Judge Robert Koffman dismissed counts against several Cooper County Health Board members, but opponents of the board's CAFO regulation will get another day in court to argue their claims against it.

Opponents of a regulation passed by the Cooper County Public Health Center Board will have another chance to be heard in circuit court Jan. 14 after a judge rejected several motions to dismiss a lawsuit against it, while a separate suit against the Cooper County Commission relating to the proposed Tipton East CAFO will also be heard that afternoon.

Nathan Alpers of Prairie Home, along with dozens of other area landowners, sued the board and its members after it passed a regulation Aug. 24, which would require landowners who apply manure from Class I confined animal feeding operations (CAFOs) to formulate a nutrient management plan. Landowners would also be required to inject manure into the soil, rather than spraying it over the top. A hearing in the case is scheduled for 1:30 p.m., Jan. 14, with Koffman presiding.

The state defines a Class I operation as one that holds more than 1,000 animal units, which is equal to 2,500 hogs more than 55 pounds. There are currently six permitted Class I operations in Cooper County, including Tipton East, the proposed southern Cooper County operation that is facing a challenge to its operating permit, according to an online database kept by the Missouri Department of Natural Resources.

The lawsuit claims the board doesn’t have the authority to impose the regulation, and that it didn’t provide adequate notice of meetings in which it discussed the regulation. A court injunction has kept the ordinance from going into effect.

Cooper County Circuit Court Judge Robert L. Koffman rejected the board’s motion to dismiss each count laid against it by the dozens of people named as plaintiffs in the case.

The board claimed several counts should be dismissed, because it is not an agency and is not subject to state regulations for administrative review, as laid out in statutes. The board is not a state agency, Koffman wrote. But it is an agency, defined as any administrative body authorized to make rules by law or constitution, and is subject to the law, he wrote.

“If (the statutory procedure) is not the proper procedure to challenge a violation of the rights and liberties of citizens in the context of rules that may affect their lives, then the Court questions what is,” Koffman wrote in his order.

Koffman also rejected the board’s motion to dismiss several counts because the court injunction has kept the county from enforcing the rule. Since nobody has been charged over the rule, there is no controversy subject to the court, the board argued. Koffman wrote that each plaintiff could face criminal prosecution if they “exercise their right to enjoy the use of their property.”

“There is a stated justiciable controversy and the plaintiffs should not have to wait to be arrested before they can raise it,” Koffman wrote.

Koffman did dismiss allegations of Sunshine Law violations against five named defendants, all members of the public health board. The plaintiffs didn’t allege the board members were records custodians, so they wouldn’t be subject to the law, Koffman wrote in his order.

Koffman did not dismiss Cooper County Public Health Administrator Melanie J. Hutton from liability, as the plaintiffs claim she is the custodian of records.

Sunshine lawsuit

Another lawsuit stemming from the Tipton East feeding operation has a hearing scheduled with Koffman that afternoon. The Opponents of Cooper County CAFOs, LLC, is suing Cooper County and its commissioners over allegations they violated the Missouri Sunshine Law.

The opponents question a Feb. 9 site visit to the proposed Tipton East operation by all three commissioners met for a site with representatives of PVC Management II — the Minnesota-based operator of Tipton East — Missouri Soybean Association, Missouri Pork Association, University of Missouri Extension and the health board. The plaintiffs claim the commissioners violated the Sunshine Law, because they didn’t give the public advanced notice of the site tour.

Cooper County Presiding Commissioner Don Baragary posted on the commission’s online calendar that the commissioners would be attending “All Day Commissioner Training” in Columbia on Feb. 9, according to court filings. A response filed by attorney Travis A. Elliott on behalf of the county says the online calendar isn’t the main way the commission gives public notice of meetings. Without admitting the tour was a public meeting, Elliot’s response claims the commissioners posted a notice of it at the commission’s offices.

Elliot’s response admits the commissioners drove to and viewed the Tipton East site Feb. 9 but denies that the tour was a public meeting held by the commission, because the commissioners didn’t discuss policy or public business.

“It was an informal gathering of members of a public governmental body and others for ministerial or social purposes and there was no intent to avoid the purposes of (the Sunshine Law),” Elliot wrote.

While the Cooper County Commission is a public governmental body subject to the Sunshine Law, individual commissioners are not, his response argues.

The opponents have also claimed the county violated the Sunshine Law by refusing to provide emails about the Tipton East operation from the Cooper County commissioners’ personal email accounts. Elliots response argues the emails aren’t public records, and that the county gave an adequate response to the request when it asked the opponents to send a check before the County Clerk’s office started to look for records. Since payments were not delivered, the county never had to looked for the records, Elliot argued.

The opponents are asking the court to order the county to produce the commissioners’ emails and pay a total penalty of $10,000.