Opponents of Cooper County CAFOs is arguing a commissioner should be disqualified from ruing on Tipton East permit because she lobbied the Cooper County Commission to oppose a county CAFO regulation.
Opponents of a confined animal feeding operation, or CAFO, in southern Cooper County want a Missouri Clean Water Commission member disqualified from ruling on its operating permit.
Stephen Jeffery, attorney for Opponents of Cooper County CAFOs, is arguing a commissioner should be disqualified from ruing on Tipton East permit because she lobbied the Cooper County Commission to oppose a county CAFO regulation.
Jeffery has filed a motion to disqualify Ashley McCarty, chair of the Clean Water Commission and executive director of Missouri Farmers Care, from ruling on the appeal of a permit issued for the Pipestone System hog farrowing facility, Tipton East. Opponents of Cooper County CAFOs, LLC, a group made up of rural area residents, is appealing that permit.
McCarty said that as executive director of Missouri Farmers Care, she advises county officials on local agriculture regulations. She said that’s separate from her role on the Clean Water Commission, where she determines only whether a particular permit application meets the state’s laws and regulations.
Emails: McCarty opposed CAFO restrictions
The Clean Water Commission is set to make its final decision on the permit appeal at its meeting Wednesday, but first must rule on the motion to disqualify McCarty.
Jeffery has pointed to several emails from McCarty to Cooper County Commissioner Don Baragary, in which she urges him to oppose a county health ordinance regulating confined animal feeding operations. Jeffery said the emails were uncovered in discovery for the Opponents of Cooper County CAFOs lawsuit against Cooper County and County Commissioners Don Baragary, Charlie Melkersman and David Booker over claims they violated the Missouri Sunshine Law.
“Thanks again for your call today and your support of agricultural opportunity,” McCarty wrote in an undated email from her Missouri Farmers Care address to Baragary’s official county email address. “I am attaching the legal findings of three cases in which counties have faced legal challenges of the local health ordinances they enacted.”
In one case McCarty referenced in the email, the Andrew County Health Department moved in 2015 to stop Joseph Knorr from building a hog operation, because he had not obtained a county permit required by a 2010 county ordinance. Andrew County Circuit Judge Randall R. Jackson overturned the ordinance in July 2017. State law didn’t give the department the authority to pass an ordinance, only rules and regulations, Jackson wrote in his ruling. Only county commissions can pass ordinances for the county, he wrote.
The two others were over a 2009 Scotland County ordinance that required operators to obtain a county health permit and to not build anywhere there were at least 10 occupied residences within two miles. Gavin Hauk sued the county after it denied him a permit. While an appeals court ruled the county had the authority to pass the ordinance, it upheld a lower court’s ruling that the decision to deny Hauk’s permit was “arbitrary, capricious and an abuse of discretion.”
Scotland County Commissioner Paul Campbell testified that, if the ordinance were enforced as written, there would be no operations in Scotland County. That wasn’t the intention, so each commissioner had their own interpretation of “populated area,” making the standard arbitrary, the court ruled.
Scotland County was ordered to pay Hauk $178,566 in damages, plus interest, according to online court records. The county then lost its lawsuit against the Missouri Public Entity Risk Management Fund, a municipal insurance fund which denied Scotland County coverage in the Hauk lawsuit.
In a Jan. 22 email to Baragary, McCarty went into greater depth on the Scotland County cases. A bolded section stated that Scotland County ended up paying $192,118 in damages to Hauk, and that its legal expenses for defending the case were $102,427.95.
“As a result of the county’s interpretation and implementation of their restrictive agricultural ordinance the county has incurred legal costs and a judgement against the county with a total that easily exceeds $300,000,” McCarty wrote to end the email.
McCarty: separate roles
McCarty said she sent those emails as executive director of Missouri Farmers Care, not as the Clean Water Commission chair. She regularly offers advice to county officials in her job. Her role on the commission is something she volunteers to do as a private citizen, she noted.
“In my Missouri Farmers Care role, I do work with county leaders in ensuring that opportunities are open for agriculture to grow and thrive in our community,” McCarty said.
The organization’s aim is to limit additional local regulations on agriculture but that doesn’t usually mean feeding operations specifically, McCarty said. In this case, regulations have intersected with the Tipton East operation, she said, but her role is not to advocate for or against individual operations.
“I am not taking any position on the permit itself, on the permittee, on the location, on the specifics,” she said.
Regulations set a long-term environment for agriculture in the county, she said. “It is my role to help ensure, despite how emotions may be running on one specific permittee or one specific operation, that the environment is left open for growth, entrepreneurship and opportunity,” she said.
The organization uses its “Agri-Ready County” designation to encourage limited local regulations of agriculture. Cooper County lost its designation after the Cooper County Health Board passed its regulation that would require people who are applying manure produced by a Class I operation to have the same kind of nutrient management plan as the livestock operation that produced the manure.
Missouri Farmers Care gave Cooper County a provisional designation after a court halted enforcement of that regulation, McCarty said.
McCarty referenced Cooper County’s “Agri-Ready” designation in an an email she sent to Missouri Farmers Care members, urging supporters of the Tipton East operation to attend a Missouri Rural Crisis Center meeting meant to oppose it. She then forwarded the email to Baragary. While the county commissioners were “dedicated to supporting agriculture and opportunity,” McCarty asked members to attend to refute “some of the emotion and inaccuracies presented in the meeting.”
“Even a few people would change the tone of the meeting,” McCarty wrote. “Filling the room with pro-ag folks would be even better.”
In his amended motion, Jeffery argued that McCarty’s work “lobbying the Cooper County Commission on CAFO matters” and meeting with supporters of the Tipton East permit should disqualify her from ruling on it as a clean water commissioner. He cites a section of Missouri statute that members of state agencies can’t do any other work that tries to influence that agency.
Jeffery drops original motions
Jeffery had originally filed two, separate motions which, together, asked to disqualify each of the six active Clean Water Commissioners. He dropped those motions and filed an amended motion Jan. 2 to disqualify just McCarty.
Jeffery said he and his clients decided to drop most of the claims to focus on disqualifying McCarty, who they felt they had the strongest case against.
Jeffery has filed motions to disqualify commissioners several times before, and he and McCarty have a history of conflict over animal feeding operation permits. When he was representing opponents of a hog operation in Callaway County, Jeffery successfully moved to have McCarty and then-Chair Todd Parnell disqualified from ruling on that appeal.
Cole County Circuit Judge Daniel Green ruled in 2016 that McCarty and Parnell violated their duty to rule based only on information in the hearing record. McCarty, Parnell and two other commissioners toured three farms, including the site of the proposed Callaway Farrowing operation in 2015, while its operating permit was being appealed.