Animal Law Podcast 112: The Case of the Monster Dairy

Mariann Sullivan: I'm thrilled to have you. I don't think I have ever done a zoning case before. In a lot of ways, the law was not that complicated, I thought I was going to be completely lost, but a lot of the facts are very complicated. Before we get to the case, can you just tell us a little bit about FarmSTAND? I know that's a new name, it's not a new organization. Tell us a little bit about it and the kind of work you do there.

Holly Bainbridge: Yeah, FarmSTAND was previously The Food Project at Public Justice, and we split off to create our own organization around a year ago. We have our one year anniversary event coming up in D. C. soon, so you can check out our website if you're interested. FarmSTAND is the only legal advocacy organization in the country dedicated solely to taking on industrial animal agriculture. We really take a intersectional approach. So we work with a lot of animal groups that the audience is probably well familiar with, but we also work with workers and farming communities and environmental advocates, kind of all across the board, because what this industry does is so bad for so many animals and so many people and the environment.

Mariann Sullivan: Yeah, that's for sure. I can't believe you're the only organization that is doing exclusively that. We need so, so much of this work done because, as with all legal work, the problems are huge. But when you get into the specifics, it's one by one by one. And you are dealing with one particular facility here called The Daley Farm. Tell us where it is, what it is, and who it is that lives there, both human and non.

Holly Bainbridge: Daley Farm is a large dairy in southeastern Minnesota. Right now Daley Farm has around 2, 000 cows, but they're looking to expand to around four and a half thousand cows on the same site, you know, to expand their business, expand their profits. They like to champion that it's family owned, but I think that family ownership doesn't say anything about the impacts that the operation is having on the community. A lot of the community, including many Land Stewardship Project members, are very vocally opposed to this expansion because of the water impacts, the competition impacts. So we're representing Land Stewardship Project in this case. They work to foster an ethic of stewardship around land management and farming and developing healthy communities, and do a lot of great work in Minnesota on that.

Mariann Sullivan: Yeah, is Land Stewardship Project, is that a Minnesota organization or is it a national organization? Is it local?

I wasn't familiar with it.

Holly Bainbridge: Land Stewardship Project is a Minnesota organization. They do work all over Minnesota. They also have an office in Lewiston, which is fairly near Daley Farm, and they have members all over, including the members in Winona County who are upset about this expansion.

Mariann Sullivan: Yeah. Let's talk a little bit about Winona County. A lot of our listeners probably know some of the as a general matter, the environmental problems caused by dairies, but can you kind of go into that a bit? And also there are some specific concerns to Winona County, which most of us have not heard of and aren't familiar, but it's particularly vulnerable, isn't it?

Holly Bainbridge: Yeah, yeah, it is. So, the listeners are probably well aware when you are packing thousands of animals onto a small site, they generate thousands of gallons, millions of gallons of manure, and that manure has to go somewhere. So it gets sprayed on surrounding spray fields, and then leeches into groundwater supplies. In this area of Minnesota, as well as connecting states like Iowa, Illinois, there is karst geology.

Mariann Sullivan: Just, since I was not familiar with the word, I'm just going to spell it for people who also aren't. It's K-A-R-S-T. I guess that's a geological term.

Holly Bainbridge: Yes. And it's also known as the driftless, is what it's called there. This is an area where the ground is composed of fractured limestone, which is very porous. It also includes many cave systems, and sinkholes, and so when any liquid gets spread on top of this geology, it sinks in very quickly and very fast into the groundwater system. It's very hard to trace through this area and everyone here also relies on groundwater for drinking water. So this poses some really serious concerns because of the nitrates in manure. So when this manure is spread on these fields, the liquid manure sinks into the ground very quickly, and there's excess nitrate contamination in these areas.

Nitrates can cause things like blue baby syndrome, which is fatal in infants. They don't get enough oxygen when they drink too much nitrogen laden water. It's also associated with a number of cancers, thyroid disease, all sorts of problems.

Mariann Sullivan: I hadn't realized that. I'm kind of getting a picture of it, that for the people who are spraying it, it's probably very satisfying, because it just goes away, like, really easily, so it's not really a problem. It just causes a problem for everybody else.

Holly Bainbridge: Yeah, exactly. I think, you know, there's kind of this fallacy where factory farms portray their manure spray as really positive, natural thing, but in reality, they need to dispose of this high concentration of manure. They need to get rid of it, so they over spray it on fields and it just sinks in and destroys people's drinking water resources.

Mariann Sullivan: We'll get into the law more specifically, but you had mentioned how many cows they have, and I got a little confused because it seems like they already have more cows than they're allowed to have. Can you just talk about, like, how many cows are you allowed to have in one quote unquote farm?

I don't like to call these places farms, one facility. And you said they had over 2, 000 cows now and they want to go to 4, 000. So what are the regulations in place governing how many cows are permitted?

Holly Bainbridge: Recognizing these like water quality issues, Winona County, decades ago, enacted this animal unit cap, which limits the number of animals that can be housed on a single site, which is a great model to take because it's really the high concentration of these animals that causes these extreme environmental impacts. So the limit is 1, 500 animal units, which animal units is a term that's commonly used to equalize the impacts and the feed needs of animals across animal types. So like an adult cow is like 1. 4 animal units, a calf is like less than one animal unit. So it's like really weird in a way, you know.

