Broiler production able to move forward after lengthy court battle

By Leisa Boley Hellwarth, a dairy farmer and attorney near Celina

This past December, the Nebraska Supreme Court issued a unanimous decision that affirmed the trial court and enabled Randy Essink to raise broilers for Lincoln Premium Poultry (LPP) who provides processed chickens to Costco. The decision hinged on a jurisdictional issue: standing. 

            Standing (locus standi) is the capacity of a party to bring suit in court. A state’s statutes will determine what constitutes standing in that particular state’s courts. These typically revolve around the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable.

            At the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority, under Article III of the US Constitution, to resolve actual disputes.

            In 1992, the Supreme Court created a three-part test to determine whether a party has standing to sue: (1) The plaintiff must have suffered an “injury in fact,” meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; (2) There must be a causal connection between the injury and the conduct brought before the court; and (3) It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.

            In Egan v County of Lancaster, the recently decided Nebraska case, the conflict started when Randy Essink decided to purchase property in Lancaster County (near Lincoln) to construct and operate a poultry operation that would provide broilers to LPP, who processes and sells the birds to Costco. The poultry operation would include four large barns that would raise approximately 190,000 broiler chickens every few months.

            On May 14, 2018, Essink submitted an application to Lancaster County’s planning department for a special use permit that would allow him to operate a commercial feedlot on his farm. This application was necessary under the 1979 Zoning Resolution of Lancaster County.

            After Essink submitted his application, the Commission scheduled a public hearing. At this hearing, county officials provided testimony, as did witnesses called by Essink and community members opposed to the issuance of the special use permit. The Commission also received documentary evidence. At the conclusion of the hearing, the Commission approved the special permit subject to certain conditions on a 6-3 vote.

            The Commission’s decision was appealed to the Board who held a public hearing regarding the application for a special use permit. At this hearing, Essink and other proponents of the special use permit provided testimony as did community members who opposed issuance of the special use permit. The Board approved the special use permit, subject to certain conditions to which Essink agreed, on a 3-2 vote. E. Jane Egan, who lives 12.7 miles from Essink’s property, and Janis Howlett (who lives 0.6 miles from Essink’s property) appealed the Board’s decision to the district court.

            A bench trial (before a judge, not a jury) was held where the records of the public hearings before the Commission and the Board were received as evidence. Egan testified that she was concerned that Essink’s proposed operation would result in pollution and depreciation of the value of surrounding property. She also asserted that she was concerned that if Essink’s proposed operation was approved, a similar operation might be approved near her property. Howlett testified that she was concerned that the proposed facility would result in reduced air quality and depreciation of the value of her property. 

            The district court affirmed the issuance of the special use permit in a written order. The district court concluded that Egan did not have standing. 

            Egan and Howlett appealed and specified that the district court erred by (1) failing to find that Egan had standing and (2) finding that the special use permit was properly approved. Folks across the country were watching and waiting to see what the Nebraska Supreme Court concluded. On December 31, 2020, the Nebraska Supreme Court unanimously confirmed the decision of the trial court. Plaintiffs lacked standing and the special use permit was properly issued. Nearly three years later, Essink can begin construction, having learned an important lesson. As the late businessman, Arnold H. Glasow best said, “The key to everything is patience. You get the chicken by hatching the egg, not by smashing it.” 

Leisa Boley Hellwarth is a dairy farmer and an attorney. She represents farmers throughout Ohio from her office near Celina. Her office number is 419-586-1072.

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