Charles Vasgaard, et al., Appellants, Ellsborough Lutheran Church, Plaintiff, vs. Murray County Board of Commissioners, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-03-181

 

 

Charles Vasgaard, et al.,

Appellants,

 

Ellsborough Lutheran Church,

Plaintiff,

 

vs.

 

Murray County Board of Commissioners, et al.,

Respondents.

 

Filed August 19, 2003

Reversed

Halbrooks, Judge

 

 

Murray County District Court

File No. C202190

 

 

James P. Peters, Karna M. Peters, Peters & Peters, PLC, 507 N. Nokomis Street, Suite 100, Alexandria, MN 56308 (for appellants Charles Vasgaard, Joan Vasgaard, Duane Timmerman, Amanda Timmerman, Clare Feste, Maria Feste, Curtis Feste, Deborah Feste, Clarence Feste, Gladys Feste, Chad McBeth)

 

Scott T. Anderson, Ratwick, Roszak & Maloney, P.A., 300 U.S. Trust Building, 730 Second Avenue South, Minneapolis, MN 55402 (for respondents Murray County Board of Commissioners and County of Murray)

 

 

 

            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

HALBROOKS, Judge

            Appellants challenge respondent Murray County Board of Commissioners' denial of their petition to have an environmental assessment worksheet prepared for the feedlot expansion proposed by Chad Bonnstetter.  Because we conclude that the board acted unreasonably, arbitrarily, and capriciously in denying appellants' petition, we reverse. 

FACTS

Chad Bonnstetter owns and operates a farm in Murray County.  Before 2002, Bonnstetter operated a hog feedlot on his farm with approximately 300 hogs that were kept in an open lot.  In 2002, Bonnstetter moved forward with plans to enlarge his hog feedlot operation.[1]  The plans included constructing an 81-foot by 200-foot building that would house 2,000 finishing hogs (55-300 pounds) for finishing to slaughter.  The building would be ventilated with fans that would circulate air through the length of the building and vent outside.  Beneath the building would be a large concrete-lined eight-foot-deep manure pit that would collect the manure from the hogs.  Once a year, likely in the fall, the manure pit would be pumped, and the manure would be knifed[2] into the ground on the surrounding farmland.

On June 18, 2002, appellants Charles Vasgaard, Joan Vasgaard, Duane Timmerman, Amanda Timmerman, Clare Feste, Maria Feste, Curtis Feste, Deborah Feste, Clarence Fest, Gladys Feste, and Chad McBeth, neighbors of Bonnstetter, submitted a citizen petition for an environmental assessment worksheet (EAW) to the Minnesota Environmental Quality Board.  The petition asserted that Bonnstetter's proposed feedlot expansion may have the potential for significant environmental effects and requested that an EAW be prepared for the project.  An EAW is a brief document designed to set out the basic facts necessary to determine whether a more in-depth environmental impact statement is necessary for a project.  Minn. Stat. § 116D.04, subd. 1a(c) (2002).  The Minnesota Environmental Quality Board designated respondent Murray County as the responsible governmental unit (RGU) for environmental review of the project under the Minnesota Environmental Policy Act, Minn. Stat. §§ 116D.01-.11 (2002), and referred the petition to the Murray County Board of Commissioners (board) for consideration.

The board held a hearing to consider the EAW petition on August 6, 2002.  The parties made written submissions, and interested persons presented their arguments to the board at the hearing.  The board then issued its findings of fact, conclusions of law, and order, finding that the evidence does not show that Bonnstetter's proposed feedlot expansion may have the potential for significant environmental effects and denying appellants' petition for an EAW.  Appellants filed a complaint with the district court, asserting that the board acted arbitrarily and capriciously in denying their petition for an EAW and requesting that the court order the board to have an EAW prepared.  Appellants moved for summary judgment.  Relying largely on the deferential standard of review, the district court denied appellants' motion and held that the board was entitled to judgment as a matter of law.  This appeal follows.

