Megadairy/Apple River CAFO Court Ruling

[Mike Clifford]

Very interesting proceedings.

You'll learn a great deal about this case start to finish after reading this all the way through.

 

Basically, HOMES doesn't have to pay the dairy owner compensatory damages for their suit, but the court also rules that HOMES has no say public or private on decisions of the IDOA.

Fascinating battle here.

Feel free to chime in with your thoughts on this!

 

 

http://illinoissmallmouthalliance.net/html/Appellate_Court_Decision.pdf

 

 

[Mike Clifford]

“Even though this has been a long, drawn-out case, we applaud A.J. Bos, his family, his dedicated and committed counsel, and most of all the support from those Jo Daviess County residents and farmers that stand up for agriculture,” Anderson said.

 

I'm just glad there are still people standing up for IL rivers and streams.

 

 

 

 

http://www.journalstandard.com/news/business/x2135337270/Appellate-court-finds-against-HOMES-on-Tradition-Dairy-issue

 

 

 

A.J. Bos and family cleared another mega-hurdle when Illinois Appellate Justice John J. Bowman entered a 75-page unanimous decision Dec. 22 affirming the ruling of 15th Judicial Circuit Judge Kevin Ward allowing the Tradition Dairy near Nora to operate.

 

Concurring judges are the Honorable John M. “Jack” O’Malley and the Honorable Donald C. Hutchinson.

 

Donald Manning, attorney for Tradition Dairy operator A.J. Bos, had argued for the right to recover damages from plaintiffs HOMES (Helping Others Maintain Environmental Standards), but the three-judge panel concluded that the trial court did not abuse its discretion in denying the Bos motion to dissolve the preliminary injunction. That motion would have allowed Bos to seek damages from the plaintiffs.

 

Bos’ attorneys argued that the motion to dissolve should have been granted based on collusion between HOMES and their expert witness, Illinois State Geological Survey employee Sam Panno.

But upon review of the trial record, the appellate court found that Panno’s explanations of his actions are reasonable and are not contradicted by the record. They also found that plaintiffs are not required to prove their case at the preliminary injunction stage, but rather needed only to present a fair question as to the legal rights involved.

 

HOMES spokesperson Matthew Alschuler said his organization is pleased that the appellate court decided they were defending their houses.

 

“The court found our actions were not frivolous and therefore Bos is not entitled to any damages,” said Alschuler.

 

Seeking Review of Decision

 

Alschuler said HOMES and the organizations that filed Amicus Briefs in their support are reviewing the part of the decision that looks at legal standing, because it contradicts an earlier ruling from the 5th Appellate District.

 

In appeal, the plaintiffs argued that they have standing to seek judicial review of the Illinois Department of Agriculture (IDOA) administrative act, finding it was “more likely than not” that the Tradition South facility met the Livestock Act’s provisions.

 

The appellate court disagreed saying that the right to review administrative decisions is limited to those who were both parties of record to the agency proceeding and aggrieved by the agency’s decision.

 

“In the 5th Appellate District, a group similar to HOMES was fighting a mining permit and the lower court ruled that group did not have standing, but the appellate court said yes, of course you have standing; citizens have a right to protest against a state agency,” Alschuler said. “We question why this appellate court decided differently than the other appellate court.”

 

No Basis For Review

 

The appellate court said in last week’s decision that nothing in the Livestock Act gives the plaintiffs status as parties of record, and said further that the Illinois Constitution does not provide the plaintiffs with an independent basis to seek review of the IDOA’s decision.

 

This decision, coupled with another that said the plaintiffs have no implied right of action, successfully released the Department of Agriculture from the case.

 

Alschuler said ruling that citizens are unable to question a state agency sets a dangerous precedent.

 

“If state law permits citizens to ask a state court to review a state agency’s decision, then why does the agency’s law overrule that and kind of take away a right, and is that a good precedent to set?” Alschuler asked.

 

Permanent Injunction

 

HOMES and the other plaintiffs alleged public and private nuisance, as well as trespass, in seeking a permanent injunction against Tradition Dairy.

 

The justices asserted that the plaintiffs did not show by a preponderance of evidence that the defendant’s operation is a prospective nuisance, and said the plaintiffs were not entitled to a permanent injunction.

 

Alschuler said his organization would meet and decide their next step in coming weeks.

 

Manning said Judge Kevin Ward was affirmed in all respects.

 

“The Department of Agriculture won, too,” said Manning. “They are done. Everything is done. There will be no permanent injunction.”

 

He said the Illinois Environmental Protection Agency (EPA), the Illinois Attorney General, and the U.S. EPA are raising some issues, but those are a different matter.

