Written by Brian Turner

The Minidoka internment camp. (Photo: Densho Digital Archive, www.densho.org)

During World War II, more than 13,000 people were confined at the Minidoka Internment Camp in Jerome County, Idaho as part of the forced relocation of Japanese-Americans in response to the attack on Pearl Harbor. To recognize and commemorate this dark period in American history, President Clinton in 2001 designated Minidoka as a National Monument to be managed by the National Park Service. Congress expanded the Monument and changed the designation to a National Historic Site in 2008.

However, even the highest level of federal designation and protection can sometimes be inadequate to protect historic places from the threat of other developments nearby. In the case of Minidoka, that threat is presented by a proposal to construct a massive factory farm for 13,000 cattle (known as a Confined Animal Feeding Operation or CAFO) about one mile upwind from Minidoka. The proposed CAFO is strongly opposed by local residents, Japanese-American organizations, conservationists, and preservationists. The central concern is that pollution and noxious emissions from the livestock operation and manure would have a negative impact on visitation to Minidoka. In fact, the experience could be so unpleasant that it would likely drive visitors away.

Three years ago, the Jerome County Board of Commissioners denied a permit application for the CAFO. However, the Board reversed course in October 2008, after the dairy owners successfully challenged the permit denial in court. A coalition of nearby property owners and interest groups (including the National Trust for Historic Preservation) then sued, arguing, among other things, that the County violated their state and federal due process rights.

Unfortunately, on August 6, 2010, Idaho District Court Judge Robert J. Elgee upheld the county’s decision to grant the CAFO permit.

The Children at the Minidoka internment camp. (Photo: Densho Digital Archive, www.densho.org)

First, Judge Elgee concluded that the Friends of Minidoka, the Japanese American Citizens League, and the National Trust did not have “standing” to challenge the CAFO permit because these groups only “voice[d] concerns on behalf of unidentified members of their organizations, none of whom individually would have standing.” The judge set a high bar for standing, which would require each organization to have a member with a property interest in Minidoka itself or within one mile of Minidoka in order to demonstrate standing. (See this previous blog post for more on standing.) If upheld, this very narrow interpretation of standing could potentially bar concerned organizations and interested members of the public from challenging government actions elsewhere that affect significant public resources.

Then, Judge Elgee went on to uphold a highly restrictive Jerome County law prohibiting public comment on CAFO applications from anyone other than those who have a “primary residence” within one mile of the facility. Thus, people who run farms, recreate within the vicinity, or visit public historic sites like Minidoka were deprived of any opportunity even to voice their concerns in a meaningful way. The plaintiffs argued that this rule is unconstitutional and arbitrary, especially considering that the harmful public health impacts of CAFOs often extend far beyond one mile from the facilities. The judge noted that “arguments could be made” to this effect, but, citing the high burden of proof required to overturn a legislative act on constitutional grounds, stated that he could not find a “substantial basis” to determine if the statute was unconstitutional. He suggested that the real remedy is political, not judicial.

Judge Elgee then turned to the plaintiffs’ argument that their procedural due process rights had been violated by the limitations set by the Board for public participation in the hearing to consider the permit application. The plaintiffs asserted that the Board had failed to provide them with a meaningful opportunity to participate in the hearing, since members of the public were only allowed to provide an oral statement limited to four minutes, and were only permitted to submit a written statement limited to one page, if they testified orally, or two pages if they did not. Judge Elgee first determined that any procedural due process claim could only be made with respect to members of the public within a one-mile distance from the project site, since plaintiffs living outside the one mile radius of the facility had no right to comment at all (following the logic of his ruling that the legislature was within its rights to limit participation only to those within a one-mile limit).

As for the procedural due process rights of affected landowners within the one-mile limit, the court noted that the Board had liberalized its rules to allow unlimited written testimony by anyone, if submitted not less than seven days before the hearing. Under these circumstances, Judge Elgee stated that he was unable to conclude that the rules limiting oral testimony at the hearing to four minutes, and limiting written submissions to one or two pages did not “prejudice a substantial right.”

Overall, the decision dodges important questions about how Jerome County approved this CAFO permit and how it will review future permits. It also raises questions about the Idaho statutes that spell out the counties’ authority to restrict public comment, and sets an unfortunate precedent by limiting the ability of citizens to question the legality of counties’ actions that severely impact communities, such as approving CAFOs.

The plaintiffs expect to appeal the District Court ruling to the Idaho Supreme Court.

Brian Turner is Regional Attorney in the National Trust for Historic Preservation’s Western Office.

The National Trust for Historic Preservation, a privately funded non-profit organization, works to save America's historic places.

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