After twice being rejected once by Clay County and once by the First Circuit Court -- in its attempts to stop a large animal feeding operation from being developed in Clay County, the local Living River Group Sierra Club is going to the top specifically the South Dakota Supreme Court.
Susanne Skyrm, Vermillion, the co-chair of the Living River Group of the South Dakota Sierra Club, confirmed Tuesday that the clubs attorney, Mitchell A. Peterson of Sioux Falls, will be filing the appeal with the states highest court this week. It is unknown, she said, when the state Supreme Court may hear the case.
This action follows a legal petition filed last September by the local Sierra Club against the Clay County Board of Adjustment and Clay County Commission Chairman Travis Mockler and his wife, Jill, in an attempt to stop the Mocklers from constructing an animal feeding operation on their farm located in Pleasant Valley Township in Clay County.
The Mocklers attorney, Brian J. Donahoe of Sioux Falls, was contacted by telephone Tuesday afternoon and said neither he nor Travis Mockler had yet received any notice of the Sierra Clubs appeal to the Supreme Court.
Later Tuesday afternoon, in a voicemail left with the Plain Talk, Donahoe said neither he or Mockler could comment at this time as they still had not received any court pleadings regarding the appeal.
Im afraid well just have to give you the standard no comment, but I would also say we have not seen the actual appeal documents yet so we are not able to comment on that basis, as well, Donahoe said.
On Dec. 13, 2019, First Circuit Court Tami Bern ruled that the Sierra Club lacked both direct standing and representational standing in their September court action because the claim asserted and the relief requested require the participation of individual members of the petitioner. The Sierra Club is identified as the petitioner in Berns ruling.
The judge ruled that Sierra Club did not have standing, which I understand is the right to be in court. There was no decision on the merits of the issues raised by Sierra Club. Rather, the judge ruled that Sierra Club itself did not have standing, Skyrm stated in response to questions emailed to her by the Plain Talk. The judge did determine that individual members of Sierra Club are aggrieved and would themselves have standing if they were personally parties to the case.
However, the judge ruled that for Sierra Club to rely on the standing of its members, its members would be required to be parties in the case, she said. Our group is having difficulty understanding why its individual members (nearly 200 in Clay County, several hundred state-wide, and hundreds of thousand nationally) need to be named as parties individually when the relief we sought was not individualized.
Approximately a month after the Clay County Board of Adjustment rejected an appeal effort by the Sierra Club and gave final approved to a conditional use permit to the Mocklers, the Sierra Club filed its court papers Sept. 26 with the First Judicial Circuit in Clay County.
The court document lists the long and sometimes arduous path of hearings and the local appeal that concluded with an Aug. 27 decision by the Clay County Board of Adjustment to deny the Sierra Clubs action and grant the Mocklers their conditional use permit.
The document filed in court last September by the Living River Group Sierra Club was a petition seeking a writ of certiorari and a reversal of the board of adjustments decision. Certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency.
The Mocklers were granted their conditional use permit by the Clay County Commission on March 25, 2019. The permit would allow the couple to expand their present livestock operation to an Animal Feeding Operation, commonly known as an AFO in the recently re-written Concentrated Animal Feeding Operation (CAFO) ordinance of Clay County.
The board of adjustment is made up of members of the county commission. During hearings involving the conditional use permit, Mockler sat in the audience and didnt join fellow commissioners. He also didnt join in the discussion unless he was asked a question.
The petition that eventually was dismissed by Judge Bern was filed on Sept. 26, 2019, with the First Circuit Court by Peterson, the attorney representing the Living River Group Sierra Club. The board of adjustment first heard from Peterson in a July hearing scheduled to address the clubs appeal of the March board of adjustment decision.
A hearing before Judge Bern on the petition was held Dec. 4 in the Clay County Courthouse with Peterson representing the local Sierra Club, James S. Simko, a Sioux Falls attorney representing the Clay County Board of Adjustment and Brian J. Donahoe, a Sioux Falls attorney representing Travis and Jill Mockler.
Her ruling dismissing the Sierra Clubs petition was filed Dec. 13.
