Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Idaho Supreme Court Upholds Concentrated
Animal Feeding Operation Ordinance

Jay Kiiha
National AgLaw Center Graduate Fellow

The Idaho Supreme Court has held that a trial court did not have the authority to invalidate a county ordinance involving a concentrated animal feeding operation (" CAFO") on a petition for judicial review because the petition did not include a claim for declaratory relief. Scott v. Gooding County, 46 P.3d 23, 26 (Idaho 2002).

Win Henslee was a commissioner on the Gooding County Board of Commissioners ("County Board"). See id. at 23. On January 27, 1999, while acting as an employee of Louis Bettencourt, Henslee requested that the Gooding County Planning and Zoning Commission office ("Planning Commission") issue a permit for a CAFO. See id. Bettencourt needed the CAFO permit so that he could construct a dairy operation. See id. At the time Henslee requested the CAFO permit, a moratorium on new CAFOs previously established by the county board was in effect. See id. at 24.

On February 8, 1999, the county board gathered to consider a new proposed ordinance that would regulate CAFOs. See id. Henslee participated in the discussions and the ordinance was adopted but not finalized. See id. On February 9, 1999, the ordinance was finalized and adopted as "Ordinance 66." See id. Henslee was not present at the February 9, 1999, meeting. See id.

On March 31, 1999, a public hearing was held before the planning commission regarding the CAFO permit application. See id. At the hearing, Henslee represented his employer, Bettencourt. See id. On April 9, 1999, the planning commission approved the permit request with the proviso that the "facility never exceed seven cows per acre." Id.

On May 10, 1999, the planning commission's decision was appealed by Tracy and Sue Scott and David Cogger to the county board. See id. Although present at the appeal, Henslee did not consider the matter, citing a conflict of interest. See id. On June 14, 1999, the county board denied the appeal. See id.

A petition for judicial review was then certified by the Scotts and Cogger to the Fifth Judicial District Court, Gooding County. See id. Bettencourt intervened "on the ground that his dairy was under construction and he desired to protect his interest to construct and operate it." Id. The only issue considered by the district court was "whether the Gooding County CAFO ordinance [was] valid and enforceable as adopted." Id. The district court held that "Ordinance 66 was invalid pursuant to Idaho Code § 67-6506 because Commissioner Henslee had a conflict of interest." Id.

Gooding County moved for reconsideration of the district court's decision, arguing that "Ordinance 66 cannot be challenged by a petition for judicial review." Id. In support, Gooding County cited Burt v. City of Idaho Falls, 665 P.2d 1075 (Idaho 1983), for the proposition "that legislative actions by county commissioners cannot be attacked by judicial review." Id. The district court denied Gooding County's motion for reconsideration and held that "it would construe the petition for judicial review to include a claim for declaratory relief." Id. Gooding County appealed the issue to the Idaho Supreme Court. See id.

Gooding County reiterated the arguments made on its earlier motion for reconsideration. See id. at 25. Bettencourt did not address Gooding County's position. See id. Rather, he argued that Gooding County was judicially estopped from challenging the judgment of the Fifth District Court because Gooding County allegedly stipulated to dismiss an unrelated case on the ground that the ordinance approved by the planning and zoning commission was void. See id.

In evaluating the position of Gooding County, the Idaho Supreme Court initially noted that "[t]here is nothing in the record below indicating that [the parties] intended their petition for review to include a claim for declaratory relief." Id. In support, the court observed that Tracy and Sue Scott and David Cogger moved to withdraw the question of whether the CAFO ordinance was valid, but the motion was denied by the district court. See id. The Idaho Supreme Court also noted that the Scotts and Cogger did not participate in the appeal of the ordinance. See id. at 25-26.

Finally, the court stated that the original appeal from the board of commissioners "was, on its face, clearly a petition for judicial review challenging the issuance of the CAFO siting permit, and it was clearly intended by them to be a petition for judicial review." Id. at 26. Because no claim for declaratory relief was pled, the court cited the ruling in Burt and remanded the case to the district court on grounds that it "did not have authority to rule upon the validity of Ordinance 66." Id.

The court also ruled that it would not consider the issue of judicial estoppel because the owner of the CAFO failed to provide a factual record demonstrating the identity of the case which was dismissed by stipulation. See id.

The case was decided on April 24, 2002; this summary was posted January, 2003