Township Makes "moo"ves Against Dairy: the Nebraska Supreme Court Recognizes Local Government Regulation of Agriculture in Butler County Dairy, L.l.c. v. Butler County, 285 Neb. 408, 827 N.w.2d 267 (2013)

• Publication year: 2021
• Citation: Vol. 93

93 Nebraska L. Rev. 196. Township Makes "Moo"ves Against Dairy: The Nebraska Supreme Court Recognizes Local Government Regulation of Agriculture in Butler County Dairy, L.L.C. v. Butler County, 285 Neb. 408, 827 N.W.2d 267 (2013)

Township Makes "Moo"ves Against Dairy: The Nebraska Supreme Court Recognizes Local Government Regulation of Agriculture in Butler County Dairy, L.L.C. v. Butler County, 285 Neb. 408, 827 N.W.2d 267 (2013)

TABLE OF CONTENTS

I. Introduction..........................................197

II. Background...........................................198
A. The Authority of Townships to Legislate...........198
B. Limitations on Local Authority ....................202
1. Dillon's Rule................................... 202
2. Preemption.................................... 205

III. Butler County Dairy, L.L.C. v. Butler County.......... 206
A. Facts and Procedural Posture ...................... 206
B. The Nebraska Supreme Court Opinion ............. 209
1. The Authority to Regulate Liquid Livestock Waste Pipelines and Large Livestock Confinement Facilities ......................... 209
2. Preemption Issues ............................. 212

IV. Analysis.............................................. 214
A. Placing Butler County Dairy in Context with Other Courts' Decisions .................................. 215
B. The Consequences of Nebraska's Differing Stance . . 218

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1. The Resultant Multiple Layers of Government . 218
a. Recognizing Some Benefits of Local Government Control....................... 219
b. The Resultant Multiple Layers in the Context of Butler County Dairy............. 220
2. Addressing Century-Old Power Often Is Cloudedby Local Politics ............................... 222
C. The Court's Implicit Call for the Nebraska Legislature to Step In............................. 223

V. Conclusion............................................ 224

I. INTRODUCTION

Agriculture is a critical industry to Nebraska's economy, generating over $21 billion in cash receipts and $6.9 billion in agricultural exports in 2011.(fn1) Indeed, despite the many changes in agriculture over the years, agriculture is as prevalent in our modern society as ever before. For example, some people have experienced large hog confinements setting up shop in areas near their homes.(fn2) Others express concern for the source of their food and sustainability of agriculture, demonstrated in recent advertising campaigns by the restaurant chain Chipotle.(fn3) Many more remember the contributions of Norman Borlaug in developing a disease-resistant, high-yield strain of wheat that saved hundreds of millions of people worldwide from starvation- a contribution that continues to influence crop genetics today.(fn4) No matter the specific issue, concerns and opinions about agriculture are part of the everyday public discourse in Nebraska agriculture.

The Nebraska Supreme Court contributed to this discourse with its decision in Butler County Dairy, L.L.C. v. Butler County.(fn5) The court addressed the issue of whether a local township possessed the authority to enact environmental ordinances, including a ban on pipelines carrying liquid livestock waste, and whether state law preempted

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those ordinances.(fn6) The court found that the township did indeed possess the requisite statutory authority(fn7) and state law did not preempt the township's regulations.(fn8) With the modernization of agriculture bringing new environmental challenges in Nebraska, courts are sure to face similar issues as in Butler County Dairy as to the role of local governments in regulating their agricultural neighbors. In fact, while most environmental regulation of agriculture has been in the hands of state and federal governments, the recent trend has been for local governments to provide their own regulations,(fn9) as did the township in Butler County Dairy. The legal and practical ramifications of the court's decision to uphold this local authority are detailed throughout this Note.