The other, and just as important aspect of the suit, is that we feel we were unfairly treated by the Clay County Board of Commissioners, who displayed a bias towards their Chair's (Mocklers) request from the very beginning, Skyrm said this week. The application that he presented for a Conditional Use Permit was incomplete, and poorly written, yet they only begrudgingly asked for more information after a series of hearings that lasted throughout the summer.
There were numerous irregularities committed by the Clay County Commissioners throughout the process of the hearings for the CUP and our subsequent appeal of their decision to grant it, she said. We feel that we were denied due process and our appeal to the Supreme Court is partly based on that. I believe that the basis for the appeal will be found in the Grounds for Illegality that were listed in our original petition.
The petition filed by Peterson on Sept. 26 claims that several irregularities occurred during the hearing and appeal process, including:
1. The appeal should have been heard by the board of county commissioners instead of the board of adjustment.
2. The applicant (Mockler, who is chairman of the Clay County Commission) failed to obtain a letter of opinion from the Natural Resource Conversation Service District (NRCS) to determine whether the operation will be considered an Animal Feeding Operation (AFO) or a Concentrated Animal Feeding Operation (CAFO) as required by the Clay County Zoning Ordinance.
3. The commission lacks authority under the ordinance to issue a mixed-species Conditional Use Permit (CUP).
4. The county zoning ordinance requires that Two or more animal feeding operations under common ownership are a single animal feeding operation if they adjoin each other (within one mile), or if they use a common area or system for the disposal of manure. Which means that the proposed operation must be considered one large CAFO rather than two medium AFOs.
5. The applicant failed to meet required deadlines under the ordinance and the decision, including submission of information prior to the hearings and submission of a to-scale map.
6. The applicants plan for the CAFO was a moving target that was never fully considered by the board or the planning commission, which prejudiced petitioners (Sierra Clubs) ability to oppose the ever-changing plan, which violates petitioners due process rights and also means there was no authority to approve the CUP without a definitive plan being submitted.
7. The applicant participated in the hearing despite being disqualified from participating, and
8. The applicant failed to meet his burden of proving compliance with the conditional use requirements of the ordinance.
The Sierra Clubs primary concern with the plan is water quality, said Sierra Club chapter chair Mark Winegar of Vermillion last October. But we also are concerned that our elected officials follow the regulations spelled out in the Clay County ordinance.
The court papers filed by Peterson in late September state that the tributaries, streams, creeks, rivers, lakes, and other water sources impacted negatively by applicants (Mocklers) proposed CAFO are enjoyed by petitioners (Sierra Clubs) members and are at the heart of petitioners organizational mission to protect. Petitioners members use to-be-affected water sources for recreation, fishing, enjoyment, and other purposes, and they will be negatively impacted by leaching, pollution, and runoff from applicants proposed CAFO and lands where manure from applicants CAFO will be applied.
The document also state that the petitioners members live, work, recreate, and engage in other activities that will be adversely impacted by pollution from applicants proposed CAFO and that petitioners members would otherwise have standing to pursue this civil action individually, the interests Petitioner seeks to protect are germane to its organizational purpose, and neither the claim asserted nor the relief requested requires the participation of petitioners individual members in this civil action.
The court papers from last fall state the petitioners members are persons who: (a) own land near the proposed site of applicants CAFO; (b) own land in Clay County that will be adversely affected by the decision as described in this petition; (c) are South Dakota tax payers; (d) are Clay County tax payers; (e) are otherwise interested in the subject matter of this Petition; (f) are aggrieved by the decision as set forth in this petition; or (g) a combination of the foregoing (a) through (f).
The court petition notes that the decision issuing the conditional use permit to the Mocklers creates a serious risk of pollution, diminished water quality, diminished air quality, increased odors, increased flies and pests, increased noise, increased glare, negative economic impacts, decreased property values, incompatibility with surrounding area and properties, negative impacts on ecology and wildlife, and dilapidation and deterioration of roads thereby increasing the tax burden on petitioners members.
