Trenton Farms Re, LLC v. Hickory Neighbors United, Inc.

• Decision Date: 16 June 2020
• Docket Number: No. SC 97695,SC 97695
• Parties: In re TRENTON FARMS RE, LLC, Permit No. MOGS10520; Missouri Department of Natural Resources and Missouri Clean Water Commission, Respondents, v. HICKORY NEIGHBORS UNITED, INC., Appellant.
• Court: Missouri Supreme Court

603 S.W.3d 286

In re TRENTON FARMS RE, LLC, Permit No. MOGS10520; Missouri Department of Natural Resources and Missouri Clean Water Commission, Respondents,

v.HICKORY NEIGHBORS UNITED, INC., Appellant.

No. SC 97695

Supreme Court of Missouri, en banc.

Opinion issued June 16, 2020

Hickory Neighbors United was represented by Stephen G. Jeffery of Jeffery Law Group LLC in Chesterfield, (855) 915-9500.

Trenton Farms was represented by Robert J. Brundage and Alicia Embly Turner of Newman, Comley & Ruth PC in Jefferson City, (573) 634-2266.

The department was represented by Solicitor General D. John Sauer and Timothy P. Duggan of the attorney general's office in Jefferson City, (573) 751-3321.

Patricia Breckenridge, Judge

Hickory Neighbors United, Inc., appeals from a clean water commission decision affirming the department of natural resource's issuance of a permit to Trenton Farms RE, LLC, to establish a swine concentrated animal feeding operation ("CAFO"). Hickory Neighbors asserts that House Bill No. 1713, which amended section 644.021.1¹ to change the criteria for members of the clean water commission, violated article III of the Missouri Constitution. Specifically, Hickory Neighbors claims HB 1713 violated the article's original purpose requirement in section 21 and the single subject and clear title requirements in section 23. Hickory Neighbors also claims Trenton Farms and the department of natural resources presented insufficient evidence that the CAFO's manure containment structures would be protected from inundation or damage in the event of a 100-year flood. Because HB 1713 does not violate the original purpose, single subject, or clear title requirements of the Missouri Constitution and Trenton Farms and the department of natural resources offered sufficient evidence regarding the CAFO's protection from a 100-year flood, the clean water commission's decision approving Trenton Farms’ permit is affirmed.

Factual and Procedural Background

In April 2015, Trenton Farms applied for a permit to establish a swine CAFO in Grundy County. After the department of natural resources issued the permit, Hickory Neighbors, a Missouri corporation formed to promote public awareness of the environmental impacts of CAFOs in Grundy County, appealed the department's decision to the administrative hearing commission.² The administrative hearing commission recommended the clean water commission affirm the department's decision to issue the permit. The clean water commission, however, held the department "failed to adequately determine that the swine CAFO would be protected in the event of a one hundred-year flood in accordance with 10 C.S.R. 20-8.300 [ ]" and reversed the department's decision to issue the Trenton Farms CAFO permit. Trenton Farms Re, LLC v. Mo. Dep't of Nat. Res. , 504 S.W.3d 157, 160 (Mo. App. W.D. 2016). The court of appeals affirmed the clean water commission's decision in November 2016. See id. at 167.

The day after the appellate decision, the department of natural resources again issued a permit to Trenton Farms to establish a swine CAFO in Grundy County. Hickory Neighbors again challenged the issuance of Trenton Farms’ CAFO permit before the administrative hearing commission. In its amended complaint, Hickory Neighbors claimed the department of natural resources erred in issuing the permit because Trenton Farms offered insufficient evidence to show its CAFO's manure storage structures would be protected from inundation or damage in the event of a 100-year flood, a requirement of 10 C.S.R. 20-8.300. The administrative hearing commission granted leave for Trenton Farms to intervene and heard Hickory Neighbors’ appeal from the second permit in May and June 2017.

In August 2017, the administrative hearing commission recommended the clean water commission affirm the permit's issuance, finding the department of natural resources met its burden of proof and established that Trenton Farms’ CAFO permit complied with existing regulations. The clean water commission scheduled consideration of the administrative hearing commission's recommendation for its December 6, 2017 meeting. On December 5, however, then-Governor Eric Greitens appointed three new members to the clean water commission: Stan Coday, John Kleiboeker, and Pat Thomas. These appointments were made in accordance with HB 1713's amendment to section 644.021.1. The commission postponed consideration of the administrative hearing commission's recommendation until December 12, 2017.

