Mitchell Peterson, an attorney from the Davenport Evans law firm in Sioux Falls who is representing the Living River Group, Sierra Club told Clay County commissioners acting as a board of adjustment Tuesday that they have heard a lot of reasons from their constituents stating why a conditional use permit issued to Travis Mockler should not be approved.

“I’d suggest that there’s a couple reasons why you have to say no because there isn’t authority,” he said.

The Living River Group of the Sierra Club is appealing the March 25, 2019 granting of the conditional use permit to Mockler by the Clay County Commission. (See related story).

Peterson noted that the county’s ordinance dealing with CAFOs (Concentrated Animal Feeding Operations) and AFOs (Animal Feeding Operations) states that ‘the applicant shall obtain a letter from the NRCS to determine if the application should be considered an AFO or a CAFO. The letter shall state how the NRCS made that determination.’

“I understand that this letter is not in the record -- that that is a specific requirement that has to be there,” he told board members. “If you find it in the record, great, but if you go through the record and it’s not there, you don’t have authority under the ordinances to say yes. That is a burden, and it’s not your fault. The burden is on the applicant to show you that and to get you that evidence.”

The letter Peterson referred to is one Susanne Skyrm, co-chair of the Living River Group, Sierra Club mentioned both during an April hearing and at Tuesday’s board of adjustment meeting. The letter hadn’t been received, she said, because NRCS District Conservationist Jeff Loof declined to make such a finding regarding determining whether Mockler’s proposal should be defined as an AFO or a CAFO. He suggested that Mockler seek a determination from the SD Department of Environment and Natural Resources.

Aden replied in April that the needed information was received from the DENR, adding “We substantially complied with that part (of the ordinance) and that is a thing in our regulations that we will have to go back and fix because we know it doesn’t work.” She added that there is a separability clause in the county ordinance.

“Our understanding is that is an error of the ordinance. That is something that is unobtainable,” Phyllis Packard, who chaired the board of adjustment Tuesday, told Peterson.

“Then I think the solution is you say no because it’s not met,” he replied.

“What about separability within the ordinance itself, if there is a provision that is deemed either unconstitutional or inaccurate application of law?” asked Clay County State’s Attorney Alexis Tracy. “I think that’s included in all aspects of things, so we can’t come force another agency to comply with some request. If they refuse to do that, that positions an applicant in a situation where it’s an impossibility for them to ever even apply.

“My direction on that is we can’t require an agency to do that. If they choose not to, we proceed not because the applicant has failed but because they (the NRCS) is not going to do what we’re demanding of them,” she said.

Peterson said he disagreed, sparking a short exchange between the two attorneys.

“Would you agree that the applicant attempted substantial compliance with that requirement (of the letter)?” Tracy asked.

“I don’t know what the applicant did,” Peterson said. “I know he didn’t get it.”

“I’m with you on the same page and requirement has been made in this regard that if there is legal noncompliance with something, they can’t approve it,” Tracy said. “But I think that you need to provide the board facts about what’s noncompliant.”

“I can tell you this burden isn’t going away. If the permit is approved, this will be one of the things that’s looked at by the court,” Peterson said. “And maybe the better option is to say no for some other reasons, go fix your ordinance and have him come back in a few months. That seems to be the more prudent, safe risk litigation option versus exposing the county to litigation.”

“The NRCS did send us a letter. That was in the original application. They directed us to go the DENR. That burden has been met,” Mockler said, who turned to the board members and said, “Plus, now you’ve just been threatened with a lawsuit. I hope that’s on the record, because he just said he’s going to take you to court.”

“Yeah, if the permit is granted, of course this group is going to appeal, for all of the reasons we talked about,” Peterson said. “Why wouldn’t they?”

“I hope they do,” Mockler said.

 

Differences In Interpretation

“Secondarily, the reason there is no authority is if you look at your definition of animal feeding operations, when you’ve got two more operations within a mile that are commonly owned, you have to combine them in determining what size it is,” Peterson said.

He noted Mockler has stated that he intends to have 500 head of cattle and 1,000 swine.

“He’s asking to be authorized for more than that. You’re authorizing him to have up to 2,499 head of swine and up to 999 head of cattle,” Peterson said, “and even if you go to the lower numbers of what he’s asking for or what you’re actually permitting him for -- either way, you have to look at those in connection with one another.”

He said it appears that Mockler is claiming that because the swine and cattle are different species, they can’t be added together.

“Are you really telling me that if I come in here, and I ask for a medium permit for 699 dairy cows and 999 veal calves and I’m going to do 999 cattle other than mature dairy and I’m going to do 2,499 swine and I’m going to do 9,999 swine under 50,” Peterson said, reading the maximum populations of various livestock that qualify under the AFO portion of the ordinance, “I can get one of every single one of those and I’m still a medium? Are you kidding me?”

“That’s the way it’s written,” Aden said.

“It’s not. It doesn’t authorize you to do that. You can’t have two species together. You don’t have the authority to do it,” Peterson said. “The only other way to read it is you’ve got to state a limit some way. He’s right on the upper limit of the mediums. One more of anything puts him in the large category. I think you have an important decision to make about how you interpret this.

