Legal concerns scuttle farm-size debate


(8/19/2019)

by CHRIS ROGERS

The newest push to discuss changing Winona County’s limit on farm size didn’t last very long.

Last week, in a 3-2 vote along urban-rural lines, the County Board canceled plans to discuss the decline of local dairy farming. Last month, rural commissioners cited the loss of dairy cows as a reason to lift the county’s 1,071-cow limit on farm size. On advice from attorneys defending the county in a lawsuit that centers on the farm-size rule, urban commissioners canceled a planned meeting about the declining dairy industry and rejected calls to discuss the farm-size limit.

Winona County’s controversial feedlot cap

Winona County is one of a few counties in Southeast Minnesota that limits the maximize size of livestock farms. Known as the animal unit cap, the rule limits feedlots to no more than 1,500 animal units (the equivalent of 1,071 dairy cows). Supporters of the rule say it protects against water pollution from manure and helps small farms by limiting farm consolidation. Opponents say the county should not limit businesses from growing and the rule is unnecessary because the state already strictly regulates manure storage and application at large farms. Rural commissioners Steve Jacob and Marcia Ward have unsuccessfully sought to raise or eliminate the cap for years, while Winona-based commissioners Marie Kovecsi, Greg Olson, and Chris Meyer have defended it.

Winona County has five farms that are just under the animal unit cap. A dairy farmer from one of them urged with the County Board last month, “Don’t make farmers in Winona County watch from the sidelines as the industry moves forward without us.”

One farm — the Daley Farm of Lewiston — is currently suing the county because it wants to expand beyond the size limit. The Daley Farm’s current 2,275-animal-unit herd was grandfathered in because it predated the creation of the 1,500-unit cap. After an environmental review, the Minnesota Pollution Control Agency (MPCA) gave the Daley Farm permission this winter to expand to nearly 6,000 animal units, determining that the expansion would not have significant environmental effects. However, the county’s animal unit cap prevented the Daleys from expanding. The Daleys tried to get a variance — or an exception from the rule — in February. The county Board of Adjustment (BOA) rejected that variance request. Now, the Daley Farm is suing the county over the BOA’s decision.

Winona County Attorney Karin Sonneman cautioned the County Board this spring against discussing the animal unit cap because it might hurt the county’s position in the lawsuit. Among other things, the Daleys’ suit claims the County Board unfairly appointed BOA members they knew opposed the farm’s expansion.

County Board broached opic last month

Last month, Jacob and Ward initiated a County Board discussion about the recently released U.S. Census of Agriculture, which showed that Winona County suffered the worst decline of dairy cow numbers in the state.

From 2012 to 2017, Winona County lost 5,511 dairy cows — 15 percent of its total herd, according to the census. Most of that downturn occurred on small and mid-sized dairies with fewer than 500 cows. Anecdotal evidence suggests the decline of dairy farms has only gotten worse since 2017. After being squeezed by low milk prices for years, many more dairy farmers have faced little choice but to stop milking.

At last month’s meeting, Jacob and Ward partially blamed the animal unit cap for Winona County’s extraordinary loss of dairy cows, arguing that if the county had allowed larger farms to expand, it could have made up for the loss of livestock at smaller farms. Despite Sonneman’s advice, Jacob and Ward called on the County Board to consider eliminating the cap, with Jacob even referencing the Daleys’ proposed expansion in particular.

Kovecsi, Meyer, and Olson disagreed with Jacob and Ward’s contention that the animal unit cap was to blame for the loss of dairy cows. It was caused by low prices, international trade, and other factors out of the county’s control, Meyer said.

Jacob and Ward spent parts of the contentious meeting grasping for any angle that would persuade their colleagues to consider changing the animal unit cap or at least continuing the discussion. The three Goodview- and Winona-based commissioners were unconvinced, but they did agree to a future “working session” meeting on the census, the dairy decline, and the local agricultural economy.

Meyer voted to approve the proposed meeting, while also raising concerns and citing Sonneman’s advice. “I’m concerned this working session is a pretext to discussing getting rid of the animal unit cap,” she stated.

Split vote cancels further discussion

After last month’s discussion and newspaper articles about it, the county’s attorney in the Daley lawsuit, Paul Reuvers, again cautioned the County Board. Because of attorney-client privilege, Reuvers’ letter isn’t public information, but Sonneman stated that he cautioned the board against discussing the Daley case in particular, as well as the animal unit cap and the dairy industry in general. “Having a factual presentation about the dairy industry and the environmental issues could lead to an inadvertent discussion of the Daley Farm,” Sonneman said, summarizing Reuvers’ advice in an interview.

The working session had been planned for last Tuesday, but because county staff were unable to lineup on short notice agricultural experts from whom the County Board had wanted to hear, staff had proposed postponing the conversation until later this fall.

Citing Reuvers’ advice, Meyer proposed canceling the working session altogether instead of just postponing it. Olson and Kovecsi agreed.

Quoting from Reuvers’ letter, Kovecsi stated, “Our lawyer has provided us with a letter specifically saying, ‘It would be prudent to refrain from that discussion while this litigation is pending …’” She added, “It seems difficult to have that conversation without broaching onto the matter of the suit.”

“In my opinion, the world does not come to a stop or a halt when you are served with a lawsuit,” Ward responded. The animal unit cap is a policy that affects many more people than just the Daleys, Ward said, adding, “There are other producers waiting to hear: Where do they take their business? What’s the future of their business?” She continued, “This discussion needs to happen … To sit and do nothing, to me, would be a total disservice to the constituency.”

Jacob argued, “The advice we got from that attorney was to not discuss the pending litigation, and what we’re discussing here is the dairy census and the economic impacts of what that might mean. If we’re going to not discuss those economic impacts, where does the advice from the attorney end? Should we not discuss our budgets?”

It is not just one attorney’s opinion, Sonneman said. “My advice also, in any time that anyone is faced with a lawsuit, is it’s best not to speak about anything because of any inadvertent comment that might come out in discussion,” she told the County Board. In an interview, Sonneman explained that the County Board is free to discuss whatever it wants, but to protect the county in the current lawsuit, it would be wise to avoid discussion of the animal unit cap.

“It seems to me that we have raised some legitimate points, but because the animal unit cap is, some say, a significant part of animal agriculture and the economics of it, it seems difficult to have that conversation without broaching onto the matter of the suit,” Kovesci stated.

Jacob and Ward tried to get Kovecsi, Meyer, and Olson to postpone the animal unit cap discussion until the end of the Daley lawsuit, rather than cancel it altogether. “For all we know in a wee, the case could be dropped or there could be an agreement,” Jacob said. “I think canceling speaks to we have a majority of the board that just doesn’t want to talk about it. Postponing at least says we want to talk about it,” he added.

If board members want to bring it up again when the lawsuit is over, they can, Meyer responded. She, Kovecsi, and Olson declined Jacob’s postponement proposal and voted to cancel the discussion.

Asked about her vote, Kovecsi explained she was not opposed to discussing the agricultural economy, but concerned the conversation would turn into a debate about the feedlot limit. “I was opposed to it being equated to a discussion of the animal unit cap,” Kovecsi said.

In its caution to avoid legal risk, is the County Board missing out on a needed discussion of what is happening to the local farm economy? “Well, I certainly have a lot of sympathy, especially for the farms 500 cows and less, 200 cows and less because they are the ones that are being most impacted,” Kovecsi answered. “Are we missing out on an opportunity? Perhaps the [County] Board is, but we’re not disallowing anyone else from having that discussion.”

Chris@winonapost.com

 

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