Mariann Sullivan: Yeah, animal unit does not mean animal.

Holly Bainbridge: And, and it's like really depriving the animals of their like individualization. Like that a cow is 1. 4 animals. That's like the average U. S. family has 2. 5 children, so it's a little weird. The numbers are all a little wonky because of that, but they are currently above that limit.

They're at 2, 275 animal units, and that's because they were grandfathered in. Daley Farm existed before this ordinance was passed. They were already above the size, so Winona County let them stay at that size.

Mariann Sullivan: So when you get grandfathered in, it's not until those cows die. It's forever and.

Holly Bainbridge: Yes, yes, exactly.

Mariann Sullivan: because obviously those cows have been dead for a really long time.

Holly Bainbridge: Yeah, it's exactly that. It's about their operation size and how big they can stay. So they've been operating at that size, now want to expand to almost 6, 000 animal units. So that's like four times the limit.

Mariann Sullivan: Yeah. And they, they refer to this as modernizing, I noticed. Uh, whatever. I don't know why it's more modern. I guess there are things that they want to do in addition to expanding the number of cows. So what are those things? I mean, is there any legitimacy to call it modernizing or is it just getting bigger?

Holly Bainbridge: It's, it's really just getting bigger.

You're really getting at it. They talk about adding additional barns. They talk about improving their wastewater treatment systems. But a lot of that is stuff they have to do because

Mariann Sullivan: Well, right, if you're going to add 2, 000 cows, you have to, like, add more barns.

Holly Bainbridge: So you

Mariann Sullivan: It's not really

Holly Bainbridge: Yeah, you have to add all of this stuff, and a lot of it is stuff that they have to add for environmental compliance, because the regulators. They have a history of permit violations, water quality violations, and so they've been required to improve their environmental compliance. And so that's why they're doing a lot of it. It's funny that they style it as modernization because in a way it is, with factory farming and endless expansion and consolidation. That is the modern trend, but it's putting real small family farmers out of business.

It's putting animals in the worst imaginable conditions. It's hurting workers. So, you know, that's why FarmSTAND and Land Stewardship Project are really working against that.

Mariann Sullivan: That's a really good point. Modern in the factory farming world doesn't mean better. It means worse.

Holly Bainbridge: Absolutely.

Mariann Sullivan: The more modern it is, the worse it is.

Just for a moment, before we get into the issues, let's get back to that term family, because it's kind of their argument that the next generation of their family wants to return to the farm.

And even just assuming that that's true, I don't know whether you have evidence whether that's true or not or whatever. But if that were the rule, it would mean that in every generation, everybody would just be allowed to get bigger because they have generations and families tend to get bigger because people get married and have kids.

So how could that possibly be the rule? Just because there are now more Daleys in the world, that that has anything to do with how big a cow facility should be.

Holly Bainbridge: That is such a good point. And it's totally consistent with Winona County's ordinance and it's variance requirements. Like I mentioned, the ordinance limits the numbers of cows, so number of animals to 1, 500 and then you can only exceed that if you get a variance.

And so Winona County, consistent with general state law, sets out these requirements for a variance. And one of them is that your motivations can't solely be economic. So even though, you know, The Daleys seek to expand for jobs for their family members, as you're saying, could be a never ending kind of quest and expansion. Winona County has said, no, those profits, those family jobs aren't more important than our whole community's water supply and protecting public health.

Mariann Sullivan: I just always am so fascinated by the argument, this is getting a little far field, but I'm just going to throw it in there, these arguments about jobs and families and everything within the factory farming industry. In any other industries, a person loses their job, it's like, well, you know, it's tough luck. But the idea that in factory farming, anybody should have to shift what they're doing whatsoever.

The government has to come in and take, I mean, actually, I would be happy if the government came in and took care of everybody who lost their job, but only in this one particular industry is it seen as like this right that you should like be able to live off this forever.

Anyway, I'll, I'll, I'll stop. Let's get back to the, the legal

Holly Bainbridge: I just want to say quickly, I totally agree with that, and it's very much a rules for thee and not for me attitude. In this case in particular, the Daleys and the Amiki participants really portray these community members as like, quote, unquote, rabid activists, when they're just, you know, people who live in a community who are worried about their drinking water supplies, whereas industry can do the same exact thing and they're seen as standing up for their rights. And, you know, their important family values. So, so it's like two sides of a coin, and it's all about, you know, big ag messaging.

Mariann Sullivan: Well, and people buy into it. They've really been very successful in selling this kind of, you know, when we've been on the land for five generations, well, who cares,

Holly Bainbridge: Yeah.

Mariann Sullivan: I mean, like, like, we've all been somewhere for five generations, we all have families, like, uh,

Holly Bainbridge: Yeah, and that's the interesting thing is like, a lot of these opponents to this expansion are family farmers who have also been there for a long time and they just prioritize environmental stewardship over individual profits.

Mariann Sullivan: Yeah, all right, the, the legal requirements, you mentioned the zoning, variance, legal requirements for being able to do this. There are a few other types of permits that they need as well, too. I mean, it's not just this zoning variance that they wanted. Is that right? But that's the, that's the main thing we'll be dealing with.

