While Cedar County, Missouri awaits ruling in CAFO lawsuit, a large chicken operation moves in

Chicken CAFO (Photo by Artem Beliaikin on Unsplash)

(Missouri Independent) – When the attorney general’s office asked a judge in 2019 to lift a temporary restraining order blocking a Missouri law pre-empting county regulations on concentrated animal feeding operations, or CAFOs, that were stricter than the state’s, the argument was straightforward.

No one was trying to build a large animal feeding operation in Cedar County. 

Now nearly two years later, Cedar County commissioners face possible litigation as they try to enforce local CAFO regulations — which they argue are necessary to protect the health and livelihood of area residents — on a 20,000 chicken feeding operation.

And as the 2019 litigation over the underlying state law drags on, the county is asking Cole County Circuit Judge Daniel Green to reinstate his earlier order blocking the state law, arguing Missouri’s 2019 reasoning is no longer valid because of the chicken operation. 

“Circumstances have now changed,” the motion says. 

“Currently, Show-Me Egg Company announced it is constructing a new CAFO in Cedar County,” the motion says. “Further…Cedar County Commission is directly threatened with litigation by Show-Me Egg.”

In a statement, Show-Me Egg’s attorney, Robert Brundage, said that should the county “initiative frivolous litigation against my client seeking to prevent them from populating their farm with birds, my client intends to file suit against the county seeking damages.”

The Missouri Attorney General’s Office maintains that the county’s request for temporary relief against a law the state believes to be constitutional falls flat.

“If counties fear litigation over standards or requirements that are inconsistent with, in addition to, different from, or more stringent than state law, an easy solution is available: Counties should repeal those conflicting standards or requirements,” the state wrote in a court filing last month.

The attorney general’s office did not return a request for comment.

Commissioners in Cedar County hope their struggle over the chicken farm doesn’t end up in litigation before the lawsuit challenging the state’s preemption law is resolved.

“We can’t afford that, which is the same state of all the counties around. That’s why most people don’t stand up against it,” said Cheryl Marcum, who moved back to her home in Cedar County more than a decade ago and supports the commission’s lawsuit.

Asked whether, now that the threat of a lawsuit over a CAFO is real in Cedar County, the protections should be temporarily restored while the lawsuit is pending, Brundage said the “county has no likelihood to prevail.”

CAFOs, especially those raising hogs, can be controversial in rural communities. Confining thousands of animals together in barns can cause nearly unbearable odors for neighbors. Manure spills can pollute waterways. 

Marcum said the neighbor would likely also deal with noise from the thousands of clucking chickens and flies.

“There’s nothing farming about this whole thing,” she said. “This is just an industrial operation.”

Some communities, including Cedar County, adopted rules requiring CAFOs to be built farther from neighbors’ homes or property lines than state law requires. In Cedar County, commissioners say they were responding to an outcry as more and more chicken barns moved into the area and residents feared large-scale hog operations. 

“I think it’s very important that it be recognized that this began with people in agriculture because the perception has been put out there by the large organizations that this is a liberal, (left)-wing attack on farmers,” said Presiding Commissioner Marlon Collins. “And it’s not.”

Cedar County’s rules define operations the state would not consider CAFOs as CAFOs and requires those smaller operations to get county permits. In this case, the farmer’s proposed chicken operation, called Show-Me Egg Company, LLC, is too small to appear on state regulators’ radar.

Under state law, to be considered a CAFO, an operation must have at least 300 “animal units,” a standard figure that translates to varying numbers of animals depending on the species. 

A farm with 300 animal units could have 300 beef cows, 150 horses, 200 dairy cows or 750 large swine. Depending on how the farm handles manure, it can mean 9,000 or 24,500 chickens. In this case, the Cedar County farmer’s attorney contended in a letter to the county commission that the 20,000 birds equated to 243.9 animal units.

Cedar County’s rules count operations with as few as 200 animal units — about 16,300 chickens — as CAFOs. The rules also require that smaller CAFOs be built at least one-quarter of a mile from the nearest occupied home. State law doesn’t require a buffer zone on the smallest CAFOs.

Senate Bill 391

But in 2019, the Missouri General Assembly passed Senate Bill 391, with support from the state’s largest agricultural organizations and despite the objections of environmental groups. The law bars counties from adopting CAFO policies that are any stricter than the state’s. 

It roiled some communities. Two Cedar County commissioners resigned their positions in the Farm Bureau over its support of the new law. 

Collins said he was disappointed politically, having served as chairman of the Republican Central Committee in the county. When Senate Bill 391 picked up steam, he couldn’t get a response from state legislators.

“I have campaigned for those people. I have worked for those people. I have crawled around in the dirty ditches with the chiggers and the ticks to put up their signs,” Collins said. 

Cedar County, Cooper County, the Friends of Responsible Agriculture, and several individuals challenged the law in court in 2019

Commissioner Don Boultinghouse said the commission had been accused of being against agriculture. 

“Nothing’s further from the truth,” he said. “I raise cattle. I raise hogs. I’ve got a few chickens…we’re just trying to protect our people of Cedar County so somebody doesn’t build a CAFO right next to their house.” 

In the meantime, Cedar County commissioners say they’ve continued to issue permits under their health guidelines. At times, they have asked operators to move their barns back from property lines, but they say they haven’t denied any permits.

Show-Me Egg

Earlier this year, commissioners said, they started getting calls from residents about a chicken barn under construction without a permit — the Show-Me Egg operation, which was apparently not complying with the county’s setback rules.

“It’s almost in her backyard,” Collins said. “We’re guessing about 950 feet from her house.”

Collins said the commission brought the operator in to talk about the issue and apply for a permit. They tried to come up with an arrangement and grant the operation an exception if the neighbor would allow it. But the neighbor wasn’t interested.

Then Brundage, an attorney representing the proposed chicken farm, Show-Me Egg Company, LLC, sent a letter to the commission last month, saying the county had no authority to enforce its health ordinance because of Senate Bill 391. He asked that his client’s permit application be withdrawn. 

“Should Cedar County continue to insist my client obtain a county health permit, or brings any action to enforce the Cedar County Health Ordinance, please be advised that my client will seek damages from the county for arbitrarily and capriciously enforcing the Cedar County Health Ordinance in violation of state law,” Brundage wrote on June 10. 

On June 16, Brundage wrote again to say Parson had signed another bill, House Bill 271 tightening the state’s grip on CAFO regulation even further. The legislation most notably curbed local health officials’ authority to issue rules to respond to pandemics. But it also prohibited county commissions from imposing standards on agricultural operations that are “inconsistent with, in addition to, different from, or more stringent than any other law or regulation concerning such agricultural operations.” 

Brundage also wrote to say Show-Me Egg’s owner saw the county commissioners drive to the site of the barn and requested records related to the “field trip.” 

Cedar County’s attorney filed a motion for a preliminary injunction to restore the county’s protection from Senate Bill 391 being implemented. When that was dissolved, Collins said the judge didn’t see any threats to the county.

“Now we’ve been threatened,” he said.

For now, Collins said Show-Me Egg is still building. 

“We can’t stop the building,” Collins said. “How many birds he puts in that barn is in the air right now.”

(Photo by Artem Beliaikin on Unsplash )

Allison Kite

https://www.missouriindependent.com

Allison Kite is a data reporter for The Missouri Independent and Kansas Reflector, with a focus on the environment and agriculture. A graduate of the University of Kansas, she’s covered state government in both Topeka and Jefferson City, and most recently was City Hall reporter for The Kansas City Star.