“Are you really going to let people have serial minimum CAFOs as long as its different species and they can be congregated together and it’s still just a medium?” he asked. “Is that how you’re reading your ordinances? You have the power to make that decision today.”

The term medium, mentioned by Peterson, would be livestock numbers that would qualify as an AFO. The large category he mentioned would be animal numbers that would classify an operation as a CAFO.

He cited a South Dakota statute which states that the board of adjustment has the authority to interpret the rules that they are implementing and a court will defer to their interpretation.

“This is your decision today how these are going to be read,” he said. “Are you really going to let people get the very maximum on medium all combined and not actually add them together for a large? I suggest you have two options: you make it a large because that’s the only sensible way to do it, or you say our ordinances don’t allow combination species. ‘Sorry Mr. Mockler, we have to say no. We don’t have the authority to do that.’ I suggest those are two options you can go forward with.”

“If you’re saying there should be strict adherence to a point of an impossibility within our ordinance, my understanding is if that is not what the ordinance says, if the ordinance allows for this, then the remedy that you suggested on the other side is exactly what needs to happen with the group here -- to propose an amendment to the ordinance to clarify that,” Tracy said. “It is also my understanding that this is a specific issue and should this be challenged, I would think that the minutes of when the ordinance was enacted would come into play about the intent going forward.

“This was addressed regarding manure units and specifically not in favor of by the public,” she said. “That would contemplate to me that we would be looking at the overall operation rather than just specific individual groupings and since that was rejected categorically when the ordinance was enacted, specifically what is being requested here is what is contemplated in the action of the ordinance. So even if you don’t agree with it, it’s what the plain wording reads and I find it contrary to say that in one avenue we have to hold strict adherence and that in others, we shouldn’t.”

“There isn’t a box that represents what he’s asking for. There isn’t a box where you get 2,499 swine and 999 cattle,” Peterson said. “What is that? It’s not on the list, which means he can’t get it. My fallback suggestion is to hold him to a large, which is within the power to expand the requirements, but if you want to get real literal and technical, there isn’t a box into which his requested permit fits. It’s prohibited use.”

Board member Leo Powell told Peterson he believes the conditional use permit isn’t allowing the board to take action it had no authority to conduct or approve. “We’re not opening the door,” he said.

Packard said the state Department of Environment and Natural Resources (DENR) considered the number of the two species of livestock together. “We deferred to the state on that,” she said.

“But these are your ordinances,” Peterson said. “The state is looking at its regulations which is an entirely different animal. They have a scaling where everything is an animal unit conversion and that triggers what he needs for certain state permits.

“We’re talking about a Clay County conditional use permit and your own ordinances,” he said. “The DENR will repeatedly tell you ‘we’re not going to tell you if they’ve met your local ordinances.’ That’s your responsibility to do that.”

“But our local ordinances follow the state,” Packard said. “We’re in a Catch 22.”

“They don’t. There’s not a box that allows two species as part of a permit,” he said.

“If you want to combine them, our ordinance needs to say ‘animal units,’” Mockler said. “That was proposed. This same group,” he said, referring to the Sierra Club, “yelled at me, ‘do not change that table, whatever you do.’ The table was taken, word for word, from the state. The state looks at it as two separate operations. They’re not combined. And since our ordinance doesn’t say animal units, they’re not combined.

“If it said animal units, I would be a large (unit),” Mockler said. “But the way the ordinance is written, I’m a medium operation.”

“They’re combined because they’re within a mile and commonly owned,” Peterson said.

“They’re not combined because they’re separate species,” Mockler replied. “They’re not a common animal feeding operation.”

Aden told the board that the burden of proof that Mockler has not met the requirements of the ordinance lies with the Sierra Club.

“It’s up to the Sierra Club now to prove their burden of proof that the planning commission’s decision was incorrect,” she said. “Your motion should be whether or not to accept or reject the planning commission’s decision. That’s where we’re at.”

Packard proposed that action on the Sierra Club’s appeal be tabled so that board members could take time to review the information and testimony they had heard during Tuesday’s hearing. The board eventually decided to further amend the application regarding building location and animal disposal.

“Don’t forget who has the power in this room. It’s the four of you sitting at this table,” Peterson said during discussion earlier in the meeting. “I can’t make you do anything; Mr. Mockler can’t make you do anything. You’ve got rules, you’ve got authority. It’s entirely your decision; it’s your power to do it.”

Peterson said their decision would determine “how you want these ordinances to be treated when it’s not a Travis Mockler that’s asking for the permit. These are important decisions that arguably could have precedential value -- maybe not literal, legal precedential value, but the next person in here, if they’re not getting the same ‘awe shucks, pal’ treatment on this stuff, how is that going to go?”

“I take offense at that last comment,” Packard said. “I feel we have, on a constant basis, requested more information from Mr. Mockler due to the fact that he is a commission member. ‘Awe shucks, pal,’ has not existed in this deliberation.”

“You and I deal with ethics. If you find that there is some evidentiary value to support that comment, then it would be appropriate to cite those specific examples,” Tracy told Peterson. “If you don’t, I think you lose credibility when you make throwaway comments like that … what specific facts do you have to support a statement like that?”

Peterson said he believed that allowing the maximum number of two medium livestock operations on a single site and not defining it as a CAFO supported his statement.

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