Peterson first told the board of adjustment last July that Mocklers conditional use permit falls short of what is required by Clay County ordinances in two key areas.
He first told county commission members, in their role as a board of adjustment, that they have the ability to further amend manure application setbacks from waters of the state that run near Mocklers farm.
You have a tremendous amount of power, he told board members in July. Mr. Mockler -- the burden is on him to demonstrate compliance with all of the minimum requirements. If he doesnt demonstrate compliance with all of the minimum requirements, you have to say no to him, even though hes a colleague on the board and that may be difficult to do. You may want to see projects to go forward in the county, so it may be difficult for that reason.
But if he hasnt met his burden of proof of complying with the minimums, you dont have the authority to approve it, Peterson said. Once he demonstrates compliance with the minimums, he has the burden to persuade you that its a good idea. You have discretion and power that you may or may not grant him a conditional use permit. You can increase the conditions.
He added that the board may reject the conditional use permit even if they deem it meets the minimum requirements of the ordinance.
You, as a board, have the power to say this isnt the right site. These rules are kind of one size fits all but thats why its not a checklist for a zoning administrator, Peterson said. Thats why its elected people making the decision for the county about what you want this community to look like. That is your power and dont punt it to the curb.
He told the board that they must consider, under the countys new CAFO and AFO ordinance, public health, general welfare, protection of land, water and natural resources. Those are the key things that your constituents have talked about. The ordinances tell you that these are the things that youre supposed to be thinking about when youre making decisions so I encourage you to do that and look to the ordinances for those values that youre supposed to be weighing for this community.
Peterson noted that one section of the countys CAFO/AFO ordinance says the ordinance shall be held to meet minimum requirements.
You cant look the other way if he hasnt met something, even if you want to, he said. You have to hold him to the minimum requirements. And to the extent that there are conflicts between different provisions of the ordinances, between your ordinance and what the state might require -- the state has their rules and they deal with their rules. You have your rules; thats for you to deal with. There are EPA rules for the feds to deal with.
When theres a conflict between what your county requires and what some other source requires, you need to hold him to the most strict standard and thats right in Section 104 (of the county ordinance).
Peterson said a conditional use permit allows a use that generally would not be appropriate without certain conditions to protect health, public safety and welfare.
The county ordinance, he said may -- and the word may is important -- may permit such uses when specific provisions are made in the zoning district regulations, he said. If he meets the minimums that doesnt mean Mr. Mockler is entitled to a conditional use permit. It means he is eligible for one and its your decision whether you grant him one or not.
The Mocklers Plan
The Clay County Planning Commission initially granted the conditional use permit to Mockler in late March, 2019, and gave final approval to issuing the permit at a second meeting held April 29, 2019. Not long after that, the Living River Group, Sierra Club, appealed the decision.
The permit would allow the Mocklers, whose farm is located at 30451 464th Ave., Centerville, to expand their current operation to raise up to 2,499 hogs and 500 cattle.
New information that Mockler provided the board at the July hearing included several pages of materials produced by Rushmore Buildings describing the design and components of their structures used for housing livestock.
Mockler also provided aerial photos of 10 parcels of his property showing where manure would be applied and where setbacks were located near the Vermillion River and drainage ditches, and an aerial photo that included rough sketches of where he planned to locate four 50-foot by 70-foot buildings to house hogs and one 50-foot by 400-foot structure for cattle.
The barns, he said, would have concrete aprons and interior floors of compacted clay. Bedding on those floors would be cornstalk or straw, Mockler said, and the manure-laden bedding would be removed from the cattle barn twice a year and removed from the hog barns after each group of those animals were finished and marketed.
At the March hearing, Cynthia Aden, the countys planning and zoning administrator, read the information that had been provided to her through a questionnaire completed by Mockler and other requirements included in the countys CAFO ordinance. She confirmed the number of livestock that would be included in the AFO and said the applicant meets all setbacks except for one rural residence. The owner of that residence had provided a written waiver to Mockler, Aden said, to allow the construction of new buildings to hold the additional livestock.
It also gives information about manure application setbacks, she said in March. The applicant will meet all of the requirements for manure applications setbacks. Manure is expected to be applied only on applicants property.
