847 N.W.2d 42
Minn. Ct. App.2014Background
- Reichmann Land and Cattle operates a large family farm in Pope County, MN, wintering >2,000 cattle on ~400 acres of cropland each winter; cattle receive supplemental feed supplying ≥90% of nutrition.
- The winter feeding fields are tilled and planted with crops in spring and harvested like neighboring croplands; cattle are removed before normal planting season.
- Intermittent streams run through the tracts and have previously received pollutant discharges; connected waters are designated impaired for E. coli and flow to the Mississippi River.
- MPCA issued a draft administrative order requiring Reichmann to obtain a State Disposal System (SDS) permit and a federal NPDES permit as an animal feeding operation (AFO); Reichmann contested, arguing the fields qualify as statutorily defined "pasture" and are not an AFO.
- An ALJ recommended affirming the order; the MPCA commissioner adopted the ALJ report (with modifications) and ordered SDS and NPDES permits; Reichmann appealed to the court.
- Procedural issue: portions of Reichmann’s prefiled testimony were temporarily missing from the record during commissioner review; commissioner found record complete and due process adequate.
Issues
| Issue | Reichmann's Argument | MPCA's Argument | Held |
|---|---|---|---|
| Whether Reichmann’s winter feeding fields are exempt as "pasture" under Minn. Stat. §116.07 subdivision 7d | Fields qualify as pasture because crops are planted and sustained in the normal growing season | Not pasture because cattle are not "allowed to forage" and vegetation is downed/soiled during the season | Not pasture; SDS permit required (majority) |
| Whether the winter feeding fields are an AFO/CAFO requiring an NPDES permit under 40 C.F.R. §122.23 | Fields are not AFOs because crops/vegetation are sustained in the normal growing season | Fields are AFOs/CAFOs because vegetation is not "sustained" when animals are present (agency and dissent) | Not an AFO/CAFO under the regulation as reasonably read; NPDES not required (majority) |
| Proper temporal frame for evaluating "sustained" vegetation under the federal AFO definition | Evaluate during the normal growing season; animals are removed before that season so vegetation is sustained | Evaluate during winter when animals confined (agency/preamble view) | Majority: interpret "normal growing season" literally; dissent: regulation ambiguous and agency interpretation entitled to deference; majority wins |
| Whether temporary absence of prefiled testimony from record denied due process | Missing testimony prejudiced Reichmann | Commissioner found transcript and record reflected prefiled testimony and no prejudice | No relief; commissioner’s finding supported by substantial evidence |
Key Cases Cited
- In re Request for Issuance of SDS General Permit, 769 N.W.2d 812 (Minn. Ct. App.) (standard of review for MPCA decisions)
- In re Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance, 731 N.W.2d 502 (Minn. 2007) (agency deference principles for regulatory interpretation)
- Halvorson v. Cnty. of Anoka, 780 N.W.2d 385 (Minn. Ct. App.) (de novo review for statutory interpretation)
- Saif Food Market v. Comm’r, Dep’t of Health, 664 N.W.2d 428 (Minn. Ct. App.) (deference to agency credibility findings)
- Albemarle Corp. v. Herman, 221 F.3d 782 (5th Cir.) (consult preamble only when regulation ambiguous)
- Auer v. Robbins, 519 U.S. 452 (U.S. 1997) (deference to agency interpretation of its own regulation unless plainly erroneous)