from the Circuit Court of Cole County The Honorable Daniel R.
Division Three: Alok Ahuja, P.J., and Thomas H. Newton and
Cynthia L. Martin, JJ.
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.
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'
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.
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.
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.
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.
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
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). 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."
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
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."