Mature trees and pasture land will be used as a buffer, Aden said. Animals will be enclosed in a building.
In the area of fly and odor control, she said the applicant will use various methods, when needed, to dispose of dead animals. She added that manure will be stored on-site in a pile and will be removed at least two times a year.
Water containing waste will not be allowed to migrate from the area of application, Aden said.
She said that after speaking to several people in the state DENR and after collecting all of the necessary information contained in the county ordinance, it was her recommendation that the conditional use be approved.
At the end of the July hearing, the board of adjustment, which had amended Mocklers application at its June 11 meeting, added two more conditions: that the planned location of the building be moved 50 feet to the east and that the application show where dead animals will be located on the farm before theyre removed or disposed of by some other method.
Sierra Club Challenge
Those findings and ultimately the granting of the conditional use permit were challenged by the Living River Group, Sierra Club. The Clay County Board of Adjustment heard details of the Sierra Clubs appeal June 11. At the conclusion of that hearing, the board agreed to amend Mocklers permit to include several requirements suggested by County Commissioner Richard Hammond and to continue action on whether to approve the conditional use application on July 30.
At the June 11 meeting, Skyrm, co-chair of the Living River Group, Sierra Club, read a statement to the Clay County Board of Adjustment pointing out many of the clubs concerns. We have found that there were serious problems not only with the application and the lack of adherence to the required procedures, but also with the proposal itself, she told the board June 11.
Skyrm added that in Mocklers March 25, 2019 Conditional Use Permit Application, there were not enough or no details which are required by the Clay County ordinance, including details pertaining to the site plan, buildings, manure storage and management, information on soils, floodplain designation, and methods of preventing discharges into Waters of the State.
As of the April 29 meeting at which the application was approved, there was still no detailed site plan, not even a sketch of proposed buildings in which animals would be confined along with their urine and manure, Skyrm said, and no details of a manure management plan beyond the statements that manure would be piled, and that there would be no discharge. When asked whether the zoning administrator or any member of the commission had personally inspected the proposed site, nobody answered in the affirmative.
She said the Living River Group, Sierra Club found the application lacked a basic requirement of the Clay County Ordinance: a letter opinion from the Natural Resource Conservation Service District (NRCS) to determine whether the operation will be considered an Animal Feeding Operation (AFO) or a Concentrated Animal Feeding Operation (CAFO). The letter shall state how the NRCS made that determination.
The NRCS District Conservationist, Jeff Loof, sent a one sentence letter on March 22, Skyrm said, in which he declined to make such a determination, and suggested that Mockler seek a determination from the SD Department of Environment and Natural Resources.
Skyrm was at the Aug. 27 hearing, and told the board of adjustment that Mocklers application was still inadequate. She was critical of the various maps he submitted as requested at the conclusion of the June 11 meeting, particularly the one with a sketch to show where the buildings were to be located.
The map he submitted perhaps is to scale, but it didnt have the buildings or their placement drawn to scale, didnt indicate the type or purpose of each building, theres no indication of any planned or existing manure containment structures or dead animal storage areas on the submitted map, Skyrm said. Theres no information about existing or planned drainage ways originating in or traversing the proposed operation. There are, most importantly, no maps showing the existing or proposed structures are 144 feet away from the sloped ground to the Vermillion River floodplain or to the southern territory valley.
She noted that the application amended June 11 called for a description and design of the proposed hoop building and pole shed, including floor and roof design, manure containment and seepage control measures.
There was no description of any pole shed, just a commercial brochure describing the variations on the companys hoop barns, Skyrm said, and Mr. Mocklers minimal description four-foot high pony walls, six-inches thick and four-feet in the ground; first 20 feet of the building is four-inch concrete floor with the remaining being clay; 12-foot wide aprons in front of the buildings.
This description is not really adequate to show how these buildings would contain manure and control the seepage, she said. A CAFO (Concentrated Animal Feeding Operation) or AFO (Animal Feeding Operation) production area includes manure storage buildings or areas and the map doesnt include any of these.