               In the Missouri Court of Appeals
                                 Western District

 COUNTRYCLUB HOMES, LLC and       )
 VALLEY OAKS REAL ESTATE, LLC,    )
                      Appellants, )
 v.                               )
                                  )
 MISSOURI DEPARTMENT OF           )                  WD82476
 NATURAL RESOURCES, MISSOURI      )                  Consolidated with WD82477
 CLEAN WATER COMMISSION, LONE     )
 JACK NEIGHBORS FOR               )
 RESPONSIBLE AGRICULTURE,         )                  FILED: December 24, 2019
 POWELL GARDENS, INC.,            )
 ELIZABETH DEICH, RYAN DEICH and )
 THE ROBERT M. CHAMNESS TRUST, )
 COLLECTIVELY KNOWN AS THE        )
 POWELL PARTIES,                  )
                     Respondents. )

            APPEAL FROM THE CLEAN WATER COMMISSION

  BEFORE DIVISION FOUR: KAREN KING MITCHELL, CHIEF JUDGE, PRESIDING,
         LISA WHITE HARDWICK AND CYNTHIA L. MARTIN, JUDGES
      Countryclub Homes, LLC and Valley Oaks Real Estate, LLC (collectively, “Valley

Oaks”) appeal from the decisions of the Clean Water Commission (“CWC”) in two cases

to deny Valley Oaks’s permit application for a concentrated animal feeding operation

(“CAFO”) in Johnson County. In case number WD82476 (“Lone Jack case”), the entity

opposing the permit was Lone Jack Neighbors for Responsible Agriculture, LLC (“Lone

Jack”). In case number WD82477 (“Powell case”), the entities opposing the permit
were Powell Gardens, Inc., Ryan Deich, Elizabeth Deich, and the Robert M. Chamness

Trust (collectively, “Powell”).

       In both appeals, Valley Oaks alleges the same four procedural errors in the

CWC’s decisions to deny its permit application: (1) Lone Jack and Powell lacked

standing to challenge the permitting decision of the Department of Natural Resources

(“DNR”); (2) the CWC’s written decisions were untimely; (3) the CWC issued its

decisions without reviewing all of the record; and (4) the CWC’s decisions were not

approved by four commissioners because the approvals of two commissioners were

void. Also in both appeals, Valley Oaks contends the CWC erred in denying its permit

on the grounds that its application failed to identify a continuing authority and that Valley

Oaks failed to provide neighbor notice prior to filing its application for the CAFO. Lastly,

in its appeal of the decision in the Powell case, Valley Oaks asserts the CWC erred in

denying its permit on the additional grounds that Valley Oaks failed to provide realistic

yield goals for the fields it identified for land application of manure and that Valley Oaks

failed to provide for adequate manure storage.

       We consolidated the two cases for appeal. For reasons explained herein, we

find no error and affirm the CWC’s decisions in both cases to deny Valley Oaks’s permit

application. We remand the cause to the CWC for a determination of Lone Jack’s

entitlement to attorneys’ fees.

                            FACTUAL AND PROCEDURAL HISTORY

       On December 19, 2017, David Ward submitted an application to the DNR for a

proposed Class IB CAFO, comprised of approximately 6,999 head of cattle, to be

located on property in Johnson County. Ward filed the CAFO permit application in the



                                              2
name of “Country Club Homes LLC.” “Country Club Homes LLC” was listed on the

application as both the owner and the continuing authority that was to be responsible for

the operation, maintenance, and modernization of the facility to which the permit was

issued, as required by 10 CSR 20-6.010(3)(A).1 Ward, however, is the sole member of

an entity named “Countryclub Homes, LLC,” and not an entity named “Country Club

Homes LLC.”

          The permit application was reviewed by DNR employee Greg Caldwell, who

determined that the application met all statutory and regulatory requirements. On June

15, 2018, the DNR issued a Class IB CAFO permit to “County [sic] Club Homes, LLC.”

Shortly thereafter, Ward applied to the DNR for a transfer of the ownership of the CAFO

permit to “Valley Oaks Real Estate, LLC.” Ward signed the transfer application as both

the previous owner and the new owner. In August 2018, the DNR transferred

ownership of the CAFO permit to Valley Oaks Real Estate, LLC.

          Meanwhile, Lone Jack appealed the DNR’s issuance of the permit by filing a

complaint in the Administrative Hearing Commission (“AHC”) on June 25, 2018. Lone

Jack later filed two amended complaints. In its second amended complaint, Lone Jack

alleged that its organization, members, and supporters reside in the immediate vicinity

of the location of Valley Oaks’s CAFO and the fields where manure from its operations

will be spread, and they are adversely affected and aggrieved by the issuance of the

permit and the operation of the CAFO. Lone Jack challenged the issuance of the permit

on eight grounds.




1   All regulatory references are to the Missouri Code of State Regulations (2016).

                                                       3
          Two days later, on June 27, 2018, Powell also filed a complaint in the AHC

appealing the DNR’s issuance of the permit. Powell later filed an amended complaint,

in which it alleged that Powell Gardens, Inc., is Kansas City’s botanical garden and

cultivates more than 20,000 species of plants and attracts more than 100,000 visitors

each year. Powell Gardens, Inc., is less than three miles from the Valley Oaks facility.

Powell further alleged that the Deichs, whose property is held by the Robert M.

