Opinion
Civil No. 02-601 (DWF/AJB).
July 25, 2003.
James P. Peters, Esq., Peters Peters, Alexandria, Minnesota, On behalf of Plaintiffs.
Scott T. Anderson, Esq., Joseph J. Langel, Esq., Ratwik, Roszak Maloney, Minneapolis, Minnesota, On Behalf of Defendants Rock County Board of Commissioners, and Rock County of Minnesota.
Paul D. Reuvers, Esq., Kafi C. Linville, Esq., Iverson Reuvers, Bloomington, Minnesota, On Behalf of Defendant John Burgers.
Lawrence A.G. Moloney, Esq., Gray, Plant, Mooty, Mooty Bennett, Menneapolis, Minnesota, On Behalf of Defendants Rock County Board of Commissioners, Overgaard Pork, Chad Overgaard, and Scott Overgaard.
Edward J. Laubach, Esq., Gray, Plant, Mooty, Mooty Bennett, St. Cloud, Minnesota, On Behalf of Defendants Overgaard Pork, Chad Overgaard, and Scott Overgaard.
Owen L. Sorenson, Esq., Stringer Rohleder, St. Paul, MN, On Behalf of Defendant Schwartz Farms, Inc.
MEMORANDUM OPINION AND ORDER
Introduction
The above-entitled matter came on for hearing before the undersigned United States District Judge pursuant to Defendant Rock County's Motion for Summary Judgment, Defendant Schwarz Farms' Motion for Summary Judgment, Defendants Chad and Scott Overgaard and Overgaard Pork's Motion for Summary Judgment, and Plaintiffs Glen, Mabel, Loren, and Mark Overgaard's (the "Overgaard Plaintiffs") Motion for Summary Judgment. For the reasons set forth below, Defendant Rock County's Motion for Summary Judgment is granted in part and denied in part. Counts I and II of Plaintiffs' Second Amended Complaint are dismissed with prejudice. The remaining motions are denied as moot, and the remaining claims are dismissed without prejudice.
On April 30, 2003, the Court received notice that Defendant John Burgers had filed bankruptcy and thus was subject to the automatic stay provisions of 11 U.S.C. § 362. As such, the Court will not address Burgers' motion for summary judgment.
Background
The facts of this case center around a hog confinement facility, or hog feedlot, situated in Kanaranzi Township, in Rock County, in the southwestern corner of Minnesota. In their Complaint, Plaintiffs contend that the hog feedlot was established and permitted in violation of federal and state law.
1. The Parties
The hog feedlot is owned by Overgaard Pork, a Minnesota Partnership owned by Defendants Chad and Scott Overgaard. Defendant Schwartz Farms, a Minnesota corporation with its principal place of business in Sleepy Eye, Minnesota, owns the pigs that are "grown" on the hog feedlot. Pursuant to an Independent Contractor Agreement between Schwartz Farms and Overgaard Pork, Scott and Anita Overgaard (husband and wife), and Chad and Carrie Overgaard (husband and wife), Schwartz Farms retains control over many of the functions of the hog feedlot operation.
Plaintiff Mabel Overgaard is the great-aunt of Defendants Chad and Scott Overgaard. Chad and Scott Overgaard's father is Norman Overgaard. Glenn, Loren, and Mark Overgaard are Mabel and Gordon Overgaard's sons. Gordon Overgaard is deceased. Mabel Overgaard owns farmland in Rock County that is north of the property upon which the hog feedlot is located. Mabel Overgaard no longer lives on the farmland, but it is apparently homesteaded and occupied by Loren Overgaard. Across Highway 15 from Loren Overgaard's land is unimproved farmland owned by Mark Overgaard. Glenn Overgaard's homestead is directly to the west of Mark Overgaard's land; the land upon which the hog feedlot was built is directly to the east of Mark Overgaard's land. Thus, all of the plaintiffs are in close proximity of the hog feedlot.
