Appeals court reverses Morrison dog-breeding decision

[TribalRats]

By MATT ERICKSON
Staff Writer
The Morrison County Board will have to reconsider a conditional use permit application for a dog breeding operation in Belle Prairie Township.

The Minnesota Court of Appeals on Tuesday ruled that the county board didn't follow correct procedure when it issued an amended conditional use permit to Gary McDuffee to operate a 600-dog breeding operation.

The court reversed the county board's earlier decision and remanded the issue to the county board for reconsideration of McDuffee's conditional use permit.

"We are pleased with the ruling from the Court of Appeals, with the court having quite clearly stated the county acted in an unreasonable way," said Timothy Shields, general counsel to the Minnesota Federated Humane Societies, which along with two neighbors of the dog breeding operation, Roger and Deborah Nelson, appealed the county board's decision to grant a conditional use permit.

"They acted in an arbitrary fashion in issuing the CUP, more specifically, because they failed to properly consider the possible animal neglect this CUP could cause," Shields added.

Marshall H. Tanick, the Minneapolis-based attorney representing the Nelsons, also said he was pleased with the decision because it addressed two of his client's concerns - environmental issues and animal cruelty.

"We hope the county board will pay heed to the strong statement from the Court of Appeals and deny this puppy mill so it will be closed down for benefit of the environment and for benefit of the dogs."

In late 2005, McDuffee, who for several years had owned a dog breeding site in Cushing Township, purchased about 40 acres north of Little Falls for his operation. In November of 2005 he applied for a conditional use permit, indicating he planned to sell puppies to pet stores and he would have two to three full-time employees. He also indicated all adult dogs would have their vocal cords removed to alleviate noise.

On Jan. 10, 2006, the county board approved the conditional use permit with the conditions that a privacy fence be installed on one side of the property, that there be a cap of 600 adult breeding dogs and that all dogs kept outside be debarked.

On Feb. 7, 2006, the county board learned from staffers that new information was received showing McDuffee had violated USDA license standards at his previous operation and that correspondence was received by the county opposed to debarking.

Morrison County staffers wrote a letter to McDuffee encouraging the use of shock collars to control barking rather than removing the dogs' vocal cords. The letter also reminded McDuffee that he must maintain a USDA license and comply with all requirements.

At that point the Minnesota Federated Humane Societies and Roger and Deborah Nelson, filed lawsuits appealing the county board's decision to grant a conditional use permit.

The Court of Appeals agreed, in part, with the humane society and the Nelsons, stating that the decision of the county board to include limited debarking conditions, based on the scarcity of information provided before Jan. 10, 2006, was arbitrary and capricious; and that the alteration of the conditional use permit, based on the consideration of late-arriving information on debarking, didn't follow the correct procedure for issuance of an amended conditional use permit.

McDuffee's attorney, Little Falls-based Douglas P. Anderson, said issues brought up in the lawsuit, specifically debarking and environmental concerns, have been addressed. None of McDuffee's dogs have been debarked, he said, and to alleviate noise concerns none of the dogs are allowed outside but kept in the sound-proofed building. Also, the waste collected by the dogs is not stored on site but removed daily or every two days, he added.

Shields said McDuffee's operation was the only one in Minnesota he knew of that didn't allow the dogs outside. He said that fact concerns the humane society because there could be a lack of exercise for the dogs.

McDuffee doesn't have to re-apply for a conditional use permit, Morrison County Administrator Tim Houle said. The county has 60 days to reconsider his permit and in that time public hearings will be conducted to allow all sides to present their arguments.

Houle said it was never the county's job to decide if dog breeding operations were a good or bad thing. It was the county's job, he said, to decide the issues of the conditional use permit. In that role, the county has had to act as a referee between all sides involved, he added.

Houle also said he doubted McDuffee's operation would be shut down while the matter of his conditional use permit is settled by the county.