Holly Bainbridge: Yeah, yeah, exactly. So there are other permits that are required from the state for, for this expansion and for factory farms, but they're really a floor. The Minnesota Pollution Control Agency, reviewed the expansion project and initially found there weren't any concerns with it. Our co counsel in the case, Minnesota Center for Environmental Advocacy, sued over that environmental review and actually got a significant win, in which the Minnesota Court of Appeals sent it back to the MPCA and told them they have to consider the greenhouse gas emissions impacts of the expansion, which as you know, we well known and has been covered in other episodes of the podcast are huge. So it got sent back down, but then MPCA approved it again and, and the court upheld that second approval. But the EPA, uh, in response to a petition under the safe drinking water act recently told the state of Minnesota that they're not doing enough to protect drinking water resources from nitrate pollution, including from manure.

So that, that MPCA review is essentially meaningless. The state just isn't doing its job and that's why it's important for localities, like the county here, to be able to protect their citizens.

Mariann Sullivan: Wow. That's really disturbing. Very disturbing. When the EPA has to come in and tell you you're not doing a good enough job, that's a bad sign.

Holly Bainbridge: Yeah, because we know EPA isn't even doing a good enough job.

Mariann Sullivan: Exactly. Yeah. All right, but we're going to focus on this zoning variance. That's the issue that you've been involved in. And I assume everybody knows what zoning variance is, but why should I assume that?

Can you just explain what a zoning variance is? And you kind of explained already, there's a bunch of different zoning variances that are possible. There's really only that one that's involved here. Is that right?

Holly Bainbridge: Yeah. The county sets out by ordinance rules about land use and the courts have been clear for a long time that land use decisions are really solely with the county and they give the county really high deference in these land use decisions, because they're the ones who best know what's appropriate for their community. So these ordinance might ban or limit certain uses and to be able to use your property in one of those prohibited ways, you have to get a variance. The ordinance in Winona County sets out the criteria for a variance. There's eight items that the applicant has the heavy burden of showing that they are entitled to a variance and it's a really heavy burden because it's basically a permit to violate the law. The county has said, having more than this many animals is illegal, but we're going to let you violate the law because of these specific circumstances.

Mariann Sullivan: And the one involved here is the one you alluded to, that it can't be just an economic argument.

Holly Bainbridge: Yes, so, this case has like a pretty lengthy background, but most recently, the variance application went before the County Board of Adjustment, uh, which reviews these applications and decides whether the criteria have been met. In 2021, the board reviewed it and, it was deadlocked two to two on this criteria that there are more than purely economic motivations for the project. And because it was deadlocked, the variance was denied.

Mariann Sullivan: Now, something that confused me, and I don't know whether I can summarize it in a way that I won't just confuse everybody else, but this is actually at least the second time that this had happened. It had gone to the Board of Adjustment which determines zoning variances, and And at that point, the Board of Adjustment rejected the variance, then it went to the courts, they brought a lawsuit, which is what you do, and the court actually reversed at that point.

I wouldn't normally be bringing this up, but this just seems to be an enormous part of the current application as well, because the court reversed, but didn't give the dairy everything that they wanted. Instead of just granting the variance, it actually It remanded, and apparently they didn't have to appeal that directly.

They are still able to argue, and they're arguing now, that the court erred at that point, and should have just granted the variance and not remanded. It's like, did that make sense? And am I right? And is that one of the reasons why they seem to be completely relitigating all the prior decisions?

Holly Bainbridge: Yeah, in a way, it kind of has a complicated procedural background. So, it went before the board, in, I think, 2019 2020. The board denied it. And then Daley Farm kind of started this crusade of accusing the county and Land Stewardship Project.

Mariann Sullivan: Their brief a brief is is crazy. It really

Holly Bainbridge: It really

Mariann Sullivan: I couldn't read it. It's just like, it's like all local gossip.

Holly Bainbridge: Yeah, exactly. So, so they basically like accused the county and Land Stewardship Project of being in this like grand conspiracy to deny the variance application. So the first board denies it. And the trial court is very, like, persuaded by these specific emails that Daley's attorney read out loud in court. And so the court then, this is well before we were involved, or even before land stewardship project was directly involved. So the court finds that there was bias on the first board decision. But based on Minnesota case law, when there's bias, it gets remanded back to the trial court, back to the county for a new decision. And that's because, like I said, these localities are given a tremendous amount of deference in making these land use decisions. So the court explained that the county could have reasons beside the bias for denying it. The court didn't look at whether the record supported the denial. The court just said. There was bias. There's a new board now. That board will be, everything indicates, unbiased. And so let them decide. I'm not going to overstep my bounds to then say, what should happen in this county.

Mariann Sullivan: So there's a lot of discussion about the level of bias and, as you point out, they were successful with that argument at first. But it just seems like their argument boils down to the members of the board had a point of view And they became involved in their local government because they have a point of view, and that makes them biased.

I mean, doesn't everyone have a point of view? Like, does that make you biased just because, like, are you supposed to go in there knowing absolutely nothing about anything? Do they have some point beyond? Like, there was some kind of inappropriate bias that they shouldn't have had, like, the point of view that they had, or they did something wrong with it? Because it really, I mean, as I said, their brief was hard to read because it was just all of this gossip about all of these local characters who they hate, and I had trouble following it.

