Grassroots Control of Feedlot
Issues in Minnesota

Nancy Barsness
New Prairie Township Clerk
Zoning Administrator and Consultant

Grassroots control of feedlots has taken hold in Minnesota. There has been a large increase in the number of both counties and townships that are getting involved in feedlot permitting. In Minnesota, the state regulates water quality and pollution, but local governments control land use issues. Although feedlot operators are challenging the system, the division of regulatory authority is working in Minnesota.

The main regulator of feedlot pollution in Minnesota has been the Minnesota Pollution Control Agency (MPCA). MPCA Animal Feedlot Rules currently require permits for feedlots over 50 animal units (AU) which is 125 hogs over 55 pounds. In December 1979, the MPCA adopted rules which allows counties to process MPCA feedlot permit applications for feedlots under 1,000 AU (2,500 adult hogs). The county must forward applications to MPCA to process for feedlots over 1,000 AU. According to MPCA, there were 33 counties authorized to administer MPCA's Feedlot Program in March, 1995. By February, 1997, 12 more counties had been added for a total of 45 counties in the program, a 36% increase in two years.

Counties participating in this program, may participate in the issuing, denying, modifying or revoking of feedlot permits and certificates of compliance for feedlots under 1,000 AU. The MPCA says the program allows the feedlot operator to deal at the local level with someone they know and allows more timely action on their application, and for those concerned about feedlot problems, MPCA says, "local input is maximized." In counties that do not participate in the MPCA Program, feedlots over 50 AU must still receive a permit from MPCA.

MPCA regulates only soil and water pollution from manure. Although MPCA has established a set of recommended setback distances for manure spreading, MPCA has no mandatory setback distance requirements for feedlots. Consequently, MPCA has not had the tools to control odor, and have not considered odor as pollution to be regulated. In a letter to township residents in May, 1995, MPCA Commissioner C. Williams wrote:

A task force was convened by MPCA in 1996 to study MPCA rule revisions to address concern over livestock odors, but according to a 1997 MPCA Fact Sheet, preliminary discussions indicate, "Odor issues are to remain the responsibility of local government."

According to MPCA, "Most non-pollution problems that arise are usually most effectively handled at the local level and do not require the intervention of a state agency." Most of the counties in the MPCA Program also have county-wide zoning which require that feedlots comply with land use issues that are not addressed by the MPCA rules such as establishing zones and setbacks.

Minnesota counties have had authority to plan and manage land use since 1959. According to the Minnesota Association of Counties, 62 of the 80 non-metropolitan counties had adopted countywide zoning ordinances as of 1995. Minnesota law requires all counties in Minnesota to have Shoreland Ordinances which control development within 300 feet of rivers and 1,000 feet from lakes. But several counties have no county-wide zoning and have chosen not to participate in the MPCA permitting process. Because of concerns about feedlots, several of the counties with no county-wide zoning regulations in 1995 are now in the process of enacting some county-wide controls, but often those living next to the feedlots feel the county's regulations are not strict enough.

Township officers and residents have attempted to convince the counties to enact controls where there are none and to enact stricter controls where they feel the county is not providing adequate protection. When that doesn't work, the townships are adopting their own ordinances, because township controls can be more restrictive than county controls. There are no statistics to know just how many of the nearly 1,800 townships in Minnesota have zoning ordinances, but the number has grown with the arrival of large, hog confinement feedlots.

In 1992, Crooks Township in Renville County adopted an ordinance to regulate manure storage facilities and manure application. When challenged by a hog feedlot operator, VALADCO, the District Court held the township ordinance was preempted by and in conflict with the state statute delegating authority of regulating feedlot pollution to the MPCA, and the Minnesota Appellate Court later affirmed the ruling.

The courts have given counties more authority than they have given townships to control feedlot pollution. In 1995, the Minnesota Pork Producers challenged Blue Earth County's Livestock Manure Management Ordinance, which contained more restrictive provisions than MPCA's regulations to protect water quality. The District court noted that MPCA rules envision county involvement with the processing of MPCA permits, and it determined the ordinance was not preempted nor in conflict with state law, and the Minnesota Appellate Court agreed.

Townships do not process feedlot permits for MPCA. However, townships defend their feedlot controls by arguing that Crooks Township tried to regulate pollution which townships concede is preempted by the state. Townships now are careful only to control land use issues. Townships also point out that Crooks adopted their ordinance under their general welfare authority, and townships can adopt land use controls on feedlots under the planning and zoning statutes.

