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Friends of Responsible Agriculture v. Bennett

Court of Appeals of Missouri, Western District

December 5, 2017

FRIENDS OF RESPONSIBLE AGRICULTURE, Respondent,
v.
BUDDY BENNETT, et al., Respondents. CALLAWAY FARROWING, LLC, Appellant,

          Appeal from the Circuit Court of Cole County The Honorable Daniel R. Green, Judge

          Before Division Three: Alok Ahuja, P.J., and Thomas H. Newton and Cynthia L. Martin, JJ.

          Alok Ahuja, Judge

         Callaway Farrowing, LLC appeals from a judgment entered by the Circuit Court of Cole County, which issued a peremptory writ in mandamus on the relation of Respondent Friends of Responsible Agriculture. The circuit court's judgment ordered the Clean Water Commission to withdraw its decision granting Callaway Farrowing an operating permit for a concentrated animal feeding operation.

         We conclude that the circuit court erred in issuing a writ of mandamus, because the Friends organization had an available statutory remedy by petitioning for judicial review of the Commission's permit decision. We accordingly reverse the circuit court's decision, and remand the case to the circuit court with instructions that it deny the Friends' mandamus petition.

          Factual Background

         On November 21, 2014, the Department of Natural Resources issued General State Operating Permit MO-GS10485 to Callaway Farrowing. The Permit was for the operation of a class IB concentrated animal feeding operation (or "CAFO") to be located in Callaway County.

         On December 19, 2014, the Friends of Responsible Agriculture filed an appeal of the Permit with the Administrative Hearing Commission ("AHC"). On April 17, 2015, the AHC issued a decision in the Friends' appeal, recommending that the Clean Water Commission approve the Permit.

         On June 3, 2015, the Friends filed a petition for writ of prohibition against the Department, the Commission, and Callaway Farrowing in the Circuit Court of Cole County (Case No. 15-AC-CC00259). The petition sought to disqualify five of the seven members of the Clean Water Commission from participating in the permit appeal. The petition alleged that the five challenged Commissioners had driven by and observed the site of the proposed CAFO, and thus possessed extra-record information relevant to the disposition of Callaway Farrowing's permit application. On July 26, 2015, the circuit court issued its judgment prohibiting two Commissioners (Todd Parnell and Ashley McCarty) from participating in proceedings concerning Callaway Farrowing's permit application, based on the court's finding that they had in fact viewed the location of Callaway Farrowing's proposed CAFO. Neither the Commission nor Callaway Farrowing appealed this judgment.

         The remaining five members of the Commission participated in a hearing on Callaway Farrowing's permit application on October 5, 2016. A vote was taken. Three of the five participating Commissioners voted in favor of granting Callaway Farrowing's permit application, and two Commissioners voted against.

         The Commission took the position that the motion to approve Callaway Farrowing's Permit had been passed by a majority of the voting Commissioners, and that the Permit was therefore approved. The Commission accordingly issued a "Final Decision on Appeal, " which adopted the AHC's recommended decision with a single modification. The decision was signed by the three Commissioners who had voted in favor of approving Callaway Farrowing's permit application.

         On October 6, 2016, the Friends filed a petition in mandamus and for a temporary restraining order in the Circuit Court of Cole County against the Commission, the Department, and Callaway Farrowing, arguing that the Permit had been approved without the four votes required by § 644.066.3(3).[1] Section 644.066.3(3) provides that "[a]ll final orders or determinations or other final actions by the commission shall be approved in writing by at least four members of the commission."

         The circuit court issued a preliminary order in mandamus to all Respondents, and the Respondents filed responses to the Friends' petition. In their responses, the Respondents argued, among other things, that under § 1.050, the affirmative votes of a majority of the Commission's five participating members was sufficient to approve Callaway Farrowing's permit application. The Respondents argued in the alternative that the "rule of necessity" should be invoked to permit the disqualified Commissioners to participate in deciding whether to grant Callaway Farrowing a permit.

         On December 21, 2016, the circuit court entered its judgment issuing a peremptory writ in mandamus. Although the court recognized that the five participating members of the Commission constituted a quorum under § 644.021.3, it concluded that by virtue of § 644.066.3(3), four affirmative votes were required to take final action approving Callaway Farrowing's permit application. Because the motion to approve Callaway Farrowing's permit application failed to garner four affirmative votes, the circuit court concluded that the motion had failed. The circuit court held that it was inappropriate to invoke the "rule of necessity, " because with five participating Commissioners "it was fundamentally possible for the Commissioners to vote to approve the motion." The court's judgment also held that, because the motion to approve Callaway Farrowing's Permit did not win four affirmative votes, "there is no 'final decision' of the Clean Water Commission in effect regarding the Permit issued to Callaway Farrowing, LLC, " and as a result, "Relator has no adequate remedy at law under §§ 621.250 or 644.051, RSMo." The court ordered the Commission to withdraw its Final Decision on Appeal, and announce at its next meeting that the motion to approve Callaway Farrowing's permit application "failed because the motion did not receive four 'Yes' votes."

         Callaway Farrowing appeals.

         Standard ...


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