Daley Farm to get its day in appeals court Sept. 11

Jul. 23—LEWISTON, Minn. — The Daleys and their attorneys have been here before.

They hope this will be the final trip.

The Minnesota Court of Appeals has set oral arguments for the Daleys' ongoing case against Winona County as the dairy farm seeks a variance to allow it to expand and modernize its operations.

Oral arguments will be heard in the case on Sept. 11, 2024, in front of a three-judge panel of Judge Sarah Wheelock, Judge Peter M. Reyes, Jr. and Judge Randall J. Slieter.

The issue started in February 2019 when the Winona County Board of Adjustment denied a waiver of the county's animal unit cap that would allow the Daleys to expand their operation from 1,996.4 animal units (about 1,400 cows) to 5,967.7 animal units (about 4,300 cows.) Winona County has an animal unit cap of 1,500 that went into effect after the Daleys had grown their farm to its current size.

The case has been bounced around the courts ever since. It was previously sent back to the BOA for further discussion after one judge referred to Winona County's decision-making process as "severely tainted."

"I'm not criminalizing anyone here," First Judicial District Judge Kevin F. Mark said during oral arguments in December 2020. "I'm not faulting (Land Stewardship Project) or its members who advocate. ... But when three of five members (of the BOA) have advocated against the applicant at the MPCA level, there's no way that person can be a fair and impartial judge in this case."

Mark sent the variance request back to the BOA, which had changed its membership by that time. However, one of the new members for the second hearing, Bob Redig, had also made public comments against the Daley expansion proposal before the February 2019 hearing and was listed as a member of LSP, one of the main opponents of the Daley proposal.

It's something Matthew Berger of Gislason & Hunter LLP in New Ulm, Minnesota, attorney for the Daleys, said makes a decision by the appeals court necessary.

"That same biased county board appointed the decision makers the second time," Berger said. "I have serious concerns we could ever get a fair hearing there."

An amicus curiae brief filed by five Minnesota agriculture groups — Minnesota Milk Producers Association, Minnesota Farm Bureau Federation, Minnesota Pork Producers Association, Minnesota State Cattlemen's Association and Winona County Farm Bureau — says, "A comprehensive review of the state and federal regulations the Daley family farm is currently subject to, and would continue to be subject to, would assist this Court in reaching its conclusion about whether the Winona County Board of Adjustment did, in fact, act in an unreasonable, arbitrary, and capricious manner in denying the Daley's request for a variance."

Ben Daley, one of the owners of Daley Farm, said he's hopeful the court of appeals will rule in his favor and end this ongoing legal struggle.

Opponents of the project, he claims, are either misinformed or simply lying about the impact of the Daleys' proposed project. They focus on issues such as opposition to any large-scale animal farming and have concerns over the protection of groundwater in Winona County.

"When it comes to cover crops, we have the most in Winona County," Daley said. "When it comes to pasture, we have the most in Winona County. When it comes to alfalfa, we have the most in Winona County.

"If they want to make this about (groundwater), that's fine," he added. "We want to make this about water. The problem is, we're larger than any farm they want to be."

Twin Cities-based attorney Paul D. Reuvers of Iverson Reuvers Attorneys at Law, which is representing Winona County in the case, said he expects the court of appeals to affirm the lower court judgment that the decision made by the BOA was not arbitrary and capricious as Berger and the Daleys assert.

"Hopefully, that will be the end of it," Reuvers said.

The Daleys, he said already operate the largest feedlot — at a size above the animal unit cap — in Winona County. Expanding the feedlot to the degree they are asking, he said, is outside the scope of why variances exist.

"They're trying to quadruple their feedlot," Reuvers said. "I've never seen anyone get a variance that is so divergent from the standards."

Reuvers added the Daleys say they want the variance for economic reasons — to allow the next generation of the family to earn enough profit to maintain the farm. Variances for property, he said, should be about practical issues dealing with the land, not economic issues.

He also said the claim that the second BOA was biased has no merit because the members of the second BOA were selected before the county board knew Judge Mark would send the decision back for a second round. However, he did add that courts generally do remand a decision back to the deliberative governmental body.

Berger said the appeals court — as did Judge Mark — has the ability to grant the variance request by determining the Daleys would not get a fair hearing in Winona County. He pointed to emails from county board members showing collusion to pack the BOA in favor of rejecting the Daleys' proposal, something Judge Mark also pointed out in his ruling from January 2021.

Emails obtained by the Post Bulletin showed that in the fall and winter of 2018, a majority of the county board that would be in place as of January 2019 — commissioners Kovecsi, Chris Meyer and Greg Olson — did discuss potential candidates for open BOA seats with Land Stewardship Project. However, because Meyer was only a commissioner-elect, the group of three did not violate Minnesota's open meetings laws.

Berger said he hopes the appeals court will grant the variance.

The case, he said, is about more than the Daleys and their family-owned and operated dairy farm.

"I think it's huge, which is why I believe a number of groups have filed an amicus brief supporting the Daleys," he said. At its heart, the case is about ensuring a fair hearing in front of local government. "It's really about good government and our basic rights to a fair hearing."