Kansas Supreme Court Justice Caleb Stegall wrote the opinion declaring moot issues raised by the Kansas Sierra Club on permitting of confined animal feeding operations, but the opinion left open potential of new litigation on alleged threats to pollution of surface water by hog producers. (Pool photo by Evert Nelson/Topeka Capital-Journal)
TOPEKA — The Kansas Sierra Club found reason for optimism in the Kansas Supreme Court’s dismissal of a case challenging state permits issued for confined feeding facilities on property divided in a way to allow substantial increase in the number of hogs on the site despite proximity of surface water.
Kansas Sierra Club chapter chair Elaine Giessel said the latest ruling in a lengthy court drama did nothing to undermine the organization’s opportunity to challenge other Kansas Department of Health and Environment permits drafted to help confined animal operators game the regulatory system and establish a precedent capable of increasing contamination of water with animal urine and feces.
“We have fought these permits for almost six years because KDHE has failed to do its job,” Giessel said. “They’re called the Department of Health and Environment for a reason. We look to them to preserve health and environment, not endanger it.”
The dispute emerged after KDHE in 2017 and 2018 granted permits for expansion of a family’s confined hog operations in northcentral Kansas. The Sierra Club filed a lawsuit in 2018 alleging permits awarded farmer Terry Nelson and his partners violated state law through a “legal fiction” that dodged a cap on the number of hogs within 250 feet of surface water. Under those permits, the Nelsons could add more than 2,400 hog units to the property if divided into two family-owned limited liability companies.
In 2019, Sierra Club prevailed at trial in Shawnee County District Court. The Nelsons, which received legal advice from the Kansas Livestock Association, advanced the case to the Kansas Court of Appeals. KDHE intervened in 2021 by issuing four new permits to accommodate Nelson’s hog expansion. The Court of Appeals added to the intrigue by ordering reinstatement of the 2017 and 2018 permits and declaring Sierra Club didn’t have standing to sue.
During Supreme Court oral argument in February, the Sierra Club requested adherence to the district court’s perspective and the Nelsons sought to nullify district court action. The Supreme Court last week reversed the Court of Appeals and declared the case moot because the original KDHE permit issued in 2017 expired in 2022 and the permit granted in 2018 expired by May. The newer KDHE permits for the Nelson CAFOs weren’t part of this case.
Supreme Court Justice Caleb Stegall, an appointee of Republican Gov. Sam Brownback, said in the eight-page opinion that mootness could occur when something changed over the course of litigation.
“Any wrongs Sierra Club may have suffered due to the 2017 and 2018 permits, it will continue to suffer under the 2021 permits regardless of anything we might say in this case,” Stegall’s decision said. “Instead, the parties may litigate their actual dispute in other cases and administrative forums involving the operational 2021 permits and potential successor permits.”
Giessel said the Supreme Court’s approach left the Sierra Club free to challenge more recent KDHE permits for confined feeding operations on grounds comparable to those raised in the Nelson case.
“The Supreme Court did not rule on Sierra Club’s interpretation of the statutory requirements, but the district judge studied the issues carefully and ruled in our favor,” she said. “That interpretation stands and we are firm in our commitment to protect our waterways and the health of rural Kansans.”
She said KDHE’s deference to confined feeding operations was a public health problem because waste carried pathogens, excess nutrients and bacteria that could be antibiotic resistant. Animal waste contributed to groundwater pollution through seepage and application of liquid waste sprayed on the ground, she said.
KDHE didn’t respond Monday to a request for comment about the Supreme Court decision or the Sierra Club’s interpretation, but issued a statement Tuesday.
“KDHE acted appropriately in this case to protect surface water,” said KDHE spokesperson Matt Lara. “To ensure that rules, regulations and statutes are followed, each permit filed for confined animal feeding operations is thoroughly reviewed and vetted by our staff before being issued. The issue raised by the lawsuit was resolved with the new permits.”
During oral argument with the Supreme Court, Nelson family attorney Clayton Kaiser said there was nothing deceptive about a business model establishing a series of side-by-side LLCs authorized to raise 6,154 hog units at that location. If it were a single LLC, it would be limited to 3,724 hog units within 250 feet of surface water.
Kaiser said Kansas law was silent on how many legally separate hog facilities could be carved into a piece of agriculture ground.
In 2017, the Nelson facility known as Husky Hogs in Phillips County burned in a catastrophic fire. The Nelsons developed a plan to rebuild and expand swine capacity by subdividing the property into a pair of LLC by simply drawing a line down the middle of the facility. KDHE agreed with the design and issued permits to the Husky Hogs and Prairie Park Pork LLCs.
The Nelsons also created two LLCs in Norton County by deploying the same development scheme and received KDHE permits.
The Sierra Club contended neither were separate facilities and the configurations violated state environmental law. The district court in Shawnee County later declared the 2017 and 2018 permits to be unlawful.
“Which is to say that even though the CAFOs were distinct legal entities,” Justice Stegall wrote in the Supreme Court opinion, “they were effectively only one CAFO on each geographic footprint. The district court’s ruling was bolstered considerably by one of KDHE’s then-existing regulations which stated that CAFO facilities would not be considered separate facilities if they shared a common property line.”
While the case was on appeal to the state Court of Appeals, the Nelsons exploited a loophole in statute by deeding small strips of land across both geographic footprints to third-party LLCs controlled by the Nelsons. KDHE also amended state regulations to delete references to “contiguous ownership boundary” in relation to confined feeding operations.
The most recent KDHE permits for the Nelsons’ hog facilities required each to have an independent waste management system.
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