Summary of a Recent
Judicial Development in
Agriculture and Urbanization

County's CAFO Ordinance Upheld

Patricia Farnese
National AgLaw Center Graduate Fellow

The Idaho Supreme Court has ruled that a county's concentrated animal feeding operation ("CAFO") ordinance was not void, even though a County Commissioner that participated in the enactment of the ordinance had a conflict of interest as defined under Idaho state law. Gooding County v. Wybenga 46 P.3d 18 (Idaho 2002). The court held that the adoption of the ordinance was not tainted by the Commissioner's conflict of interest because the ordinance was ultimately enacted "sufficiently independent" of the Commissioner's involvement. See id. at 22. The matter was remanded for further consideration. See id.

The alleged conflict of interest derived from the fact that Win Henslee, a commissioner serving on the Gooding County Board of Commissioners and an employee of Luis Bettencourt, filed an application with the county to obtain a permit that would allow Bettencourt to build a dairy operation. See id. The county had a moratorium on the construction of all new CAFO's at the time Henslee filed the permit application. See id. Bettencourt could only receive the permit if the county allowed the moratorium to expire or if it enacted an ordinance that allowed CAFO's. See id. at 22.

The Board of Commissioners met on February 8, 1999, to consider a proposal that would allow for the regulation of CAFO's "and to consider various changes to [a] proposed ordinance that had been recommended by the Planning and Zoning Commission." Id. at 20. At this meeting, Henslee moved to have an ordinance enacted "with all the changes the law will allow, according to the Gooding County Prosecuting Attorney." Id. Henslee's motion was passed. See id. The Board of Commissioners met again the next morning and adopted this motion. See id. The adopted motion was known as Ordinance 66. See id.

On January 11, 2000, Gooding County brought an action seeking injunctive relief against Steve and Darla Wybenga and alleged "that in May 1996 the Wybengas operated a dairy of approximately 200 cows and that they have since increased the number of cows in violation of Ordinance 60, of several moratoria prohibiting the enlargement of confined [sic] animal feeding operations . . . and of Ordinance 66." Id. at 19.

The Wybengas responded by filing a three-count counterclaim. See id. The counterclaim sought declaratory relief, asserting "that all prior ordinances dealing with CAFO's were repealed by the adoption of Ordinance 66 and that they were entitled to be registered under Ordinance 66 as an existing operation with 945 cows." Id. The Wybengas also sought judicial review of the county's decision to register them as a CAFO but to limit their operation to 307 cows. See id. Finally, the Wybengas argued that the county violated 42 U.S.C. § 1983 when it attempted to limit the number of cows the dairy could maintain. See id. The Wybengas moved for partial summary judgment on June 22, 2000, "seeking a ruling that Ordinance 66 was void because Win Henslee, a Gooding County Commissioner, violated Idaho Code § 67-6506 by participating in the proceedings to adopt the Ordinance when he had a conflict of interest." Id. at 20.

The Gooding County district court granted the Wybengas' motion for partial summary judgment. See id. The court ruled "that Ordinance 66 was void, and dismissed Gooding County's complaint" that had been filed against the Wybengas. Id. Gooding County appealed the district court's decision to the Idaho Supreme Court. Id.

The Idaho Supreme Court first examined whether the definition of "conflict of interest" in Idaho Code §67-6506 should be construed with the definition in § 59-703 of the Ethics in Government Act. Id. at 21. Section 59-703 defines "conflict of interest" as "any official action of any decision or recommendation by a person acting in a capacity as a public official, the effect of which would be to the private pecuniary benefit of the person or a member of the person's household is associated . . . ."

At the time Ordinance 66 was adopted § 67-6506 provided, in relevant part:

[a] member or employee of a governing board, commission, or joint commission shall not participate in any proceeding or action when the member or employee or his employer, business partner, business associate, or any person related to him by affinity or consanguinity within the second degree has an economic interest in the procedure or action. Any actual or potential interest in any proceeding shall be disclosed at or before any meeting at which the action is being heard or considered. A knowing violation of this section shall be a misdemeanor.

Id.

& The county argued that the two statutes should be construed together and that the definition of "conflict of interest" provided in § 59-703 should be applied to § 67-6506. Id. The court explained that for the county "to prevail in its argument that the definition of 'conflict of interest' in [§ 59-703] should control this case, it must argue that [§ 59-703] impliedly repealed or amended Idaho Code § 67-6506." Id. The court concluded that "[t]here is no indication that the legislature intended to repeal or amend Idaho Code § 67-6506 when it adopted [§ 59-703]." Id. Thus, the court rejected the county's argument and applied the definition of "conflict of interest" provided in § 67-6506. See id.

The court then examined whether the district court correctly determined that Ordinance 66 was void because Henslee's participation in its enactment violated § 67-6506. See id. at 22. The court explained that

[o]n February 8, 1999, the Board met to consider the adoption of an ordinance that would permit new CAFO's, and Commissioner Henslee participated in that proceeding. Under these circumstances, the district court did not err in finding that Commissioner Henslee's conduct on February 8, 1999, violated Idaho Code §§ 67-6506. That finding, however, does not render Ordinance 66 void.

Id.

The court noted that the county board reconvened on February 9, 1999, to discuss the proposed ordinance and that Henslee did not participate in that meeting. The court stated that "[u]nder these circumstances the adoption of Ordinance 66 on February 9, 1999, was sufficiently independent of the proceedings the day before to purge the taint of Commissioner Henslee's participation in those proceedings. Therefore, the district court erred in holding that Ordinance 66 was void." Id.

The case was decided on April 23, 2002; this summary was posted January, 2003