Daley Farm’s lawsuit reveals county, LSP ties


(12/2/2020)

by CHRIS ROGERS

 

In 2019, Winona County rejected the Daley Farm’s request to expand its dairy feedlot, and now the farm’s lawsuit challenging that decision is coming to a head. A trove of documents newly made public as part of the suit show that one or two of the same county officials who were supposed to act as impartial judges participated in a campaign opposing the farm expansion. The records also suggest County Board members Marie Kovecsi, Chris Meyer, and Greg Olson worked closely with opponents of the feedlot expansion when deciding who to appoint to a committee charged with deciding the project’s fate.

Two years ago, the Daley Farm sought state and local permissions to expand its Lewiston dairy feedlot to from roughly 1,600 cows to over 4,000. In 2018, the Minnesota Pollution Control Agency (MPCA) conducted an environmental review and solicited public comments before deciding that the expansion did not pose significant environmental risks and issuing a permit. However, a Winona County ordinance limits farm size to no more than 1,500 animal units (1,071 cows), and in a 3-2 vote, the Winona County Board of Adjustment (BOA) denied the Daley Farm’s request for a variance — an exception — from that rule. That stopped the project. BOA members Cherie Hales, Wendy Larson, and Rachel Stoll cast decisive votes against the variance. The Daley Farm sued Winona County, challenging that decision. Land Stewardship Project (LSP) is a local environmental organization that rallied citizens against the project and the variance. This summer, LSP initially did not comply with a subpoena to produce documents related to the Daley Farm lawsuit before ultimately complying.

Testimony from county officials and LSP records show that, shortly before they would be called to vote on the feedlot project as impartial decision-makers, Hales and Stoll served on an LSP Steering Committee that organized citizens opposed to the Daley Farm expansion. At several points, meeting minutes and emails indicate Hales expressed opposition to the project.

Concerns about bias and prejudgment were already front and center in the Daley Farm’s case because, in the fall of 2018, Hales, Stoll, and Larson had all penned public comments to the MPCA that were critical of the project. There were concerns about BOA’s other two members, as well. BOA member Larry Greden’s grandson married into the Daley family, and the Township Officers Association (TOA) — of which BOA member Philip Schwantz was a board member — urged the BOA to approve the variance. Schwantz said he abstained from that TOA vote.

Potential bias, prejudgment, and conflicts of interest matter because citizens applying to the government for permits and variances have the right to a fair process. When they are creating or changing laws and policies, local government officials are allowed to shout their opinions from the rooftops and drum up support for their cause. However, when they apply the existing laws to a specific citizen’s application for a permit — or in this case, a variance — local government officials are supposed to act like judges. Those decisions are called quasi-judicial, in legal terms, and officials are not supposed to make a decision or voice support or opposition until all the evidence has been presented. The BOA members all swore at the time that they were impartial. The Daley Farm’s lawsuit argues that wasn’t true.

 

‘So clearly wrong’ — BOA members worked on LSP campaign

Even back in 2018, LSP leaders anticipated the Daley Farm’s need for a Winona County variance and circulated flyers arguing the MPCA should not even consider the proposal because the feedlot expansion, LSP argued, did not meet the criteria for a local variance.

According to LSP emails and their own testimony, Hales and Stoll both served on LSP’s Winona County Steering Committee, Hales served for years on an LSP Organizing Committee, and as part of these groups, both women attended meetings and exchanged emails focused on coordinating opposition to the Daley Farm project. Hales said she stepped off the committees before the BOA vote.

Hales took minutes for the LSP Organizing Committee. According to records obtained as part of the lawsuit, the committee was already gearing up to resist a Daley Farm expansion application in 2017. “It is possible that the Daleys, who are grandfathered in over the [animal unit] cap, may be planing a major expansion, which it will be important to organize opposition to,” Hales’ minutes from that meeting noted. Hales’ minutes also captured some of her own comments: “Cherie said it was frustrating that these expansions meet the criteria [for a variance] making it hard to vote them down, even when they are so clearly wrong.”

“I did serve on the steering committee, but it would not be accurate to say that it was planning to oppose [the Daley project],” Hales contended in an interview. “They just watch the situation.”

Hales and Stoll attended multiple meetings and exchanged many emails with LSP staff member Barb Sogn-Frank, who was leading LSP’s campaign against the Daley Farm expansion. In October 2018, Sogn-Frank emailed both Hales and Stoll to set a date for their next committee meeting, writing, “We will craft our plans for uplifting and engaging our Winona County LSP members to shower the MPCA with comments now through November 15 in response to the EAW for Daley Farms mega-dairy expansion.”