But, that seemed to be what it boiled down to that these people disagree with us. So they are therefore biased?

Are they biased? Like, they have a point of view.

Holly Bainbridge: Yeah, no, exactly. That's all Daley Farm was saying. So, so after this gets remanded, it goes before a new board and the board members You know, very admittedly, have their own backgrounds, have their own framework that they bring to their position as a Board of Adjustment member. I think there's also some conflating roles in Daley Farms Briefs, so there's the county commissioners. And then there's the Board of Adjustment. A lot of their allegations are about the county commissioners. There's the county commissioners who appoint the Board of Adjustment and then the Board of Adjustment rules on the variance application. So the county commissioners are free to appoint favorable people to the Board of Adjustment. That's exactly how the political process works.

Mariann Sullivan: Right. People elect the people who they agree with and want to carry out the policies that they, that is, that is, that is what is known as American democracy.

Holly Bainbridge: And Land Stewardship Project members are free to lobby those county commissioners for favorable appointments. So really all that's at issue is whether there was some sort of unfair bias of the Board of Adjustment members, because they're acting in a quasi judicial role in ruling on the variance application. But that is a pretty high bar in these variance proceedings. So there's not a lot of case law in Minnesota around this, but what the case law does indicate is that there has to be some sort of active advocacy by the decision makers around the specific project in the community and with fellow decision makers. So, it's not enough to say, like, generally you care about environmental stewardship, or, you know, you think that highly consolidated animal operations are bad for the environment. As long as you're making your decision based on the record that's before the board, and it's consistent with that record, then, then

Mariann Sullivan: Right. They can't overlook the facts or, I mean, that kind of bias, clearly, like, if they're ignoring some of the facts or ignoring some of the arguments, or yeah, I can see if they're out in the community actually advocating in their spare time and then coming in to pretend that they're in any kind of quasi judicial position, those things would make sense.

But I'm just going to take out one quote because this really symbolized to me the kind of argument they're making. The Land Stewardship Project immediately sought to use the environmental review process as a weapon in its campaign to oppose Daley Farm's proposed modernization project.

I mean, aside from some kind of, like, inflammatory language, isn't that exactly what they're supposed to be doing? Like, it's a review process. They're trying to use it to make their point

and get their way. That's how it works.

Holly Bainbridge: Exactly, exactly. So it's clear, even from their actual brief, that they're just mad that these community members are availing themselves of the democratic process.

And so They went, they went so far as to file a lawsuit in federal court against Land Stewardship Project and individual members solely because of their participation on the first variance denial.

So, so these individual community members are having to like get legal counsel. It's, it's scary for, you know, a person who isn't a lawyer. They, they don't know and they're becoming a target. And I think that's really

Mariann Sullivan: And probably in relatively small communities where everybody knows who's who.

Holly Bainbridge: Yeah, exactly.

Mariann Sullivan: who

Holly Bainbridge: And, and, you know, what's happening here, but all over the country, you know, these, these factory farms are sited in areas intentionally where there is little political power and BIPOC communities.

And so, you know, It's, it's even easier for them to, to flex their kind of heavy resourcing and legal muscle to intimidate communities away from opposing sightings and expansions.

Mariann Sullivan: I mean, in the first place, like, only a very few special people even fight, you know, even fight for their own rights. Like, most people just kind of let things happen. Yeah, it's to be admired, I think.

All right, so back to the story. So then there's a new board and it comes to them and they also reject it.

Now, this was a 2 2 vote, but that means that it's rejected, right?

Holly Bainbridge: Yeah. They have to make an affirmative finding. So they have to have a majority on each of the criteria. So if there's a tie, there's no finding and it's not met.

Mariann Sullivan: And again, the basis of the decision was that the only real rationale that they were putting forth was economic.

Holly Bainbridge: Yes. Yeah. So the record shows that for the entire life of kind of this expansion proposal, Daley Farm repeatedly says, as you noted, they're trying to add jobs for family members, and they're trying to take advantage of economies of scale to lower costs. Instead of having to develop separate farms that comply with the ordinance, it's cheaper to just shove all the cows together in one space.

Mariann Sullivan: They also argue that that is more environmentally friendly, right? Does that have any sway?

If that argument were correct, would it have any sway?

Holly Bainbridge: That argument is That's not correct. They basically misquote part of a staff opinion on that and take it out of context. The staff opinion said there may be some additional environmental impacts from additional trucking if they're separate sites, but the staff didn't actually like look at the actual environmental impacts of that, they just kind of stated that to include kind of a everything possible. And this was in the discussion of what the alternatives to the project were. There's no sway with that. we know.

Mariann Sullivan: There's something wrong with that argument, too, that like, well, we're asking you to make an exception to your rules so that we don't have to do something that would be an even worse violation. Like the rules are the rules like if it's also bad to do it someplace else, then you can't do it someplace else either. You can't just show that there would be a worse way to do this

Holly Bainbridge: Yeah, So also that like brings up a good point that the rule itself is premised on the fact that separate operations have less of environmental impact because the high concentration of manure is the big issue. But also it's absurd. So the question is like what their motivations are, and they're not expanding to improve environmental impacts. That is, like, patently absurd. If they're concerned about improving environmental impacts, they can do it at the current size. They also

Mariann Sullivan: right or they can grow soybeans and make soy soy milk

milk.