Chamness Trust, live 1,900 feet from the Valley Oaks facility on a historic Missouri

Century Farm. Powell alleged that, due to the high animal population density, on-site

slaughterhouse, unique CAFO design, and minimal owned-acreage for nutrient

management, Valley Oaks’s operation was unusual and unproven and would have

impacts on water quality and the environment that the DNR has not sufficiently

quantified. Powell asserted that the DNR erred in issuing Valley Oaks a permit to

operate the facility without sufficiently considering these issues. Powell challenged the

issuance of the permit on six grounds.

          Valley Oaks intervened in the appeals. The AHC held a consolidated evidentiary

hearing for the two appeals on August 27-28, 2018. The AHC issued decisions in both

cases on October 23, 2018, recommending that the CWC reverse the DNR’s decision to

issue the permit. In both decisions, the AHC found that denial of the permit was

appropriate on the grounds that Valley Oaks failed to identify a continuing authority, in

violation of 10 CSR 20-6.010(3)(A), and failed to provide neighbor notice prior to filing

its application, in violation of § 640.715, RSMo 2016,2 and 10 CSR 20-6.300(3)(C). In

the Powell case, the AHC found that denial of the permit was appropriate on two


2   All statutory references are to the Revised Statutes of Missouri 2016.


                                                       4
additional grounds that only Powell raised. These two grounds were that Valley Oaks

failed to provide realistic yield goals for the fields it identified for land application of

manure, in violation of 10 CSR 20-6.300(3)(G)2.A, and that Valley Oaks failed to

provide for adequate manure storage, in violation of 10 CSR 20-6.300(1)(A)11 and 10

CSR 20-8.300(5)(B)2.

        As required by the administrative review procedures, the AHC forwarded the

administrative record to the CWC for final decision. The record was comprised of the

AHC proceedings in the appeals of the Lone Jack and Powell cases but did not include

the proposed recommended findings that the parties had submitted to the AHC. On

December 10, 2018, the CWC heard oral arguments on both appeals during a single

hearing and ultimately voted 4-1 in both cases to adopt the AHC’s recommended

decisions. The CWC issued its final written decisions in the cases on January 7, 2019.

Valley Oaks appeals both decisions, and we consolidated the appeals. 3

                                       STANDARD OF REVIEW

        Pursuant to Section 644.051.6, the CWC’s decisions are subject to appellate

review pursuant to Chapter 536 of the Administrative Procedure Act. In re Trenton

Farms RE, LLC v. Mo. Dep’t of Nat. Res., 504 S.W.3d 157, 160 (Mo. App. 2016). Our

review is limited to determining whether the CWC’s action: (1) violates a constitutional

provision; (2) exceeds the CWC’s statutory authority or jurisdiction; (3) is unsupported

by competent and substantial evidence upon the whole record; (4) is unauthorized by

law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary,

capricious, or unreasonable; or (7) involves an abuse of discretion. § 536.140.2.


3 In their respective cases, Lone Jack and Powell filed motions to dismiss Valley Oaks’s appeal. We deny
those motions.

                                                   5
       We defer to the CWC’s findings of fact so long as they are supported by

competent and substantial evidence. Trenton Farms, 504 S.W.3d at 160. We review

questions of law de novo. Id. The CWC’s decision “is presumed valid, and the burden

is on the party attacking it to overcome that presumption.” Wagner v. Mo. State Bd. of

Nursing, 570 S.W.3d 147, 152 (Mo. App. 2019) (citation omitted).

                                          ANALYSIS

Point I – Standing

       In Point I, Valley Oaks asserts that Sections 644.051 and 640.013 allow only

permit applicants or potential permit applicants to appeal adverse decisions made by

the Director of the DNR (“the Director”), and that Lone Jack and Powell are not included

in either class. Therefore, Valley Oaks contends the CWC erred in denying its permit

because Lone Jack and Powell lacked standing to appeal from the Director’s decision.

       Standing is a question of law subject to our de novo review. Manzara v. State,

343 S.W.3d 656, 659 (Mo. banc 2011). “Standing is a necessary component of a

justiciable case that must be shown to be present prior to adjudication on the merits.”

Schweich v. Nixon, 408 S.W.3d 769, 774 (Mo. banc 2013) (citation omitted). “Reduced

to its essence, standing roughly means that the parties seeking relief must have some

personal interest at stake in the dispute, even if that interest is attenuated, slight or

remote.” St. Louis Ass’n of Realtors v. City of Ferguson, 354 S.W.3d 620, 622-23 (Mo.

banc 2011) (citation omitted).

       “Not every person who files a protest and is given an opportunity to be heard by

an administrative agency has a right to appeal from the decision of the agency[.]” Mo.

Nat’l Educ. Ass’n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 276 (Mo. App. 2000).



                                              6
Instead, a party attempting to successfully assert standing must have a legally

protectable interest. St. Louis Ass’n, 354 S.W.3d at 623. “A legally protectable interest

exists only if the [party] is affected directly and adversely by the challenged action or if

the [party]’s interest is conferred statutorily.” Id.

          The General Assembly, in recognizing the necessity of state action to retain

control of its water pollution control programs after Congress made amendments to the

Federal Water Pollution Control Act in 1972, enacted the “Missouri Clean Water Law,” 4

which created, inter alia, an elaborate permitting scheme for persons5 seeking to

discharge water contaminants. Under this scheme, the permitting of CAFOs, in the first

instance, falls to the Director. See 10 CSR 20-6.300(E); see also § 640.715. At issue

in this point is who has standing to appeal from the Director’s decision.

