All sides seek clarity about CAFO ban

By Wally Kennedy

wkennedy@joplinglobe.com

ANDERSON, Mo. — Albert Midoux breathed a sigh of relief when he learned that a Cole County circuit judge’s decision last month halted the construction of large animal farms — known as CAFOs — within 15 miles of Missouri state parks and historic sites.

Midoux’s farm adjoins a farm where four poultry barns capable of holding 234,000 chickens are proposed. But his neighbor’s farm, he says, is within that 15-mile buffer around Big Sugar Creek State Park, east of Pineville.

“I thought the judge’s decision had pretty much stopped construction of these large poultry houses in McDonald County,” he said. “We’ve got too many of them the way it is, and they have already done enough damage to our rivers and streams.”

Then he heard bulldozers.

Midoux’s neighbors, Russell Renner and his son, Steve Renner, began clearing ground to construct the poultry barns about a week ago.

A woman, who identified herself as Mrs. Steve Renner, said permits to start construction had been obtained.

“We have complied with all the rules. They have assured us there was nothing that could go wrong. We have a permit,” she said.

She also said she was unaware of the judge’s ruling. She questioned how the poultry plants in the county, which employ thousands, could operate if local farmers can no longer build chicken houses.

As for Midoux, who has long been a critic of the poultry industry’s impact on water quality, she said, “He gets upset about everything.”

Russell Renner did not respond to a Globe inquiry seeking comment.

Midoux said he contacted the regional office of the Missouri Department of Natural Resources in Springfield and the state office in Jefferson City to find out whether his neighbors had obtained the required permits to construct the chicken houses. He said he did not receive a response.

After the Globe filed a request for information under Missouri’s Sunshine Law, Renee Bungart, a DNR spokeswoman, said the department had not issued a construction permit for the Renner chicken houses. The Renners, she said, obtained a land-disturbance permit from the DNR’s regional office in Springfield.

Gary Murphy, president of poultry operations for Simmons Foods, based in Siloam Springs, Ark., said independent contractors, such as the Renners, must acquire all pertinent permits before they build. He said it was his understanding that the Renners, who will produce chickens under contract for Simmons, had obtained the permits to move forward with construction.

Murphy said he also was unaware of the judge’s ruling.

Midoux also has contacted the state attorney general’s office and Richard Miller, of Kansas City, who filed the lawsuit against the DNR that led to the 15-mile buffer ruling from Judge Patricia Joyce in Cole County on Aug. 25.

“It’s like this judge’s ruling never happened. It’s business as usual for the DNR,” Midoux said.

Upside down

The decision by Judge Joyce has turned the expansion of animal agriculture — until recently the largest growth sector in Missouri agriculture — upside down in the state.

In declaring that Doyle Childers, director of the DNR, failed to protect Missouri’s state parks and historic sites from the negative impacts of hog CAFOs, the judge stripped away the department’s ability to issue new CAFO permits. The judge is in charge of that now.

Lenders who have put up millions of dollars to finance the construction of CAFOs and the farmers who have borrowed the money are caught in the cross-hairs of uncertainty.

The Missouri Department of Agriculture is asking the DNR to appeal the ruling. The department has about two weeks to do that. In the meantime, an industry that has more than doubled the value of agricultural production in some Missouri counties has been put on hold across 60 percent of the state.

Childers said legal counsel for the department is attempting to determine “which way to go. We have two or three options. We can approach the judge and ask her to reconsider or we can go to the appeals court.”

In response to inquiries by farmers, the Missouri Department of Agriculture has issued a statement that it believes clarifies the ruling. The department believes the ruling does not apply to existing CAFOs near Missouri state parks and historic sites.

“But with new CAFOs, it gets more complicated,” said Childers.

Kurt Valentine, general counsel for the Missouri Department of Agriculture, said the judge’s ruling is at times specific to the Arrow Rock State Historic Site in central Missouri, which prompted the lawsuit, and at other times it is statewide in its scope.

He said it’s difficult to determine the particular impact the ruling will have on state statutes and rules, and questioned the 15-mile buffer.

“The pleadings never mentioned anything about 15 miles,” Valentine said. “The judge went outside of the scope of the pleadings. You can’t ask for a judgment broader than that asked for in the petition. The petition does not mention anything about a mile range other than ‘nearby’ to state parks, which is overly vague. ‘Nearby’ is not defined.”

Richard Miller, the attorney who successfully represented the Friends of Arrow Rock, the Village of Arrow Rock and the Missouri Parks Association, said in response that, “Judge Joyce offered a very thoughtful and careful opinion that relies upon the law, and the constitutional and statutory obligation of the DNR to preserve state parks and historical sites.”

Miller noted that opposition by the Roaring River Parks Alliance to a poultry CAFO there helped set the stage for the Arrow Rock suit to be successful.