Before the clean water commission's December 12 meeting, Hickory Neighbors filed a motion for a continuance and a motion to disqualify three of the commissioners, including newly appointed commissioners Coday and Kleiboeker. In its motion to disqualify commissioners, Hickory Neighbors asserted commissioners Coday, Hurst,³ Kleiboeker had conflicts of interest because they were affiliated with the Missouri Farm Bureau and the Missouri Soybean Association, both of which favor issuance of Trenton Farms’ CAFO permit. On December 12, the clean water commission overruled Hickory Neighbors’ motions and voted, four to zero, to accept the administrative hearing commission's recommended decision, with Commissioners Hurst and Kleiboeker not voting.⁴

Hickory Neighbors filed a petition for review with the court of appeals, pursuant to section 644.051.6. The department of natural resources and the clean water commission (collectively, the "department of natural resources") and Trenton Farms are respondents. The case was transferred to this Court after opinion by the court of appeals. Mo. Const. art. V, sec. 10.

Hickory Neighbors raises two claims of error before this Court. First, Hickory Neighbors asserts HB 1713, which amended section 644.021.1, violated the original purpose, single subject, and clear title requirements of the Missouri Constitution. See Mo. Const. art. III, secs. 21, 23. Second, Hickory Neighbors claims there is insufficient competent and substantial evidence that two of the proposed manure containment structures would be protected from inundation in the event of a 100-year flood as required by 10 C.S.R. 20-8.300.

Standard of Review

This Court has exclusive appellate jurisdiction to determine the validity of state statutes, Mo. Const. art. V, sec. 3, and the standard of review is de novo. Franklin Cty. ex rel. Parks v. Franklin Cty. Comm'n , 269 S.W.3d 26, 29 (Mo. banc 2008). "A statute is presumed to be valid and will not be declared unconstitutional unless it clearly contravenes some constitutional provision. The person challenging the validity of the statute has the burden of proving the act clearly and undoubtedly violates constitutional limitations." Id. (internal citation omitted).

"The question of whether a party has standing is a threshold issue that this Court reviews de novo. " State ex rel. Kan. City Power & Light Co. v. McBeth , 322 S.W.3d 525, 529 (Mo. banc 2010). A party has standing to challenge the constitutional validity of an adjudicatory body's composition if the party is directly subject to its authority. See Fed. Election Comm'n v. NRA Political Victory Fund , 6 F.3d 821, 824 (D.C. Cir. 1993), cert. granted , 512 U.S. 1218, 114 S.Ct. 2703, 129 L.Ed.2d 832 (1994), cert. dismissed , 513 U.S. 88, 115 S.Ct. 537, 130 L.Ed.2d 439 (1994).

Department of Natural Resources’ Procedural Claims Fail

In its first claim of error, Hickory Neighbors asserts the clean water commission's decision affirming the issuance of Trenton Farms’ CAFO permit is void because the clean water commission was invalidly constituted. The criteria for members of the clean water commission is set forth in section 644.021.1. In 2016, the general assembly amended section 644.021.1, thereby changing the criteria for members of the clean water commission, when it passed HB 1713 over the governor's veto.

Before the 2016 amendment, section 644.021.1 required that, of the seven commissioners: two, but no more than two, members "shall be knowledgeable concerning the needs of agriculture, industry or mining[,]" one member "shall be knowledgeable concerning the needs of publicly owned wastewater treatment works[,]" and "[f]our members shall represent the public." Section 644.021.1, RSMo Supp. 2007. The 2016 amendment, however, removed the two-member limitation on commissioners who are "knowledgeable concerning the needs of agriculture, industry or mining" and limited the number of commissioners who "represent the public" to "[n]o more than four," eliminating the requirement that at least four commissioners represent the public. Section 644.021.1.

Hickory Neighbors contends HB 1713's change to the criteria for members of the clean water commission violated the Missouri Constitution's original purpose, single subject, and clear title requirements. See Mo. Const. art. III, secs. 21, 23. The department of natural resources, however, contends: (1) Hickory Neighbors’ constitutional claims are unpreserved, (2) Hickory Neighbors should have challenged the clean water commission's membership in a quo warranto action, and (3) Hickory Neighbors lacks standing for its constitutional challenges.

The department of natural resources first claims Hickory Neighbors failed to preserve its challenge to HB 1713's constitutional validity for review by this Court because it did not raise the claim before seeking judicial review by the court of appeals. "Since an administrative hearing commission is not empowered to determine the constitutionality of statutes, a party is not required to raise those issues at that level." Tadrus v. Mo. Bd. of Pharm. , 849 S.W.2d 222, 225 (Mo. App. W.D. 1993) ; see also City of Joplin v. Indus. Comm'n of Mo. , 329 S.W.2d 687, 689 (Mo. banc 1959). Accordingly, Hickory Neighbors adequately preserved the issue by raising it before the court of appeals.

The department of natural resources next claims Hickory Neighbors’ constitutional challenge should be raised in a quo warranto action. "An information in the...