          Section 640.010.1 provides, in pertinent part, that the Director “shall faithfully

cause to be executed all policies established by the boards and commissions assigned

to the department, be subject to their decisions as to all substantive and procedural

rules and his or her decisions shall be subject to appeal as provided by law.”

(Emphasis added). Valley Oaks asserts that this version of Section 640.010.1 limits

standing to appeal the Director’s decision to only a narrow class of persons. In support

of this contention, Valley Oaks argues that a previous version of Section 640.010 stated

that “affected parties” had the right to appeal and that, by amending the section to state



4   Sections 644.006, et seq.

5As used in the Missouri Clean Water Law, the term “person” means “any individual, partnership,
copartnership, firm, company, public or private corporation, association, joint stock company, trust, estate,
political subdivision, or any agency, board, department, or bureau of the state or federal government, or
any other legal entity whatever which is recognized by law as the subject of rights and duties[.]” §
644.016(15).


                                                     7
that appeals may be taken “as provided by law[,]” the legislature signaled its intention to

limit the ability to appeal to those persons explicitly contemplated by statute. Valley

Oaks then contends that, by enacting Section 644.051.6, the legislature intended the

AHC to take appeals only from permit applicants and potential applicants. Section

644.051.6 states, in pertinent part:

               The director shall promptly notify the applicant in writing of his or
       her action and if the permit is denied state the reasons for such denial. As
       provided by sections 621.250 and 640.013, the applicant may appeal to
       the administrative hearing commission from the denial of a permit or from
       any condition in any permit by filing a petition with the administrative
       hearing commission within thirty days of the notice of denial or issuance of
       the permit. After a final action is taken on a new or reissued general
       permit, a potential applicant for the general permit who can demonstrate
       that he or she is or may be adversely affected by any permit term or
       condition may appeal the terms and conditions of the general permit within
       thirty days of the department's issuance of the general permit.

Valley Oaks’s contention that Sections 640.010.1 and 644.051.6 limit the right to appeal

to permit applicants or potential applicants is wrong for several reasons.

       In 2005, the legislature transferred the authority to hear all contested case

administrative appeals granted in Chapter 640 and the Missouri Clean Water Law to the

AHC. See 621.250.1; see also Valley Park Props., LLC v. Mo. Dept. of Nat. Res., 580

S.W.3d 607, 616 (Mo. App. 2019). Section 621.250.2 states, in pertinent part, that:

               Except as otherwise provided by law, any person or entity who is a
       party to, or who is aggrieved or adversely affected by, any finding, order,
       decision, or assessment for which the authority to hear appeals was
       transferred to the administrative hearing commission in subsection 1 of
       this section may file a notice of appeal with the administrative hearing
       commission within thirty days after any such finding, order, decision, or
       assessment is placed in the United States mail or within thirty days of any
       such finding, order, decision, or assessment being delivered, whichever is
       earlier.

(Emphasis added).

                                             8
       At no point in its brief does Valley Oaks assert that Lone Jack and Powell were

not adversely affected by the issuance of a permit to Valley Oaks. Instead, Valley Oaks

argues that, despite the legislature’s clear expression of intent in Section 621.250.2 to

allow “any person or entity who is a party to, or who is aggrieved or adversely affected

by” a decision of the Director to appeal, Lone Jack and Powell do not have standing to

appeal because Section 644.051.6 provides that a narrower class of persons or entities

– only applicants or potential applicants — may take appeals from the Director’s

decision. This argument, however, has already been specifically rejected by our

Supreme Court in Missouri Coalition for the Environment v. Herrmann, 142 S.W.3d 700,

702 (Mo. banc 2004).

       In Herrmann, the Court stated that “Section 644.051.6 does not limit the right of

appeal to the [CWC] solely to those denied a permit[.]” Id. Nevertheless, Valley Oaks

argues that, after Herrmann, the legislature’s amendment of Section 640.010 to remove

language that granted “affected parties” the right to appeal signaled the legislature’s

repudiation of the Court’s holding in Herrmann. Valley Oaks misunderstands the effect

of the amendment. While the legislature has amended Sections 644.010.1 and

644.051.6 since the Supreme Court’s decision in Herrmann, it has neither implicitly nor

explicitly abrogated that opinion.6 Further, the Herrmann Court did not base its

decision on the then-in-force language of Section 640.010.1 or predicate its holding on

any language that has since been amended. See 142 S.W.3d at 702. The Court

merely mentioned that Section 640.010.1 provides that the Director’s decisions are

subject to appeal before it held that Section 644.051.6 did not limit the right to appeal


6See, e.g., § 287.020.10, wherein the Legislature specified that amendments to the Workers’
Compensation Law were intended to “reject and abrogate earlier case law interpretations.”

                                                  9
the decisions of the Director to any exclusive class. See id. Put another way, the Court

did not state that it was ruling as it did because of any particular language in Section

640.010.1. See id. Therefore, Herrmann still binds this court. See MO. CONST. art V, §

2. The CWC did not err in holding that Lone Jack and Powell had standing to appeal

the Director’s decision. Point I is denied.

Point II – Failure to Issue Decision Within 180 Days

       In Point II, Valley Oaks contends the CWC exceeded its statutory authority by

failing to issue its decision within the statutorily-prescribed time period. Valley Oaks

argues that the failure to comply with the statute’s deadline rendered the CWC’s

decision null and void and, therefore, the DNR’s decision to issue the permit should be

allowed to stand.

