Written by Brian Turner
It was a blustery spring day last Friday in Idaho's “Magic Valley.” At the former Hunt Camp, one of 10 War Relocation Authority centers where thousands of Japanese-American citizens were interred during World War II, I caught a distant, but still noticeable smell of a nearby dairy farm. I was surprised to learn from Dean Dimond, a longtime farmer in the area and neighbor to what is now the Minidoka National Historic Site, that the odoriferous culprit was a dairy facility over four miles to the south. And suddenly the effort to stop a much larger, more concentrated industrial feedlot just over a mile upwind of the historic camp gained new urgency.
Friday, April 23 was Minidoka's day in court…finally. A coalition of interest groups, neighbors, and citizens, including the National Trust for Historic Preservation, challenged Jerome County's approval of the industrial farm in October 2008. Since then the county and the proposed CAFO operator have fought to limit what materials will be included in the administrative record - the information that the judge is able to review to make his decision. After more than a year of briefing this rather mundane, but critically important issue, Judge Robert J. Elgee ultimately allowed the contested information in. It was a small initial victory for the plaintiffs who see the information as crucial to demonstrating how the County erred in its decision-making process.
At last week's hearing on the merits of the case, our attorney, Charlie Tebbutt, presented a compelling argument on behalf of preservation of the National Historic Site. Tebbutt concisely summarized the serious procedural irregularities in the County's review process that led to approval of the largest animal feeding operation in Jerome County history.
Unconstitutional procedure was the thrust of our challenge. Some neighboring landowners to the proposed farm had not even been notified of the hearings to permit the CAFO, an absolute requirement of the law. After finally receiving late notification, the landowners requested the 400+ page permit application, but the county made it available just one day before comments were due. Perhaps even more egregious, organizations with a strong membership interest in protecting Minidoka were limited to submitting a single 8.5 x 11 piece of paper and only four minutes of oral testimony to state their objections. The county reasoned that groups like the Japanese American Citizens League, Friends of Minidoka. and the National Trust were not "affected persons" because they didn't have a primary residence within one mile of the proposed facility. Since the hearings the county has changed the law, apparently recognizing the absurdity of its position.
Tebbutt argued that the county's intentional limitation on public comment violates his client’s 14th amendment due process rights, specifically the requirement of providing a meaningful opportunity to comment. The dairy is projected to cause serious dust, odors, and water quality impacts, significantly affecting the public visitor experience at Minidoka, yet interest groups had very limited opportunity to present evidence of the impact to the County. This was partly because visitors aren't "residents" and also because Minidoka is just shy of a mile away from the proposed site.
I felt that a particularly compelling point Tebbutt made, is that the one mile residency rule has no basis in protecting the public health, safety, or welfare, just making the process more expedient. And oddly enough, the restriction, which is consistent with a law passed by the Idaho state legislature, has no equivalent in other land use permitting processes.
Stay posted, a decision in the case is expected next month.
Brian Turner is the regional attorney for the Western Office of the National Trust for Historic Preservation.