Defendant Rock County is a municipality created under Minnesota law. John Burgers was the Director and County Feedlot Officer of the Rock County Land Management Office ("LMO") at all times relevant to this matter. Arlyn Gehrke was a technician working under Burgers. Doug Bos was the Assistant Director.
2. The Applicable Rules
On July 25, 1995, Rock County adopted a feedlot ordinance. The Ordinance was amended on August 22, 2000. This Ordinance and the Minnesota Pollution Control Agency's Rules govern animal feedlots. See Minn. R. 7020.0200, et seq. (2001) (the "MPCA Rules").
Subdivision 1 of the Ordinance provides that "[t]he use of any land for the establishment, expansion, or management of an animal feedlot shall comply with the provisions and minimum standards of the [Ordinance], and the MPCA Chapter 7020 Rules, as may from time to time be amended." The Ordinance further sets forth certain rules regarding feedlot application requirements, setback requirements, and manure management requirements. Under the Ordinance, a "new animal feedlot" is defined as:
an animal feedlot constructed and operated at a site where no animal feedlot existed previously, the expansion of an existing feedlot to a location in excess of 500 feet from the existing feedlot as measured from the expansion's nearest point, and the continuation in use of an existing animal feedlot which has been abandoned or unused for a period of five years or more.
Rock County Planning and Zoning Ordinance § 26, subd. 2(2) (2000). The number of animal units that are housed at the property, as calculated by the Ordinance, determines the size of the feedlot.
Under the MPCA Rules and the Ordinance, the number of animal units and the scope of feedlot expansions trigger certain registration and permitting requirements. Specifically, the MPCA Rules provide that feedlots that hold 50 or more animal units must be registered with the respective county by January 1, 2002. Minn. R. 7020.0350, subpt. 2, 3. Feedlot owners who wish to expand their feedlot to greater than 300 animal units must apply for a construction short form permit. Minn. R. 7020.0405, subpt. 1(D). The Ordinance provides that a feedlot owner must apply for a permit for any physical expansion. Rock County Planning and Zoning Ordinance at subd. 5(1)(c). If an expansion results in 500 or more animal units, the MPCA Rules provide that the feedlot owner notify each landowner within 5,000 feet of the feedlot within 10 days after submitting the permit application. Minn. R. 7020.2000, subpt. 4. Neither the MPCA Rules nor the Ordinance impose notification requirements on the County for expansion of a feedlot facility.
3. The Feedlot
In the late 1980's or early 1990's, Norman, Chad, and Scott Overgaard kept heifers at the farm of Abe and Anna Oydna, which was just east of Norman's farm. In exchange, Norman, Chad, and Scott Overgaard assisted the Oydnas with house and car maintenance. After the Oydnas moved off their farm and eventually died in May 1997, Norman, Chad, and Scott Overgaard continued to use the Oydna facilities for their animals. At that time, it appears that they did not have the requisite number of calves to require a feedlot permit; regardless, the Oydna homestead was never registered as a feedlot.
Chad and Scott Overgaard bought the Oydna homestead at auction in March 1999 and continued to use the Oydna buildings for storing heifer calves through winter 2000. In January 2001, after an inspection conducted by Doug Bos of the Rock County Land Management Office, the old Oydna site was registered with the County as an existing feedlot. The Overgaard Plaintiffs contend that they did not receive notice of this feedlot registration.
In February 2001, Chad and Scott Overgaard met with John Burgers, the Director of the Rock County Land Management Office ("LMO"), in order to determine what would be necessary to obtain a permit for a hog feedlot on the old Oydna site. Chad and Scott Overgaard provided the LMO with a copy of their intended building plans, but did not submit a feedlot expansion application. Nonetheless, in March 2001, LMO sent a "Notification of Application" form to the chairperson of Kanaranzi Township. The Notification erroneously indicated that Chad and Scott Overgaard had "submitted an application" for a "new" feedlot, when in fact they had only submitted construction drawings for an expansion feedlot. Arlyn Gehrke, the LMO technician who sent the forms, asserts that these errors merely occurred because he used a boilerplate form.