       As set forth in Section 621.250.2, any party aggrieved by the DNR’s decision

appeals to the AHC. The AHC is authorized to hold a hearing and send a recommended

decision to the CWC along with the record. § 621.250.2-3. The CWC’s final decision

“shall be issued” within 180 days of the date the notice of appeal to the AHC was filed.

§ 621.250.3. The date by which the CWC is required to issue its final decision “may be

extended at the sole discretion of the permittee as either petitioner or intervenor in the

appeal.” Id.

       Here, after the DNR issued the permit to Valley Oaks, Lone Jack filed its notice

of appeal to the AHC on June 25, 2018, while Powell filed its notice of appeal on June

27, 2018. The AHC held hearings and made recommended decisions in both cases,

which it then transmitted along with the record to the CWC. Pursuant to Section

621.250.3, the CWC’s final decision in the Lone Jack case was due on December 22,


                                              10
2018, and the CWC’s final decision in the Powell case was due on December 24, 2018.

The permittee, Valley Oaks, did not extend the time period beyond these dates. On

December 10, 2018, all parties were present when the CWC voted 4-1 to deny the

permit; however, the CWC did not issue its final decision in both cases until January 7,

2019. Valley Oaks argues that, because Section 621.250.3 states that the CWC’s

decision “shall be issued” within 180 days of the date the notice of appeal to the AHC

was filed, the issuance of the decisions within that time period was mandatory and,

consequently, the CWC’s untimely decisions reversing the DNR’s decision to issue the

permit were null and void.

          Our Supreme Court has explained that, when the legislature uses the word

“shall” in a statute, the issue “is not whether ‘shall’ means ‘shall’ but what sanction (if

any) the legislature intended to apply” when the required act is not done. Frye v. Levy,

440 S.W.3d 405, 408 (Mo. banc 2014). If the legislature has imposed a sanction or

otherwise indicated a consequence for noncompliance, then the statute is a mandatory

statute, and courts will enforce the intended sanction or consequence for

noncompliance. Id. If, however, the legislature has not approved a sanction or has not

otherwise indicated a consequence for noncompliance, then the statute is a directory

statute. Id. A directory statute’s “terms are limited to what is required to be done,” and

courts will not create a sanction or consequence for noncompliance where the

legislature has not expressed an intent for such sanction or consequence. Id. at 409

(quoting Hudgins v. Mooresville Consol. Sch. Dist., 278 S.W. 769, 770 (Mo. 1925)).7


7   The Court in Frye explained in detail the difference in the language of mandatory and directory statutes:

             Two examples of when a statute that imposes an obligation will be construed to be
        “mandatory” are: (a) if the statute explicitly provides what the consequence of non-

                                                      11
       The determination as to whether a statute is mandatory or directory turns on the

language the legislature has chosen. Id. at 410. Section 621.250.3 imposes an

obligation on the CWC to issue its final decision within 180 days of the date the notice of

appeal to the AHC is filed. It does not, however, explicitly provide that the CWC may

issue its decision only within that 180 days, nor does it explicitly provide that the CWC

lacks the authority to issue a decision after the 180th day. “In the absence of such

legislative intent, courts have no authority to impose such a sanction on their own.” Id.

       The Court in Frye recognized that, while “[t]he lack of statutory approval for a

sanction in the event of non-compliance with a statutory obligation, or the lack of any

language permitting only acts that are in compliance with that obligation, is an important

factor” in distinguishing between mandatory and directory statutes, other factors may be

considered. Id. Indeed, the Court noted that, “[u]ltimately, whether a statute is

mandatory or directory is a ‘function of context and legislative intent.’” Id. at 410-11

(quoting Bauer v. Transitional Sch. Dist. of City of St. Louis, 111 S.W.3d 405, 408 (Mo.

banc 2003)).




     compliance will be (e.g., that any act performed after the stated deadline or in a manner
     different than the required method will be void or ineffective); and (b) if the statute explicitly
     provides that the required action can be taken only before the stated deadline or can be
     performed only in the stated manner. See, e.g., [West v.]Ross, 53 Mo. [350], 354 [(Mo.
     1873)] (“the legislature has not only by the statute directed what shall be done, but has also
     declared what consequence shall follow disobedience”); Greene v. Holt, 76 Mo. 677, 680
     (1882) (“Negative words are imperative.”) (citing Sedgwick [on Stat. Const.], at 316, 320,
     and 325). On the other hand, if a statute imposes an obligation and does not explicitly allow
     only compliant actions (or explicitly declare non-compliant actions void or ineffective), the
     statute likely is “directory” and courts are not free to create and impose a sanction that the
     legislature did not approve.

440 S.W.3d at 410.

                                                      12
        Valley Oaks argues that, despite the lack of an explicit sanction or of language

allowing only compliant acts, the context of the statute indicates that Section

621.250.3’s time limit is mandatory. Specifically, Valley Oaks argues that the legislature

has created an “elaborate permitting system with the goal of promoting business and

maximizing employment in the State” and, within the statutory scheme, the legislature

has “provided a series of rapid deadlines ensuring applicants certainty in applying for

permits and planning business operations.”8 Valley Oaks contends that, collectively,

this statutory scheme “demonstrates a legislative intent of expedient issuance and

review throughout the permitting process.”