Holly Bainbridge: Exactly, exactly. They also say that they need to expand to improve their environmental compliance. But that's also patently absurd, because they have to comply with the environmental laws regardless, and how could adding thousands of cows improve your ability to comply with environmental laws.

They also reference animal welfare, which is a particularly absurd one. They say that they will improve animal welfare if they're adding thousands of cows to the site. And the same with worker welfare and well being. They say that'll improve. But, but we know from every resource on this issue that it's exactly the opposite..

Mariann Sullivan: And so the board at least two people on the board, which is all you needed obviously agreed with this They rejected the application and then we're back in court I don't know whether this is called an appeal or whether it's just a proceeding or a case, but obviously the thing you do the way you get into court after the board has rejected your application is you go to district court, which is the trial court level in Minnesota. And there're almost immediately from what I could tell cross motions for summary judgment.

It's clear it's going to be decided on motions, so now we're back to that argument that we already discussed is that the first case should never have been remanded back to the board and that court should have simply granted the variance, which I'll tell you, like, just procedurally, this just confuses me totally.

Cause it's like, I thought that that was done, but clearly everybody agrees that this is appropriate under Minnesota law. So I should just shut up about that.

How does the court deal with that?

Holly Bainbridge: So yeah, so on that issue, just to clarify, when the remand decision was made, they did move for reconsideration, and then did a discretionary appeal to the Court of Appeals at that time. Yeah, so because it wasn't a final judgment, because it went back to the board, they didn't get an appeal as of right, but they could still ask the Court of Appeals to take it up, and the Court of Appeals said no.

So they had to wait until the end of the case to the final judgment.

Mariann Sullivan: I see. Okay.

Holly Bainbridge: Of course, it's like this very old issue coming back up. So the trial court in the second instance didn't reconsider this remand decision, but they did find that the second board decision was totally supported by the evidence in the record.

And there was absolutely no evidence of bias for the second round decision makers. I mean, not even getting anywhere near the kind of active advocacy required, like, a couple cherry picked quotes, and that is it.

Mariann Sullivan: So they also argue a timeliness issue.

Holly Bainbridge: Yeah, it's really a mess. And, it was,

Mariann Sullivan: Yeah. This is such a long, long argument and I'm like, do we really wanna talk about this? I don't know.

Holly Bainbridge: Uh, yeah, I can like quickly say it, I think. So there's a statute in Minnesota, 1599, that requires these variance zoning decisions to be made in 60 days after the application is received. So, after the first decision was remanded back to the board, the county told Daley Farm, like, Hey, we're ready to go.

Let's have this remand hearing. Let's get this done. And we don't think the 60 day deadline applies because the statute doesn't expressly include the deadline on remand. Uh, so it only says when that application is received. It doesn't say anything about the process for the deadline applying after remand. So Daley Farm doesn't dispute this statement that the deadline doesn't apply and they asked for seven months of extensions, again, without referencing this deadline at all, because they were doing their discretionary appeal. So later on in kind of the second round, they say their application should have been automatically approved because the 60 day deadline lapsed, but the statute doesn't apply on remand and their actions showed they didn't think it applied either. So the court found that the application couldn't have been automatically approved.

Mariann Sullivan: And you also argued that they're stopped because I guess they clearly didn't preserve it. I, I don't know whether preservation is needed. There seems to be a lot of reasons that they either dropped the ball and it is hard to accept that they could just pick it up now and say, ha ha, you're late after putting up with it for all that time.

Yeah,

Holly Bainbridge: it's pretty glaring. The county outright asked them, you know, we think the deadline doesn't apply. Do you? Let us know if you don't. And they, their attorney just didn't respond. The statute also requires certain things of an extension request of the deadline, and they didn't comply with any of that over the course of months. So it's kind of just a last ditch way to kind of undo the county's will.

Mariann Sullivan: But it did end up, like I said, they were very, very complex arguments on both sides, citing loads of cases. I I'm assuming that's just because this isn't an issue that's really been clearly decided before, so everybody has to just bring in the kitchen sink.

Holly Bainbridge: Yeah, so because localities are given such a high level of deference, it's pretty rare for a county's decision like this to get overturned and sent back. So there's really no case law. On this issue, there's one case that mentions in a dissent that it, this timeline does not apply on remand, and that is it.

So it's, yeah, all just kind of falling into a big gap.

Mariann Sullivan: That does present problems for the lawyers. All right, so substance. Now, there's a pretty high standard here, right? It's like an administrative law standard arbitrary and capricious.

Uh, they have to show that the board was arbitrary and capricious. Is that right?

Holly Bainbridge: Yes, yeah, that's right.

All the case law indicates that the county gets kind of the very highest level of deference, like even maybe more so than statewide agencies because they're the ones who know.

Mariann Sullivan: And what did they argue?

Holly Bainbridge: So Daley Farm argues that no affirmative finding on this criteria about economic motivations means the variance was granted, and they're kind of seizing on like a very specific wording in these variance criteria. And an interaction between multiple criteria, but the argument's just baseless.