D E C I S I O N

I.          Standard of Review

 

In reviewing a decision of a governmental body, this court focuses on the proceedings before the decision-making body and not on the findings of the district court.  Carl Bolander & Sons v. City of Minneapolis, 502 N.W.2d 203, 207 (Minn. 1993).  "[W]e review the governmental body's determination on the basis of whether it was unreasonable, arbitrary, or capricious."  Id. (citation omitted).  A decision is arbitrary and capricious if the governmental body:

(a) relied on factors not intended by the legislature; (b) entirely failed to consider an important aspect of the problem; (c) offered an explanation that runs counter to the evidence; or (d) the decision is so implausible that it could not be explained as a difference in view or the result of the agency's expertise.

 

White v. Minn. Dep't of Natural Res., 567 N.W.2d 724, 730 (Minn. App. 1997) (citation omitted), review denied (Minn. Oct. 31, 1997).  A governmental body's decision is also arbitrary and capricious if a decision represents its will, rather than its judgment.  Trout Unlimited, Inc. v. Minn. Dep't of Agric., 528 N.W.2d 903, 907 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).  We apply the arbitrary-and-capricious standard by determining whether there is substantial evidence supporting the governmental body's findings.  Iron Rangers for Responsible Ridge Action v. Iron Range Res., 531 N.W.2d 874, 880 (Minn. App. 1995), review denied (Minn. July 28, 1995).  Substantial evidence is defined as:

1. Such relevant evidence as a reasonable mind might accept as adequate to support a conclusion;

2. More than a scintilla of evidence;

3. More than some evidence;

4. More than any evidence; and

5. Evidence considered in its entirety.

 

White, 567 N.W.2d at 730.  

II.        Potential for Significant Environmental Effects

 

Appellants argue that the board acted unreasonably, arbitrarily, and capriciously in determining that the evidence did not show that Bonnstetter's proposed hog feedlot expansion may have the potential for significant environmental effects and by denying appellants' petition for an EAW.

The EAW is a document that is designed to set out the basic facts and rapidly assess whether an environmental impact statement[3] is required for a proposed action.  Minn. R. 4410.1000 (2001).  Minn. Stat. § 116D.04, subd. 2a(c) (2002), states:

An environmental assessment worksheet shall also be prepared for a proposed action whenever material evidence accompanying a petition by not less than 25 individuals, submitted before the proposed project has received final approval by the appropriate governmental units, demonstrates that, because of the nature or location of a proposed action, there may be potential for significant environmental effects.

 

(Emphasis added); see also Bolander, 502 N.W.2d at 207 (stating that the threshold requirement "is whether the project may harm the environment"); Carl Bolander & Sons Co. v. City of Minneapolis, 488 N.W.2d 804, 810 (Minn. App. 1992) (describing the standard for allowing an EAW under Minn. Stat. § 116D.04, subd. 2a(c), as a "minimal standard"), aff'd, 502 N.W.2d 203 (Minn. 1993). 

In considering whether a "project has the potential for significant environmental effects the RGU shall compare the impacts that may be reasonably expected to occur from the project" with the following criteria:

A. [T]ype, extent, and reversibility or environmental effects;

B. cumulative potential effects of related or anticipated future projects;

C. the extent to which the environmental effects are subject to mitigation by ongoing public regulatory authority; and

D. the extent to which environmental effects can be anticipated and controlled as a result of other available environmental studies undertaken by public agencies or the project proposer, including other EISs.

 

Minn. R. 4410.1700, subps. 6, 7 (2001). 

A petition for an EAW must include "material evidence indicating that, because of the nature or location of the proposed project, there may be potential for significant environmental effects."  Minn. R. 4410.1100, subp. 2(E) (2001).  Prior to the promulgation of Minn. R. 4410.1100 (2001), the Minnesota Environmental Quality Board released a Statement of Need and Reasonableness (SONAR) presenting a summary of the evidence and arguments for the proposed rules.  With regard to Minn. R. 4410.1100, subp. 2(E), the SONAR states:

Minn. Stat. § 116D.04 subd. 2a (c) requires the material evidence provision as a safeguard against the submission of frivolous petitions.  This provision requirement should not be a comprehensive analysis of scientific evidence demonstrating potential adverse effects.  Rather, the intent is to require a good faith presentation by the petitioners demonstrating a reasonable persons standard that significant adverse environmental effects may result from the proposed action.  * * *  The function of the material evidence provision is to bring legitimate concerns to the attention of the governmental unit.  It is the responsibility of the governmental unit to appropriately consider these concerns in a manner that reflects the best interests of the public. 

