(UPDATED 12:05 p.m.) Judge amends Arrow Rock CAFO ruling / Buffer zone reduced from 15 miles to 2 miles

Cole County Judge Patricia S. Joyce issued an amendment Tuesday to her Aug. 25 judgment in favor of three plaintiffs who objected to Arrow Rock farmer Dennis Gessling's plan to build a confined animal feeding operation two miles from the village of Arrow Rock.

The plaintiffs -- the Village of Arrow Rock, the Friends of Arrow Rock and the Missouri Parks Association -- filed suit against the Missouri Department of Natural Resources and its director, Doyle Childers, in October 2007 to block the construction of the CAFO, which would have had a capacity of 4,800 hogs.

The original ruling established a 15-mile buffer zone around Arrow Rock and nearby historic sites and prohibited CAFOs from being developed or operating within that zone.

The amended ruling retains the original ruling's language criticizing DNR for failing to balance its CAFO regulation oversight with its obligations to protect state parks and historic sites.

Although Gessling's permit expired Aug. 30 without the proposed facility being built, farm organizations and state agriculture officials objected to the ruling, saying it would, if applied across the state, virtually shut down animal agriculture in Missouri.

The new ruling -- in response to motions filed by DNR, Missouri Farm Bureau Federation and a group of agriculture organizations -- states that "a concentrated animal feeding operation (CAFO) from the Gessling Application or its successor may not be allowed within a distance of (2) two mile radius of the Village of Arrow Rock and Sappington Cemetery State Historic Site in the State."

According to a January 2007 letter from DNR, current state law requirements for a Class 1C CAFO are "a minimum buffer distance between the nearest confinement building and any public building or occupied residence ... is 1,000 feet."

It also appears to head off any attempt to transfer Gessling's original permit to a different site, stating that "The Court ... finds that Mr. Gessling has sought to transfer his permit to his company name for another operation in the area of the instant lawuit. If such transfer was permitted, similar threats to the community such as exposing them to odors and volatile and dangerous airborne pollutants could occur ..." and further ruling that no CAFO "from the Gessling application or its successor can transport, spread or otherwise deposit or dispose of any waste from its operation within a two mile radius."

After further review from their attorneys following the original ruling, the Missouri Department of Agriculture advised farmers to "continue business as usual," interpreting the ruling to apply only to the named facility -- the one Gessling never built.

The DNR also continued to issue CAFO permits in other parts of Missouri -- a fact that Joyce notes in her amended ruling as one reason she upholds the essential aspects of the original ruling.

The amended ruling denies motions asking the court to vacate or set aside the original decision.

Kara Valentine, legal counsel for DNR, said they will be taking a closer look at the ruling "over the weekend" and decide whether or not they will be making another appeal.

"We'll need to act quickly as we only have 10 days to appeal," she said.

She said her "initial reaction" was that two permits for confined animal feeding operations, one for a new building and one for transfer of existing facilities, which DNR had denied after Joyce's ruling in August, can now be approved. Both those permits were within the 15-mile boundary Joyce's first ruling mandated.

In a press release issued Wednesday, Dec. 10, Farm Bureau President Charles Kruse said the new ruling improved on the original decision, however "serious concerns remain."

"We are pleased the judge modified her August ruling by clarifying it applies only to the proposed Gessling operation near Arrow Rock, Missouri; however, the fact is there remains no demonstrated need to impose a buffer over and above what is already required by state law and this ruling could set a needless and harmful precedent.

"Missouri Farm Bureau attempted to intervene in this case as we cannot ignore the fact that production agriculture in the U.S. is under attack. Our nation's family farmers and ranchers are facing challenges on every front. Regulations whether imposed by administrative rule or court order, must be based on science and fact, not emotion, misinformation and legal technicalities," Kruse said.

Leslie Holloway, director of governmental affairs for Farm Bureau, said that the new ruling will not apply to any existing operations, including the Gesslings' current operation, which has been operating for several years without complaints.

"We are pleased to see the scope has been narrowed but still would like to see a buffer based on demonstrated need or sound science," she said.

Gessling said he had no comment on the new ruling at this time. Richard Miller, the Kansas City-based attorney representing the plaintiffs, did not return calls asking for comment.

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