Circuit Judge Robert Koffman will continue to preside over a case brought by 100 local farmers and landowners suing the Cooper County Health Board to overturn its regulations of concentrated animal feeding operations.
The health board filed for a change of judge Aug. 29, well after the 60-day limit to request a change since the board was served notice of the suit last October, Koffman ruled.
The board argued the lawsuit was originally directed at a regulation on manure from concentrated animal feeding operations, or CAFOs, that it passed in August 2018 and rescinded in June.
The plaintiffs are now looking to overturn a new set of restrictions on CAFOs and the manure they produce that the board passed Aug. 14. The board argued the new rules should reset the clock and they should be allowed to ask for a new judge.
Koffman disagreed, writing in his order that both the board’s old and new rules regulate the same operations and how they fertilize fields. Because the same people are suing for the same reason, within the same case, the clock didn’t reset for the health board, Koffman wrote.
Koffman has presided over the case since it was filed last September. He’s conducted nine hearings, with another scheduled for Monday, considered dozens of motions and issued four orders throughout the yearlong saga.
Koffman indicated in a hearing in August that he agrees with plaintiffs that the board’s rules are arbitrary, the main point of the plaintiffs' argument that it should be voided.
Koffman doesn’t see why manure from a CAFO is considered harmful but not waste from other animals, he said during that hearing.
Chris Pieper, representing the health board, said the board has research to support their regulations.
“You put in a regulation, ‘This kind of manure is bad, but all other kinds of manure aren’t,’” Koffman said during the hearing. “I don’t understand why that’s there unless it’s arbitrary and capricious.”
Stephen Jeffery, another attorney representing the health board, said the board doesn’t need a specific reason for requesting a new judge, it just has to make the request within 60 days of being served. Brent Haden, an attorney representing the plaintiffs, said it was clear the board didn’t have the law on its side in asking for a new judge.
There will be another hearing on the lawsuit on Monday in Cooper County, with Koffman presiding. The plaintiffs have filed for a preliminary injunction, which would bar the board from enforcing its regulation until the lawsuit is resolved. Koffman issued a temporary restraining order on Aug. 26, which has prevented the board from enforcing its regulation.
Haden argued in the motion for an injunction that his clients need the security of knowing what fertilizers they are allowed to use on their fields.
Harvest time is already here for some farmers, and they’ll have to apply fertilizer soon, Haden wrote. If his clients don’t know if they can apply manure and litter from CAFOs on their crops, they’ll lose out on the benefits of those fertilizers, he argued.