Special Judge Steven R. Ohmer last week dismissed the latest legal challenge to the proposed combined animal feeding operation — or CAFO — near Hatton in Callaway County.
State law, he wrote, requires a final decision before any action or appeal. Since no decision has been made, there is no record for review.
So Ohmer, a St. Louis circuit judge assigned to the case after Cole County's judges were removed from it, dismissed the case.
Robert Brundage — the Jefferson City attorney representing Eichelberger Farms, the Wayland, Iowa-based company proposing the Callaway Farrowing project — said Ohmer's ruling means "the Clean Water Commission is now free to take up and vote again on the Callaway Farrowing permit appeal."
But Stephen G. Jeffery, the Chesterfield attorney for the CAFO opponents, said on Wednesday that Ohmer's dismissal of the case didn't address the ongoing issue of how often the Missouri Clean Water Commission can vote on the proposal.
Jeffery wants a ruling that determines if failure to reach four-vote super-majority requires the commission to vote repeatedly until it reaches four votes "or results in the outright denial of the permit because it did not receive four favorable votes."
The commission has been wrestling with the issue for several years.
In 2014, it approved Eichelberger Farms' request for a permit to operate the Callaway Farrowing CAFO with 9,520 swine over 55 pounds, and another 800 swine under 55 pounds.
But the Friends of Responsible Agriculture — a nonprofit group formed to fight the proposed hog farm and its feared odors and pollution run-off — challenged the 2014 general operating permit and asked the Administrative Hearing Commission to block it.
The AHC endorsed the proposal, and the Clean Water Commission's final decision was pending in March 2015 when two commissioners drove past the proposed site.
The Friends group sued, arguing the visit violated the state's Sunshine Law.
In July 2016, Cole County Circuit Judge Dan Green ruled then-Commission Chairman Ben A. "Todd" Parnell and Commissioner Ashley McCarty had looked at "the location and topography of the site (while) the permit appeal was pending before them," and had "obtained 'facts and evidence' directly regarding the permit appeal outside the hearing record."
He prohibited the two commissioners from participating in any future votes on the Callaway farrowing issue.
On Oct. 5, 2016, the commission voted 3-2 to approve the permit and announced the permit had been approved.
Jeffery filed another suit, arguing state law required at least four "yes" votes for any final action to be effective.
Green agreed the state law says: "All final orders by the commission shall be approved in writing by at least four members."
At its Jan. 11, meeting, the commission voted 2-2 on the issue.
Jeffery filed the latest lawsuit — the one dismissed last week — when the commission scheduled another vote on the Callaway project at its April 2017 meeting.
Meanwhile, Callaway Farrowing appealed Green's Dec. 21 order to the state appeals court's Kansas City division, which heard arguments in the case last month.
The court has not issued its decision.
Jeffery said Wednesday: "There is a possibility that the Court of Appeals decision could have bearing on what action the Commission may take at its next meeting on Dec. 6."