Some have argued we need a compromise between the dairy feedlots and concerns of local neighbors. The compromise is this: If a permit is approved, it should be published in the newspaper. As required by law, citizens would then have 20 days within which to collect signatures of 5% of registered voters if they wished to bring it to a referendum.

This way everyone would know where they stood. Dairy owners could begin building after 20 days with confidence if no challenge emerged. Even if a challenge did gain sufficient signatures, owners would have total closure within 60 more days. And voters would retain their right to democracy.

Instead, underhanded techniques are used. Since the law gives citizens 20 days from the date of publication to collect signatures, dairy proponents have refused to publish permits. That way the clock never starts ticking. In Moody County requests to publish the permits were ignored as they were in Brookings County. Dairy proponents in Moody County went ahead and commenced building. Surely courts wouldn’t dare call off a project once it had begun.

In 2002, the South Dakota State Supreme Court ruled residents have the right to vote on conditional use permits. Factory farm proponents then launched two strategies to get around it. One strategy was to pass laws in the legislature to make conditional use permits “administrative” (legalese for “citizens can’t vote,” authorities make the decisions). HB 1281 passed in 2003 never took effect because over 25,000 signatures were collected to put it on the November 2004 ballot. This vote will not take place because the legislature repealed the law in February 2004. In the same session, legislators created a new bill, SB 163 which did much the same thing. This bill passed the senate. Attorney Jim Abourezk wrote the House Affairs Committee saying this would also turn permits into administrative decisions preventing the right to vote. Many groups joined in lobbying and the citizens flooded the phones of legislators. SB 163 was defeated in house committee 10-3.

When the Hutchinson and Bon Homme cases came down, factory farm proponents also launched a second strategy which went largely under the radar. State officials went to counties saying they need to have land use zoning plans in place “to protect them” from unwanted factory farms. Dairy lawyer Mark Meirhenry recently argued that since these laws were passed in Moody County that decisions on permits were now “adminstrative” decisions. However, such legal fine print had never been discussed or voted upon. Indeed, residents were totally unaware that a land use plan might be argued to have such implications. However, dairy proponents now argue that if voters would have wanted to object, the time was then and is since forever past.

Ironically, counties which did not pass zoning plans (as recommended by the state in 2002) are still protected by the Hutchinson and Bon Homme cases. Residents in these counties without zoning plans retain the right to bring feedlot permits to a vote.

Adding to the muddle is yet another factory farm tactic. Their advocates now claim a zoning board does not have discretion, and that if a permit falls within guidelines, zoning boards MUST approve. The industry is now flaunting this interpretation. This is the very argument that was made at the local level in Bon Homme and Hutchinson counties and rejected by the state Supreme Court. It is also precisely the language that the legislature turned down in SB 163. Both HB 1281 and SB 163 would have removed discretion of zoning boards and made it mandatory that they approved permits that fell within guidelines.

The people of South Dakota expressly told their legislators that they did not want this. But the factory farm proponents have marched straight ahead and now are pretending that they won. Many local zoning boards are being deceived. The truth is, zoning board members have absolute discretion to turn down a permit.

Residents in counties which did not implement zoning plans also retain the full right to bring any permit to referendum. The only gray area is whether zoning boards must publish the permits. The upcoming legislature should remove this gray area so feedlot proponents cannot simply refuse to publish decisions in hopes of preventing citizens from exercising their right in those counties to referendums.

Whether citizens in counties which passed zoning plans will be allowed to bring permits to a vote is currently on its way to the South Dakota Supreme Court in the Moody County case. The court may rule in favor of people’s right to referendum on permits, or it may rule that citizens in counties that passed zoning laws forfeited the right to vote. This would also be ironic since many in counties were talked into passing zoning plans under the disguise that it would protect them.