 

Appellants raise several environmental concerns in their petition.

            A.        Contamination of surface water

 

            Appellants assert that the areas proposed for manure application are subject to flooding, pooling of water, and drainage through drainage tile lines that empty into waterways that may already be contaminated.  Appellants state that the area at issue is heavily tiled because no natural drainage exists and that there are too many tile lines leading to the main tile line, which causes water to back up onto unflooded lands.  While it appears to be undisputed that the land at issue is not a flood plain, appellants included with their petition photographs showing flooding on the land as a result of excessive rainfall in 1993 and flooding from the spring melt after a heavy winter snowfall in 1996-97.  The drainage tiles drain excess water from the land at issue into Beaver Creek, which eventually drains into the Des Moines River.  Appellants attached to their petition a letter from a Minnesota Department of Natural Resources (DNR) employee stating that the water quality in Beaver Creek is "bad," and that the Beaver Creek Watershed is a clean water partnership project with the Minnesota Pollution Control Agency.  Appellants also noted that there is a wetland and a DNR wildlife area nearby that are inhabited by waterfowl and other animals, which may be affected by the project expansion. 

            In its findings, the board addressed water contamination that could be caused by the manure pit or dead livestock, but did not address possible contamination from the knifing of the manure into the ground.  The board concluded that the proposed feedlot "would have no further potential for significant environmental effects over the existing feedlot."  It is important to note that Bonnstetter filed an acceptable manure management plan, and the CUP for the project stated that manure would be knifed into the ground at agronomic rates.

            Appellants do not need to prove that the proposed feedlot expansion will cause significant environmental effects.  They must only show that there may be the potential for significant environmental effects as a result of the project.  Appellants presented material evidence demonstrating that there has been significant flooding on the land where Bonnstetter plans to knife the manure into the ground and that the excess water runoff from the land drains into waterways that may already be contaminated.  While we show a significant amount of deference to the board, on this record, appellants have met the minimal standard of showing that there may be the potential for significant contamination of surface water as a result of the feedlot expansion.

B.        Contamination of ground water

 

            Appellants assert that there are uncapped wells located under the land where Bonnstetter intends to knife the manure into the ground and that contaminants from the manure could enter the uncapped wells and contaminate the area well-water supplies.  Appellants contend that Bonnstetter intends to knife manure into the ground on land where a building existed at one point and on a site where a school once stood.  Appellants assert that the wells on the two sites have been buried and were not properly capped.  Appellants also assert that many of the other wells in use in the area are not particularly deep and already have nitrate problems that may be exacerbated by Bonnstetter's knifing of manure into the ground.  Appellants also attached to their petition reports discussing the contaminants found in hog manure and the impact those contaminants can have on ground water.

            The board found that no specific evidence was presented showing the existence of any buried or abandoned wells on the site that had not been capped or closed.  The board also found that Bonnstetter was required to follow an approved manure-management plan and that the plan required that the manure be applied in agronomic rates.  The board concluded that the evidence of the possible degradation of ground water is insufficient to show that the project expansion may have the potential for significant environmental effects. 

            It appears to be undisputed that there is at least one building site buried beneath the farmland where the manure will be knifed into the ground and that it is possible that the site had an uncapped well.  But there was no specific evidence presented showing that the building site had a well or that the well was uncapped.  An unidentified person at the EAW hearing testified that he had farmed the land at issue for 30 years, that he knew where the buried building site was, and that he had never seen a well there.  Evidence that a building site was buried years ago, without any additional evidence that a well existed or that the well was not properly capped, may not be enough by itself to show that there may be the potential for significant environmental effects.  But one of the primary purposes of preparing an EAW is to obtain information about items such as the possible existence of old, buried, uncapped wells.  It is also relevant that at least two families in the area have wells that are only 18 feet deep that may be impacted by the feedlot expansion.  We conclude that appellants have met their burden of showing that the degradation of ground water from the feedlot expansion may create the potential for significant environmental effects. 