 

“As far as HOMES is concerned, they should no longer be an impediment to A.J. to get this thing up and running,” Manning said.

 

Illinois Livestock Development Group representative Nic Anderson said his organization is pleased with the appellate court ruling.

 

“Even though this has been a long, drawn-out case, we applaud A.J. Bos, his family, his dedicated and committed counsel, and most of all the support from those Jo Daviess County residents and farmers that stand up for agriculture,” Anderson said.

 

[Mike Clifford]

The appellate court said in last week's decision that nothing in the Livestock Act gives the plaintiffs status as parties of record, and said further that the Illinois Constitution does not provide the plaintiffs with an independent basis to seek review of the IDOA's decision.

This decision, coupled with another that said the plaintiffs have no implied right of action, successfully released the Department of Agriculture from the case.

That's the crux of the problem right there.

The "Livestock Act" is what needs serious revisions, and I'm hopeful that we'll see that happen.

The IDOA cannot continue to run around rubber stamping everything with no reasonable recourse from the people adversely affected by their decisions.

Granted, there is much more to it in this case.

[ronk]

That's the crux of the problem right there.

The "Livestock Act" is what needs serious revisions, and I'm hopeful that we'll see that happen.

The IDOA cannot continue to run around rubber stamping everything with no reasonable recourse from the people adversely affected by their decisions.

Granted, there is much more to it in this case.

Mistakes were made that likely cost the group a victory, but it also serves as a spectacular lesson for the future.

Unless I'm misunderstanding(wouldn't be the 1st x)I disagree with your 2nd sentence as the court ruling supports the continuation of the IDOA's rubber stamping.This is just another case of big guy over little guy.Ho hum.The fact that the court barred Bos from retributive action against HOMES is of little consequence since on the face of it there was little merit in Bos'attempt it being obvious that HOMES' suit was not frivolous.

[Mike Clifford]

Yes, the court ruled on current law.

I'm confident that the laws in IL are going to change where CAFO's are concerned.

This was a bizarre case.

Click on my link in the first post and scroll down to the discussion about karst.

It somehow got turned around to bite them.

[ronk]

Yes, the court ruled on current law.

I'm confident that the laws in IL are going to change where CAFO's are concerned.

This was a bizarre case.

Click on my link in the first post and scroll down to the discussion about karst.

It somehow got turned around to bite them.

Mike, I muddled thru the karst issue.(Boy does my head hurt.)It boils down to just the usual he said/she said thing as it applies to conflicting expert testimony canceling each other out.For whatever it was worth(apparently not much)it was interesting that even Bos' own expert did acknowledge that it was not "prudent" to build this facility over an existing(subsurface) stream.

I hope you're right about CAFO laws changing but I doubt it.What's needed is for the decision to approve a CAFO site be made by an authority more independent than a state's rubber stamping agriculture dept.

[jim bielecki]

I have several concerns here, why was the IDOA working so hard on behalf of A.J. Bos…..they aren’t going to gain anything out of this at all but it seems they were fighting so hard against the plaintiffs.

 

What’s going to happen if counts 1, 2, and 3 are violated? This is what’s going to happen, Bos will be fined which will be mere pennies on the dollar, and his business will continue. In the meantime, the plaintiffs will be paying the price when the odor is rank, and they can’t sell their homes.

 

Why didn’t Bos pay for Panno to test the site thoroughly, pay for the service and thus win the case without question? It seems that he expected Panno to do it pro bono. Panno works for the Geological Survey….he’s not an independent analyst! Also, as an employee of the Survey, he doesn’t have access to funding to conduct “every test available” to test the site. Again, Bos’ attorney’s expected this.

 

It seems that an independent analyst should have completed the testing instead of tossing Panno in the middle of this suit.

 

This is really crazy! It seems the court wanted the plaintiffs to prove their case, but the defendent had no evidence to disprove their claims. I guess that's why Homes wasn't liable for damages...that's good but Bos still didn't disprove anything. Homes initial claims may come to fruition....then what?

[Mike Clifford]

On the bright side, IL has been forced to get it's house in order.

Some key changes will take affect as soon as tomorrow.

http://illinoissmallmouthalliance.net/forums/index.php?showtopic=7422

[Mike Clifford]

More on this.....

 

http://food.change.org/blog/view/no_more_free_passes_for_polluting_factory_farms_in_illinois

 

 

No More Free Passes for Polluting Factory Farms in Illinois

 

 

Illinois citizens have little say on when and where factory farms are built. Local boards can make recommendations to the state's Department of Agriculture, but the recommendations are non-binding, and farms are nearly always allowed to build no matter what the community wants. One of the few protections citizens have against the negative effects of factory farms is the Clean Water Act, which regulates polluters — and factory farms can be big polluters.