Minnesota townships have had zoning authority since at least 1939, twenty years before counties. Their authority was broadened in 1982 when they were included under Minnesota's Municipal Planning Law. Part of these statutes allow a township to adopt an interim ordinance to regulate, restrict, or prohibit any use and development for one year while the township enacts or amends a plan or zoning ordinance. (Counties also have this authority and some have also adopted interim ordinances to temporarily restrict feedlots.) Interim ordinances are also known as the dreaded "moratorium" to developers. The township moratorium can be extended for 18 additional months, and consequently, be in effect for 2 ½ years.

On May 1, 1995, New Prairie Township in Pope County enacted what was probably the first simplified township interim ordinance in Minnesota which prohibited new and expanded feedlots. New Prairie's interim ordinance was a simple, one-page moratorium on feedlots of 250 AU (625 adult hogs), manure storage areas, junkyards, tire recycling facilities, hazardous waste facilities, and gravel pits.

On August 15, 1995, Danville Township enacted an interim ordinance similar to New Prairie's. Danville's ordinance was challenged in court by a feedlot operator who accused the township of improperly adopting the interim ordinance and enacting it "...in an arbitrary and capricious manner, solely for the delay and/or prevention of the operation and construction of plaintiff's Finishing Facilities." The District Court found that the interim ordinance was lawfully enacted and valid, but it ruled that the ordinance was enacted in a discriminatory manner solely to prevent the construction of the plaintiff's facilities. The township appealed. In July, 1996, the Minnesota Appellate Court upheld the district court's finding that the interim ordinance was properly enacted, but it reversed the ruling of discrimination. The court said, "When a moratorium ordinance is enacted as the result of a good faith effort to protect the municipal planning process, the fact that its immediate effect is to restrict only one project will not render it discriminatory."

That victory for townships opened the door to the enactment of more moratoriums at the township level. In the last couple years, I have assisted in writing interim ordinances for more than 20 townships in the state who are serious about studying feedlot issues, compiling comprehensive plans, and enacting some controls for their township.

In 1995, New Prairie Township in Pope County recognized the need to amend their 1979 ordinance to address confinement feedlot issues. Pope County does not have county-wide zoning nor do they require feedlot permits outside shoreland areas. The Crooks court case made it pretty clear that townships are preempted from regulating pollution (soil and water quality) which is regulated by MPCA. However, townships are focusing on the land use issues such as providing a local forum for concerned citizens and establishing setback distances to protect property values, protect township roads, assure public safety, and to control odor. New Prairie amended their ordinance in January, 1996 to address these issues.

A feedlot operation called Canadian Connection built two hog barns and a lagoon in the New Prairie Township in 1993, and in 1995, they proposed to build 8 more barns. They received interim permits for their expansion from MPCA in December 1995. Canadian Connection filed suit against the township challenging the enactment of the amended zoning ordinance. In April, 1996, the Eighth Judicial District Court found in favor of the township by ruling that the amended ordinance had been properly enacted and that it applied retroactively to Canadian Connection's proposed facilities.

After numerous hearings in 1996, the township denied Canadian Connection permits to expand their facilities, and in January 1997, Canadian Connection filed another suit against the township. This time Canadian Connection said the township 1) did not have a rational basis for the township's requirement of 2 feet per AU setback from neighboring residence, 2) was not justified in requiring a Conditional Use Feedlot Permit (CUP) for feedlots over 450 AU, 3) had not provided due process while amending their ordinance and while conducting CUP and variance hearings on Canadian Connection applications, 4) had not fairly applied the ordinance provisions to the permit applications, and 5) was preempted by state agencies from regulating the land use issues. On August 21, 1997, the Eight Judicial District Court again ruled fully in favor of New Prairie Township. In November 1997 the township received notice that Canadian Connection is appealing the ruling. This case could determine what, if any, future controls townships can have over feedlots in Minnesota.

Perhaps the resistance of the pork industry to local control is best revealed by their position at the National Environmental Dialogue on Pork Production (NEDPP) which was recently convened by the National Pork Council to draft policies to address environmental impacts of large scale hog production. According to the Minnesota Association of Townships, both the National Association of Counties (NACo) and National Association of Towns and Townships (NATaT) recently withdrew from NEDPP because, "The pork producers refused to acknowledge the necessity for local government zoning and regulatory authority over intensive farming, such as massive livestock operations. NACo and NATaT were concerned that without such acknowledgment and encouragement of local decision making, the Dialogue's recommendations might be used as a reason by state legislatures and regulatory agencies to diminish the role of counties and towns protecting their citizens."

Although threatened, grassroots control of large feedlots is still alive and working in Minnesota.

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