        Notwithstanding this argument, we find nothing in the relevant statutes to indicate

that the CWC’s final decision must be invalidated if the 180-day time frame is exceeded.

It is noteworthy that the Legislature has included consequences for the failure to follow

the time deadlines contained in the permit process statutory scheme when it so

chooses. For example, Section 640.018.1 provides that, in any case where the DNR

“has not issued a permit or rendered a permit decision by the expiration of a statutorily

required time frame for any application for a permit . . . , upon request of the permit

applicant, the [DNR] shall issue the permit the first day following the expiration of the

required time frame[.]” That the legislature explicitly provided a consequence for the

DNR’s failure to render a permit decision within the statutorily-required time frame – but



8 Valley Oaks has listed several of these deadlines, including: (1) the DNR shall issue or deny permits
within 60 days under Section 644.051.5-6; (2) the DNR shall issue or respond with a letter of comment to
CAFO permit applicants within 45 days under Section 640.715.3; (3) appeals of DNR permit decisions
must filed with the AHC within 30 days of the decision under Section 621.250.2; (4) the AHC may hold
hearings within 90 days of the filing of the notice of appeal under Section 621.250.2; (5) the AHC shall
make its recommended decision within 120 days of the filing of the notice of appeal under Section
621.250.2; and (6) the AHC must transmit its record and recommended decision to the CWC within 15
days after the AHC has rendered its recommended decision under Section 621.250.3.

                                                   13
did not do so for the CWC’s failure to timely issue its final decision – further supports the

conclusion that Section 621.250.3 is a directory, and not mandatory, statute. Therefore,

we cannot conclude that the CWC’s decisions are null and void because the CWC failed

to comply with this directory statute.9 Point II is denied.

Point III – The CWC’s Review of the AHC’s Record

        In Point III, Valley Oaks contends the CWC committed reversible error by issuing

its final decisions before reviewing “missing portions” of the AHC’s record, namely, the

parties’ proposed recommended decisions that they submitted to the AHC. Valley Oaks

asserts that, at the end of oral arguments before the CWC, the CWC agreed to receive

and review the proposed recommended decisions but never did so.

        Administrative appeals of the DNR’s permitting decisions are contested cases,

which are governed, inter alia, by Chapter 536 and Section 621.250. See 621.250.1.

Section 536.080.2 states:

                In contested cases, each official of an agency who renders or joins
        in rendering a final decision shall, prior to such final decision, either hear
        all the evidence, read the full record including all the evidence, or
        personally consider the portions of the record cited or referred to in the
        arguments or briefs. The parties to a contested case may by written
        stipulation or by oral stipulation in the record at a hearing waive
        compliance with the provisions of this section.

Valley Oaks argues that, by not reviewing the parties’ proposed recommended

decisions submitted to the AHC, the CWC neglected the statutory prerequisite of




9 To enforce Section 621.250.3’s requirement that the CWC issue its final decisions within the 180-day
time limit, Valley Oaks could have sought a writ of mandamus compelling the CWC to do so. See, e.g.,
Am. Civil Liberties Union v. Ashcroft, 577 S.W.3d 881, 895-96 (Mo. App. 2019).


                                                  14
“personally consider[ing] the portions of the record cited or referred to in the arguments

or briefs” before exercising its authority to render a final decision in both cases.

       Contrary to Valley Oaks’s assertion, the page in the record to which it cited does

not indicate that the CWC agreed to receive and review the parties’ proposed

recommended decisions before rendering its final decisions. In any event, Valley Oaks

has not demonstrated how the CWC’s failure to review the proposed recommended

decisions means that the CWC failed to “personally consider the portions of the record

cited or referred to in the arguments or briefs.” Valley Oaks argues that the proposed

recommended decisions “included the parties’ respective positions along with citations

to legal authority and evidence on which they relied – and show Powell abandoned one

argument.” The parties had oral arguments before the CWC, however, during which

they were each given an opportunity to argue their respective positions with legal

authority and citations to the record. During oral arguments, Valley Oaks used a

PowerPoint presentation to “walk through each one of the items” of the AHC’s

recommended decision that it believed was incorrect. Included in Valley Oaks’s

presentation was its assertion of Powell’s purported abandonment of one of its

arguments.

       In this appeal, Valley Oaks does not articulate the specific position, legal

authority, or citations to the record contained in its proposed recommended decision –

but not in its subsequent oral argument to the CWC – that the CWC needed to consider

but did not do so because of the CWC’s failure to review the parties’ proposed

recommended decisions. “[T]here is a presumption that administrative decisions are

made in compliance with applicable statutes.” Stith v. Lakin, 129 S.W.3d 912, 920 (Mo.



                                             15
App. 2004) (citation omitted). By not specifying the information in the proposed

recommended decision that the CWC did not consider, Valley Oaks has failed to rebut

this presumption. Valley Oaks has not demonstrated how the omission of the proposed

recommended decisions rendered the record before the CWC deficient. “It is not the

function of the appellate court to serve as advocate for any party to an appeal.” See

Falls Condo. Owners’ Ass’n, Inc. v. Sandfort, 263 S.W.3d 675, 676 (Mo. App. 2008)

(citation omitted).

       Moreover, we note that Section 621.250.3, which specifically governs appeals of

DNR decisions to the CWC, states that the CWC’s final decision “shall be based only on

the facts and evidence in the hearing record[.]” (Emphasis added). Valley Oaks does

not assert that the parties’ proposed recommended decisions constituted either “facts”

or “evidence” as contemplated by Section 621.250.3. Indeed, statements made in

briefs submitted to the court are generally not considered evidence. See State ex rel.

