DNR files appeal with higher court in Arrow Rock CAFO suit

The Missouri Department of Natural Resources has confirmed that on Dec. 18, 2008, the agency filed an appeal with a the Missouri Court of Appeals Western District asking it to overturn a ruling by Cole County Circuit Judge Patricia Joyce regarding a confined animal feeding operation (CAFO) proposed but never built by the Gessling family of Saline County.

Since the department had only 10 days to file the appeal, Kara Valentine, general counsel for the DNR, said this initial document is a "very simple filing" which "preserves" the agencies legal rights to file an more complete appeal.

She said officials would be filing more detailed documents in the next few months.

The initial lawsuit, filed by the Village of Arrow Rock, Friends of Arrow Rock and Missouri Parks Association was against DNR and its director, Doyle Childers.

However, Childers is expected to step down from the position on Jan. 12, 2009, when new governor Jay Nixon takes office.

Valentine said that while she doesn't forsee the new administration changing or dropping the appeal, she said, "they may have thoughts on the direction that they want the appeal to go."

"We're fine with that," she said, adding that is to be expected with a new administration.

The appeal comes after Joyce ruled Dec. 9 that no concentrated animal feeding operation proposed by the Gessling family or their successors can be located within two miles of the Village of Arrow Rock and the Sappington Cemetery State Historic Site.

That ruling came after DNR appealed her August ruling that ordered a 15-mile buffer zone and appeared to have statewide consequences.

The new document filed last week states that the "court lacked subject matter jurisdiction because there was no justifiable case or controversy ripe for review upon which the Amended Judgment might be entered and the case was moot in that Dennis Gessling never constructed or operated his planned CAFO and his permit expired."

It also goes on to state that there is "no legal or factual support for the two (2) mile buffer and that the two mile buffer and the language related to manure management practices exceed the relief prayed for in Plaintiffs' Petition for both declaratory Judgment and writ of Mandamus."

It also states that the "DNR had complied with its regulatory and statutory duties in issuing the construction permit to Gessling for the construction of his planned CAFO."

Missouri Farm Bureau also filed an appeal of the case on Dec. 18. They, along with several other agriculture organizations had filed a motion to intervene after Joyce's August ruling. In her Dec. 9 ruling, she denied those motions.

Related stories:
Missouri Farm Bureau files appeal in Arrow Rock CAFO suit:
www.marshallnews.com/story/1487098.html
Judge amends Arrow Rock CAFO ruling:
www.marshallnews.com/story/1484701.html
More ag organizations join effort to convince judge to reconsider CAFO ruling:

www.marshallnews.com/story/1464523.html

Ruling in Arrow Rock case does not affect current CAFOs
www.marshallnews.com/story/1456718.html
Judge rules in favor of Arrow Rock CAFO opponents:

www.marshallnews.com/story/1455898.html

Contact Marcia Gorrell at marshallag@socket.net