammonia, hydrogen sulfide and bioaerosols, including “bacteria, antigens, glucans and endotoxins.”

Childers described the decision as a sweeping example of judicial activism.

“This will have a huge impact on the state of Missouri and the nation’s food supply,” he said. “If you draw a 30-mile circle around every historic site and state park in Missouri, you have knocked out a good part of the food supply.”

As examples in Southwest Missouri, he cited Big Sugar State Park in McDonald County, Prairie State Park in Barton County, Roaring River State Park in Barry County and the Nathan Boone Homestead State Historic Site in Greene County.

The most damaging part of the ruling for CAFOs, he said, was the judge’s decision to prohibit CAFOs from transporting or disposing waste from their operations within a 15-mile radius of a state park or historic site.

“If you cannot transport the waste, this decision appears to have been written to eliminate agriculture in the state,” he said. “That apparently was her plan.”

Leslie Holloway, state and governmental affairs director with the Missouri Farm Bureau, said Tuesday that she was reluctant to comment without seeing the ruling but added, “From what we are hearing, it sounds like a stretch.”

Everett Forkner, a Nevada hog farmer and member of the Missouri Pork Association and the National Pork Board, agreed with Childers that a 15-mile buffer could push operations out of Missouri.

“There is virtually no place left in the state to speak of,” he said.

“Certainly it concerns us, as a pork producer in Missouri. Unless it is challenged and overturned, we will give up any competitive edge we have at all.”

Keeping American hog producers competitive relative to world production is a high priority for the national group, Forkner said, and rulings like the one for Arrow Rock undermine those efforts and could lead to higher prices for consumers.

“If we continue to restrict the opportunities we have here, we are definitely going to see more production move to countries such as Brazil and China,” he said.

Childers said the attorney representing the state had asked for an extension of a deadline for filing information requested by the plaintiffs. The judge, he said, refused to grant the extension.

“She made her decision before the case was even gathered,” he said. “I was astounded by that. You hear about judicial activism. If this activity is not judicial activism, I don’t know what is.”

The judge, in her ruling, said the DNR filed a request for an extension of time after the deadline had passed. She wrote, “Counsel for DNR did not file any brief with the court setting forth any factual basis which would entitle DNR to fall under the exception.”

Childers said the DNR operates under federal and state law. “We are not a judge that writes the law,” he said. “We are part of the executive branch that follows the law. We can’t write a special law for ourselves for Arrow Rock.

“The other issue is that historic preservation takes precedence over property rights, the food supply and everything. Historic preservation is the supreme law of the land. This is the worst case of judicial legislating I have ever seen.

“It is a very strange judicial proceeding. It’s almost as if it has been written by Ken Midkiff and the Sierra Club.”

Midkiff, spokesman for the Sierra Club in Missouri, said Tuesday in a telephone interview, “I did not write it.”

Midkiff said Childers should be concerned about the scope of the ruling in that it “covers almost the entire state. But for the record, this is not legislating from the bench. The court made a determination to clarify existing law — not to make law.

“In the case of Arrow Rock, there was a confusion over the state’s role in protecting a historic site and allowing a CAFO. The court decided it was more important to protect a state historic site than allow a CAFO. The court clarified the law. The court did not enact law.”

Julie Fisher, with the Friends of Arrow Rock, said, “You would think the director of the DNR, who is in charge of permitting CAFOs and state historic preservation, would welcome the ruling in that it would enable him to do his job even better since there is such an obvious conflict.”

Fisher said Childers is misinformed when he says the ruling will affect the food supply in Missouri. She said CAFOs represent one-half of 1 percent of the livestock farming in Missouri.

Said Fisher: “This ruling sends a message to our legislators and to all those people across the country who are fighting to protect their health: There is a better way.”

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