It shows pretty clearly that this criteria is its own individual criteria. The county walks through each one individually. If they're not all met, the variance is denied, so they don't have a lot going on there. They also argue that the record doesn't support the county's decision because they mentioned these other motivations for the project, the farm animal welfare, the worker welfare, the environmental impacts, but the record shows that the community members who voted against the expansion debunked these kind of fake motivations.

These are all things that could be accomplished without adding thousands of animals to the site.

Mariann Sullivan: Yeah. I mean, that's sort of what we were talking about vis a vis their, their environmental argument as well. Their argument that it's more environmentally friendly to expand their current facility rather than to move to a different location.

Holly Bainbridge: Yeah, exactly. So, so the decision makers, like, they look at the evidence, they base their decision on the record, and that's all that's required of them. So Daley Farms claims on this are really baseless.

Mariann Sullivan: I know in my experience, which I guess is mostly New York law, on an administrative appeal, like an appeal for an administrative decision like this, they only have to have substantial evidence to support their decision, which sounds much more than it actually is. They just have to have something that they hung their hat on, and if they want to agree with that piece of evidence, it doesn't matter whether there's even other evidence, it's a really tough standard.

If that's the same in Minnesota one, it sounds like it is

Holly Bainbridge: Yeah, it is the same and kind of in different wording like you're saying substantial evidence sounds a lot, but you know other cases say there has to be any evidence in the record. There has to be a rational basis.

Mariann Sullivan: That's really what substantial evidence means, just anything. All right. So, what did the

district court do?

Holly Bainbridge: One thing to mention is the Daleys also argued that the two board members who voted against the variance application were biased, and so it's kind of based on, for Dr. Hubelein, who's a researcher.

Mariann Sullivan: Oh, so this is the newly constituted board. I'm sorry. I missed that. They also argue that they were biased.

Holly Bainbridge: So, so it goes before this new board. Daley Farm again says the new board is biased, you know, kind of bringing up the same stuff, but that was all remedied by the remand. So as to these new board members, their evidence is like shockingly limited. So Dr. Heublein is one of them. She's a researcher, a community member. Their only evidence is that one of the county commissioners said Dr. Heublein had very careful reasons for joining the board. That is the full extent of their evidence, which is nothing. Everyone who joins a board has very careful reasons, I would have imagine. So, and, and even more, more so the commissioner who said that.

So it wasn't even the board member who said that, the commissioner who said that about the board member, testified that she was talking about Dr. Hubelin's background as a researcher. She has 40 years of research experience in education. She, she likes reviewing evidence. She likes, you know, making critical decisions.

So that is totally baseless. As to Miss Fitzgerald, one of the other board members, they basically say that Land Stewardship Project put her on the board for purposes of denying the variance, but the undisputed

Mariann Sullivan: wouldn't you love it if that were possible?

Holly Bainbridge: Yeah, setting aside whether that is even possible, the evidence shows that no one at Land Stewardship Project ever talked to Miss Fitzgerald about Daley Farms expansion. And she very clearly explained that she joined the board because she's a farmer, a produce farmer, and she thought it would be useful to her work in the community. So, again, that's totally, totally baseless.

Uh, the last thing on Dr. Hubelin, they say, is that she improperly conducted background research. And this is kind of getting into what you were referencing, that everyone has their own viewpoints that they're bringing into this decision making. And, and so her actual testimony says that when she doesn't understand something, she looks it up and becomes informed, which board members should be doing.

People who are making these community decisions should be doing. There's nothing wrong with that. The case law in Minnesota shows that, you know, mere outside knowledge of isn't biased. So again, there's nothing wrong with her doing that.

Mariann Sullivan: Now, bias should apply to like you're ignoring one side's arguments and not considering the evidence that they're bringing in because you've already pre decided the way you'd go, not that you have opinions about the world.

Holly Bainbridge: Exactly. exactly. So, short of maybe someone saying, If you put me on the board, I will vote against this application that's coming up.

Mariann Sullivan: Yeah. Without even looking, without even considering. I know where I'm going. Yeah.

Holly Bainbridge: And the hearing testimony very clearly shows that Dr. Hubelin and Ms. Fitzgerald They really considered the evidence and used their own judgment to determine whether Daley Farm met the criteria, and they found they didn't. And one of the absurd things is that if they were really on the board to stop this variance, you'd think they would have voted against Daley Farm on more of the criteria. One of them voted against the expansion on like three or four criteria. The other one only voted against on one. Why wouldn't they vote against on all the criteria if it was some conspiracy?

Another funny thing is that they were both either appointed to or applied for the board before anyone even knew there would be a remand decision. So this isn't like a pending thing that that the county and Land Stewardship Project knows is gonna come before this new board.

Mariann Sullivan: Mm

Holly Bainbridge: It's totally incomprehensible, this conspiracy theory.

Mariann Sullivan: Wow. Yeah, I know it does sound pretty desperate. All right. So now, assuming I haven't forgotten anything else, tell us about the district court's decision.