Dixon v. Darnold, 939 S.W.2d 66, 69 (Mo. App. 1997). As the parties’ proposed

recommended decisions were neither facts nor evidence, the CWC did not err in failing

to review them before rendering its final decision. Valley Oaks has not demonstrated

that the CWC neglected its statutory obligations under Sections 536.080.2 or 621.250.3.

Point III is denied.

Point IV – The Validity of the Commissioners’ Approvals

       In Point IV, Valley Oaks contends the CWC’s decisions were arbitrary,

capricious, unreasonable, and in excess of its statutory authority because they were not

validly approved by four commissioners as required by Section 644.066.3(3). In the

Lone Jack case, Commissioners Ashley McCarty, Patricia Thomas, John Reece, and



                                           16
Allen Rowland voted to approve and adopt the AHC’s recommended decision as the

CWC’s final decision, while Commissioner Stan Coday voted to disapprove the AHC’s

recommended decision. In the Powell case, Commissioners McCarty, Thomas, Reece,

and Coday voted to approve and adopt the AHC’s recommended decision as the

CWC’s final decision, while Commissioner Rowland voted to disapprove the AHC’s

recommended decision. Valley Oaks argues that, even though four commissioners

approved each decision, the approval of Commissioner Reece was void in both cases,

and the approval of Commissioner Coday was void in the Powell case.

       With regard to Commissioner Reece, Valley Oaks asserts that his approval was

void because he improperly considered information outside the record in making his

decision. At the start of the hearing before the CWC, Valley Oaks made an oral motion

to disqualify Commissioner Reece because he visited Valley Oaks’s proposed facility

during the pendency of the appeal. In response, Commissioner Reece stated, “I did

visit Valley Oaks, mainly for my own edification to see what was there and to see what

type of an operation they had.” He further stated, “And if that disqualifies me, then

something is wrong. I’m trying to educate myself as to what is going on, and I think

visiting the site gave me a lot of insight into this whole proceeding.” The remaining four

commissioners then voted to deny Valley Oaks’s motion to disqualify Commissioner

Reece. Valley Oaks further argues that, later in the hearing, Commissioner Reece

indicated that he did not have to accept as correct the engineering report submitted with

Valley Oaks’s permit application simply because the report was sealed by a

professional engineer.




                                            17
        On appeal, Valley Oaks does not argue that the CWC erred in refusing to

disqualify Commissioner Reece. Instead, Valley Oaks argues that Commissioner

Reece’s comments show that his decision was contrary to Section 621.250.3’s mandate

that the CWC’s final decision “shall be based only on the facts and evidence in the

hearing record[.]” We disagree. Commissioner Reece voted to approve the AHC’s

recommended decisions in both cases in their entirety and without any modifications.

Valley Oaks does not specify anything in the AHC’s recommended decisions – including

its explanation in the Powell case for rejecting Valley Oaks’s engineering report – that

was based upon facts or evidence outside the record. Thus, despite Commissioner

Reece’s comments during the hearing, it appears that his final decisions were based

only on the facts and evidence in the hearing record, as Section 621.250.3 required.10

Valley Oaks has not met its burden of demonstrating that Commissioner Reece violated

Section 621.250.3.

        Regarding Commissioner Coday, Valley Oaks contends that his approval of the

AHC’s recommended decision in the Powell case was void because he did not approve

the AHC’s recommended decision in the Lone Jack case. As detailed supra, in the

Lone Jack case, the AHC recommended overturning the DNR’s permitting decision

based on two grounds: Valley Oaks’s failure to prove a continuing authority and its



10Valley Oaks’s reliance on Hauk v. Scotland Cty. Comm’n, 429 S.W.3d 459 (Mo. App. 2014), is
misplaced. Hauk was an appeal from the circuit court’s decision in a non-contested case. Id. at 461. In
explaining their reasons for denying the health permit in Hauk, the commissioners’ testimonies during the
hearing before the circuit court indicated that they ignored the language of the ordinance they were
purportedly applying and, instead, “‘each applied their self-determined, unwritten standard’ to make their
determination with respect to the application of the [ordinance].” Id. at 463. Hence, on appeal, the
Eastern District of this court properly affirmed the circuit court’s finding that the commission’s decision to
deny the permit was arbitrary. Id. In these contested cases, regardless of Commissioner Reece’s
comments during the hearing before the CWC, the CWC’s final decisions indicate that the decisions were
based solely upon evidence in the record and, therefore, were not arbitrary or capricious.

                                                     18
failure to provide the required neighbor notice. In the Powell case, the AHC

recommended overturning the DNR’s permitting decision based those same two

grounds, plus two other grounds: Valley Oaks’s failure to provide a compliant nutrient

management plan and its failure to ensure the requisite minimum days of manure

storage. Valley Oaks argues that, because the two grounds in the Lone Jack case

overlapped with two of the four grounds in this case, Coday’s approval in the Powell

case was arbitrary and capricious. We disagree.