            C.        Degradation of air quality

 

            Appellants argue that the feedlot expansion will create a public health hazard for the families in the vicinity of the project.  In support, they attached to their petition several reports discussing the harmful nature of the air emissions from hog feedlots.  Appellants note that Murray County has adopted a zoning setback that requires feedlots to be two miles from schools.  They assert that the air emissions from the feedlot will negatively affect three families that live within one-half mile of the site, five families that live within a mile and one-quarter of the site, and the Ellsborough Lutheran Church, which is one mile from the site.  Within that population, there is one person on medication for allergies and another who has chronic asthma that may be affected by the feedlot emissions.  Additionally, appellants argue that there are older members of the church who may be adversely affected. 

            In its findings, the board noted that there are many existing trees around the proposed site that would help to control odor and that, as a condition of the CUP, Bonnstetter is required to plant several more trees.  The board also noted that Bonnstetter planns to remodel the existing home on the property and live on the property within the next few years.  The CUP also required Bonnstetter to coordinate the pumping of the manure pit to avoid interfering with special events at the church.  In support of its conclusion, the board recognized that the site is located in a rural agricultural area, where some odor from agricultural projects can be expected.  The board held that the evidence regarding the degradation of air quality is insufficient to show that the project expansion may have the potential for significant environmental effects. 

            Undoubtedly, the expansion of the feedlot and the knifing of the manure into the ground will increase the amount of chemicals that are emitted into the air and increase odor problems in the area.  We recognize that the feedlot will be located in an agricultural area that is sheltered by trees to control odor problems and that Bonnstetter is required to coordinate his feedlot activities with the neighborhood church.  Nevertheless, because this would be a substantial expansion of Bonnstetter's feedlot and there are people with health problems that may be adversely affected by the increases in the amount of chemicals and odors released into the air, we conclude that appellants have met their burden of showing that the air emissions from the feedlot expansion may create the potential for significant environmental effects. 

            D.        Cumulative impacts from air and water pollution

 

            Appellants point out that there are other large feedlots in the area and that many of the families that will be affected by Bonnstetter's proposed expansion are already affected by existing feedlots.  The board found that there is no existing feedlots in the same section as the proposed feedlot and that the general area is not a concentrated area of livestock.  The cumulative potential effect of related projects is a relevant factor in determining whether there may be a potential for significant environmental effects.  Minn. R. 4410.1700, subp. 7.  While the existence of other feedlots in the area, by itself, likely would not constitute sufficient evidence to justify an EAW, when considered with the other evidence in the record it provides additional support for the conclusion that the proposed expansion may have the potential for significant environmental effects. 

            E.        Ground water depletion

 

            Appellants assert that the operation of Bonnstetter's feedlot will require the use of 1,000,000 gallons of water per year, which may impact ground water reserves currently used by residents in the area.  Appellants cite to several reports regarding the amounts of water required to operate a large feedlot and note that one family near the proposed site has had its well slowed down to five gallons per minute to maintain the quantity and quality of the water.  The board, relying on its familiarity and knowledge regarding the wells in the area, found that the proposed facility would not cause any water supply problems.  Deference to the board is warranted on this issue because of the board's familiarity with area wells.  We conclude that the board's holding that the evidence of potential ground-water depletion is insufficient to show that the proposed feedlot expansion may have the potential for significant environmental effects is supported by substantial evidence and is not unreasonable, arbitrary, or capricious.     

            F.        Road degradation

 

            Appellants argue that the increased volume of trucks from the construction and operation of the proposed feedlot will cause the degradation of area roads.  The board concluded that this is not an environmental issue, stating that the issue is for the Planning and Zoning Board.  The record also shows that Bonnstetter was required to enter into an agreement with the area township regarding road maintenance as a condition of the CUP for the project.  We, therefore, conclude that the board's determination that road degradation does not pose the potential for significant environmental effects is supported by substantial evidence and is not unreasonable, arbitrary, or capricious.

            G.        Negative impact on property values

 

            Appellants assert that the environmental effects of the proposed feedlot will negatively affect area property values.  The board concluded that this is not an environmental issue and that appellants are merely restating other arguments already made as to environmental effects.  Because the feedlot's effect on property values is not an environmental effect, we conclude that the board's holding on this issue is supported by substantial evidence and is not unreasonable, arbitrary, or capricious.