In coordination with LSP staff and other LSP members, Stoll made a public information request in late 2018 seeking the county’s records of feedlot inspections and violations from the Daley Farm. Every citizen has the right to request such records. In a November 15, 2018, message, Sogn-Frank thanked Stoll for that work, and, in the same email, went on to inform her that the Minnesota Center for Environmental Advocacy (MCEA) would help LSP with legal challenges to expansion, including a potential variance. “I can’t remember if I’ve updated you both that MCEA is taking on LSP as their client for one, two or all of these legal actions: finding a negative declaration on the EIS; fighting a variance and possibility [sic] representing us at a contested case hearing,” Sogn-Frank wrote. She added, “All of the work you’ve done is going to be an important part of the record building our case.” In a later email, Sogn-Frank told her LSP co-workers she was “now working on a letter-to-editor campaign based on the records retrieved by Rachel Stoll [and other redacted names].”

Stoll declined to comment. LSP’s executive director declined to allow Sogn-Frank to comment.

More emails indicate that Hales realized early on — back in October 2018 — that BOA member Larry Greden’s grandson was part of the Daley family and that this might pose a possible conflict of interest. However, rather than raising this issue with the proper authorities for Winona County, emails between LSP staff member Doug Nopar and Hales show Nopar suggesting they keep this information to themselves until it was too late for Greden to be replaced by an appointee without a potential conflict.

Hales asked Nopar in an email, after noting that Greden’s grandson was a Daley family member, “Does that disqualify [Larry Greden] from as a Board of Adjustment member. Larry is a big dairy farmer by Altura, and a longtime supporter of farm expansion.”

Nopar replied, “Cherie, I’d like us to keep the fact ‘not publicly mentioned to anyone but our closed loved ones’ that Larry Greden might be Adam Greden’s relative and might not be able to vote on the Daley expansion. The Daleys are counting on his vote, I’m sure. Let’s not let him step off the B of A and have a potential county board chair instead appoint another factory farm ally.”

LSP’s executive director declined to allow Nopar to comment.

This wasn’t actually a secret; county staff were aware of Greden’s connection very early on, Hales reported. As for Nopar’s suggestion to keep it to themselves, Hales added, “I can’t be responsible for Doug’s comments.”

Also in October 2018, Hales emailed Sogn-Frank and another LSP staffer about holding onto to her BOA seat, despite moving from a rural address to a Winona address. “There are five members on the Board of Adjustment. Four of them have to be rural residents,” Hales noted. “Margaret Walsh is the B of A member who lives in town, and I’m moving to town. I don’t know long I can keep that move ‘secret.’ If I can stay on til end of the year/term, Margaret, I think, would like to step down from B of A, and possibly I could then fill her seat. Depending on who is chairing the County Board, and if they would re-appointment me in that seat. Politics involved there … Again, depending on who is chair, the balance on the Board [of Adjustment] could shift in an unfavorable way.”

After being asked about these emails and meeting minutes, Hales wrote in a statement, “I think that most people have a world view, we have opinions. We have relationships and belong to organizations in our community. If you are elected or appointed to a position serving the community, you bring all of that with you. I don’t believe that prevents a person from following guidelines and performing the duties expected in the position in which you are serving.”

“Being engaged in other groups really helps us make informed decisions on issues that impact the community, ad that’s not really evidence of a conflict of interest. That’s community involvement,” LSP Executive Director Jess Anna Glover said.

“It’s grassroots organizing plain and simple. It’s about communicating with members of the community about threats to it, like the Daley Farm’s mega-dairy expansion,” she added.

 

Emails: LSP coordinated with County Board on appointments

Another set of emails show LSP staff lobbying County Board members on who to appoint to the BOA and Planning Commission. If the variance had been approved, the Planning Commission would have been responsible for approving the final permit the Daley Farm needed to expand. Planning Commission appointments are made by the County Board chair alone, and under the county’s rotation system, it was commissioner Steve Jacob’s turn to be chair. Two emails show LSP staff encouraging the County Board to scrap its system of rotating the chairship. The County Board ultimately did get rid of the chair rotation in a 3-2 vote, which allowed Kovecsi to become chair and appoint critics of the Daley Farm project to the Planning Commission.

In a December 29, 2018, email with the subject line “talked to Chris Meyer,” Nopar emailed fellow LSP staffers, “Just got off the phone with Chris … She’s confident that, although it will be a very testy board meeting on January 8th, that she and Marie and Greg will prevail on the board chair issue. She is concerned about the issue being played out in the press before hand. Please don’t share this via e-mail with others. Chris is real nervous about e- mail trace-ability, track-ability, etc.”

That same day, Nopar emailed his LSP co-workers again, “Marie [Kovesci] is feeling quite confident about the board chair situation and that Greg [Olson] and Chris [Meyer] will be with her.”

On January 3, 2019, Nopar emailed anoter LSP staff member under the subject line “Talked with Greg Olson tonite.” Nopar wrote, “Greg sounds totally solid and unwavering. A good call. He’s expecting to hear from us this weekend on our committee recommendations.”

