Dodge County District Court File No. C6-03-453.
Considered and decided by Randall, Presiding Judge; Minge, Judge; and Wright, Judge.
1. To determine whether a proposed feedlot is exempt from environmental review under Minn. Stat. § 116D.04, subd. 2a(d) (2004), because the proposed feedlot has a "capacity" of fewer than 1,000 animal units, "capacity" is measured by the number of animal units physically capable of being housed in the proposed facility, rather than the number of animal units legally authorized at the proposed facility.
2. Under Minn. R. 7020.1600, subp. 4a (2003), and Minn. R. 7020.0405, subp. 1 (2003), counties that have assumed responsibility to process feedlot applications lack authority to grant certain permits for a "concentrated animal feeding operation" (CAFO), and for construction and operation of a non-CAFO feedlot capable of holding 1,000 animal units or more.
The opinion of the court was delivered by: Wright, Judge
Affirmed in part and reversed in part
Concurring specially, Minge, Judge
In this appeal of the district court's entry of summary judgment, appellants Berne Area Alliance for Quality Living, et al. (collectively BAA), challenge the district court's determination that respondents Dodge County and its Board of Commissioners did not act arbitrarily and capriciously in concluding that an environmental impact statement (EIS) for the construction of a hog confinement facility was not required. The county argues that Minn. Stat. § 116D.04, subd. 2a(d) (2004), exempts the proposed facility from environmental review. BAA counters that because that statute was enacted after the county's EIS decision, it cannot be applied here, and that, even if the statute does apply, it is not satisfied. BAA also contends that the Minnesota Pollution Control Agency (PCA), not the county, is the responsible governmental unit for permit approval. We affirm in part and reverse in part.
Mark Finstuen, who had a feedlot for 35 steers, applied for a conditional use permit (CUP) and other permits that would allow him to build and operate a hog feedlot that, while having a capacity of significantly more than 1,000 animal units (AUs), would be used to house only 995 AUs, including the 35 steers. His proposal included a plan for applying the manure produced by the feedlot, in lieu of fertilizer, to surrounding land in such a manner that there would be no net increase in the amount of nitrates applied to the land. After considering Finstuen's application, his Environmental Assessment Worksheet (EAW), and other environmentally related information, the county made a negative declaration regarding the need for an EIS for the proposed project and granted the application. BAA sued the county, seeking a declaratory judgment that an EIS was required. Both sides moved for summary judgment. Although it did not initially question the county's authority to determine the need for an EIS, BAA argued in support of its summary judgment motion that the responsible governmental unit (RGU) for decisions regarding the EIS and issuance of the permits was the PCA, rather than the county.
The district court denied BAA's motion for summary judgment and granted the county's motion. The district court ruled that (a) the capacity of the proposed feedlot exceeds 1,000 AUs; (b) because the capacity of the proposed feedlot exceeds 1,000 AUs, Minn. Stat. § 116D.04, subd. 2a(d) (2004), which exempts from environmental review proposed feedlots having a capacity of fewer than 1,000 AUs, did not apply; (c) the county was the proper RGU to issue Finstuen's permits; and (d) the county's negative declaration regarding the need for an EIS was not arbitrary or capricious. BAA appealed, and the county filed a notice of review, arguing that the exemption in Minn. Stat. § 116D.04, subd. 2a(d), applies here.
I. Is a proposed feedlot that is capable of holding more than 1,000 animal units but will actually hold fewer than 1,000 animal units exempt from environmental review under ...