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June 13, 2013

Motion Could Push CAFO Lawsuit Price Tag Beyond Quarter Million Dollar Mark



The price tag for ongoing litigation centering on the county's health ordinance regulating Concentrated Animal Feeding Operations (CAFOs) continues to grow with the potential for another significant cost surfacing recently.

The Scotland County Commission learned last week from its attorneys at The Lowenbaum Partnership of Clayton, MO, that the plaintiff had filed a Motion for a New Trial seeking additional damages.

On March 28th in the Scotland County Circuit Court, attorneys for Gavin Hauk filed the motion based on damages sustained since the original trial in April of last year. The action came two weeks after the county announced its intentions to appeal the February 18, 2013 decision by Mercer County Judge Jack Peace that ruled that commission's denial of Hauk's CAFO application "was unconstitutional, unlawful, unreasonable, arbitrary or capricious, and involved an abuse of discretion."

The motion cites that since the plaintiff won the declaratory judgment and injunctive relief and in an April 18, 2012 decision, was awarded the damages, the county has failed to issue Hauk a county health permit to allow him to build his proposed hog confinement complex.

In the initial decision, Hauk was awarded $178,566 in damages based on increased costs to construct the facility as well as fertilizer costs that would not have been incurred by using manure generated by the CAFO.

The court also established interest rates to be incurred for the initial judgment until it is paid, as the county pursues an appeal of the decision.

The motion for the new trial is seeking additional damages as Hauk incurred costs of $45,930.98 for fertilizer in his spring planting. Construction costs have continued to increase, and the motion is seeking an additional $38,494 to pay the cost of building the CAFO when the health permit is finally issued.

The county commission contends the question is if the permit will be issued, not when.

On March 15, the county filed a Notice of Appeal with the Missouri Court of Appeals Eastern District citing belief that the trial court misapplied the standard of review applicable to the Commission's denial of Hauk's permit application despite the defense's belief that the evidence at trial showed the commission's decision was not arbitrary, capricious or an abuse of discretion.

The notice of appeal also highlights concerns the court abused its discretion in awarding damages to Hauk, which the defense argues were too speculative.

The appeal has not yet been scheduled for hearing by the Court of Appeals in St. Louis.

The Motion for a New Trial has been taken under advisement by Judge Jack Peace following a conference with attorneys for both parties held May 28th.

If a new trial is approved, damages could increase from the already awarded $178,566 to the new figure of $262,990.98, with the figure conceivable going even higher if the court battle drags out into another planting season and/or if construction prices continue to rise.

The county has already expended nearly $60,000 in legal fees with the Lowenbaum Partnership, LLC, of Clayton, MO, for the initial trail defense and subsequent work preparing the appeal.

The Missouri Association of Counties has informed the Scotland County Commission that it will file an amicus brief, supporting the county's position in the appeal process.


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