“The important thing was that the DNR had argued to the court that the plaintiffs (Friends of Arrow Rock) failed to exhaust our administrative remedies. The plaintiffs did file an appeal to the Administrative Hearing Commission, but we argued to the judge it was a meaningless and fruitless act both at Roaring River and the Battle of Athens Historic Site, because the DNR had ignored both of the stay orders issued by the commission.”

A hog CAFO also was proposed near the Civil War battlefield site.

“That was the connection the judge made. She did not have to wait for a decision from the commission because the DNR paid no attention to it,” he said.

Ranada Vinyard, an attorney with the Administrative Hearing Commission, said the agency would not comment on the court order.

Farming today

What happens next will depend on the appeal filed by the DNR and that is being watched closely by agriculture groups such as the Missouri Pork Association, the Missouri Farm Bureau and the Missouri Poultry Federation, as well as the Missouri Parks Association, poultry companies such as Simmons, agricultural economists, lenders, contract growers, farmers with ties to both animal and crop agriculture, and citizens and communities that have been adversely impacted by CAFOs.

Don Nikodim, with the Missouri Pork Association, said, “We don’t know yet what the impact of this ruling will be because it is really unclear. We hope that through legal procedures the DNR will find a remedy to the ruling. We are hopeful that will be possible.”

He also said a hidden impact will be on the state’s lenders and banks that loan money to farmers to construct CAFOs.

“What the impact on them will be is a good question,” he said.

Jim Harms, with the Farm Service Agency of the U.S. Department of Agriculture, said, “I don’t think it has any effect at this point, but we’ll know more after the appeal by the DNR. We are paying attention to the ruling, but a loan guarantee on a loan to construct a facility requires a permit before the government issues the guarantee.

“Without a loan guarantee, the lender is at risk until the facility is built and he has an operating permit in hand,” Harms said. “That’s why everything has to be in compliance and the permits in order before the government issues the guarantee.”

Missouri ranks in the top 10 states for hog CAFOs, according to Food & Water Watch, an arm of the watchdog group Public Citizen.

Nikodim said livestock and crop agriculture in Missouri has been going through a transition for decades and that there are fewer livestock and crop farmers now than in the past.

“In 1944, we had peak production at 5.4 million hogs in this state. It’s a shade less than 3 million now,” he said, noting much of that production is tied to CAFOs. He also bristles at the suggestion that CAFOs are not family farms.

“All of the folks I know of in the pork business are involved in some aspect of farming. All have families. If that does not fit the criteria of a family farm, I don’t know what does,” he said.

“People don’t want to go back and farm the way I did,” Nikodim added. “Pigs today are putting groceries on the tables of family farmers.”

Leslie Holloway, spokeswoman for the Missouri Farm Bureau, said, “We have looked at the ruling, and we are in the process of assessing the options at this point. We have concerns about the ruling, and we are trying to determine how best to represent our members. This is very important to Missouri.”

Susan Flader, with the Missouri Parks Association, said, “It was clear the role of the DNR to protect our state parks and historic sites, and the issuing of permits to CAFOs was at cross-purposes. Which one do you choose?

“The judge’s order makes very good sense. Finally, someone is making the case with respect to CAFOs and historic sites.

“I believe Doyle Childers wants to do the right thing, but he has made some judgments along the way that are insupportable and this in one of them. The problem is the DNR never took the lawsuit seriously from day one.”

Growth sector

The ruling puts on hold a segment of agriculture that had been leading the way.

Ray Massey, an agricultural economist with the University of Missouri-Columbia, said livestock agriculture until recently was the largest growth sector in the state’s agricultural industry. In the last two years, ethanol has taken off and that has put more crop land into production.

But ethanol has its limits. There is only so much land for crop production. Livestock production, on the other hand, is wide open for growth because farmers can put more livestock on fewer acres with CAFO production.

Massey studied agricultural production in three counties — Vernon, Pettis and Carroll — and found that the introduction of CAFO agriculture in Vernon and Pettis counties in the 1990s significantly increased the market value of their agricultural products.

In Carroll County, where crop production is high, the market value of agricultural products increased from $52.6 million in 1987 to $61.8 million in 2002. But in Vernon County during the same period, hog production pushed the market value of ag products sold from $33 million in 1987 to more than $80 million in 2002.

“You definitely get more dollars per acre with livestock than we do with anything else,” he said.

But Darvin Bentlage, who markets cattle from his farm in Barton County, said that in addition to profits, Missouri gets something else with CAFOs.

“People don’t understand what they do to the environment, to the air and to the water,” he said, noting that he has CAFOs on three sides of his farm. “I can cover you up with documents that show they pollute. What the CAFO people can’t do is prove that they are safe.

“I would love to debate this issue with them, but I would put a bucket of hog s--- at their end of the table and I would sit at the other end. Something tells me that debate wouldn’t last very long because they don’t have to live with it like we do.”

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