At any rate, Chad and Scott Overgaard submitted the $180 application fee and the feedlot and building permit applications on April 23, 2001. Gehrke provided Chad and Scott Overgaard with the names of landowners within 5000 feet of the building site that would need to be contacted to provide notice of their proposed use. On May 8, 2001, Chad and Scott Overgaard submitted proof to the Land Management Office that they had provided notice to Loren Overgaard, who signed the form acknowledging notice, Mark Overgaard, who refused to sign the form but was present when Loren signed it, and Glenn Overgaard, who received personal notice but refused to sign the acknowledgment. Mabel Overgaard asserts that her husband Gordon showed her the notice that he had received regarding the hog feedlot.
Ultimately, the County issued a Land Use Permit for the hog confinement building and a Construction Short Form Permit for the feedlot on May 21, 2001, and construction of the hog confinement building began. The hog confinement building was located on land that Larry Overgaard, Chad and Scott Overgaard's uncle, had agreed to sell to Chad and Scott.
Apparently, the transfer did not actually take place until May 2001.
After receiving a complaint about the hog confinement building from Glenn Overgaard during the week that construction had started, Glenn Overgaard and Chad and Scott Overgaard entered into a Best Management Practices Agreement. However, this agreement apparently did not resolve all of the issues regarding the hog feedlot.
In August 2001, the Overgaard Plaintiffs complained again to the County Board about the hog feedlot. The Plaintiffs contend that after this meeting occurred, Chad Overgaard threatened to sue Plaintiffs "for harassment" and stated that "it will limit the amount of people that would be interested in buying" Loren Overgaard's neighboring land.
The Overgaard Plaintiffs brought this action on March 19, 2002, asserting that the establishment of the hog feedlot was prohibited by Minnesota Statutes, Minnesota Rules, and County Ordinance. Primarily, the Overgaard Plaintiffs contend that the County, through its employee Burgers, gave preferential treatment to hog operations, inappropriately permitted the Overgaard Pork feedlot to operate, and thus violated 42 U.S.C. § 1983 and the Overgaard Plaintiffs' rights to substantive and procedural due process. In addition, the Overgaard Plaintiffs raise other state law claims, including a claim for inverse condemnation under the Constitution of the State of Minnesota, a request for declaratory relief, and claims for nuisance, trespass, and negligence.
As to their due process claims, the Overgaard Plaintiffs place significant weight on the confession of John Burgers to the FBI in September 2000, where he stated that he received preferential loans and cash from some Rock County residents that influenced his decisions as the County feedlot officer. However, none of Burgers' confession relates specifically to his conduct regarding the Overgaard Plaintiffs or the Overgaard Pork hog feedlot. Similarly, the Overgaard Plaintiffs reliance upon an MPCA audit is misplaced. In May 2002, the MPCA conducted an audit of Rock County that demonstrated the LMO's failures in documenting inspections and complying with federal and state law. However, nothing in the MPCA's audit relates to the hog feedlot at issue here.
According to court records, Burgers pled guilty and was sentenced in the United States District Court on July 15, 2002, to five months in the Bureau of Prisons, three years of supervised release, 150 days of home detention, and 300 hours of community service for felony fraud pursuant to 18 U.S.C. § 1341 and 1346, associated with matters surrounding this confession.
Discussion
1. Standard of Review
Summary judgment is proper if there are no disputed issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the nonmoving party. Enterprise Bank v. Magna Bank of Missouri, 92 F.3d 743, 747 (8th Cir. 1996). However, as the Supreme Court has stated, "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy, and inexpensive determination of every action.'" Fed.R.Civ.P. 1; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
The moving party bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Enterprise Bank, 92 F.3d at 747. The nonmoving party must demonstrate the existence of specific facts in the record which create a genuine issue for trial. Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik, 47 F.3d at 957.