 

But a few years back, Illinois researchers, community organizers, and rural residents who lived near factory farms had a hunch that the State's Environmental Protection Agency (IEPA) wasn't properly enforcing the Clean Water Act. They got together and formed Illinois Citizens for Clean Air and Water (ICCAW) a, "state-wide coalition of family farmers and community groups advocating for sound policies and practices that protect the environment, human health, and rural quality of life from the impacts of large-scale, industrialized livestock production facilities in Illinois."

 

The group went to the IEPA to ask the agency to enforce the Clean Water Act and regulate some of the farms that were known to be polluting. The Illinois EPA refused. That's when ICCAW turned to the United States Environmental Protection Agency (U.S. EPA).

 

"It was almost undeniable that the state was completely failing to do its job" says Danielle Diamond, a lawyer for ICCAW, so in 2008 the group filed a petition with the U.S. EPA. The petition alleged that the Illinois EPA had not conducted a comprehensive survey of factory farms to determine which fell under the law and which didn't, that they failed to inspect and monitor the farms, that they failed to fine factory farms that were in violation of the law, and that they were not being responsive when citizens complained about farms that were breaking the law. "These facilities could be polluting, and the IEPA doesn't even know where they are," Diamond says. "So there's a whole industry that's going unregulated." The petition set off a two-year-long investigation of Illinois' EPA.

 

 

[jim bielecki]

I'm not sure if the IEPA failed to do their job...people that work for such an agency go into the field to make a difference. It's just my opinion that the IEPA were probably told to look the other way. Maybe I'm wrong...we'll never know. I'd love to work for the IEPA myself but if your hands are tied with someone telling you what you can and can't do, it's not a job I would want. Either way, it's about time that something is not only recognized but possibly something will be done about it. I'm hoping that the Federal EPA will step in; possibly even take over. At the same time, I'd love them to step into the office of the Dept. of Agriculture and have a talk with them. Something in that office just doesn't seem to be right. They are advocating for the wrong reasons and their decision making process seems to be one sided. I read the previous articles above and the one article hit the nail on the head. Illinois citizens can complain all they want about polluting sources but their views are consistently ignored. This is what angers all of us and it should! We pay taxes to a govenment that is supposed to protect all of us...instead the govenment sells us out and ignores what we want. In some cases...it's even legal to dismiss the will of concerned citizens such as this case....that's insane! I think the anger has finally reached a turning point for all of us and change is coming. It's way over due. I also go back to what I thought a year ago....the IDOA is advocating for this CAFO, which will compete with family farms....how is that ethical? Crazy, that's all I can say. This is just crazy. I really somethimes wonder what's wrong with people. Are they really that ignorant or do they just don't care about anything except for money. I can say this...I'm surprised that the anger people have in cases like this isn't turning to violence. We see the same record played over and over again.

[Mike Clifford]

Obviously, people are passionate about this issue or we wouldn't be discussing it.

Remember too that stakeholders from all sides of the issue are reading all of your comments here.

Mr. Anderson of the ILDG was kind enough to quote me out of context in the Journal Standard article comments section (linked in a post above).

My quote was made in a thread on the treatment plant explosion- so we know that fans of our little forum here are thorough.

 

The quote in the comments?

Here is a good quote from HOMES loyal supporters from the Smallmouth bass folks. I could not say it any better. Great to see they can stand behind and issue.

 

from Mike Clifford

ISA Executive Board / Conservation Director

 

 

'Visit the Conservation forum to see how the group opposed to the Megadairy on the Apple River just got their asses handed to them in court '

 

Clifford seems have trouble supporting the lost cause of HOMES Group.

 

The FULL quote:

Visit the Conservation forum to see how the group opposed to the Megadairy on the Apple River just got their asses handed to them in court courtesy of pathetic IL laws regarding protection of our rivers and streams.

 

Know thy audience, gang.

[mike domrzalski]

here is an update on the Mega dairy and its good news.

 

http://www.chicagobreakingnews.com/2011/01/state-wants-details-on-dairys-anti-pollution-plans.html

 

Mike D

[Mike Clifford]

Nice.

I'd add something useful here, but every time I do, it ends up getting twisted and posted on the news sites by the dairy lobbyists.

Keep fighting for your smallmouth waters, gang....and I'll continue to do the same.

[jim bielecki]

This case could have easily been solved if the CAFO was simply relocated to a more suitable site. On the other hand, it sets a new path for real legislation to close loop holes and mandate proper regulation effective at protecting society and the environment. I don't particularly believe businesses should be strictly regulated, however, when the industry ignores moral and ethical responsibilty, it's necessary. It's necessary because we all are familiar with what happens without mandated parameters to follow.