Summary of a Recent
Judicial Development in
Animal Feeding Operations

County CAFO Resolution Exceeds
Home Rule Authority

Harrison M. Pittman
Staff Attorney

Summary of Decision

In David v. Board of Comm'rs of Norton County, 89 P.3d 893 (Kan. 2004), the Kansas Supreme Court held that a county resolution that regulated concentrated animal feeding operations was invalid because it exceeded the county's home rule authority.

Background

Plaintiff hog farmers obtained permits from the state of Kansas that allowed them to expand their hog operations. David, 89 P.3d at 894. The Norton County Board of Commissioners (County) subsequently enacted a resolution that prevented the expansion of the hog operations allowed by the state permits. See id. The plaintiffs brought an action seeking to have the County resolution struck down. See id. The district court held that the resolution "exceeded the County's home rule authority and that the State had manifested a clear intent to preempt the field of CAFO regulation." Id. The County appealed the trial court's decision to the Kansas Supreme Court. See id.

Under Kansas law "'[h]ome rule powers are those granted . . . by legislative act to units of local government to transact local business and perform such local and administrative duties as these local units may deem appropriate,'" subject to certain restrictions. Id. at 895 (citations omitted). Kan. Stat. Ann. § 19-101a provided in relevant part that

(a) The board of county commissioners may transact all county business and perform all powers of local legislation and administration it deems appropriate, subject only to the following limitations, restrictions or prohibitions: . . . (3) Counties may not affect the courts located therein; . . . (6) Counties may not legislate on social welfare; . . . (11) Counties shall have no power under this section to exempt from certain statutes; . . . and (30) Counties may not exempt from or effect changes in . . . [several Kansas statutes] and amendments thereto.

(b) Counties shall apply the powers of local legislation granted in subsection (a) by resolution of the board of county commissioners. If no statutory authority exists for such local legislation other than that set forth in subsection (a) and the local legislation proposed under the authority of such subsection is not contrary to any act of the legislature, such local legislation shall become effective upon passage of a resolution of the board and publication . . . . If the legislation proposed by the board under the authority of subsection (a) is contrary to an act of the legislature which is applicable to the particular county but not uniformly applicable to all counties, such legislation shall become effective by passage of a charter resolution in the manner provided in . . . [§ 19-101b], and amendments thereto.

Id. (citations omitted).

Arguments

The County raised two primary arguments on appeal. See id. at 896. First, it argued that "subsection (a)(30) was designed only to prevent counties from chartering out from under the state statutes governing CAFOs through [§ 19-101b], not to prevent them from concurrently regulating CAFOs more strictly than the State through the passage of ordinary resolutions under [§ 19-101a(b)]" Id. The County asserted that had the legislature "wanted counties also to be unable to pass ordinary resolutions under . . . [§ 19-101a(b)], it would have worded subsection (a)(30) as a clear prohibition, as it did with subsections (a)(3), (6), and (11), rather than using the word 'exempt,' which also is used in [§ 19-101b]." Id. Second, the County argued that the resolution was "merely supplemental to, not in conflict with, state regulations of CAFOs" because "the State must have already expressly permitted something in order for a county resolution prohibiting the same thing to cause a conflict." Id.

The court rejected the County's arguments. See id. It explained that the primary method for determining whether a conflict exists between a county enactment and a state statute is to examine "'whether the local law prohibits what the state law permits or the state law prohibits what the local law permits.'" Id. (citations omitted). The court stated that the resolution at issue "imposes CAFO requirements that are more strict than those imposed by the State. The County is trying to exempt itself from or effect change in the state statutory provisions in violation of subsection (a)(30), and the resolution cannot stand." Id. at 897.

The case was decided on May 14, 2004; this summary was posted July 14, 2004.