Section 1983 is not in itself a source of substantive rights, but instead is a vehicle for asserting federal rights conferred elsewhere. Adewale v. Whalen, 21 F. Supp.2d 1006, 1014 (Minn. 1998), citing Bahr v. County of Martin, 771 F. Supp. 970, 974 (Minn. 1991). Thus, a plaintiff asserting claims under section 1983 must identify a specific constitutional right allegedly deprived under color of state law. Adewale, 21 F. Supp.2d at 1014, citing Bahr, 771 F. Supp. at 974. Here, in Counts One and Two of their Complaint, the Overgaard Plaintiffs assert that Rock County deprived them of their rights to substantive and procedural due process in violation of section 1983.
At the outset, the Court recognizes that this case is exceedingly similar to the Court's recent decision in Kuhl v. Halquist Farms, Inc., 2003 WL 21517361 (Minn. June 26, 2003) (Frank, J.), because the primary issue for the Court's analysis is whether or not Plaintiffs have asserted a cognizable federal claim for relief as to their due process claims. "In analyzing a claim that the deprivation of property violates either procedural or substantive due process rights, a court must first consider whether the claimant has a protected property interest to which the Fourteenth Amendment's due process protection applies." Ellis v. City of Yankton, S.D., 69 F.3d 915, 917 (8th Cir. 1995), citing Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 445-46 (8th Cir. 1995). Here, as in Kuhl, the issue turns upon the question of whether or not Plaintiffs have asserted a protected property interest sufficient to trigger due process protection.
Protected property interests are created by state law, but federal law determines whether property interests rise to the level of constitutionally protected property interests. Id., citing Memphis Light, Gas Water Div. v. Craft, 436 U.S. 1, 9 (1978). State law can create a property interest by explicitly creating a property right, by "establishing statutory or regulatory measures that impose substantive limitations on the exercise of official discretion," or by "understandings between the state and the other party." Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 719 (8th Cir. 1995), quoting Craft v. Wipf, 836 F.2d 412, 416-17 (8th Cir. 1987). An interest is considered a protected property interest for the purposes of section 1983 when the plaintiff has a "legitimate claim to entitlement" as opposed to a "mere subjective expectancy." Batra v. Board of Regents of University of Nebraska, 79 F.3d 717, 720 (8th Cir. 1996), quoting Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Here, the Overgaard Plaintiffs assert that they have a "protected property interest from the 7020 feedlot program rules, together with the County Ordinance" and "a protected property interest in right [sic] to be free from nuisance conditions from agricultural operations." See Plaintiffs' Memorandum of Law in Opposition to Defendant Rock County's Motion for Summary Judgment at 4. The Court finds, however, that the Overgaard Plaintiffs have failed to demonstrate a constitutionally protected property interest under section 1983.
First, the state and county laws at issue do not create a property interest sufficient to create a property interest under section 1983. Minnesota Rules, Chapter 7020, "governs the storage, transportation, disposal and utilization of animal manure and process wastewaters" and sets requirements for "application for and issuance of permits for construction and operation of animal manure management and disposal or utilization systems for the protection of the environment." See Minn. Rules, Ch. 7020.0200. The Rock County Feedlot Ordinance, while operating to set standards for issuing permits and regulating land use, does not give the Overgaard Plaintiffs a particular benefit that could be construed as a property interest for the purposes of a section 1983 claim. While these laws operate to set standards for issuing permits and regulating land-use, they do not give the defendants a particular benefit that could be construed as a property interest for the purposes of a section 1983 claim.
In addition, nothing in the statutes, rules, or ordinances cited here gives the Overgaard Plaintiffs a legitimate claim of entitlement based upon limited decision-making discretion. In Movers Warehouse, Inc. v. City of Little Canada, the Eighth Circuit held that there was no property interest in the renewal of a bingo hall license where the city retained discretion, without substantive limitations, to withhold approval of an application for license renewal. 71 F.3d 716, 718 (8th Cir. 1995). Here, too, the Rock County decision-makers have significant discretion in permitting a feedlot within the meaning of the laws. Because of this discretion, there is no guarantee that the Plaintiffs would be absolutely "entitled" to the benefit that they seek — the denial or revocation of the building permit and construction short form permit issued to the hog feedlot.
