A circuit judge in Cooper County on Monday halted enforcement of a regulation on confined animal feeding operations that the Cooper County Health Board passed this month.
Circuit Judge Robert Koffman issued a temporary restraining order, ordering the Cooper County Health Department not to enforce its regulation as a group of area landowners sues in an attempt to have it overturned, arguing the health board didn’t have authority to pass it.
A group of 100 area farmers and landowners, represented by attorney Brent Haden, initially sued the health board last September after the board passed its first set of restrictions on confined animal feeding operations and the manure their livestock produce.
Koffman soon after halted the enforcement of that regulation. The board repealed the regulations in June and passed new regulations Aug. 13, spurring the farmers to ask Koffman for a new injunction.
Haden repeated the arguments used against the original regulations for the new ordinance, maintaining the board went beyond its authority to make rules that prevent disease from spreading in the county, arbitrarily stopping Cooper County farmers from using manure from CAFOs as fertilizer.
Koffman indicated in a hearing on Monday that he agrees the rule is arbitrary, saying he doesn’t see why manure from a CAFO is considered harmful but not waste from other animals.
“You put in a regulation, ‘This kind of manure is bad, but all other kinds of manure aren’t,’” Koffman said. “I don’t understand why that’s there unless it’s arbitrary and capricious.”
Chris Pieper, representing the health board, said the board has research to support their regulation and that Koffman’s questions would be answered later in the lawsuit.
Koffman’s questions about the source of the manure don’t relate to the farmer’s request for a restraining order, Pieper said. He argued they don’t have standing to ask for one, because the plaintiffs didn’t show the regulation is causing harm. Three of the plaintiffs — Brandon Kliethermes, Brian Kliethermes and Nathan Alpers — signed affidavits saying they use manure from CAFOs as fertilizer on their crops.
The board’s new regulations places limits on how much hydrogen sulfide, ammonia and particulate matter can be detected in the air past the line of a CAFO property or land where manure from a CAFO is spread as fertilizer.
The board banned building a manure storage lagoon in soil with “severe” potential to swell when wet, or on karst rock formations, characterized by sinkholes and springs. It also bans landowners from spreading manure from a CAFO on a karst formation.
None of the plaintiffs spread manure on karst formations, so they haven’t shown the regulation would apply to them, Pieper said.
The board doesn’t define karst formations, Haden said in response, and the regulations don’t include a map showing where such areas are located.
Instead, the board defers to the Missouri Geological Survey’s maps of karst formations, which Haden said the survey wasn’t able to show him.
Pieper cited a geologic map of Missouri, which details different bedrock geology around the state, but doesn’t show karst formations. The plaintiffs only argued that they want to apply manure from a CAFO on their land, Pieper said. The regulation would only apply to them if they wanted to spread on a karst formation, and none of them said they did, he said.
“Let me ask you this — has the health board looked at that?” Koffman asked Pieper. “They don’t know who they’re applying the regulation to, do they?”
Koffman said the harm the plaintiffs allege doesn’t have to occur to seek a restraining order. The plaintiffs don’t know what they can do with their land without violating the regulation, so they are harmed by it, Koffman said.
Haden believes an impending statewide ban on county-level agricultural regulations will wipe out all existing county-level regulations, including Cooper County’s, and he plans to argue that when the law takes effect.
The law was set to take effect Wednesday before the Cooper County health board joined the Cedar County Health Board and individual opponents of CAFOs in Cooper and Callaway counties sued to have a judge declare the law unconstitutional, or rule that existing regulations can stand.
Circuit Judge Patricia Joyce, the Cole County judge presiding over that lawsuit, issued a temporary restraining order that keeps the state from enforcing the new law, and keeps the Missouri Cattlemen’s Association, Missouri Pork Producers Association and Missouri Farm Bureau from suing any counties and county health boards with CAFO regulations.