Holly Bainbridge: So the district court reviews all of this and finds that there was no bias and that the decision was wholly supported by the record. One other wrinkle is that Daley Farm argued there was bias under this arbitrary, capricious standard, but they also argued that their due process rights were violated, but in a variance proceeding, there's no right to due process. You don't have a, a property right that implicates due process. And even if there were, the due process required is very minimal. It's like fair notice and hearing, which they got. So, the district court upholds the denial, and hopefully it's all done.

Mariann Sullivan: And found that the whole timing issue was not a problem and all of

Holly Bainbridge: Yeah, so the court found the time limit didn't apply, or alternatively, that Daley Farm was stopped from kind of raising this argument post hoc based on their actions. So at this point, Daley has gotten its second chance. They got the fair hearing they wanted, and of course they are dissatisfied.

So they appealed.

Mariann Sullivan: They want those 2000 cows, don't they?

Holly Bainbridge: They they do. And so that's where FarmSTAND stepped in. We stepped in as appellate counsel, so kind of after the remand decision. Land Stewardship Project and Defenders of Drinking Water, another community group, step in to intervene in the lawsuit because Land Stewardship Project is kind of getting directly maligned throughout all this.

You know, the community is like scared, losing confidence. You know, doesn't want to participate in things because they're worried they'll be individually sued. Defenders of Drinking Water, which is represented by Minnesota Center for Environmental Advocacy, they care about the drinking water impacts. They want to see clean water in their community. So Land Stewardship Project is having to pay an attorney to participate in this lawsuit and see that this is all upheld, and that's really hard on a small non profit. So we stepped in as apellete council so that Land Stewardship Project can use their precious funds on building sustainable agriculture in the community, instead of having to fight the Daley's, you know, endless lawsuit. And I think, generally speaking, we want to be a resource for communities so they don't have to be intimidated by Big Ag's legal muscle. There's legal advocates in communities' corner with FarmSTAND.

Mariann Sullivan: Absolutely crucial, absolutely crucial, I mean, if people who are doing this kind of work don't feel that they can get lawyers when they're inevitably going to be embroiled in legal issues, it's very hard.

Holly Bainbridge: Yeah, yeah, we, we really want to empower people to participate in their community's democratic processes and not be scared that they're gonna get sued, get attacked.

Mariann Sullivan: So are the issues in it's the the mid level court in Minnesota's the Court of Appeals and are the issues basically the same or is there anything different?

Holly Bainbridge: Yeah, the issues are the same so they bring up the remand issue again, whether that was proper.

Mariann Sullivan: That will never die. Okay,

Holly Bainbridge: Yeah, and then they bring up the timing issue again, the 60 day deadline, whether that applied, and then the substance of the second decision, and the bias on the second decision..

Mariann Sullivan: And you just had oral argument, correct?

Holly Bainbridge: We did, yeah, last week I, I traveled up to Minnesota.

Mariann Sullivan: Where are you located?

Holly Bainbridge: I am located in Tucson, Arizona.

Mariann Sullivan: Okay. Oh, that is a trip. Yeah All right. So what happened?

Holly Bainbridge: Yeah, So it was an interesting hearing. We were surprised that the court really focused on this remand issue. There's been a prior unpublished case that kind of had very similar circumstances that said remand was proper, but because it's unpublished there's a little bit of a gap in the law, and I think in our brief we do a good job of explaining and filling that gap, based on this like long lineage of cases. So, in these instances, where there's something wrong with the locality's land use decision, the default remedy is that the permit gets granted. But, a lot of cases in Minnesota have shown that default permit granting remedy doesn't apply where the court didn't actually look at whether the record supported the permitting decision, which happens in a bias case.

As I mentioned, the court was clear. It didn't review the record.

There could be good reasons to deny the variance besides the bias. It was not going to overstep the bounds in the judiciary to make that decision. It was going to let this new board decide that. So the court was asking primarily questions about that. Also, Daley Farm kind of pivoted its argument from focusing on the board members in the second round to leaning into this like conspiracy theory that the county commissioners did something appropriate along the line, but as we discussed they're not the decision makers. They're in political office. They're free to appoint favorable individuals to the board. It's just about whether the board properly made their decision, which they, they absolutely did.

Mariann Sullivan: Yeah, it's always hard in an oral argument to predict which way the court is leaning, but we all do it, don't we? Yeah. Can't help it.

Holly Bainbridge: Yeah. I have listened back trying to piece together, uh, the questions to see if I can have some sort of insight.

Mariann Sullivan: You know, I worked at an appellate court for a lot of my career, and I mean, I do think it's really impossible to tell, because they have different reasons for asking. Sometimes you know, they know which way they're going to go, and they're asking questions because they're thinking about how they want to write it. It is really impossible to glean from there, I mean, unless it's really obvious, and even then sometimes you're wrong.

Holly Bainbridge: Yeah, that's why I'm just trying to not think about it. So the court has 90 days from the hearing date to, to rule. So in the meantime, I'm trying to not think about, read too much into what they were asking and, and we'll get the decision soon enough.

Mariann Sullivan: Yeah.

That's a good idea though impossible. All right. So, Minnesota is obviously a huge ag state, which we're all even more aware of, because of Tim Walz, who I would love to love more than I do, because of his obvious blindness on this issue, but, uh, I won't go into politics. Um, there are lots of factory farms there.