Moreover, adjacent property owners in Minnesota do not have a property interest in the enforcement of zoning regulations and laws. Mohler v. City of St. Louis Park, 643 N.W.2d 623, 635-36 (Minn.Ct.App. 2002); see also Gagliardi v. Village of Pawling, 18 F.3d 188 (2d Cir. 1994) (holding that there was no property interest in enforcement of the zoning ordinance and, therefore, there was no entitlement to due process). In Mohler, the Minnesota Court of Appeals reasoned:
State law and the city's ordinance recognize that certain adjacent property owners can sue to require enforcement of the zoning laws. It does not necessarily follow, however, that this right confers a protected property interest for the purposes of the substantive due process clause and 42 U.S.C. § 1983. Minnesota law has recognized that zoning ordinances do not create a property interest in adjacent landowners643 N.W.2d at 635 (internal citations omitted).
Here, the processes provided in the Minnesota statutes, rules, and the Rock County Ordinance are insufficient to create a constitutionally protected property right to trigger a substantive or procedural due process violation. Procedures alone do not create a substantive property right. Bituminous Materials, Inc. v. Rice County, Minn., 126 F.3d 1068 (8th Cir. 1997), citing Stow v. Cochran, 819 F.2d 864, 866 (8th Cir. 1987); see also Gagliardi v. Village of Pawling, 18 F.3d 188, 193 (2d Cir. 1994) ("The deprivation of a procedural right to be heard, however, is not actionable when there is no protected right at stake"); Azizi v. Thornburgh, 908 F.2d 1130, 1134 (2d Cir. 1990); New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1479 (7th Cir. 1990). A law's notice and hearing provisions alone do not entitle the Overgaard Plaintiffs to the benefit of a denial or revocation of the building permit, a denial or revocation of the construction short form permit, or Rock County's disallowance of the hog feedlot as a whole. The procedures proffered by the statutes and ordinance do not establish a property interest where the statute does not provide substantive rules of entitlement. North Mem'l Med. Ctr. v. Gomez, 59 F.3d 735, 740 (8th Cir. 1995). The decision to grant or deny the building permit and the construction short form permit remains vested in the decision-makers. While the notice and hearing itself may sway the decision, it does not in fact place a significant substantive restriction on the decision-makers' discretion sufficient to create an entitlement to a benefit. Id.; see also Hogue v. Clinton, 791 F.2d 1318, 1324 (8th Cir. 1986), cert. denied, 479 U.S. 1008 (1986).
Finally, the Overgaard Plaintiffs assert that the Minnesota Right to Farm Act's prevention of nuisance suits creates an easement over the neighboring property that allows a nuisance to continue. Thus, Plaintiffs assert that this easement constitutes a taking that can form the basis of a substantive due process claim.
The Minnesota Right to Farm Act provides:
An agricultural operation is not and shall not become a private or public nuisance after two years from its established date of operation if the operation was not a nuisance at its established date of operation.
Minn. Stat. § 561.19, subd. 2(a) (2002). In other words, the Minnesota Right to Farm Act creates a two-year window in which nuisance claims can be brought against an agricultural operation, once it becomes a nuisance, before the immunity from nuisance suits applies. After that two-year window closes, a neighboring landowner is precluded from bringing a nuisance action.