       Valley Oaks points to no statute or regulation requiring commissioners to explain

their votes or reasoning. It is only when the CWC modifies or does not adopt the AHC’s

recommended decision that the CWC must explain the specific reason why. §

621.250.3. While we do not know why Coday did not approve the AHC’s recommended

decision in the Lone Jack case, a simple explanation could be that he found the other

two grounds for denying the permit in the Powell case – the failure to provide realistic

yield goals for the fields it identified for land application of manure and the failure to

provide for adequate manure storage – more persuasive. Valley Oaks has not

demonstrated that Coday’s approval of the AHC’s recommended decision in the Powell

case was arbitrary and capricious. Point IV is denied.

Points V, VI, and VII – Continuing Authority and Transfer

       In Points V and VI, Valley Oaks asserts that the CWC erred in determining that

its permit application was deficient because it failed to identify a continuing authority.

Valley Oaks contends any typographical error associated with its identification of

“Country Club Homes LLC” as the continuing authority for the operation and

maintenance of the CAFO was not fatal to the permitting process and that, in approving



                                              19
the permit, the DNR properly followed its “historical application” of the regulations

addressing the issuance of permits. In Point VII, Valley Oaks asserts that the CWC

erred in determining that, based on the failure to identify a continuing authority in the

permit application, the subsequent transfer of the permit was ineffective.

       In denying the permit to Valley Oaks, the CWC concluded that Valley Oaks

“failed in th[e] simple task [of identifying the entity to serve as a continuing authority],

and the DNR failed to ask it to correct the mistake pursuant to 10 CSR 20-6.300.” The

CWC made the following findings of fact in support of this ruling: On December 19,

2017, Ward submitted a permit application for a proposed CAFO. Greg Caldwell, an

employee of the DNR for more than thirty years, reviewed the application. The

application listed “Country Club Homes LLC” as both the owner and continuing authority

for the CAFO facility. The CWC determined that a “Certificate of No Record,” dated

June 27, 2018, from the Missouri Secretary of State indicates than no entity named

“Country Club Homes LLC," with the address [as stated on the permit] exists. Caldwell

testified that he had reviewed the Secretary of State’s website and found information for

an entity named “Countryclub Homes, LLC” and assumed that the application identifying

“Country Club Homes LLC” as the continuing authority merely contained a typographical

error. The CWC found that “Caldwell did not communicate with the permit applicant or

the [permit applicant’s] engineer concerning the purported typographical error.”

       Nevertheless, on June 15, 2018, the DNR issued the instant permit for the

operation of a Class IB CAFO. The permit had another typographical error and was

issued to “County [sic] Club Homes, LLC.” Ward then requested the permit be

transferred to “Valley Oaks Real Estate, LLC.” On August 9, 2018, the DNR issued the



                                              20
modified permit “for ownership transfer and facility name change” to Valley Oaks Real

Estate, LLC.

          10 CSR 20-6.010(3)(A), in effect at the time of Valley Oaks’s permit application,

states:

                 All applicants for construction permits or operating permits shall
          show, as part of their application, that a permanent organization exists
          which will serve as the continuing authority for the operation,
          maintenance, and modernization of the facility for which the application is
          made. Construction and first-time operating permits shall not be issued
          unless the applicant provides such proof to the department and the
          continuing authority has submitted a statement indicating acceptance of
          the facility.

The term “continuing authority” is not defined in the text of the regulations, see 10 CSR

20-2.010,11 but we have previously stated that, under agency interpretations of 10 CSR

20-6.010(3) applicable here, the regulation “requires only a showing that an entity was a

permanent organization to satisfy the ‘continuing authority’ requirements.” Trenton

Farms, 504 S.W.3d at 164. Thus, 10 CSR 20-6.010(3) necessitates only that the

applicant “identify the entity which will serve the function [of operating, maintaining, and

modernizing the CAFO facility.]” Id. at 166.

          Here, we agree with the CWC that Valley Oaks failed to identify the entity serving

as a continuing authority. As a general matter, to be registered as a limited liability

company in the State of Missouri, an entity must, inter alia, have a name that is

“distinguishable upon the records of the secretary from the name of any corporation,

limited liability company, limited partnership, limited liability partnership, or limited


11 10 CSR 20-2.010 has since been amended to include a definition of continuing authority. 10 CSR 20-
2.010(19). This amendment is immaterial to the disposition of this appeal, however, as we apply the
regulations that were in effect at the time of the permit application. See, e.g., State ex rel. Wolfhole, Inc.
v. Scott Cty. Soil & Water Conservation Dist., 880 S.W.2d 908, 910 (Mo. App. 1994).

                                                      21
liability limited partnership which is licensed, organized, reserved, or registered under

the laws of this state as a domestic or foreign entity, unless” one of two inapplicable

exceptions excuses the noncompliance. § 347.020(3).

       The term “distinguishable” is not defined in the statute, so we look to a dictionary

to determine the term’s meaning. Kader v. Bd. of Regents of Harris-Stowe State Univ.,

565 S.W.3d 182, 187 (Mo. banc 2019). “Distinguishable” is defined as “capable of

being distinguished,” Distinguishable, W EBSTER’S THIRD NEW INT’L DICTIONARY 659

(2002), while the term “distinguish” means: (1) “to perceive as being separate or

different: [to] recognize a difference in”; or (2) to mark as separate or different (as one

thing from another).” Distinguish, W EBSTER’S THIRD NEW INT’L DICTIONARY 659 (2002).

There is no doubt that the entities “Country Club Homes LLC” and “Countryclub Homes,

LLC” are distinguishable from one another because they are easily perceivable as

different from one another. This observation is further supported by the fact that one

entity exists on the records of the Secretary of State and the other does not.

