WINONA, Minn. — A Red Wing judge overseeing a case that gets to the heart of Winona County's dairy economy has ordered Land Stewardship Project to hand over documents requested by attorneys for the Daley family.

On Sept. 14, Judge Kevin F. Mark, a First Judicial District judge overseeing a case from the Third Judicial District, ordered the nonprofit organization to hand over agendas, meeting notes and meeting minutes concerning LSP's efforts to stop the Winona County Board of Adjustments from granting Daley Farms a waiver to exceed the county's animal unit cap at its Lewiston-based dairy.

A history lesson

On Feb. 21, 2019, the Winona County BOA voted 3-2 to deny the waiver of the animal unit cap. However, at that meeting — and in the days leading up to the meeting — the Daleys expressed concern that members of the BOA had prejudged the case before the meeting, something that would have required those members of the board to recuse themselves from voting.

Ben Daley, one of the family's co-owners of the dairy farm, sent a letter to Kay Qualley, the director for Planning and Environmental Services in Winona County, demanding that BOA members Cherie Hales and Wendy Larson recuse themselves from "any participation in the hearing, deliberation, or decision on Daley Farms’ pending variance application," citing a conflict of interest.

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However, during the February 2019 BOA meeting, both Hales and Larson, who is no longer a board member, denied any conflict or prejudice against the Daley's waiver request.

After the waiver was denied, LSP and a Twin Cities environmental group filed an appeal against the Minnesota Pollution Control Agency's granting of a permit for the Daleys' expansion, arguing the expansion would increase pollution of greenhouse gases and, locally, groundwater nitrates in the sensitive karst geological region of Southeast Minnesota. That case, and a subsequent re-issuing of the permit, took roughly a year to complete. Once the MPCA permit was again granted, the Daleys pursued their case against Winona County and LSP in an effort to overturn the BOA decision.

Nearly two years later

Neither representatives for the Daleys nor LSP would comment, but court documents show the Daleys are trying to show Hales and Larson, and possibly BOA member Rachel Stoll, had prejudged the case before the Daleys and the public were allowed to give input at that February 2019 meeting.

Because a board of adjustments meeting serves as a quasi-judicial hearing in the state of Minnesota, all members of the board must be impartial or recuse themselves from voting.

Based on the LSP documents being sought, the Daleys are also looking into whether LSP worked behind the scenes to get members of its organization — which has been a vocal opponent to large-scale agriculture — placed on the BOA in January 2019 in order to pack the board with members who would vote against the Daleys.

Attorneys for the Daleys have requested 28 specific types of documents, all regarding members of the BOA, the three members of the county board who represent the City of Winona, members of LSP who have been on record as opposing the waiver, and discussions of the waiver and the Daley Farms expansion project.

LSP responded that the Daleys' request was a "fishing expedition," and the organization missed a first deadline to supply the documents requested.

On Sept. 14, Mark ordered LSP to supply the documents to the court for the Daleys within 14 days.

Currently, a motion for summary judgment made by the Daleys' attorney has been set for Nov. 4, though that date could be moved if requested documents do not arrive again in a timely manner. Arguments would be made by both sides in district court at that time.

At stake now

Should the Daleys win the case, one of two things would happen. The judge could determine that the denial of the waiver request was biased and the issues prejudged by members of the BOA, and Mark could grant the waiver from the bench. Or he could send the waiver request back to the BOA, which could deny the request again.

However, even if the Daleys are successful, they will then need a conditional-use permit from the county to continue with the expansion plans, which would expand their current feedlot from 1,996.4 animal units to 5,967.7 AUs. The county's animal unit cap is set at 1,500. At that point, the Daleys would face a county board of commissioners that has — on a 3-2 voting line — consistently sided against their interests.