Coon v. North Dakota Department of Health
2017 ND 215
| N.D. | 2017Background
- Rolling Green applied in Sept 2015 (revised Dec 2015) for a permit to operate a large swine facility (initially ~8,832 head; revised to 9,056 head) near Buffalo, ND; application included design, soil, water, O&M and nutrient management plans.
- Dept. of Health issued public notice, extended the comment period, and held a public hearing (March 17, 2016) after substantial public interest; Rolling Green later supplied additional soil, air, design, and nutrient-plan information at the Department's request.
- On Aug 4, 2016 the Department issued findings, an updated fact sheet, and a final AFO (animal feeding operation) permit; landowners appealed claiming the facility is a CAFO and therefore required a NDPDES permit and asserting due process violations for lack of renewed public comment opportunity.
- District court affirmed the Department; the Supreme Court reviews the agency record for arbitrariness, capriciousness, or unreasonableness and issues the present opinion affirming.
- Central legal tension: state administrative rule (requiring all CAFOs to obtain a NDPDES permit) conflicts with later federal interpretation requiring NPDES permits only for CAFOs that actually discharge; Department implemented federal approach and issued an AFO permit instead of insisting on NDPDES.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Rolling Green, as a CAFO, was required by state rule to obtain a NDPDES permit | Landowners: State rules (NDAC §33-16-03.1-05(1)) require all CAFOs to obtain a NDPDES permit, so Dept lacked authority to issue only an AFO permit | Dept: Federal regulations (and Dept practice) require NPDES only for discharging CAFOs; the Dept implemented federal rules and treated Rolling Green as non-discharging, so AFO permit was proper | Court: State rule does require NDPDES, but Dept erred by not applying that rule; however reversing would be futile because Rolling Green could challenge a denial under N.D.C.C. §23-01-04.1(5); judgment affirmed. |
| Whether the Department could ignore or decline to apply its rule that is more stringent than federal law | Landowners: Dept must follow its own existing rule which is binding until changed | Dept: Dept may follow federal implementation; it is reviewing its rules and contends the federal rule governs; allowing non-discharge CAFOs to avoid NPDES is consistent with current federal law | Court: Agency must apply its validly adopted rule; Dept erred by failing to apply it, but reversal would be futile given statutory challenge mechanism and practical result. |
| Whether Dept abused discretion by not reopening public comment after applicant submitted supplemental information post-comment period | Landowners: Late-submitted information prejudiced public participation; Dept should have reopened comment | Dept: Rules give Dept discretion on comment period length and hearings; rules permit applicant response without mandatory reopening; Dept provided an 83-day comment period and a public hearing | Court: Dept did not abuse discretion; no requirement to reopen; public had ample opportunity to comment. |
| Whether denial of a renewed comment opportunity violated landowners' due process (setback calculation) | Landowners: New information increased animal unit counts (piglets), which would trigger a 1.5-mile statutory setback affecting some landowners; they were deprived of meaningful opportunity to contest | Dept: Dept calculated animal units and determined a one-mile setback; agency expertise entitled to deference; landowners failed to show a protected property interest would be deprived | Court: Even assuming a permit can affect property interests, landowners did not show deprivation or inadequate process; Dept's calculation was reasonable and entitled to deference. |
Key Cases Cited
- People to Save the Sheyenne River, Inc. v. N.D. Dep’t of Health, 697 N.W.2d 319 (2005) (standard and deference for Dept. permitting decisions under state law)
- Waterkeeper Alliance, Inc. v. U.S. EPA, 399 F.3d 486 (2d Cir. 2005) (federal rule: NPDES permits required only for CAFOs that actually discharge)
- Voigt v. N.D. Pub. Serv. Comm’n, 892 N.W.2d 149 (2017) (agency interpretation of its regulations entitled to deference on complex subjects)
- Fercho v. Montpelier Pub. Sch. Dist. No. 14, 312 N.W.2d 337 (N.D. 1981) (agency rules binding on the agency and public)
- Havener v. Glaser, 251 N.W.2d 753 (N.D. 1977) (agency may not waive or disregard validly adopted rules)
- Hagerott v. Morton Cty. Bd. of Comm’rs, 778 N.W.2d 813 (2010) (standing/aggrievement where permit granting feedlot affected neighbor’s use and enjoyment of property)
- In re N.A., 879 N.W.2d 82 (2016) (due process requires opportunity to be heard at a meaningful time and manner)
- Mathews v. Eldridge, 424 U.S. 319 (1976) (framework for balancing interests in procedural due process)
- Wilkinson v. Austin, 545 U.S. 209 (2005) (application of Mathews balancing test)
- American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (requirement to identify a protected property or liberty interest before applying procedural protections)