This Note focuses on the legal doctrine known as Dillon's Rule and whether the Nebraska Supreme Court should have more fully considered Dillon's Rule in its interpretation of local government authority. Part II of this Note provides a legal background for local government law, particularly in the area of townships, and describes the legal doctrines of Dillon's Rule and preemption. Part III continues with a summary of the facts and the court's holding in Butler County Dairy. Part IV considers the legal developments in other jurisdictions and discusses the consequences of the court's refusal to apply a Dillon's Rule framework. Part IV concludes with a discussion of the court's implicit call to the Nebraska Legislature for statutory reform.

II. BACKGROUND

A. The Authority of Townships to Legislate

In order to understand whether a township or any other local government body has the authority to legislate, one must first have a basic knowledge of local government structure in Nebraska. Nebraska is divided into ninety-three counties(fn10) which contain numerous villages and cities.(fn11)

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A county can be further broken down into either a commissioner system or township system.(fn12) Specifically, the law in Nebraska provides that:

The powers of the county as a body corporate or politic, shall be exercised by a county board, to wit: [i]n counties under township organization by the board of supervisors, which shall be composed of the town and such other supervisors as are or may be elected pursuant to law; in counties not under township organization by the board of county commissioners.(fn13)

The township finds its origins in the Anglo-Saxon era of England, in a time when a community of people lived on a homestead, a farm, or a village, and surrounded the area of land with an enclosure to form a township.(fn14) Early American colonists brought this form of local government with them to the New World.(fn15) Since their implementation during the early colonial period and statehood, townships have essentially remained unchanged and have only undergone change when adaptation was needed.(fn16) In essence, a township "is a subdivision of state territory, convenient in area, for the purpose of carrying into effect limited powers governmental in their nature."(fn17)

County citizens can exercise their voting rights to implement township organization. Nebraska law provides that in a county's general election, "the qualified voters in any county may vote for or against township organization in such county."(fn18) Once this system is adopted, the county attorney, clerk, and treasurer select seven supervisors.(fn19) This board of supervisors has multiple enumerated powers, including the power to implement necessary bylaws and to raise "money by taxation . . . for the prosecution or defense of suits by or against the town."(fn20) Indeed, "[t]he purely local affairs" are entrusted to the township supervisors.(fn21)

The distinguishing feature of a township is its "more popular and democratic form of government," with "the idea of local self government being the essence of the township system."(fn22) Indeed, a township

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"is one of the rare examples in Nebraska of direct democracy."(fn23) This idea of self-government inherent in a township is the major difference between a township and a county.(fn24)

In addition to knowing what a township is, one must also understand the sources of a township's regulatory authority. This requires a top-down review of government structure. Whenever a unit of government chooses to act on an issue, it must first have the authority to do so.(fn25) The federal government derives its power from the Constitution of the United States, including the Supremacy Clause,(fn26) which provides that federal law reigns supreme over state law.(fn27) Therefore, "state laws which 'interfere with, or are contrary to the laws of Congress' are unconstitutional."(fn28) Certain powers, however, are reserved for the states,(fn29) including the inherent authority under the police powers "to protect the health, safety and welfare" of their citizens.(fn30) States, on the other hand, exercise complete dominion over their smaller governmental counterparts. As a result, local governments can only derive their power "from either the state constitution, their local charter, or, most commonly, state legislation."(fn31)

For example, Nebraska operates in part under a doctrine known as "home rule." The first home-rule charter appeared in Missouri's constitution in !875.(fn32) Nebraska adopted its own constitutional provi-

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sion in 1912.(fn33) Article XI, section 2 of the Nebraska Constitution provides, in relevant part, "[a]ny city having a population of more than five thousand (5000) inhabitants may frame a charter for its own government, consistent with and subject to the constitution and laws of this state . . . ."(fn34) The benefit of home rule authority is that it gives local governments the power to govern their "local" affairs and allows them to "avoid interference from the state."(fn35)

Because the Nebraska Constitution only provides for a home rule charter for cities comprised of more than 5,000 people and lacks any express provision applying a home rule charter to townships,(fn36) townships are vested only with the power expressly given to them by statute.(fn37) Further, because townships are political...