Olson, Kovecsi, and Meyer all declined to comment on the specifics of the ongoing lawsuit, citing legal advice from the county’s attorney.

Asked if he generally appoints who LSP recommends, Olson responded, “I don’t remember how I voted on it in that past. Maybe my selection was the same as their recommendation.” He said looks at applicants for boards and committees and tries to appoint people who will help bring a range of viewpoints to those groups. He also noted that other County Board members have sometimes appointed people who have made donations to their political campaigns. “So if you’re going to vilify someone for contacting a County Board member to appoint a certain person, what about people who buy influence through campaign contributions?” he asked.

Asked how she could be so confident that Olson and Meyer would be “with her” on scrapping the chair rotation, as Nopar’s email put it, while obeying the Open Meeting Law, Kovesci said, “You’d have to talk to Doug about that … I don’t know how I can comment on someone else’s thoughts.” Did she talk to Olson and Meyer about the chairship outside of a public meeting? “That’s all part of the suit,” Kovecsi responded, declining to comment further.

Meyer declined to comment on whether LSP made recommendations on who to appoint to the BOA and whether she followed those recommendations. As for Nopar’s reference to her being concerned about email “trace-ability,” Meyer said that she always tells citizens sending her comments about quasi-judicial decisions that she is only supposed to consider information that’s part of the public record. “I always support and try to uphold that part of my role as a county commissioner,” she stated.

 

County: ‘No evidence’ of bias

The attorney for the Daley Farm, Matt Berger, argued in a brief that the evidence in this case clearly shows biased prejudgment by BOA members. “After extensive environmental review, the Minnesota Pollution Control Agency (twice) determined that Daley Farm’s proposed project does not have the potential for significant environmental effects and (twice) issued permits for the project to proceed … Unfortunately, the MPCA’s rigorous scientific analysis is not sufficient for a small, but rabid, group of activists who oppose modern (i.e., successful) agriculture based on rigid ideological principles,” he wrote. “These activists conspired with county officials to stack the board of adjustment with members who had actively participated in their opposition campaign and who had prejudged the merits of Daley Farm’s variance application in the activists’ favor.”

Berger asked the judge to order the county to issue a variance for the expansion.

In his arguments, attorney for the county, Paul Reuvers, contended that Berger and the Daleys haven’t shown any evidence that Hales, Stoll, and Larson were biased and claimed Schwantz’s presence at the TOA meeting was the only evidence of potential prejudgment. “Instead of presenting the court with evidence the board was biased, plaintiffs’ claim relies entirely on the idea an individual involved in their community is incapable of forming opinions different from the groups or organizations they associate with,” he wrote. Reuvers described the BOA members as just engaged citizens. “Their role on the Board of Adjustment did not require them to forsake personal connections, or turn their back on the issues, which ignited their desire for public service,” he stated. “Their role required them to set aside any personal opinions and make their decision based upon the record.”

“Ms. Hales and Ms. Stoll’s membership and involvement in LSP did not disqualify them from participating in this matter,” Reuvers wrote in a statement to the Post. “They stated, on the record, they could set aside their involvement with LSP, and any opinions they may have had, and base their decisions on the variance criteria and record. The bottom line is Daley Farm received a full and fair hearing on its application.”

Even if they were biased, that’s not enough to reverse the county’s decision, Reuvers continued in his legal brief, citing case law. The BOA’s decision was entirely reasonable, given that the Daley’s sought a “massive departure” from the normal rules to expand their farm to quadruple the county’s size limit, Reuvers argued. “Quite frankly, essentially quadrupling what is allowed by the ordinance is almost per se unreasonable, so it is not surprising the variance was denied on this record,” Reuvers noted in his statement. The BOA also correctly decided that economics alone were the reason for the Daleys’ variance request, which made it invalid, he wrote in his brief.

Hales echoed this point in her comments: The Daley’s variance request just didn’t meet the criteria. “This was not because of Board members’ personal opinions, or membership in an organization that supported or opposed the Daley application. It was because the variance request failed to meet all of the criteria for approval,” she wrote.

Asked if it was fair to the Daley Farm to have the BOA members charged with making an impartial decision be the same people who participated in a campaign against the expansion, Glover responded that the BOA’s task was to look at the evidence and make an objective decision. “What did they have in front of them? What did they look at? The Daley Farm proposal didn’t even qualify for a variance. It wasn’t even close,” she argued.

Reuvers also reminded the judge that counties have broad discretion to deny variances and that courts are supposed to err on the side of upholding local government decisions. He asked the judge to dismiss the case.

Now that the written arguments are in, Olmsted County District Court Judge Kevin Mark will consider them before hearing oral arguments at a December 21 hearing. A final decision may still be some months away.

The Daley Farm’s Ben Daley declined to comment for this story, citing the ongoing litigation.

Chris@winonapost.com

 

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