Plaintiffs base their asserted property interest under this Act on the Iowa Supreme Court's decision in Bormann v. Bd. of Sup'rs In and For Kossuth County, 584 N.W.2d 309, 314 (Iowa 1998), cert denied, 525 U.S. 1172 (1999). In Bormann, the Iowa Supreme Court analyzed the Iowa Right to Farm Act that applied immediate immunity to farm operations. See Iowa Code § 352.11(1)(a) (a farm operation "shall not be found to be a nuisance regardless of the established date of operation or expansion. . . ."). The Iowa Court determined that this statute created "an easement in the property affected by the nuisance . . . in favor of the [farm operation's] land . . . because the immunity allows the [farm operators] to do acts on their own land which, were it not for the easement, would constitute a nuisance." Bormann, 584 N.W.2d at 316. As such, the Iowa Right to Farm Act resulted in a taking of the neighboring landowner's property without just compensation. Id. at 321.
While Bormann may seem persuasive at first glance, the Court finds that Bormann's holding is not applicable to the Minnesota Right to Farm Act. In Minnesota, the Right to Farm Act creates a two-year window before the immunity from nuisance suit applies. This is different from Iowa, where the Right to Farm Act creates immediate immunity from nuisance suit. In Minnesota, because neighboring landowners maintain their ability to bring suit for at least two years, no easement is created and the neighboring landowners are not deprived of any property rights
In addition, even if the Minnesota Right to Farm Act could be construed to result in a deprivation of a cognizable property interest, Plaintiffs' claim would be inappropriate at this time. Specifically, Plaintiffs acknowledge that they have a two-year window to bring a nuisance suit after the hog feedlot began operation and that this window has not yet expired. Thus, Plaintiffs have not yet been deprived of any property interest, as suggested by Bormann, by which to assert a due process claim. Plaintiffs' claims are not ripe for review.
Finally, the Court finds that because it has determined that no cognizable property interest exists as to the Overgaard Plaintiffs' section 1983 substantive and procedural due process claims against Rock County, no cognizable property interest could exist as to the Overgaard Plaintiffs' claims against Defendant John Burgers. As such, Counts One and Two of the Complaint are dismissed in their entirety.
2. Supplemental Jurisdiction
Under 28 U.S.C. § 1367(a), a federal court may assert supplemental jurisdiction over state claims when a federal claim is properly before the court. However, when all federal claims have been dismissed, the court has discretion to dismiss the remaining state claims. See 28 U.S.C. § 1367(c)(3); Willman v. Heartland Hosp. E., 34 F.3d 605, 613 (8th Cir. 1994). Section 1367(c)(3) specifically states that the Court "may decline to exercise supplemental jurisdiction over a claim . . . if the district court has dismissed all claims over which it has original jurisdiction." The Court's discretion as to whether to exercise jurisdiction over these remaining claims should be informed by principles of judicial economy, convenience, fairness, and comity. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
Here, the Court has granted summary judgment on Plaintiffs' federal claims, and only Plaintiffs' state law claims remain. The Court recognizes that significant interests in comity exist in this important area of state and county law. As such, the Court determines that it will not exercise its supplemental jurisdiction in this instance and that the remaining claims stated in the Complaint are dismissed without prejudice. In so holding, the Court notes that its decision not to exercise supplemental jurisdiction over Plaintiffs' remaining state law claims should not be misconstrued as a finding that these claims lack merit. The Court simply finds that these are matters of significant state concern that are appropriately handled by the state courts.
For the reasons stated, IT IS HEREBY ORDERED THAT:
1. Defendant Rock County's Motion for Summary Judgment (Doc. No. 105) is GRANTED on Counts One and Two of the Second Amended Complaint;
2. Counts One and Two of the Second Amended Complaint are DISMISSED WITH PREJUDICE;
3. Counts Three through Seven of the Second Amended Complaint (Doc. No. 100) are DISMISSED WITHOUT PREJUDICE;
4. Defendant Chad and Scott Overgaard and Overgaard Pork's Motion for Summary Judgment (Doc. No. ___) is DENIED AS MOOT;
5. Defendant Schwartz Farms, Inc.'s Motion for Summary Judgment (Doc. No. 101) is DENIED AS MOOT; and
6. Plaintiffs Mabel, Glenn, and Loren Overgaard's Motion for Summary Judgment (Doc. No. ___) is DENIED AS MOOT.