I've recently, you know, because of Tim Walz found out that there's a lot of turkeys there, but apparently, of course, there's a lot of dairies there. We think of that part of the upper Midwest as really full of dairy. I mean, well, you're not, you're not located there, but you must be getting something of a feel for how would you characterize public opinion about these types of issues?

Do you think things are shifting? Do you think these community members, even in rural areas or small towns, who are increasingly wary about factory farm, is there growing influence?

Holly Bainbridge: I think that there's long been significant weariness about this. So Land Stewardship Project, over the past few decades, has advocated against many factory farm siting and expansions. And so community members, rural, urban community members, farmers, advocates have all been concerned for a long time. I think that Land Stewardship Project and other organizations are doing a really good job of getting the messaging out there of creating opportunities for new farmers that rely on sustainable methods that aren't factory farm based, maybe aren't even animal agriculture based. So, I think there's long been a concern and the challenging thing is like making those voices heard because big ag has such a chokehold on politics, especially at the state level where they can focus their resource and basically get the biggest bang for their buck.

Mariann Sullivan: You know, to tell you the truth, at the federal level, it's pretty strong.

Holly Bainbridge: Yes, yes, absolutely. At the at the federal and state level, it's very hard, especially in these states, it's very hard. That's why it's important that these communities at the local level can still act. You know, Winona has had this animal unit ordinance for decades.

Mariann Sullivan: Yeah, it's pretty impressive, because 1, 500 is, you know, considering the size of modern dairies, I mean, when it was passed, it was big, but it's not big anymore.

Holly Bainbridge: Yeah, exactly. So, you know, these communities have long held a value in small operations and truly family owned operations. The hard thing is that as some quote unquote winners float to the top and get to do this like never ending expansion and profit endlessly, it's pushing those smaller ones out of business.

It's making that traditional rural lifestyle less available to anyone who wants to pursue it, because stuffing as many animals as you can into one spot is the new normal.

Mariann Sullivan: Do you think this case shows that zoning laws can be important tools? Is this common across the country? I mean, you seem to indicate that Winona's is particularly good, but is this a tool that your organization will be able to use more frequently? I guess they're very, very particular, very local stuff. .

Holly Bainbridge: So I think they are an incredibly important tool that are hard to get in place. You know, I think the on the ground advocates like Land Stewardship Project, like the community members here, they're doing the hardest job by like passing these like local laws to protect their communities, you know, getting community support, education around these issues. It's hard, and so we want to facilitate their ability to do that is the big thing. So there are specific places where this is still available, Minnesota being one, but there are a number of high ag states where, at the state level, they've prohibited local control.

One of the most notable ones was a few years ago, the Missouri Supreme Court held that the state's CAFO regulations precluded local regulation, which as in Minnesota, Missouri at the state level isn't doing enough because there's such heavy political and regulatory capture at that level. So in those instances, you know, local control is, is no longer available and it's really a shame.

Mariann Sullivan: No, that really is a tragedy. And it is the problem. I mean, I think local laws, that's where the passion is, and that's where you're going to get people who care, but they're always vulnerable. I mean, they can always be preempted. So.

Holly Bainbridge: Yeah, and, and boards can you know, political composition of boards can switch and kind of drop challenges. I know recently this has been a big ongoing issue in Wisconsin, where towns have passed CAFO regulation ordinances, and there was a recent one where the Wisconsin manufacturers and commerce group is kind of waging all out war against any of these regulations, both at the state and local levels.

And in one town, they got sued over their regulations. And when the board flipped, they kind of dropped their regulations and it went away, but there's also an ongoing suit there involving the town of Eureka, which is standing firm with their CAFO regulations that have now been challenged in court by the same group. And so, we have our fingers crossed there that they will be able to uphold.

Mariann Sullivan: Well, thank goodness for all these incredibly biased people who are biased in favor of not having their communities destroyed.

How dare they? Uh, but really, I mean, really, it takes a lot of courage and, you know, just a lot of energy and passion. And what are these people doing it for? Like, you know, they're not making money out of it.

They're just trying to save their homes and their towns.

Holly Bainbridge: Yeah.

Mariann Sullivan: So I really admire

Holly Bainbridge: Yeah, one big thing is like, local control matters to everyone. Like, it matters to these small farmers. It matters to BIPOC communities, it matters to rural communities. It matters to animal advocates, you know, being able to say what you want or don't want in your community. So it's a great way to, to get involved, and it's something that like we as lawyers should all work to preserve as an option.

Mariann Sullivan: Absolutely. Well, I'm really glad that you guys are out there doing this and glad that you've taken this case. Glad that you talked to us about it. I just, and I'm looking forward to hearing from the Court of Appeals.

Holly Bainbridge: Yeah, like I said, early December, I believe is the deadline. So we are looking forward to it as well. And, fully expect that if we win, there will be a petition for a Supreme Court review.

Mariann Sullivan: So, no, it sounds like they're not giving up. They, I think they've made that clear.

Holly Bainbridge: Yes, Yes, yeah, yeah, they will never give up and it shows just how much big ag puts profit over people and communities.

Mariann Sullivan: Absolutely. Thanks, Holly.

Holly Bainbridge: Thank you.

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