       Moreover, a limited liability company’s name, as set forth in its articles of

organization, “shall be the name under which the limited liability company transacts

business in this state unless the limited liability company registers another name under

which it transacts business as provided under chapter 417 or conspicuously discloses

its name as set forth in its articles of organization.” § 347.020(1). Valley Oaks does not

contend that “Countryclub Homes, LLC” registered the name “Country Club Homes

LLC” to transact business pursuant to Chapter 417 or that it conspicuously disclosed its

actual name during the permitting process. Instead, Valley Oaks argues that any

typographical error was cured because the DNR was able to intuit the correct permit



                                             22
applicant through context clues and additional investigation. However, this effort to cure

the deficiencies was in excess of the DNR’s authority because neither the regulation nor

statute12 provides for any such internal correction mechanism. Rather, the regulations

provide the following procedure for the DNR to handle incomplete or deficient

applications:

        When an application is submitted incomplete or any of the required permit
        documents are deficient, or if additional information is needed including,
        but not limited to, engineering design plans, the department will act in one
        (1) of the following ways:

        A. The department may return the entire permit application back to the
        applicant for re-submittal; or

        B. The applicant and/or the applicant's engineer will be notified of the
        deficiency and will be provided time to address department comments and
        submit corrections. Processing of the application may be placed on hold
        until the applicant has corrected identified deficiencies.

10 CSR 20-6.300(2)(E)4 (emphasis added).

        The regulation requires that the DNR, when presented with a deficient permit, will

either return all permit application documents to be resubmitted or notify the applicant

and/or the applicant’s engineer of the deficiency and provide the applicant and/or

applicant’s engineer with the opportunity to cure the deficiency.13 While we have no

doubt that the DNR could, on its own, create fully-compliant permit applications in short




12 In rendering its decision, the CWC determined that Section 644.052.8, which authorizes the
modification of permits, did not give the DNR the authority to make the changes to the permit application
at issue here. As Valley Oaks does not challenge this finding on appeal, we will not address it. See Lewis
v. Fort Zumwalt Sch. Dist., 260 S.W.3d 888, 890 (Mo. App. 2008); Rule 84.13(a).

13In fact, the record contains several examples of Caldwell offering Valley Oaks’s engineer the
opportunity to correct other deficiencies.

                                                   23
order, nothing in the text of the regulation or in any provided agency interpretation gives

the DNR the authority to sua sponte correct the deficiencies at issue here. See id.

       The record supports the CWC’s determination that Valley Oaks failed to

complete the “simple task” of correctly identifying the permanent entity that would

operate as the CAFO’s continuing authority and that the DNR did not follow 10 CSR 20-

6.300(2)(E)4 when it failed to ask Valley Oaks to correct this mistake. Valley Oaks has

not demonstrated how this finding was in conflict with the plain meaning of the

regulation or with the DNR’s historical application of any regulation. The CWC did not

err in denying Valley Oaks’s permit application on the ground that the application failed

to identify a continuing authority. Consequently, the CWC did not err in further holding

that, because the continuing authority on the original permit was a non-existent entity,

the transfer of the permit to “Valley Oaks Real Estate, LLC” was ineffective under 10

CSR 20-6.010(11)(A). Points V, VI, and VII are denied.

       Having found that the CWC properly denied the permit on the ground that the

permit application failed to identify a continuing authority, we need not address Valley

Oaks’s challenges to the CWC’s remaining grounds for denying the permit presented in

Points VIII and IX in the appeal of the Lone Jack case and Points VIII-XIV in the appeal

of the Powell case. See Knight v. Con-Agra Foods, Inc., 476 S.W.3d 355, 358-59 (Mo.

App. 2015).

Lone Jack’s Motion for Attorneys’ Fees

       Prior to the submission of its case, Lone Jack filed a motion for attorneys’ fees on

appeal pursuant to Section 536.087.1, which states:

              A party who prevails in an agency proceeding or civil action arising
       therefrom, brought by or against the state, shall be awarded those

                                            24
       reasonable fees and expenses incurred by that party in the civil action or
       agency proceeding, unless the court or agency finds that the position of
       the state was substantially justified or that special circumstances make an
       award unjust.

Section 536.087.2 similarly authorizes the award of reasonable fees and expenses “to a

party who prevails in any action for judicial review of an agency proceeding . . . unless

the court finds that during such agency proceeding the state was substantially justified,

or that special circumstances make an award unjust.”

       A party seeking to recover attorneys’ fees and expenses is required to file its

application for fees to the body before which it first prevailed. See § 536.087.3; see

also § 536.087.4; Mo. Real. Estate Appraisers Comm’n v. Funk, 492 S.W.3d 586, 593-

94 (Mo. banc 2016). Here, there is no dispute that Lone Jack has filed the necessary

application before the CWC. In light of our affirmance of the administrative decision, we

must remand this cause to the CWC to determine whether, pursuant to Section

536.087, Lone Jack is entitled an award of attorneys’ fees. See also § 536.087.4; Funk,

492 S.W.3d at 593-94.

                                       CONCLUSION

       The CWC’s final decisions in the Lone Jack and Powell cases are affirmed. The

cause is remanded to the CWC for a determination of Lone Jack’s entitlement to

attorneys’ fees.



                                                 _____________________________
                                                 LISA WHITE HARDWICK, JUDGE
ALL CONCUR.




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