Argument in chicken farm fight an old one, opponents contend
Delta County commissioners were against citing a nuisance lawsuit statute with regard to two controversial cage-free chicken farms in their county before they were for it.
That’s one of many points of emphasis contained in a legal answer to Delta County and the operators of a former crowded egg-laying facility on Powell Mesa near Hotchkiss, who are appealing a decision in District Court that forced the farm to shut down in December last year.
In fact, all the parties in the long and winding court case — which has pitted nearby property owners against the county and farm operator Edwin Hostetler — agreed in 2011 that elements of the state’s broad Right to Farm statute protecting proper ag operations from nuisance lawsuits don’t apply.
That’s now central to Delta County’s case on appeal.
It’s also the primary argument of an amicus brief filed in support of Delta County’s appeal by Colorado Gov. John Hickenlooper, the Colorado Department of Public Health and Environment, the state Department of Agriculture, and Colorado Attorney General John Suthers.
“During the County proceedings on Aug. 29, 2011, (then-Delta County) Commissioner (Olen) Lund discussed at length but then dismissed the applicability of Nuisance Liability of Agricultural Operations Statute …,” the farm opponents’ answer reads.
In a District Court order from July 2012, “Counsel appeared to agree that the statutory right to farm does not directly apply to this matter. The Court agrees,” opponents quote in their recent filing.
That’s in direct conflict with the state’s amicus argument now.
“The decision of the lower court undermines the Right to Farm Act by providing an alternative mechanism for opponents of farming operations to bring nuisance claims,” the governor’s amicus brief reads. It also claims the now-shuttered egg farm “was in compliance with all regulatory requirements.”
Travis Jardon — a plaintiff in the case and a resident of Redlands Mesa, where the second Hostetler farm is planned — called that line of defense “absurd.”
In their filing, opponents again detail the health complaints from neighbors to the farm, and note that no one supporting the operation on the record lives in immediate proximity to the former Hostetler operation on Powell Mesa.
“… Neither the applicant, nor the County, in its advocacy efforts on behalf of the applicant, presented any testimony to counter the neighbors’ testimony that they are sick because of the operation of the chicken barn,” the opponents’ filing reads.
Opponents further reiterate that the county never even met with neighbors complaining of health issues.
“Contrary to his testimony at the preliminary injunction hearing, (Delta) County Health Officer (Ken) Nordstrom did not follow up on these health complaints by even talking to the complainants or asking them for their medical records,” the filing reads.
The Delta County and Hostetler case challenging the court’s closure of the Powell Mesa egg farm remains on appeal.