            H.        Increased levels of noise and dust

 

            Appellants argue that the feedlot expansion will increase the levels of noise and dust in the area.  In support of this assertion, appellants rely on testimony of a farmer who lives within one-half mile of another large feedlot who complains about the noise from the exhaust fans that run constantly in the confinement barn.  Appellants presented no other relevant evidence on this issue.  The board found that the noise and dust from the proposed feedlot would not have a significant effect on appellants because of the distance from the feedlot to area residences and the trees that will surround the feedlot.  We conclude that the board's holding is supported by substantial evidence and is not unreasonable, arbitrary, or capricious.

            I.          Release of antibiotic-resistant bacteria

 

Finally, appellants assert that the use of antibiotics at the proposed feedlot may create antibiotic-resistant bacteria that could escape into the area water supply and harm area residents.  In support of this assertion, appellants rely on several studies discussing the creation of antibiotic-resistant bacteria within confined animal feeding operations.  It appears to be undisputed that hogs in feedlots are often given antibiotics to keep them healthy and that there are studies showing that manure pits in large feedlots may harbor antibiotic-resistant bacteria as a result of the use of antibiotics.  The board held that appellants' argument regarding antibiotic-resistant bacteria is purely speculative and does not demonstrate the potential for significant environmental effects in this case.  While appellants may be correct that the use of antibiotics in animals in feedlots may cause problems with antibiotic-resistant bacteria, appellants did not present any specific material evidence demonstrating that antibiotic-resistant bacteria may pose a significant environmental concern in this case.  The use of antibiotics in animals raised in feedlots and the effects of the antibiotics in animals on the public are issues of public policy that would be more appropriately addressed by the legislature.  On this record, we conclude that the board's holding, that appellants' argument regarding antibiotic-resistant bacteria is speculative, is supported by substantial evidence and is not unreasonable, arbitrary, or capricious.

III.       Conclusion

            Appellants have provided material evidence demonstrating that there has been flooding in the area where Bonnstetter intends to knife the manure into the ground, that there are shallow wells, and that there may be uncapped wells in the area.  Appellants have also provided evidence showing that large hog feedlots may emit harmful chemicals and odors into the air and that there are homes, a church, and people with health problems in the area that may be adversely affected by chemicals and odors created by the feedlot expansion.  Furthermore, appellants have provided evidence showing that excess water from the area where the manure will be knifed into the ground drains into Beaver Creek, which already has contamination problems, and that wells in the area already have high nitrate problems that may be exacerbated by the spreading of additional manure in the area. 

Appellants are not required to prepare a comprehensive analysis of scientific evidence demonstrating potential adverse environmental effects to have an EAW prepared.  The EAW is a document that is intended to set out the basic facts, and the legislature did not hold petitioners for an EAW to a very high standard.  Minn. R. 4410.1000 (stating EAW serves as basis just to begin scoping process for an EIS).  Appellants need only make a good-faith showing that there may be the potential for significant environmental effects.  Based on this record, we conclude that the board acted unreasonably, arbitrarily, and capriciously by finding that appellants did not present material evidence showing that there may be the potential for significant environmental effects as a result of the proposed feedlot expansion and by denying their petition for an EAW.

            Reversed.

 

[1]Bonnstetter applied for a conditional use permit (CUP) to expand his hog feedlot by 680 animal units (approximately 2,267 hogs) on April 22, 2002.  (One hog weighing between 55 pounds and 300 pounds is equal to 0.3 animal units.  Minn. Stat. § 116.06, subd. 4a(6)(ii) (2002)).  After a hearing before the Murray County Board of Commissioners, Bonnstetter's CUP was approved with the following conditions: (1) Bonnstetter shall comply with all laws, rules, and regulations as they apply to the project; (2) dead livestock shall be rendered or composted; (3) the CUP shall be reviewed annually to see that all conditions are being met; (4) Bonnstetter shall sign a written agreement with the township on the maintenance of roads before the project can begin; (5) trees shall be planted to try to control odor, and three rows of trees shall be planted within the year 2002; and (6) Bonnstetter and Ellsborough Lutheran Church shall work together on special events regarding the scheduling of the pumping of the manure pit.

[2] The manure would be knifed into the ground as opposed to spread on the ground. 

[3] An environmental impact statement must be prepared "[w]here there is potential for significant environmental effects resulting from any major governmental action."  Minn. Stat. § 116D.04, subd. 2a (2002).